i. ^ /^s/7 (Jnrnpll ICam ^rljool IHibtarg Cornell University 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/cu31924022804946 THE LAW AND PEACTICE 8UEEOGATE8' C0UET8. BY AMASA A. EEDFIELD. NEW YOEK: BAKEE, VOORHIS & CO., PUBLISHERS, 66 NASSAU 'STREET. ' 18T5. ' t^=^^ A ^<5^7<^ Entered, according to Act .of Congress, in the year eighteen hundred and seventy-five, by AMASA A. RBDPIELD, In the oflQce of the Librarian of Congress, at Washington. Baker & Godwin, Printers, 25 Park Row, N. Y. * PREFACE The publication of tlie present volume, the author venturps- to thint, does not call for an apology. Mr. Dayton's useful work on surrogates has long been out of print, and the last edition of Mr. Justice Willard's work on executors, which, to some extent, covered the same ground, was published in 1859. The extensive changes which have since then been introduced- into the statutes, and t&e'yery numerous reported decisions upon the subjects treated of, aside from the intrinsic importance of those subjects, would seem amply to justify the present fuU and, the author hopes, satisfactory statement of the law and practice of surrogates' courts; It js believed • that no reported case of any imiportance has escaped the attention of the author, notwith- standing their great number, and that the statutory provisions, very numerous and sometimes apparently incongruous, have been collated with the utmost care for accuracy of statement. It will be seen, on the most cursory examination of the following pages, that the effort has been made to condense rather than to amplify the matter in hand, so that, in brevity and accuracy of statement as well as convenience of arrangementi, it is not too much to hope that the work may prove to be a useful practical guide in the special practice of which it treats. It is more than likely that in the sixty surrogates' courts of ' this state, differences in the details of practice in some matters exist, and that statutory constructions have been adopted differ- ing from those expressed in this volume. The author need hardly say that he will feel himself un^er special obligations for PREFACE. any information of such diSerences, or for suggestiens for im- provement in the text, in case a second edition shonld be cafled for. The author acknowledges with pleasure the assistance he has received from Mr. Henet Gr. Atwatee, of the New York Bar, in the preparation of this volume, especially the Forms, which are whoUy his work. TABLE OF CONTENTS. OHAPTEE I. PACE. CONSTITUTION AND ORGANIZATION OF SURROGATES' COURTS, 1 OHAPTEE II. JURISDICTION AND POWERS OF SURROGATES' COURTS. Art. 1. — General statutory jurisdiction . . . . . ' 10 3. — Limitation of general powers .... 30 3. — Incidental jurisdiction and powers . . . .33 4. — Concurrent and exclusive jurisdiction ... 35 5. — Deposit and custody of wills . . . . .30 CHAPTBE III. • COMMENCEMENT OF PROCEEDINGS AND EXECUTION OF ' PROCESS. Abt. 1. — Original process and its service . . . . .33 3, — Execution of mesne and flnarprocess ... 36 OHAPTEE IV. PARTIES TO PROCEEDINGS IN SURROGATES' . COURTS, Aet. 1. — Heirs at law under statute of descents . . . .40' 3. — ^Next of kin under statute of distributions ... 48 3. — Other parties ....... 55 OHAPTEE V. • THE PROBATE OP WILLS, Abt. 1. — Proceedings before application for probate ... 58 3. — Application for probate . . . . . .61 Sec. 1. — Application, where made .... 61 3. — Who may apply for probate . . . .65 3. — Mode of application .... 66 TABLE OF CONTESTS. PAGE. Sec. 4— Who to be cited . . . . .• 68 5. — The citation and its service ... 69 6. — Appointment of special guardian for minors, luna- tics, &c. . . . . • .71 Aet. 3. — Proof of -wills ...... 73 Sec. 1. — Uncontested and contested probate . . .73 3. — Pacts material to the question of probate . . 73 SpBD. 1. — Execution, publication and attestation of will . . . . .73 3. — Testamentary capacity ' . . 83 3. — Fraud and undue influence . 84 4. — The custody of the will . • . 88 5. — Revocation of the will . . .89 6. — "What law governs formalities of execution 95 3. — Means of proof and competency of evidence . 96 SuBD. 1. — The subscribing and other witnesses . 96 3. — Competency of witnesses : . 99 3.— Experts . . . . .103 4. — Non-resident witnesses and foreign probate 105 4. — Order of evidence. — Presumptions. — Burden of proof 105 4. — Codicils and instruments annexed .... 113 5. — Lost and destroyed wills ...... 114 6. — Nuncupative wills . . . . .116 7.— decree granting or refusing probate . . . . . 117 8. — Record of will and probate ..... 130 OHAPTEE VI. CONTESTING WILL ON ALLEaATIONS AFTER PROBATE . 135 OHAPTEE VII. CONSTRUCTION AND INTERPRETATION OF WILLS . . 138 OHAPTEE VIII. f/ETTERS TESTAMENTARY. Abt. 1. — When and to whom letters issue . . • . . 135 3. — Necessary qualifications . . . , . 1 Ss 3. — Renunciation and acceptance of appointment . . . 140 4. — Revocation of letters ...... 143 5. — Supplementary letters .... . 147 6. — Foreign letters ...... 147 7. — ^Effect of letters as evidence . . . . 143 TABLE OF CONTENTS. Vll CHAPTEE IX. FiaE, ADMINISTRATION WITH THE WILL ANNEXED . . 149 CHAPTEE X. INTESTACY AND LETTERS OF ADMINISTRATION. Abt. 1. — Jurisdiction in cases of intestacy .... 156 3. — Who are entitled to letters ..... 169 3. — Proceedings to obtain letters . ... . . 163 4. — Qualifications of administrator .... 166 5.— Effect of grant of letters . . . . .168 6. — Revocation of letters ...... 169 7.— Administration de honia non ..... 172 CHAPTEE XI. PUBLIC ADMINISTRATORS. Abt. 1. — General principles .. . . . . . 174 2.— Public administrator in the city of New York . .178 3. — Public administrator in the county of Kings . . 186 4. — County treasurers, when acting as public administrators . 187 CHAPTEE XII. LETTERS OF COLLECTION 191 CHAPTER XIII. PROCEEDINGS FOR RECOVERY OF ASSETS. Abt. 1. — Proceedings before issue of letters .... 198 2. — Proceedings after issue df letters . ... . 199 CHAPTEE XIV. INVENTORY AND APPRAISAL OF ASSETS. j^HT, 1, — ^What constitute assets ...... 204 3.— Articles set apart for the family of the deceased . . 209 3. — Method of making appraisal and inventory . . . 313 4. — Compelling return of inventory . . . .215 5. — Efiect of inventory as evidence . . . ■ ■ SI'? Vlll TABLE OF CONTENTS. OHAPTBE XV. PAOE. THE RIGHTS AND LIABaiTIES OF EXECUTORS AND ADMINISTRATORS. • Aet. 1. — The object and office of administration . . . 218 3. — The estate of executors and administrators . . . 333 Sec. 1. — The nature of the estate .... 233 3. — The quantity of the estate .... 336 3. — ^When the estate vests .... 231 3. — Surrogate's control and supervision in matters relating to the estate. . . . . . . .381 4. — Sales of property ...... 333 Sec. 1. — Powers and authority to deal -with estate . . 333 3. — Sales 6t real estate ..... 236 3. — Sales of personal estate . . . ' . 236 , 5. — ^Rights of action of executors and administrators . . 337 6. — ^Liabilities of executors and administrators . . . 346 Sec. 1. — Liability on obligations of deceased . . 346 3. — Personal liability of representative . . . 248 CHAPTER XVI. MORTGAGE, LEASE, AND SALE OF REAL PROPERTY FOR PAYMENT OF DEBTS .253 CHAPTER XVII. PAYMENT OF FUNERAL EXPENSES AND DEBTS. Abt. 1. — ^Funeral expenses ...... 380 3. — Preferred debts . ' . . . . . .281 3. — ^Payment of debts in general .... 285 4. — Time of payment ...... 290 5. — Compelling payment ...... 303 CHAPTER XVIIT. LEGACIES. Akt. 1. — Gifts mortis' causa . . . . . .308 2. — Of legacies generally ...... 313 3. — Different kinds of legacies ■ . . . . . 330 4. — Legacies to debtors and creditors .... 325 5. — Ademption and satisfaction of legacies . . ' . . 337 6. — ^Abatement of legacies ..... 339 7. — Lapse of legacies ...... 333 8. — Trusts. — Restraints upon alienation and accumulations . 335 9. — ^Payment of legacies and interest .... 841 TABLE OF CONTENTS. OHAPTEE XIX. PAOE. PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES IN ADVANCE OF PINAL ACCOUNTING AND DISTRIBUTION 347 OHAPTEE XX. ACCOUNTINGS. Aet. 1. — Of the jurisdiction of proceedings for an accounting . 355 2. — The diiferent kinds of accounting in surrogates' courts . 358 3. — The rfght to require an accounting, and from whom . . 359 4. — The application for an accounting .... 365 5. — The property to be accounted for . . . . 371 6. — The form and contents of the account and vouchers . 375 7. — Final or adjudicated accounting .... 380 8. — Commissions and other compensation of the executor or ad- ministrator ...... 383 9. — Contesting the account and its settlement . . . 387 10. — The decree and its effect '. . . . . 403 OHAPTEE XXI. GUARDIANSHIP. Aet, 1. — Appointment and general powers .... 408 2. — Accountings ....... 415 3. — Removal and resignation . . ' . . . 420 OHAPTEE XXII. TESTAMENTARY TRUSTEES 434 OHAPTEE XXIII. PROCEEDINGS TO ENFORCE DECREES . . . ' . 436 OHAPTEE XXIV. PROBATE OF HEIRSHIP 432 OHAPTEE XXV. ADMEASUREMENT OF DOWER . . . ' .433 TABLE OF COICTENTS. OKAPTBE XXVI. FAOB. PEES AND COSTS , . 441 CHAPTER XXVII. APPEALS FROM SURROGATES. Akt. 1. — In general ....... 446 2. — ^When an appeal will lie . . . . . 449 3. — ^Who may appeal ...... 451 4. — ^Parties, notice, security, and stay of proceedings . . 453 5. — The petition, answer, and surrogate's return . . . 458 6.— The hearing . . . . . . . 462 7. — The decree and costs ...... 465 , 8. — ^Enforcement of decree . . . . 468 EORMS 473 INDEX 631 JABLE OF CASES CITED IN THIS VOLUME. Abbey v. Christy, 79, 463. Ackerman v. Emott, 400. Ackley v. Dygert, 124, 255, 261, 266. Adams v. Beekman, 131, 134. Adams v. Outhouse, 367. Adams v. Perry, 317. Adams «. Winne, 89. Adsit V. Adsit, 324. Ainslie i>. Radcliff, 283. Akely v. Akely, 294, 295. Alden v. Clark, 305, 306. Alexander's Estate, 26. Alexander, Matter of, 136. Allen B. Bishop, 247. Allen's Estate, 56. Aliens). Public Admr. 85, 86, 87, 101, 109. Allerton v. Lang, 311. Alston V. Jones, 85, 449. Alton «. Midland R. Co. 242. Amer. Seaman's Friend Soc. v. Hop- per, 87, Ames V. Downing, 318, 249, 383. Amory v. Lord, 337, 338. Anderson, Matter of, 155, 424. Andrews, Matter of, 409. Andrews ii. N. Y. Bible Soc. 334. Annett v. Kerr, 21, 167, 865, 428. Annett v. Terry, 428. Anthony v. Brouwer, 334. Applegate «. Cameron, 212. Arcularius v. Geisenhainer, 130. Armstrong v. Moran, 332, 335. Arnold v. Gilbert, 338. Ashwell V. Lomi, 85. Atkins V. Kinnan, 255, 257, 273. Atkinson, Matter of, 28. ■ Atty. Gen. v. Minister &c. 317. Atty. Gen. v. Reformed Dutch Church, 317: Austin V. Munro, 243, 248, 387. Averill ii. Taylor, 223. Baboock ». Booth, 60, 222, 240. Babcock v. Lillis, 385, 390. Baggott V. Boulger, 394, 438, 480. Bagley v. Blackman, 78. Bain ». Pine, 340. Bainbridge v. McCullough, 459. Ball V. Miller, 358. Bank of Lansingburgh v. Crary, 206. Bank of Poughkeepsie v. Hasbrouck, 859, 406. Banks v. Pbelan, 317, 331, 339. feanks V. Taylor, 401, 413, 417, 459. Banks v. Walker, 47. . Banks ». Wilkes, 401. Barber v. Converse, 165, 171. Barber «. Winslow, 14. Barker a. Woods, 334. Barlow v. CoflBn, 91. Barnes «. HuSon, 333. Barnes v. Underwood, 49, 53, 163. Bartlett, IJxp. 409, 413. Bartlett «. Mayor &c. 64. Baskin «. Baskin, 77, 78, 195, 899. Bate D. Graham, 244. Bates V. Hillman, 130. Bayeux «. Bayeux, 136. Bay V. Van Rensselaer, 450. Beach v. Reynolds, 246. Becker ■». Hager, 368. Beckham v. Drake, 342. Beck «. McGillis, 317, 318, 838. Beddoe v. Wadsworth, 340. Bedell v. Carll, 309, 312. Beebe «, Griffing, 46. Beecker v. Beecker, 346. Beeden v. Knowlton, 301. Beekman i>. Bonsor, 155, 239, 316, 888. Beekman v. People, 155. Behrle v. Sherman, 439. Belden ». Meeker, 14, 148, 169, 239. Bellinger v. Ford, 148, 199. Belmont v. O'Brien, 280, 888. Xll TABLE OP CASES. Benedict v. CafFee, 300. Bennett «. Byrne, 411, 413. Benson v. Le Eoy, 389. Bentley, Matter of, 306. Bemes v. Weisser, 384. Berrien's Estate, 283. Betts V. Jackson, 92. BioUey's Estate, 414. Birdsall v. Hewlett, 335, 843, 345. Bishop V. Bishop, 94, 333. Blanchard «. Nestle, 83, 85, 87. Bleecker ». Lynch, 68, 85, 86. Bloodgood V. Bruen, 328, 286, 357, 364, 369. Bloom V. Burdick, 13, 257, 260, 269. Bloomer ». Bloomer, 91, 93, 313. Board «. Board, 35, 437. Bodle V. Hulse, 141. Bogardus «. Clark, 119. Bogart «. VanVelsor, 307, 381. Bogert V. Furman, 49, 207. Bpgert 1). Hertell, 235, 237. Bdltbn ». Jacks, 14, 15, 30, 33, 64, 66, 328, 234. Bonard Will Case, 84, 103. Bonfanti ®. Deguerre, 368. Booth V. Amerman, 344. Bostwick V. Atkins, 413. * Botsford 11. Krake, 117. Bowen v. Idley, 39, 114. , Bowers v. Emerson, 154, 239. Boyce «. City of St. Louis, 314. Boyd D. Davis, 140. Boynton v. Hoyt, 338, 340. Bradhurst v. Bradhurst; 139. Bradner v. Faulkner, 313, 343, 347. Brand ii. Brand, 101. Brant v. Wilson, 91. Brevoort v. McJimsey, 168, 368. Brick Presby. Church; Matter of, 227. Brick's Estate, 10, 33, 24, 35, 34, 55, 61, 70, 130, 407, 413, 417. Bridgewater i). Brookfleld, 333. Brigham «>. Bush, 311. Brittain v. Kinnard, 14. Britton v. Lorenz, 101. Brocket v. Bush, 295, 303. Brockway v. Jewett, 440, 447, 453, 467. Bronson's Estate, 136. Bronson v. Ward, 380, 450, 451. Broome ». Van Hook, 390, 396, 401. Brower v. Bowers, 357. Brown ». Brown, 163, 330, 222, 405. Brown v. Burlingham, 44. Brown ». De Selding, 78, 80, 81. Brown v. Evans, 453. Brown, Uxp. 1-52, 153. Brown v. Lynch, 64, 409 Brown d. Lyon, 139. Brown v. Public Admr. 284. Brown v. Torrey, 110. Brugh V. Holland, 86,87, 99. Brush V. Wilkins, 93. Bryant «. Bryant, 344. Buckhout 1). Hunt, 290, 291, 301. Buckley ». Buckley, 205. Bucklin v. Chapin, 243, 394, 296. Bulklev V. De Peyster, 338. Bulkley v. Redmond 38, 92, 115, 159, 171. Bull, Matter of, 173, 335, 434. Bullock V. Bogardus, 301. Bumstead v. Read, 13, 14. Bunce v. Vandcr Grift, 139. Bunner v. Storms, 230. Bunn 1). Vaughan, 329. Burger v. Hill, 25. 39, 83, 85, 87, 88,, 118. Burhans v. Burhans, 396. Burhans ». Haswell, 112. Burrill i>. Boardman, 314. Burrill v. Shell, 334, 3R9. Burritt v. SiUiman. 78, 87, 106, 330. Burt 1). Burt, 333, 245, 434. . • Burtis V. Brush, 413. Burtis V. Dodge, 19, 344, 385, 399. Burton v. Burton, 433. Burwell i>. Shaw, 140, 367. Butler V. Benson, 76, 80, 86, 98, 108,. 111. Butler V. Butler, 130, 337. Butler ». Emmet, 35, 357, 265, 273. Butler V. Hempstead, 303, 306. Butler, Matter of, 209, 214. Butts V. Genung, 356. » Caine v. Fisher, 439. Cairns ». Chaubert, 335, 384, 885j 894. Calanan ■». McClure, 399.' Campbell v. Bruen, 306, 380. Campbell ». Cowdry, 343. Campbell ». Logan, 11, 34, 77, 78, 79,. 81, 119. Campbell v. Rawdon, 139, 130, 131. Campbell v. Renwick, 276. Campbell v. Thatchef, 10, 33. Campbells. Tousey, 220.- Oarhart ®. Blaisdell, 296. Carle v. Underhill, 77, 78, 113. Carnes ». Piatt, 101. Carrol o. Norton, 77, 80, 86. Carter v. Hunt, 130. Case B. Abeel, 350. Case V. Towle, 403. Casey i). Gardiner, 141. CaujoUe ». Ferrie, 118. TABLE OF CASES. XUl CaujoUe's Appeal, 463. Caw V. Eobertson, 97, 100. Chaffee v. Baptist Miss. Convt. 76, 77, 78, 79, 99, 453, 458, 461. Chamberlain v. Chamberlain, 96, 314, 315. Chamberlain v. Williamson, 243. Champlin v. Baldwin, 46, 47. Champlin v. Champlin, 235. Chandler ». Northrop, 256. Chapman v. Fish, 163, 170. Chapman v. Tibbets, 413. Chase v. Ewing, 403. Cheeney v. Arnold, 108. Cheney v. Beals, 243. Child V. Child, 337. Chittenden's Estate, 413. Chouteau v. Suydam, 232, 251. Christy u. Clarke, 463. Christy v. Libby, 355, 357. Chrystie «. Phyfe, 139, 333. Churchill v. Pres'cott, 167,. 393. Clapp 1). FuUerton, 104, 448. Clapp V. Meserole, 154, 239, 330, 407. Clark V. Bogardus, 327. Clark V. Clark, 328, 336, 353, 293, 335, 414. Clark «. Fisher, 85, 87. Clark V. Ford, 369, 370, 390. Clark V. Montgomery, 408, 414. Clark V. Smith, 93. Clarke «. Bogardus, 336, 337. Clarke i). Cummings, 159. Clarke v. Davis, 84, 86, 87. Clarke ». Sawyer, 83, 86, 87. Clark's Estate, 93, 115. Clarkson v. Clarkson, 343. Clason V. Lawrence, 346. Clayton v. Wardell, 310, 390, 448, 469. Cleveland v. Whiton, 11. Clinch V. Eckfordj 384. Clinton ®. Hope Ins. Co. Close V. Van Husen, 354. Clowes V. Van Antwerp, 418. Clute V. Bool, 339. Coatea ». Oheever, 439, 440. Cobb V. Beardsley, 164. Coe V. Coe, 396, 297. Codding v. Newman, 140, 141. Coffin v. Coffin, 80, 81, 86, 87, 111. Cogswell V, Cogswell, 388, 343, 345. Cohen's Estate, 76. Colburn v. Lansing, 308. Cole ». Irvine, 46. Colegrove «. Horton, 144. Collier ii. Idley, 106, 107, 135, 137. Collier «. Munn, 383, 393. Collin ». Collin, 134, 313. Collins c. Hoxie, 316, 394. Colson «. Brainard, 363. Colt V. Lasmer, 337. Colton 1). Ross, 119. Comstock V. Olmstead, 395, 301. Oonboy i>. Jennings, 76. Conklin v. Edgerton, 155, 339. Oonklin v. Moore, 334. Connolly ». Pardon, 133. Conover v. Hoffinan, 91, 330, 334. Converse v. Kellogg, 339, 340. Cooke V. Meeker, 344, 34,7. Cook «. Lee, 414. Coope V. Lowene, 139. Cooper V. Burr, 311. Cooper V. Felter, 31, 384, 398, 399, 391. Cooper, Matter of, 430, 431, 436. Cooper V. Eemsen, 333. Copley V. O'Kiel, 413. Cornwall's Estate, 258, 359. Cornwell v. Wooley, 3, 98, 100, 315. Corrigan v. Kiernan, 139, 408. Corwin «. Merritt, 11, 360. Cory «. People, 434. Coster V. Lorillard, 336, 337. Cotheal*. Cotheal, 331. Cotterell «. Brock, 144, 145, 146. Couch V. Delaplaine, 379. Coutant «, Schuyler, 310. Covell «. Weston, 274. CovenhoTen v. Shuler, 139, 130, 335. Cowles V. Thompson, 380. Cox ■». McBurney, 207. Cozine v. Horn, 411. Craig ». Craig, 330, 334, 310, 344, Craig V. Hone, 338. Crain «. Cavana, 433. Creely v. Ostrander, 86, 87. Crispell v. Dubois, 86, 106, 111. Crocheron «. Jaques, 333, 345. Cromer v. Pinckney, 139, 316. Cromwell «. Cromwell, 338. Crosby v. Wendell, 139. Crossman, Matter of, 173, 424. Cruger i>. Halliday, 230. Crumb, Exp. 409. Cullen ■». Miller, 454. Cumberland v. Codrington, 288. Cummings v. Banks, 233. Cunningham, In re, 393. Cunningham v. Souza, 144. Curtis V. Dutton, 301. Curtis v_. Stilwell, 391. Dakin u. Demming, 13, 361, 374, 382, 418. Dakin v. Hudson, 357. XIV TABLE OF CASES. Darley v. Barley, 87. Darling n. Rogers, 336." • Davies v. Skidmore, 18, 430, 449, 455 Davison ®. De Freest, 307. Davison's Estate, 96. Davone v. Fanning, 230. . Dawson, Sxp. 410, 411, 413, 414. Day V. Stone, 356. De Barante v. Gott, 338. Decker v. Miller, 207, 214, 245, 283, 356. Decker v. Mort^, 368. De Diemar v. "Van Wagenen, 397. De Kay «. Irving, 129, 338. Delafleld v. Parish, 83, 85, 86, 90, 106, 111, 195. Delaplaine v. Lawrence,- 270, 572, 450, 453. Delmotte ». Taylor, 309, 311. Demarest i>. Wynkoop, 241.' De Ngttback v. Astor, 129, 320. Depau's Estate, 151. DePeyster i>. Clarkson, 413. De Peyster v. Clendening, 239, 330, 325. De Peyster ». Ferrers, 383. ' Devin v. Patchin, 19, 450, 463, 464. Dewitt V. Barlev, 104. Dewitt ». Barly", 104. De Witt ». Chandler, 317. De Witt V. Yates, 324. Diaper v. Anderson, 416, 417. Dieterich's Estate, 99. Diez, In re, 82. Diez, Matter of, 37, 77. Disbrow b. Henshaw, 409. Disosway «. Bank of Washington, 371, 387. Dobke V. McClaran, 10, 24, 130, 463. Dodge V. Crandall, 303. Dodge «. Manning, 345, 346. Dodge V. Pond, 316, 338, 340, 344. Doe 1). Roe, 77, 80, 81. Dolbeer v. Casey, 291, 392; Dole V. Irish, 157. Dolf ». Bassett, 439. Dominick v. Michael, 154, 329. Doolittle V. Lewis, 163, 223, 338. Doran ». Dempsey, 17, 18, 307. Dorland v. Dorland, 334. Doty V. Willson, 373. Doughty V. Stillwell, 53, 335, 327, 338. Douglass v. Mayor &c. 64. Douglas V. Satterlee, 321, 225, ^52. Downing e. Marshall, 100, 205, 288, 333, 335, 336, 384. Dox 1). Backenstose, 232. Drake v. Price, 384, 387. Dubois V. Dubois, 350.- Du Bois «. Ray, 130, 334. Dubois V. Sands, 22, 302. Dudley v. Griswold, 395. Dudley v. Mayhew, 13. DuflFy V. Duncan, 400. Dunning v. Ocean Nat'l Bank, 155, 239, 239. Dunscomb v. Dunscomb, 399. Dupuy V. Seymour, 28. Durando v. Durando, 433. Dustan «. Dustan, 323. Dutton D. Dutton, 410, 412. Dyckman v. Mayor &c. of N. Y. 14. Dye V. Kerr, 400. Dyer, Matter of, 23, 409, 412. Eagle v. Emmett, 159, 336. Ean V. Snyder, Easton, Matter of, 28. Eaton «. Benton, 326. Eddy V. Traver, 259, 277. Edgerton v. Conklin, 130, 134. Eells V. Lynch, 338. Egberts i>. Wood, 227. Elder v. Bogardus, 243. Ellicott V. Mosier, 434. Elliot 0. Cronk, 298. Elliot V. Gibbons, 414. Elliot u. Lewis, 380, 393. Ellison ». Miller, 313. Elmer v. Kechele, 139. Emerson ■». Bowers, 138, 139. Emerson v. Spicer, 413. Emmons v. Cairns, 336, 338, 339. Enders v. Bnders, 331. Ennis i>. Pentz, 334. Erwin v. Loper, 394. Erwin v. Lowry, 14. Estate of Ellen Farrell, 60. Everitt v. Everitt, 116, 130, 322, 333, 338, 339. Everts i). Everts, 35, 66, 380, 358, 393, 394. Evertson «. Evertson, 413. Evertson v. Tappen, 396. Eyre ■». Higbee, 207. Fairman's Appeal, 280. Farley v. McConnel, 164. . Farnsworth ». Oliphaut, 22, 361. Farrell's Estate, 361. Parrington ». King, 255, 262, 264. Faulkner, Matter of, 60, 148. FaviU V. Roberts, 255. Pay's Estate, 136. Ferguson v. Broome, 354, 259, 263, 264. Perrie ». Public Admr. 161, 166. TABLE OF CASES. XV Ferrin v. Myrick, 343, 249, 381. Field V. Field,"338, 339. Field 0. Sctiefifelin, 234, 413. Fish V. Crane, 300. Fisher v. Fisher, 348, 383, 386. Fish's Estate, 344. .Fitch «. Witbeck, 357, 358, 359. Fitzpatrick v. Brady, 306. Flagg v. Euden, 399, 306. Flanagan v Tinen, 305. Flinn v. Chase, 22, 141, 143, 169, 338. Floyd V. Barker, 333. Floyd ®. Fitcher, 333. Flynn v. Croniken, 346. Foley V. Egan, 384, 385, 418, 419, 435. Fonda v. Penfleld, 229. Foot V. Gooding, 301. Forbes v. Halsey, 256, 258, 271. Foreman v. Foreman, 307. Foreman, Matter of, 74, 77, 84, 89, 93, 108, 465, 468. Forman's Will, 74. • Forsyth v. Bun, 215. Fort V. Gooding, 301, 336. Foster ii. Foster, 56, 65. 453, 454, 458. Foster v. Mott, 411. Foster v. Wilber, 33, 66, 357, 366. Fox ». Burns, 310. Fox V. Fox, 301. Fox ». Lipe, 256, 269. Fox, Matter of, 314. Francisco «. Fitch, 295. Frear's Case, 17, 18. Freligh v. Piatt, 305. Frink v. Morrison, 305. Frost V. Busbin, 64. Fuller V. Yates, 334. Furman ii. Coe, 398. Gale V. Wells, 413. Gamble v. Gamble, 77, 81, 87. Gansevoort v. Nelson, 393. ■ Gardiner o. Gardiner, 85, 86. Gardiner v. Tyler, 86. Gardner v. Brown, 447, 461. Gardners. Gardner, 87, 378, 388, 393, 458, 468. Gardner i). Heyer, 316. Gardner «. Miller, 141 , 335. Gardner v. Printup, 338, 333. Garnisa v. Gardiner, 400. 6^ates, Matter of, 19. Genet v. Binsse, 393, 303. Genet i>. Tallmadge, 241, 413. Gerken's Estate, 331. ■Gerry v. Post, 158. Giddings «. Seward, 338. Gilbert v. Knox, 80, 81. Gilchrist «. Rea, 453. Gilchrist v. Stevenson, 338. Gilman v. Gilman, 5, 79, 81, 393, 394, 935, 399, 452, 453, 458, 461. Oilman, Matter of, 74, 76, 80, 81. Gilman v. Eeddington, 336, 340. Ginochio v. Porcella, 303, 392. Glen.». Fisher, 343, 345. Glover v. Holley, 359, 425. Godding i>. Porter, 394, 297. Gombault v. Public Admr. 68, 79, 86, 110. Goodrich v. Russell, 433. Goodwin 1>. Nelin, 267. Goodyear v. Watson, 284. Gorham v. Ripley, 301. Gott V. Cook, 338, 339, 340. Gottsberger v. Smith, 31, 196. Gottsberger v. Taylor, 196, 480. Graham ». De Witt, 331. Graham ». Dickinson, 388. Graham v. Linden, 355, 365, 439. Graham ?;. People, 101. Graham* i>. Public Admr. 64. Grant v. Grant, 39, 78, 115, 116. Gratacap v. Fhyfe, 216, 366. Gray ». Murray, 383. Greeley, Matter of, 60, 65. Gridley ». Gridley, 333. Griffen v. Ford, 130, 336, 338. Griffith V. Beecher, 168, 237, 340, 443. Griswold v. Griswold, 383, 344. Griswold, Matter of, 89. Grymes v. Howe, 309, 310, 311. Guild 11. Peck, 56, 363, 380, 451. Gulick V. Gulick, 323. Gwin's Estate, 117. Haggart v. Morgan, 64. Haight v. Hayt, 800. Hale?). James, 489. Hall V. Partridge, 259. Hallett v. Hare, 54, 380. Halsey «. Reed, 389. Halsey v. Van Amringe, 19, 33, 35, 383, 461, 468. Halsted v. Hyman, 373, 399. Hamlen, Matter of, 433. Hanilm ii. Osgood, 333, 333. Hannan v. Osborn, 43, 340. Hard v. Shipman, 14. Hardy v. Ames, 392. Harring v. Coles, 49, 418. Harris v. Clark, 309, 810. Harris v. Ely, 366. Harris c. Fly, 835, 345. Harrison v. Harrison, 338. Harrison «. McMahon, 24, 120. XVI TABLE OF OASES. Hart V. Coltrain, 256. Hart i>. Marks, 53, 133, 317, 333. Hart «. Ten Eyc,k, 304, 350, 353. Hartnett v. Wandell, 136, 219. Harvey ». SkiUman, 301. Hasbrouck v. Hasbrouck, 873. Easier v. Hasler, 380, 393, 395, 400. Hassaid ». Rowe, 413. . Havens ». Havens, 313, 331, 327. Havens v. Sterman, 361. Havens ». Van Denburgh,.93. Hawley «. Donnelly, 458. Hawley «. James, 334, 389, 334, 386, 338, 340, 433. Haxtun b. Corse, 838, 339. Heady's Will, 75. Hedges v. Riker, 335. Heeney v. Brooklyn Benev. Soe. 314. Heeney v. St. Peter's Church, 205. Heidenheimer «. Wilson, 212. Hennessy's Estate, 313. Hepbnrn v. Hepburn, 388, 343, 344. Herkimer v. Rice, 208. Herrick ii. Grow, 334. " Hewitt V. Hewitt, 367. Heyer v. Burger, 81, 119. Hicks «. Gildersleeve, 354. Hicks V. Hicks, 192. Higbie v. Westlake, 374. Hill V. Burger, 88, 166. Hill V. Orockford, 124. . Hillman ®. Stephens, 168. Hine v. Hine, 329. Hoes V. Van Hoesen, 389, 346. Hoey ». Kinney, 207. Holbrook v. White, 340. Holcomb ®. Phelps, 14. Holdridge i). Scott, 303. Hollands. Ferris, 92, 115, 171. HoUenbeck «. Van Valkenburgh, 76, 81. Holley V S. G-. 387, 399. HoUister «. Hollister, 65, 356. Hobnes ®. Cock, 145, 146, 167, 338, 236, 441. Hone V. Kent, 313. Hone V. Van Scbaick, 139, 316, 334, 338, 339, 340, 845. Hood's Estate, 400. Hopjjer V. A6.ee, 396. Hopper's Estate, 108. Hopson, Matter of, 417. Hombeok v. Amer. Bible Soc. 317. Hornby, Matter of, 37, 96, 317. Horton v. Horton, 273, 373. Horton v. McCoy, 307. Hosack ®. Rogers, 18, 284, 385, 386, 394, 899, 400. House «. House. 305. House «. Rayi ond, 330, S85. Hoven v. Hoven, 113. Hovey ii. Smith, 284. Howard v. Moffatt, 343. Howe V. Lloyd, 303. Howell 4). Blodgett, 383. Rowland v. Heckscher, 353. Howland v. Taylor, 118, 447, 449, 464, 466. Howland v. Union Theo. Sem. 113. Hoysradt d. Kingman, 75, 79, 80, 81. Hoyt V. Bonnett, 292, 397, 399. Hoyt v. Hilton, 413. Hubbard v. Hubbard, 117. Hudson V. Reeve, 318. Hughes, Matter of, 409. Humphrey's Estate, 108. Hunn V. Case, 81, 108. Hunnen v. Day, 357. Hunnier v. Rogers, 334. Hunt V. Connor, 300. Hunt !). Mootrie, 78. Hunter v. Hunter, 336. Huntington v. Gilmore, 310. Hurtin v. Proal, 49. Hutchings v. Cochrane, 80, SI, 86. Hyatt V. Pugsley, 43. Hyde «• Hyde, 487, 449. Hyde v. Tanner, 359. Idley «. Bowen, 93, 115. Irwin V. Irwin, 106. laenhart v. Brown, 386, 342, 345. Isham ■». Gibbons, 32, 64, 66, 96, 105, 107, 159, 233. Jackson, Matter of, 413. Jackson v. Aspell, 437. Jackson v. Cbristman, 79, 99. Jackson ■». Green, 47. Jackson «. HoUoway, 93. Jackson v. Irwin, 256, 366, 369. Jackson v. Jackson, 76, 81, 87. Jackson v. Kniffen, 89. Jackson v. Luquere, 129. Jackson v. N. Y. Central R. R. Co. 103. Jackson v. O'Donaghy, 433. Jackson v. Potter, 92. Jackson v. Robinson, 331, 335, 359. Jackson v. Sears, 418. Jackson ». Van Dusen, 11,0. Jackson «. Waltermeyer, 485. Jacot V. Emmet, 399. Jacques v. Short, 342. Jauncey v. Rutherford, 453. Jauncey v. Thome, 75, 95, 98, 107. Jenkins v. Preyer, 131, 316, 345. TABLE OF CASES. XVll Jennings v. Jennings, 338. Jennings v. Phelps, 306. Jeroms «. Jeroms, 335. Jewett V. Keenholts, 268. Johnson v. Oorbett, 384, 385, 393, 378, 389, 401, 403, 434. Johnson o. picks, 107, 447, 448, 464. Johnson B. Johnson, 101. Johnson v. Eichards, 405. Jphnson v. Valentine, 131. Johnstone v. Beattie, 415. Jones, Matter of, 360, 376, 377, 378. Judah V. Stagg, 300. Judson V. Gibbons, 141, 338, 334. Julke V. Adam, 84, 86, 87. Jumel V. Jumel, 390. Kain b. Fisher, 206, 313. Kain v. Masterton, 373. Kane v. Gott, 139. Kane, Matter of, 418. Kapp v.. Public Admr. 313. Keeney v. Whitmarsh, 68, 70, 81. Kellett V. Eathbun, 34, 70, 350, 369, 383, 393, 458. Kellinger ». Eoe, 411, 453. Kellogg, Matter of, 384, 419. Kellum, Matter of, 119^ 135, 136. Kelsey v. Western, 345, 346. Kelso V. Cuming, 333. Kendall v. Grev, 101. Kerr ii. Kerr, 119, 170. Keteltas v. Penfold, 333. Kettletas v. Gardner, 431. Kidd i>. Chapman, 399. Kilpatrick v. Johnson, 316, 340. King V. Donnelley, 330. King V. Paddock, 159. King V. Bundle, 338, 340. King «. Strong, 331. King V. Talbot, 251, 344, 398. Kinne v. Johnson, 83, 84. Kinhe v. Kinne, 77. Kinney ». Public Admr. 309. Kinnier v. Kogers, 234. Kirby v. Carpenter, 285, 461. Kirby v. Turner, 167, 412. Knapp V. Curtiss, 301. Knickerbacker v. Seymour, 54. Knight V. Weatherwax, 94. Knights V. Quarles, 243. Knox «. Jones, 95, 96. Kohler «. Knapp, 11, 63, 64, 158, 306 333, 343. Kyle V. Kyle, 336. lake V. Ranney, 86, 111, 465. Lamberson, Matter of, 375. B Lamport «. Beeman, 386. Landers v. Staten Id. E. E. Co. 355. Lang V. Ropke. 836. Langdon v. Astor, 90, 113, 113, 339. Langton's Estate, 86. Lanaing v. Swarts, 398. Lansing v. Lansing, 351, 884, 396, 400. Lansing v. Russell, 111. Larocque v. Clark, 333. Larreau v. Davignon, 814. Lathrop v. Singer, 161. Latson, Matter of, 17, 18. Lawrence ». Brown, 373. Lawrence v. Elmendorf, 376, 389, 356. Lawrence i>. Embree, 344, 345, 847. Lawrence ». Hebbard, 95, 316. Lawrence v. Lawrence, 163, 345. Lawrence, Matter of, 369. Lawrence v. Miller, 373. Lawrence v, Norton, 98, 108. Lawrence v. Parsons, 13, 193. Lawrence's Will, 108. . • Leaycraft ii. Simmons,79, 81, 85, 86, 90. Lee V. Dill, 111, 338. Lee V. Lee, 19, 463. Le Fort v. Delafleld, 155, 360. Leggett V. Hunter, 330, 331, 336. •Leggett V. Perkins, 336. Leitch V. Wells, 237. Lemen v. Wood, 300. Leroy i>. Bayard, 316, 370, 390. Leslie v. Marshall, 335. Levin v. Euasell, 175, 186. Levy «. Levy, 814. Levy's Estate, 100. Lewis V. Jones, 453. Lewis V. Lewis, 77, 79. Lewis V. Smith, 433. Limburger v. Rauch, 86, 111, 413. Lindsay, Uxp. 90. Lindslay v. Deafendorf, 302. Livermore v. Bainbridge, 247. Livingston v. Freeland, 345. Livingstone. Livingston, 367, 388, 346. Livingston v. Newkirk, 335, 385, 389. Lloyd V. Lloyd, 318. Lockhart v. Public Admr. 177, 351. Lockwood V. Stockholm, 339, 346. Logan «. Deshay, 838. Loomis V. Loomis, 94. Lovett V. Kingsland, 130, 813. Low V. Purdy, 413. Lupton V. Lupton, 330, 344, 345, 346. Lush V. Alburtus. Lyman ». Parsons, 333. Lynes v. Coley, 289, 375. Lynes v. Townsend^ 134. Lyon «. Smith, 77, 80. XV]11 TABLE OF CASES. McCann v. Bradley, 300. McCartee u. Camel, 159, 306, 351. McCarthy v. Marsh, 47. McCormick «. C. P. R. B. 13. McCoriDJck, Mep. 136. McCormick v. P. C. R.R. 13. McCosker ». Brady, 230. McCoster v. Golden, 58, 163. McCoy V. Vulte, 318. McCray ii. McCray, 338. McCreery v. Somerville, 47. McDermut v. LoriUard, 335. McDonald, Ea^. 136. McDonough «. Loughlin, 81, 100. McGowan v. McGowan, 338. McGregor ». Buel, 140, 193, 449. McGregor v. McGregor, 139, 140, 343. McGuire v. Kerr, 76, 86, 87. Mclntyre i). Barnard, 306. McKay v. Green, 389. McKinstry «. Benson,. 340. McKnight «. Morgan, 343, 344. McLaughlin's Estate, 74. McLean «. Swanton, 47. McLoskey ». Raid, 90, 91, 333, 343, 343, 349, 414, 415. McMahon v. Allen, 385. McMahon v. Harrison, 139, 451, 467. McNabb v. Pond, 305, 337. McNamara i). Dwyer, 356. McNaughton ®. McNaughton, 131, 184. McPherson v. Clark, 91. McRae «. McRae, 354. McSorley ■». Leary, 434. McSorley v. McSorley, 87. McBorley v. Wilson, 338. McWhorter v. Benson, 388, 394. <<;Magee «. Vedder, 11, 806. Mahoney v. Gunter,> 306. Main v. Green, 318. Manahan v. Gibbons, 401. Mandeyille v. Mandeville, 145. Manice v. Manice, 340. Mann v. Lawrence, 384, 393, 400. Mann v. Mann, 183, 317. Manning v. Manning, 383, 399. Mapes v. Coffin, 383. Maples V. Howe, 268, 271, 373. Marble v. Lewis^ 439. Marine Bk. of Chicago «. Van Brunt, 305, 306. Marre v. Ginochio, 56, 374, 380. Marsh «. Hague, 316, 348. Marsh v. Wheeler, 334, 385. Marshall v. De Groot, 285. Marshall v. Moseley, 206. Marston v. Paulding, 21, 23. Martin v. Gage, 890. Martin v. Martin, 313. Marvin «. Marvin, 26, 84, 85, 109, 449; 454, 45S, 464, 464. Marvin v. Marvin, 56, 57, 447, 448. Mason v. Jones, 46, 130, 336, 340, 349, 458, 465. Mason v. Mason, 338. Mason v. Roosevelt, 883. Matthews v. Mayor &c. of N. Y. 186. Maurice v. Graham, 388. Maverick v. Reynolds, 86. Meach v. Meach, 309. Mead v. Merritt, 395. Meakings v. Cromwell, 338. Meehan v. Rourke, 79, 85, 87. Merchant v. Merchant, 311, 312, 372, 373. Merchant's Estate, 108. Merchants' Ins. Co. i). Hinman, 54. Merritt v. Seaman, 243. Merritt v. Thompson, 158, 800. Mesick v. Mesick, 352, 380, 394. Metcalf V. Clark, 856. Metzger v. Metzger, 879, 389. Middlebrook »■. Merchants' Bank, 147, 222. Miller v. Brinckeroflf, 15. Miller v. Philip, 345. Miller v. Receiver of Franklin Bank, 176. MiUs V. Pogal, 96. Mills V. Thursby, 301, 303. Minuse v. Cox, 399. Mitchell ». Blain, 331. Mitchell V. Mount, 384, 300, 304. Mitchell a. Stewart, 357. Moehring v. Mitchell, 159. Moehring v. Thayer, 82. Monell V. Monell, 352, 401, 415. Montgomery «. Dunning, 318, 374, 389. Montrose v. Wheeler, 31, 374. Mooers v. White, 254, 255, 265. Moore v. Darton, 310. Moore v. Griswold, 91, 108. Moore v. Lyons, 139, 131. Moore v. Mayor &c. 438. Moore «. Moore, 78, 86, 449, 463. Moore «. Willett, 344. Mootrie v. Himt, 192. Morehouse v. Cook, 411. Morgan ®. Andariese, 469. Morgan ®. Hannas, 383, 385, 386, 896, 419, 420. Morgan ». Masterton, 338. Morgan v. Morgan, 467. Morgan v. Skidmore, 300. MoiTell V. Dennison, 14. TABLE OF OASES. XIX Morrell v. Dickey, 119, 233, 343, 414. ]yiorris v. Kent, 333, 343. Morris v. Kniffin, 76, 79. Morrison v. Smith, 86, 87. Morton v. Morton, 316, 338, 339. Moses V. Murgatroyd, 388. Mosher v. Hubbard, 407. Mott V. Mott, 340. Moultrie ii. Hunt, 95. Mount 11. Mitchell, 449, 450, 455. Mowatt V. Oarow, 316. Mowry v. Silber, 86, 87, 111. Muir V. Trustees &c 60, 119, 330. Muir V. Wilson, 408. "Mulheran ®. Gillespie, 336. Mumford i>. Murray, 353. Munro's Estate, 4, 450. Munson ». Howell, 396. Murdock v. Giffotd, 305. Murray v. Blatchford, 331, 335. Murray v. Smith, 391, 393, 300. Myers v. Eddy, 139. Mygatt V. Wilcox, 407. Kelson o. McGififert, 74, 78, 91, 93, 108. Nelson ». Public Admr. 90. Newhouse v. Gale, 171, 457. Newhouse v. Godwin, 83, 84, 87, 107. Newton v. Bronson, 338, 334, 385. Newton v. Stanley, 331. Newton v. Sweet, 396. Newton's Estate, 108. Nexsen v. Nexsen, 79, 85, 87, 107. Nicholl, Matter of, 413. Nichols «. Chapman, 390. Nichols e. Komaine, 131. Nichols v. Smith, 395. Niles V. Stephens. 330. Nipper v. Groesbeck, 78. Norris v. Beyea, 130, 334. Norton v. Lawrence, 56, 57, 61, 73. Norton v. Norton, 337. Noyes v. Blakeman, 336. Nugent V. Vetzera, 415. N. Y. Blind Instit. v. How, 317. O'Brien ». Mconey, 336. O'Brien v. People, 104. Ogden V. Smith, 330. Ogilvie V. Ogilvie, 393, 399. Olmstead v. Vi'edenburgh, 303. O'Neil, Matter of, 431. O'Neil «. Murray, 85,. 86, 87, 107. Oppenheim v. Wolf, 158. Ordronaux v. Helie, 333. Orser i>. Orser, 108. Orton V. Orton, 330. Osterhout v. Shoemaker, 83, 87. Owen V. Moody, 64. Oxley V. Lane, 1 29. Paddock, Matter of, 281. Paff I.. Kinney, 11, 16, ll9, 406. Paige, Matter of, 85, 86,- 107, 448. Paley v. Sands, 170. Parish v. Parish, 453. Parker v. Garner, 347, 384. Parker v. McCluer, 354. Parker, Matter of, 31, 33, 333, 418. Parkinson v. Parkinson, 344. Parks «. Hardey, 487, 489. Parks «. Parks, 139, 388. Parsons v. Lyman, 53, 147, 148, 344, 375. Pascalis v. Canfield, 389. Patchen v. Wilson, 336. Patten's Estate, 333. Patterson ». Ellis, 334. Payne i>. Matthews, 385, 390. Peck V. Gary, 81, 87. Peck V. Mead, 374. Peebles v. Case, 99, 106, 109. Pelletreau v. Smith, 367. Pendleton v. Fay, 335. People V. Barnes, li, 429. People ex rel. B'klyn Indns'l School v. Kearney, 408, 413. Peopje 1). Byron, 413. People v. Corlies, 11, 438, 439. People V. Cowles, 37. People ex rel. Delamater v. Walmsley, 433. People V. Downing, 438, 481. People J). Gates, 101. People ». Guild, 437. People V. Hascall, 430. People V. Irvin, 47. People V. Judges of Alb'y Mayor's Ct. 303. People v. Justices of Chenango, 34. People V. Keyser, 335. People V. Lake, 103. People 11. Laws, 438. People V. Montgomery, 103. People v. Norton, 380. People V. Pelham, 17, 38, 88. People w. Pleas, 397. People 11. Robinson, 346. People «. Rowland, 439. People ®. Snyder, 315. People v. Stout, 101. People v. Townsend, 406, 43^, 480. People 11. Wilcox, 411. Perry v. Mitchell, 17. Persons v. Snook, 888. Person v. Warren, 83, 87. XX TABLE OF CASES. Peterson «. Chemical Bank, 64, 333. Peters v. Public Admr. 161, 164. Petrie V. Shoemaker, 83. Pew V. Hastings, 10, 3i, 130. Phelps V. Phelps, 338. Phelps «. Pond, 348. Phyfe, Matter of, 394, 403., Pierce «. Chamherlain, 344. Pierce, Matter of, 409, 411, 413. Pierrepont ». Edwards, 338, 330, 348. Pilling «. Pilling, 86, 464. Pinney ii. Fancher, 333, 344. Pirnie v. Purdy, 331. Pitts V. Jameson, 307. Pitta «. Pitts, 433. Place, Matter of, 373, 376. Plank V. Schermerhorh, 336. Plummer ». Murray, 331. Pond V. Bergh, 43, 130, 313. Pond V. Curtiss, 413. Porter's Appeal, 380. Post V. Hover, 130, 313, 334. Post V. Eetchum, 303. Potter 41. Merchant's Bank, 14. Poultney «. Randall, 413. Preacott's Estate, 400. Price v. Brown, 75, 95. Priest u. Watkins, 60, 148. Prince ».'Hazleton, 116. Pritchard ». Hicks, 119. • Proctor B. Vanmaker, 33, 170, 176, Proude i>. Whiton, 301. Pruyn «. BrinkerhofiF, 100, 453. Public Admr. v. Burdell, 175. Public Admr. d. Hughes, 53, 161. Pu"blic Admr. v. Peters, 161, 183. Public Admr. ■». Ward, 301, 303. Public Admr. «. "Watts, 57, 161. Pugsley V. Aiken, 348. Pumpelly v. Tinkham, 161. Purdy 11. Doyle, 389. Putnam v. Ritchie, 413. Quackenboss «. Southwiek, 330, 333, 345, 434. Quick B. Ludborrow, 341. » Rafferty v. Clark, 346. Rait «. Rait, 418. Ransom ». Nichols, 163. Rapalje v. Hall, 418, 419. Rappelyea v. Russell, 381. Rathbone v. Dyckman, 139. Rattoon v. Overacker, 148. Rayner v. PearsaU, 398. Rea «. McEachron, 373. Redmond n. Ely, 407. Redpath «. Rich, 47. Reid «. Vanderheyden, 61, 453. Remsen v. Brinckerhoff, 78. Reynolds «. Collin, 337. ■ Reynolds i>. Collins, 398. Reynolds ®. Reynolds, 331, 346. Reynolds ». Root, 84, 86. Riblet V. Wallis, 386. Richmond v. Poote, 357, 358, 367. Richter i\ Poppenhusen, 387, 374. Rickets ». Livingston, 336. Ricketts ». Weaver, 343. • Rider i>. Legg, 107, 108. Ridgeley ». Johnson, 335. Rieben v. Hicks, 79, 81, 369. Rigneyii. Coles, 355, 360, 361. Robert v. Ditmas, 395, 396. Roberts, Matter of, 38, 96. Robertson v. Caw, 315, 333. Robertson v. McGeoch, 140, 450. Robertson «. Sheill, 395. Robins v. Coryell, 76, 81. Robinson «. McGregor, 307. Robinson d. Raynor, 118, 448, 464. Robinson v. Robinson, 388, 840. Robinson v. Smith, 77, 91, 465. Robison «. Robinson, 363, 370. Rockwell V. Saundeis, 168. Rogers v. Hosack, 383, 389. Rogers B. King, 357. Rogers «. Lyon, 101. Rogers, Matter of, 386, '395. Rogers ii. Rogers, 386, 388, 395. Rogers v. Tilley, 336. Romaine, Matter of, 86. Roman Catholic Orph. Asyl. ». Em- mons, 133. Roome ». Philips, 155, 339. Roosevelt v. EUithorp, 339. Root, Matter of, 159. Root ». Stuyvesant, 95, 113. Roseboom v. Mosher, 330. Rose 1). Clark, 49. Rose V. Lewis, 406. Ross V. Roberts, 331. Rouse V. Whited, 393. Ruddon v. McDonald, 77, 79. Ruggles V. Sherman, 351, 383. Ruppert V. Union Mut. Ins. Co. 308. Russell V. Lane, 301. Russell «. Russell, 334. Rutherford «. Rutherford, 77, 78, 80, 81. Ruthven «. Patten, 31, 306. St. John V. Voorhies, 307. Salmon v. Stuyvesant, 95, 113. Salter v. Neaville, 385. 1 Salters v. Pruyn, 349. TABLE OF CASES. XXI Saltus, Matter of, 374. Saltus V. Saltus, 17, 18, 399, 426. Sanchez v. People, 103. Sanford v. Granger, 357, 358. Sanford v. Jackson, 334. Sanford «. Sanford, 101, 396, 331, 373. Sands v. Craft, 394, 395. Savage v. Burnham, 139, 338, 340. Schenck v. Dart, 118, 373, 885, 448. Schneider i). MoFarland, 355, 360, 361. Schoonmaker v. Roosa, 389. Schroeppel v. Hopper, 340. Schultz V. Dambmann, 96. Schultz V. Pulver, 333. Schultz V. Schultz, 39, 93, 114. Schuschard v. Reimer, 246. Scofleld V. Scofleld, 213. Scott V. Guernsey, 318. Scott, Matter of, 232. Scott V. Monell, 228, 386, 338, 398. Scoville V. Post, 303. Scovjl V. Scovil, 349, 386. Scribner v. Crane, 78. Scribner v. WOliams, 463. Seabury ®. Bowen, 283. Seaman"®. Duryea, 11, 17, 18, 36, 37, 307, 418. Sears «. Mack, 377. Sedgwick v. Ashburner, 338. Seguine v. Seguine, 78, 81, 84, 86. Selden «. Vermilyea, 235. Sell V. Dill, 86. Seymour v. Butler, 849. Seymour i). Seymour, 356. Seymour ». Van Wyck, 79. Sharp 1). Pratt, 380. Sharpsteen v. Tillou, 834. Sheldon v. Bliss, 210, 211, 216. Sheldon v. "Wright, 11, 14, 164, 360, 261, 269, 378. Shepherd v. McEvers, 280. Sherman v. Ballou, 410. Sherman v. Willett, 237. Sherman v. Youngs, 447, 467. Sherman's Appeal, 85, 90, 452. Sherry ». Lozier, 89, 93. Sherwood «. Johnson, 383. Sherwood v. Judd, 64, 436, 430. Sherwood v. Sherwood, 139. Sherwood «. Wooster, 223. Shields ». Shields,- 145. Shilton's Estate, 139, 140. Sholl V. ShoU, 837,-829. Shook V. Shook, 144, 145, 380. Shultz «. Pulver, 19, 35, 223, 375. Shumway ». Cooper, 162, 307,. 863. Sibley v. Waffle, 11, 258, 261. Siglar V. Van Riper, 433. Simmons v. Simmons, 91. Sipperly ®. Baucus, 10, 34, 130, 406. Sipperly, Matter of, 435. Sisson V. Conga, 104. Skidmore v. Davies, 33, 417, 449, 454. Skidmore v. Romaine, 355, 360, 364, 388. • Skidmore v. Shaw, 430, 449. Slate V. Scott, 14. Slocum V, Barry, 300. Slosson ». Lynch, 54. Smith V. Edmonds, 154, 367. Smith V. Gage, 340. Smith V. Jackson, 433. Smith V. Kearney, 336, 358. Smith «. Lawrence, 345, 356, 360, 363. Smith V. Patten, 300. Smith 11. Remington, 83, 66, 350, 463. Smith ». Smith, 81, 183, 314, 317, 433. 488, 449. Smith 1). Van Kuren, 868, 449. Smith V. Wait, 92. Smith V. Wyckoff, 132. Smith's Estate, 107, 122. Spear ii. Tinkham, 325, 400. Spicer's Estate, 55. Spinning's Estate, 152. Spotts V. Dumesnil, 447, 454, 456. Springsteen v. Samson, 280. Stagg V. Beekman, 282, 327. Stagg V. Jackson, 238, 386, 862, 364, 467. Stanton v. Wetherwax, 87. Stephens ii. Brooks, 27, 96. Stevenson, Matter of, 280. Stevenson v. Weisser, 384. Stewart «. Chambers, 317. Stewart v. Lispenard, 83, 87. Stewart v. Smith, 436, 439. Stewart v. Vail, 333. Stiles ®. Burch, 397, 406. Stilwell V. Mellersh, 112. Stires v. Van Rensselaer, 131, 316. Stone «. Morgan, 380, 450. Stone V. Scripture, 333. Stouvenel's Estate, 363, 367, 369. Stouvenel v. Stephens, 158. Stow v. Stow, 98. Stuart V. Kissam, 319, 330. Stubbs V. Hoywell R. Co. 241. Stuyvesant v. Hall, 225. Suarez v. Mayor &c. of N. T. 178. Suflfem V. Lawrence, 459. Sullivan's Estate, 142. Sutheriand ». Brush, 224, 337, 401. Swarthout v. Curtis, 413. Swarthout v. Oaks, 408. Sweet V. Chase, 180, 335. XXll TABLE OF CASES. Sweet V. Irish, 327. Sweezey v. Thayer, 207. Sweezey v. Willis, 48, 49, 159, 161, 207. Talbot e. Talbot, 466. Tappen v. Kaiii, 274, Tayloe v. Gould, 338. Taylor «. Delancey, 162. Taylor, Matter of, 110. Taylor v. Morris, 230. Taylor ii. Wendel, 334. Taylor "Will Case, 89, 101, 106, 107. Temple v. Hawley, 337. Terhune v. Brookfield, 57, 84, 86. Terpening v. Skinner, 139. Terrill ii. PubUc Admr. 317, 338, 334. Terry i>. Dayton, 293, 354. Terry ». Wiggins, 313. Terwilliger «. Brown, 271. Texidor's Estate, 148, 153. Thacker «. Henderson, 413. Thayer ®. Clark, 428, 430. Thayer ®. Mead, 458. Theological Sem'y of Auburn v. Cal- houn, 106. Thomas v. Bennett, 413. Thomas v. Cameron, 199, 338. Thomas v. Stevens, 317. Thompson v. Brown, 249, 251, 288, 289, 374, 397, 413. Thompson v. Cannichael, 354. Thompson v. Clendening, 337, 338. Thompson, M^. 116, 117. Thompson, Matter of, 90, 231, 304, 458. Thompson v. Quimby, 76, 86, 87, 113. Thompson «. Thompson, 87, 338. Thomson v. Thomson, 215, 216, 318, 241, 366, 370. Thorn ii. Coles, 338. Thorn v. Shells, 35. Thorn v. Shields, 65. Tifit «. Porter, 330, 343. Tillotaon u. Raqp, 328. Timon v. Claffy, 39, 115, 116. Tindal v. Jones, 393, 300. Tole «. Hardy, 345. Tonnele v. Hall, 76, 77. Tonnele, Matter ot; 77, 113. Torry v. Bowen, 78. Towner ®. Tooley, 426. Townsend v. Kendall, 415. Townsend v. Townsend, 484. Tracy v. Suydam, 296. Tracy i). Tracy, 346. Tradesmen's Nat. B'k v. McPeely, 243. Treat v. Fortune, 336, 390. Troup V. Smith, 248. Trustees of Auburn Theo. Sem. ®. Cole, 335. Trustees of Theo. Sem. i>. Kellogg, 180, 335, 334, 340. Tucker ». Ball, 334. Tucker v. Bishop, 131, 334. Tucker®. Tucker, 13, 31, 131, 299, 338, 391, 405. Tucker «. Westgarth, 162. Tunison i>. Tunison, 79, 81, 85, 86, 87. Tuttlev. Heavy, 408, 413. Tyler i>. Gardiner, 83, 464. Tyler v. Mapes, 79. TJnderhill v. Dennis, 411, 458. Upson «. Badeau, 393. Vail V. Vail, 53, 338, 354. Valentme ii. Jackson, 198, 199, 331, 340, 343. Valentine v. Valentine, 367, 386, 387, 393. Valentine ii. Wetherill, 46, 47.. Vallance «. Bausoh, 58. Van Alstyne v. Van Alstyne, 131, 134. Van Beuren i>. Dash, 333. Van Bramer e. Hoffman, 844. Van Cortland v. Kip, 112, 131. Vanderheyden v. Orandall, 47. Van Derheyden «. Reid, 463. Vanderheyden i>. Vanderheyden, 388, 886, 394. Vandermark v. Vandermark, 94, 452. Vanderpool v. Van Valkenburgh, 119. Vandervoort, In re, 238, 364. Van Derzeei). Van Derzee, 313. Van Deusen e. Sweet, 14, 355. Van Duyne «. Thayre, 433. Van Epps v. VanDeusen, Van Gelder ii. Post, 439. Van Guysling v. Van Kuren, 83. Van Hauswyck v. Wiese, 77, 81, 84, 86. Van Hooser v. Van Hooser, 78, 81, 108. Van Home v. Fonda, 397. Van Nest's Estate, 387. Van Nest v. Yoe, 336. Van Nostrand v. Wright, 357. Van Pelt »• Van Pelt, 111, 467. Van Rensselaer v. Jones, 343. Van Rensselaer ». Morris, 119. Van Slyke ». Schmech, 454. Van Vechten v. Van Veghten, 134, 338. Van Vleck v. Burroughs, 387. Van Wert ». Benedict, 73, 91, 113, 150. TABLE OF CASES. XXlll Van Wyck v. Alley, 463. Van Wyck v. Bloodgood, 833. Van Wyck, Matter of, 330. Varick V. Bodine, 338. Vaughan v. Burford, 77, 78, 81. Vedder v. Saxton, 210. Vemiilyea v. Beatty, 233. Vemam v. Spencer, 75, 77. Vielie v. Osgood, 205. Volckner «. Hudson, 309, 210, 433. Voorhees ». McGinnis, 305. Voorhees v. Voorhees, 39, 85, 115. Vreedenburgh v. Calf, 33, 34, 130. Vreeland v. McClelland, 15, 35, 65, 86, 87, 93, 111. Vroom «. Van Home, 147,* 148, 163, 333. Vulte v. Martin, 435. ' « Wade V. Kalbfleisch, 243. Wadhams ®. Amer. H. Mis. See. 82. Wadsworth i>. Alcott, 306, 343. Wadsworth, Matter of, 230. Wakeman v. Hazleton, 398. Waldron v. McComb, 335. Waldron v. Waldron, 286. Walker v. Schuyler, 439. Walrath ». Van Duzen, 301. Walsh V. Byan, 57, 68. Walsh's Estate, 76. Walton «. Walton, 154, 340, 321, 327, 374. Ward V. Kilts, 436. Ward, Matter of, 159. Ward, He, 153. Waring v. Waring, 307, 241. Warren v. Leland, 306. Warren «. Paff, 370, 890. Waters v. CuUen, 87. Watson V. Bonney, 162. Watson V. Donnelly, 87. Watson, Matter of, 17, 20, 36, 37. Watts 11. Aikin, 447. Watts «. Public Admr. 75. Waugh V. Waugh, 318. Weed V. Ellis, 413. Weir V. Fitzgerald, 86, 107, 111. Welsh, In re, 86, 111, 118. Welsh, Matter of, 85, 87. Wesleyan University v. Troy Confer- ence Academy, 314. Westcott 11. Cady, 325. Westerfleld «. Westerfleld, 389, 385. Westerlo ii. pe Witt, 310. Western v. Komaine, 19, 440, 441. Westervelt n. Gregg, 16, 56, 368, 879, 380, 888, 389. Wetmore ■». Parker, 34. Wever ii. Marvin 55, 57, 330, 360, 447. Weyman ii. Ringold, 388, 834. Wheaton v. Gates, 305. Wheeler «. Lester, 323. Wheeler v. Wheeler, 235. Whitbeck v. Patterson, 79, 81, 467. White V. Bullock, 387. White 11. Parker, 413, 418. White 11. Pomeroy, 411, 453. White. 11. Story, 295, 438, 439, 440, 464. White V. Wager, 809. Whitney v. Coapman, 362. Wightman «. Stoddard, 85, 86, 87, 132. Wilcox 11. Smith, 11, 19, 283, 850, 376, 379, 441, 443, 453, 467. Wilcox V. Wilcox, 409^ 413. Wilder ii. Keeler, 227, 289. Wilgus V. Bloodgood, 305. Wilkes V. Harper, 320. Williams' Case, 169. Williams u. Conrad, 334. WiUiams v. Crary, 326, 327. Williams, Matter of, 344. Williams ii. Purdy, 326, 379. Williams v. Storrs, 163, 332, 414. Williams ii. Williams, 814, 338, 340. Williamson d. Williamson, 380, 344, 463. Willis V. Mott, 77, 79. Willoughby «. McOluer, 218, 274. Wilson V. Baptist, 11. Wilson «. Baptist Eduo'n Soc. 310. Wilson 11. Hettrick, 108. Wilson 11. Moran, 86. Wilson V. Wilson, 313. Wilson V. Woodruff, 301. Winne v. Van Schaick, 803. Wood V. Brown, 230. 221, 245, 856, 868, 424. Wood V. Byington, 358, 363, 264. Wood V. Cox, 56. Wood B.'McChesney, 257, 259. Wood V. Seely, 437. Wood V. Vandenburgh, 280, 830. Wood v. Wood, 96, 142, 145, 824, 338, 413. Woodhead's Estate, 18. Woodin v. Bagley, 394. Woodruff V. Cook, 36, 357, 258, 371, 802. XXIV TABLE OF CASES. Woodruffs. Cox, 139. Woodruff «. Woodruflf, 341, 363. Worrall «. Driggs, 362, 383. Wright ®. Marshall, 337. Wright V. Meth. Epis. Church, 817, 405. Writner, Matter of, 16. Wurts V. Jenkins, 345, 356, 406. Wyman v. Wyman, 208. Yates V. Yates, 337, 338. York V. Peck, 395. Young V. Brush, 65, 3£0, 894. Youngs D.. Youngs, 388. Zilkin V. Carhart, 318. INTRODUCTORY NOTE. The courts of this country which possess original jurisdiction of mat- ters relating to wills and the administration of the estates of deceased persons, have occasion to resort constantly to the precedents established by the ec(!lesiastical courts of England, to whose jurisdiction in such matters they have succeeded in this country.* Down to a very recent period, the ecclesiastical courts formed a fundamental division of the judicial power of England, dating their origin from the principal epoch in the history of the origin of English courts of justice — the period from Edward I to Edward III. For a very long time, both before and after that period, their jurisdiction was a subject of vehement dispute between the clergy on the one hand, and the parliament and law courts on the oth^r. Eepeated instances of col- lision between the judges and the bishops as to the extent-of the juris- diction of the latter occurred, and the law courts frequently issued prohibitions against proceeding in the ecclesiastical courts with suits not legally cognizable there. From time to time the jurisdiction of the latter courts was restricted by legislation, until 1857, when it was very materially diminished by the establishment of the courts of probate and divorce and matrimonial causes. The ordinary ecclesiastical courts are the provincial or achiepiscopal courts of the provinces of Canterbury and York, being, in the former province, the court of arches, the prerogative or testamentary court and the court of peculiars ; and, in the latter province, the 'prerogative or testamentary court and the chancery court. There are also diocesan courts, the principal of which is the consistory court, which was formerly held in the cathedral or some aisle or chapel of the cathedral, the bishop presiding, but now usually held by the bishop's chancellor in some con- venient place in the diocese. * In an introductory note prefixed to the first volume of his reports, the late Surrogate Bkadfokd has given a succinct and interesting sketch of the origin of the ecclesiastical jurisdiction over the probate of ■wills and the administration of the estates of deceased persons, -which the reader will find well worth perusal. xxvi INTRODUCTOET NOTE. The prerogative courts had jurisdiction of wills and administrations of personal property left by persons having effects of a certain value, in the various jurisdictions within the province. The court of arches, so called because anciently held in the church of Saint Mary-le-Bow (S. Maria de Arcubus), exercised appellate jurisdiction in the province ■of Canterbury, and had also original jurisdiction in some testanaentary matters. From this court an, appeal lay to the judicial committee of the privy council. There is also the faculty court and a court of peculiars of the arch- bishop of Canterbury, the former having a voluntary or non-contentious jurisdiction, and the latter having both contentious and voluntary juris- diction, in matters relating to wills and letters of administration, though the voluntary jurisdiction of the former courts, and a great p%,rt of that -of the latter, have now been abolished. In general, causes cognizable in the ecclesiastical courts were formerly classified as beneficial, matrimonial, testamentary, and criminal. The jurisdiction in testamentary matters is now transferred to the pro- bate courts and others. The matrimonial jurisdiction, except as to -granting marriage licenses, is transferred to the court for divorce and matrimonial causes. The jurisdiction in criminal suits, including church discipline and the correction ,of offenses of a spiritual kind, and the beneficial jurisdiction relating principally to ecclesiastical dues and fees, rights of ecclesiastical patronage, validity of presentations to livings, and dilapidations of the chancel or parsonage house, are still exercised by these courts. As before observed, all jurisdiction, both voluntary and contentious, •of the ecclesiastical and other courts, in testamentary causes, and with respect to granting or revoking letters of administration, is now taken away from those courts and transferred to other courts, of which the prin- cipal is a court of probate sitting in London, having jurisdiction throughout all England. Where there is no contention as to a grant of probate or -of letters of administration, the grant is in " common form," and is now made either in the principal registry in London, or in the district regis- tries throughout England and Wales. Where there is a contention, the questions of probate or grant of letters are determined judicially in "" solemn form " in the court of probate, except where the estate does not exceed a certain amount, in which cases the county courts exercise jurisdiction. The probate court may try questions of fact itself, or may direct an issue to be tried before any of the superior courts.* In the English colonies of Arnerica, the jurisdiction of the ecclesiastical * 20 404, 412, 415 ; Recm-ds of Wills in N. T. Surrogates Office, lib. I, 1,3, 10, 19, 21, 28, 31, 38, 41, 6T, 90, 91, 105, 190, 195, 2'70, 283, 356, 376, SW, 442 ; lib. II, 29 ; lib. Ill, 191 ; lib. IV, 129 ; BooTc of Inventories, vol. I, 1,5; Daly's Jud. Trib. 23-30 ; 2 Sev. X. o/ 181 3, app. Y). INTRODUCTORY NOTE. XXlX tishop of Canterbury should take place in the proVince, "as'farr as con- veniently may bee," except the collating of benefices, the granting of marriage licenses, and the probate of wills, which were reserved to 1;he governor ; and in a similar letter of instructions to Sloughter, in 1689, the ecclesiastical jurisdiction of the Bishop of London was added.* The ecclesiastical jurisdiction of the Bishop of London, so far as it related to testamentary matters or the administration of the estates of intestates, was limited to cases where the effects of the deceased were exclusively within the bishop's diocese, and the jurisdiction was exercised by a court held in the diocese by the bishops, commissary, or surrogate; but if the deceased had left effects in more than one diocese, then the Archbishop of Canterbury had exclusive jurisdiction, and the matter was heard be- fore his delegate in the prerogative courts, of which there were two, the prerogative offices at York and Canterbury, f After these instructions were received, a change took place in the course of procedure. The courts of sessions and the mayor's court con- tinued to exercise the same functions as before, but the governor or the secretary of the province also took proof of the execution of wills and of the inventory and appraisement of estates; and in 1691, under the administration of Lieut.-governor Ingoldsby, a clause was inserted in all letters testamentary or of administration, that the granting of such let- ters, the hearing of accounts, the reckoning of administration, and the granting of the final discharge, belonged to the governor, and' not to any inferior judge. If a will was proved before a secretary, he annexed a certificate that " being thereunto delegated," the will had been duly proved before him ; and an authentication, in the name of the governor, in the form that continued in use down to the Eevised Statutes, that the will had been "proved, approved, and allowed," under the prerogative- seal, was annexed, and the whole was recorded in the secretary's office — the validity of the record being attested by his signature. In this way a distinct department grew up in the secretary's office, which took the name of the prerogative office, and the records connected with it the name of the registry of the prerogative, and, by 1691, the whole became distinguished by the judicial appellation of the prerogative court.J The legislative assembly which was convened in 1683, having been * 3 Col. Doc. 372, 688, 820. f Ayliff's Parergon Juris Canonici Anglicana, 192, 834, Lond. 1726 ; Cfihson's Codex, 465, 471, 472, 478; Q-odolphin's Orphan^ Legacy, 106 ; 4 Imt. 335 ; Williams on Ex. 248, 4th Lond. ed. % Records of Wills in K Y. Surrogates Office from 1683 to 1690 and 1691, 182, 229. XXX • INTRODUCTORY NOTE. 4 established, was again reinstated in 1691, and, at its second session, in 1692, an act was passed * by which it was declared that the probate of all wills and letters of administration should thenceforth be granted by the governor, or such person as he should delegate, under the seal of the prerogative office ; that all wills in the counties of Orange, Richmond, Westchester, or Kings, should be proved in New York before the gov- ernor or his delegate, and in. the remote counties in the courts of common pleas — tribunals which had been created in each county by an act of the previous session ; and where the proof was taken in the courts of com- mon pleas, it was required -to be certified under the hand of the .judge and clerk to the secretary's office in New York, where probate was granted. Where the estate was under £50, the courts of common pleas were authorized to admit the will to probate, or to grant letters of ad- ministration, and from their decision an appeal was allowe"d to the gov- ernor, or to the person he might .delegate to act for him. How this jurisdiction was then understood appears from a letter written the year following, by Clarkson, the secretary of the province, to the Lords of Trade, f " The governor,'' he says, " discharges the place of the or- dinary (the bishop) in granting administration and in proving wills, and the secretary of the province acts as registrar." The secretary of the province was an officer independent of the governor, holding his appoint- ment from the crown, the duties of which he discharged chiefly through a deputy. ■ Governor Fletcher, immediately after the passage of this act, in 1692, appointed this deputy his delegate, and he took proof of wills, which were afterwards approved and allowed in the name of the gov- ernor. In 1702, Lord Cornbury appointed as his delegate a Dr. Budges, who was afterwards chief justice of the province. The proof of wills was then taken before him, and upon hjs certificate letters were granted by the deputy secretary in the name of the governor. Before Dr. Budges, also, executors and administrators were sworn faithfully to exe- cute their trust ; the renunciation of executors was formally made be- fore him, and he took proof of inventories. This gentleman was a man of legal acquirements, and had received in England the degree of doctor of laws, and he was the first in the province to make use of the title of surrogate, adding it after his signature to all documents. J Dr. Budges having been appointed chief justice, Cornbury appointed the deputy secretary his delegate, and this officer, with the exception of a few inter- ruptions or changes, continued to act as the governor's delegate down to the time of the revolution. The provision in the act of 1692, which re- * Laws ofN.Y.fram 1691 to I'TSl, Smith account in actions brought to recover legacies or distributive shares, and wills of real estate were proved in the supreme court or the court of common pleas until the passage of the Eevised Statutes. The commissioners who prepared the revision of the statutes, which was adopted in 1830, while proposing some substantial reforms in the then existing law relating to wills and the administration of estates, de- clared in their report and notes,* that their principal object was • to adapt the written law to the actual existing law, and where that was settled, to express it in intelligible language, and to incorporate provis- ions which should terminate the uncertainty that now prevails over a large part of the subject." Their revision, as adopted, formed almost a codifidation of the then existing law and practice of surrogates' courts. The distinction between the procedure in cases of wills of real prop- erty and that in the case of wills of personal property was, unfortunately, substantially preserved, and numerous deficiencies were soon found in the working of the system. In the year 1837, the legislature adopted the very important statute entitled " An act concerning the proof of wills, executors and administrators, guardians and wards, and surrogates' courts,'' commonly known by practitioners in these courts as the act of 1837 ; and the extent of the changes which it made in the system pre- scribed by the Eevised Statutes is indicated by the fact that its 77 sec- tions amend or repeal 39 sections of the Eevised Statutes. The next statute of general importance which should be noticed, is the judiciary act of 1847, by which the judicial system of the state was reorganized, in consequence of constitutional changes made by the Constitution of 1846 ; and we should also mention, from the great importance of the act, althoifgh it applies only in the city and county of New York, the * Bevisors' Notes, 6 Mm. Stat. 622. INTRODUCTORY NOTE. XXXIX Statute of 1870, chap. 359, which considerably extended the powers and jurisdiction of the surrogate's court of that county. In almost every year, since the adoption of the Eevised Statutes, other special changes of greater or less importance have been mad^ by the legislature, but these changes have been made to remedy some sup- posed special defects, and without any reference to the system as a whole, so that there is a present necessity for codification quite as much as in 1830. The reader who desires to pursue the subject of the construction and defect of these several statutes critically, and to draw inferences from their merits and their inconveniences, should not fail to turn to the two proposed revisions of these statutes, which have been made at different periods under the authority of the legislature. The first is a proposed statute relating to the estates of deceased persons, which was prepared by the commissioners of the Code, and which had the especial attention of the late Surrogate Bradford. This statute was intended to be inserted in the proposed code of civil procedure, and was submitted to the legis- lature for that purpose, in the form of an appendix (D) to the draft of a civil code for the state of New Yorlt , prepared by Messrs. Field, Notes, and Bradford, the commissioners of the Codes, and published in 1863. The proposed civil code, as revised, was republished in 1865, without the appendices. In 1870, the legislature authorized a new commission to revise the statutes, and the commissioners, Messrs. Throop, Stbbbins, and Werner, have presented, in chapters 15 and 18 of Part 3, and chapter 4 of Part 2, of their Draft of Revision, a complete and harmonious system of pro- cedure in surrogates' courts, and the rules relating to the subjects of their cognizance. All that is of general interest, in these and other similar sources, has been embodied in the present volume ; but any one desirous of pursuing such inquiries farther, will find the rules proposed by the commissioners, and the ample notes in which they have explained both the existing law and the changes which they have recommended, usefiil as sometimes ' affording an explanation of a doubtful question, and as throwing impor- tant light on questions of construction. SURROGATES' PRACTICE. CHAPTER I. CONSTITUTIOlf AND ORGANIZATION OF SURROGATES' COURTS. Designation of the court.'] — The courts which, in the United States, have jurisdiction of the administration of the estates of decedents, and of cognate subjects, are variously designated as Sur- rogates' Courts, Courts of Probate, Orphans' Courts, or the Court of the Ordinary. "The ordinary" was the technical term adopted by the English law to designate the bishop of a diocese, when sitting as an ecclesiastical tribunal in the administration of the ordinary temporal jurisdiction of his see. And his subordinate, or deputy, was called a surrogate, to indicate that he exercised a delegated power. In the state of New York, the courts which, after some intermediate changes, have succeeded to the characteristic juris- diction of the ordinary, respecting probate and administration, are still termed surrogates' courts {Code of Pro. § 9). Election of sv/rrogate.'\ — The surrogate is a county officer, elected by the people, and (under L. 1871, c. 859, § 5), holding office si^ years. The constitution of 1846, which remodeled the whole judicial organization of the state, superseded the county courts of common pleas and the surrogates' courts, which there- tofore existed, and provided for th,e election of a county judge in each county, except that of New York, and made it his duty to hold the county court, and also to perform the duties of the office ORGANIZATION OF SURROGATES' COURTS. In New County.— Official Title. of surrogate {Const, of 1846, art. 6, §14:). Power was reserved, however, to each county having over 40,000 population to deter- mine, from time to time, whether thej would not have a separate officer to perform the duties of surrogate (Z. 184Y, c. 276, § 8 ; 2 Z. 1871, c. 859, §§ 2, 3) ; and where such an officer was elected, he took the official designation of " surrogate " {Ih. §§ 14 and 7 respectively) ; and the county judge "was relieved from service in the surrogate's court, except when called on in an exigency, as hereafter stated. The growth of judicial business has been such, that in about half the counties of the state this course has been adopted, and a distinct office of surrogate created. In the other Counties, where the county j udge still holds the sur- rogate's court, he is designated, when acting in that capacity, as " the surrogate." The constitution of 1846 also provided that the legislature might, on application of the board of supervisors of any county, provide for the election of local officers, not exceeding two in any county, to exercise the duties of surrogate or of county judge respectively. In new county.} — In case of the erection of a new county, the surrogate of such county may take the proof of wiUs, and grant letters, in cases where the decedent, at the time of his death, resided within the territory embraced within such county j and if a will has been proved or letters granted by any surrogate, before the erection of such county, but no final settlement of accounts has been had,, the surrogate of the new county has exclusive jurisdiction of all questions thereafter arising upon t|;ie will or estate, including aU proceedings in the final settlement (Z. 1843, c. lYT, § 4, as amended by L.. 1870, c. 20, § 1). In the latter case, the surrogaie of the county in which the will was proved or the letters granted, is re- quired, on the demand of any party interested, to furnish properly certified copies of all papers, records, and proceedings, on file or of record in his office ; and such copies, on being filed in the surro- gate's office in the new county, have the same validity and efEect, in all subsequent proceedings, as the origmals (Z. 1870, c. 20, § 2). Official title.] — In those counties in which the county judge is also surrogate, he is designated simply as surrogate, without any addition referring to his office as county judge ; and in those coim- ties where the surrogate is a distinct officer, the county judge or ORGANIZATION OF SURROGATES' COURTS. A Local Officer. — Personal Disqualiflbations. other officer, wlien acting as- surrogate, is designated by his official title, with the addition of the words, " and acting surrogate " (Z. 1853, c. 648, § 1). Where there are separate officers elected to per- form the duties of the office of surrogate, they are denominated surrogates of their respective counties (2 L. 1871, c. 859, § T). A local officer. ^ — The surrogate is a local officer, and is confined, in the execution of his duties, to the district or coimty for which he is elected (1 R. S. 101, § 9), although, as hereafter shown, his process may run throughout the state. When he is also county judge he must reside in the county for which he is elected {Id. § 8). Personal disqualifications.'} — The forty-eighth section of 2 H. 8. 19, declares that no surrogate can admit to probate a will, or gi'ant letters testamentary or of administration in any case, or upon any estate, where he is interested as next of kin to the deceased, or as a legatee or devisee under such will, or is named as executor or trustee in such wiU, or is a witness * thereto (2 H. S. 79, § 48, as am'd by Z. 1830, c. 320, § 19). The second section of 2 H. S. 275, also declares every judge incompetent to sit in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties.f An objection to the surro- gate's acting in the cause, founded on a ground specified in the above mentioned second section of 2 li. S. 275, and in a case not covered by the above mentioned forty-eighth section of 2 JR. 8. 79, cannot avail, however, unless taken on behalf of the parties inter- ested at the first hearing or proceedings before him (Z. 1844, c. 300, § 6). By a subsequent statute, applicable to all judges, he is disqualified to decide any cause in which he has been counsel, at- torney or solicitor, or in the subject-matter of which he is interested (Z. 1847, c. 280, § 81). He is also, like other judges, disqualified in causes brought or defended in his court by any person acting as attorney or counsellor with whom he is interested or connected as a partner in any other court ^(Z. 1841, c. 272). See page 9, post. * As to whether this exclusion applies where he is a suhscribing witness, but not necessarily examined, see Oornwell v.Wooley {lAbb. Ct. App. Dee. 441 ; L. 1884, u. 308, § 1). f That is, to the ninth degree. ORGANIZATION OF SURROGATES' COURTS. Special Surrogates. — Surrogate's Bond. Special surrogates.'] — In certain counties provision has been been made pursuant to sections 15 and 16 of art. 6 of the consti- tution (Jud. amd. of 1869), for the election of local officers to dis- charge the duties of surrogate or county judge, or both, in case of their disqualification. These local officers are denominated special surrogates or special county judge, &c. (Z. 1851, c. 108, § 1), but when acting as surrogate may be denominated as surrogate simply (2 L. 1871, c. 859, § 7). Whenever a surrogate is incapacitated from acting, and there is no special suiTogate, the county judge may act as such, and in the city and county of I^ew Tork, the First Judge of the court of common pleas {Munro's Estate, 15 Abh. Pr. 363). If he is incapacitated, and the same causes which disqualify the surrogate equally disqualify the county judge (2 R. S. 80, § 54, as am'd by L. 1830, c. 320, § 21), then the district attorney, may act as surrogate (Z. 1871, c. 859, § 8 ; see also, L. 1834, c. 308, § 1). When there is no person thus capable of act- ing, the supreme court may issue a commission empowering a suitable person to act as surrogate in the case (2 B. S. 80, § 54, as am'd by Z. 1880, c. 320, § 21). Surrogate's hand.'] — ^Within twenty days after notice of his appointment or election, the surrogate must execute to the people of the state, a bond for the application and payment of aU moneys and effects that may come into his hands as surrogate. In the city and county of New York, the amount required is $50,000; in Kings county, $25,000, and in other counties, $10,000. The bond must be joint and several, with at least two resident free- holders as sureties. It must be acknowledged by all the persons executing it, and the sureties must justify, in the aggregate, in double the penalty of the bond. The county clerk is made the judge of the sufficiency of the sureties, and being satisfied of that fact, he must indorse his approval on the bond and file it in his office, and also record it in the records of deeds. And such record or a certified copy thereof, is made original evidence of the con- tents of the bond in any action against' the surrogate or his sureties (1 E. S. 382, §§ 77, 78, as am'd by Z. 1871, c. 239, § 1). In the same manner, every county judge or other officer, authorized to act as surrogate, must, before entering upon the discharge of his ORGANIZATION OF SUREOGATES' COURTS. Remedy on Bond. — Salary of Surrogate. — Time aud Place of hglding Court. duties as sucli, execute the bond required of surrogates (Z. 1868, c. 213, § 1). . Remedy on hond.'] — Any party aggrieved by the default or misconduct of the surrogate in his office, may, upon leave granted, prosecute the bond in the name of the people of the state, in the supreme court only, in the same manner and subject to the same regulations, as apply to suits on the official bonds of sheriffs (2 R. S. 4Y9, §§ 19, 20). Salary of surrogate.] — The surrogate is paid a salary, the amount of which is provided for at present by special statutes (Z. 1872, c. 767, am'd by Z. 1873, c. 515). Formerly the amount vras fixed by the board of supervisors of the county (Z. 1847, c. 277, §§ 4, 5 ; 2 Z. 1871, c. 859, § 4). "When the district attorney acts as surrogate, he is entitled to the same compensation, ^o rata, as that officer (2 Z. 1871, c. 859, § 8). Time and place of holding court.] — The surrogate's court is always constructively open, even although the surrogate is not there, and the absence of the surrogate or of the parties, on an ad- journed day, does not abate the proceedings, or put the case out of court {Oilman v. Oilman, 5 iT. T. Surr. (1 Bedf.) 354 ; affirmed, lb. 364; s. c. 38 £ari. 364). On Monday of each week, every surrogate is required to attend at his office to execute his duties (2 i?. S. 221, § 2). In counties in which the county judge is also surrogate, the surrogate's court is held at the times and places of holding the county courts (Z. 1847, c. 280, §§ 32, 33). The board of supervisors of each county is required to provide rooms, fuel, lights and stationery for the court, or in case of its neglect to do so, the court may direct the sherifi to provide them, and the ex- pense incurred is made a county charge (Z. 1867, c. 782, § 10). Records of ofjice.] — Every surrogate is required to file and pre- serve all affidavits, petitions, reports, accounts and vouchers, and all other papers belonging to his court. All such papers and the books kept by him belong to his office, and must be delivered to his successor (2 R. 8. 223, § 8 ; 2 Id. 102, § 13 ; and see Z. 1837, ORGANIZATION OF SURROGATES' COURTS. Records of OfSce. c. 465, § 2; Z. 1869, c. 855, § T). The same rule applies to the county judge {L. 183Y, c. 466, §§ 1, 2), and to other officers acting as surrogate* The surrogate is also required to keep the follow- ing books : " 1. A hook in which shall be fuUy and distinctly recorded all wUls, testaments and codicils proved before him, and the proof thereof; and in which he may also record any will relatiag to real estate situated within his county, which shall have been duly proved before, and recorded by, any other surrogate ; upon the production of an exemplified copy of such record : " 2. A book in which shall be recorded in like manner, all let- ters testamentary, and of general and special administration : 3. [By the Revised Statutes, he was required to keep a book in which he should enter all accounts of executors and administra- tors settled before him ; but, by L. 183Y, c. 460, § 2, this provis- ion was repealed, and he was required to file such accounts, and record with his decree in each case, a summary statement of them^ as they were finally settled and allowed by him, such statement to be referred to and taken as part of the final decree :] " 4. A book in which shall be entered aU minutes of other pro- ceedings, by or before him, in relation to the estates of deceased persons, with all orders and decrees made by him, and minutes of all citations, subpoenas, attachments and other process issued by him, in relation to such estates ; and the testimony taken by him, in relation to the granting or revocation of letters testamentary, or of administration : " 5. A book in which shall be recorded the appointment of guardians for infants, the revocation of any such appointment, and the accounts rendered by such guardians, at full length : " 6. A book in which shall be entered aU proceedings in rela- tion to the admeasurement of dower, and all orders, reports and decrees thereupon : " To each of the said books there shall be attached an index * Upon payment or tender of the fees therefor, every surrogate is required to search the files ^nd records of his office, and famish certified transcripts thereof, and certify to the correctness of his search, and his failure to do so is made a misde- meanor (i. 1847, c. 4*70, §40). ORGANIZATION OF SURROGATES' COURTS. ' Clerks and their Powers. of the subjects therein, with a reference to the pages where such subjects may be found ; which, together with such books, shall at all proper times be open to the inspection of any person paying the fees allowed by law for such examination " (2 B. 8. 222, § 7).* He is also required to keep, as part of his oifice records, a book of fees, in which he must enter at length, and by items, the fees charged and received by him on all proceedings had be- fore him under the name of each intestate or testator {L. 1837, c. 460, § 3). The general charge of the books and records of the office is, by the statute, given to the board of supervisors of each county, who may authorize the surrogate to caiise certified copies to be made for the public use, and they are required to do so, whenever by reason of age or exposure, or any casualty, the same shall be necessary for the public service ; and provision is made for the determination as to the necessity for such copying and the payment for the same (Z. 1869, c. 855, § 7).t Where a will of real estate has been proved in the supreme court or a surrogate's court, exemplified copies of the same, together with all the notices, citations and proofs relating thereto, may (on payment of fees) be recorded in the book of wiUs of real estate, kept by the surrogate of any county in which any lands of the testator are situated (Z. 1837, c. 460, § 68). Clerics and their powers.] — Every surrogate -may, by the author- ity of the supervisors, employ the necessary clerks, at salaries to be fixed by the board (Z. 1869, c. 246, § 2 ; Z. 1870, c. 467, § 4-; c. 359, § 14). And, by the like authority, he may authorize a elerk to receive, for his own use, the legal fees for making copies of records and papers {Id.) The surrogate may also, by order filed and recorded in his office, designate a clerk to certify, under the oflacial seal, copies of all orders, decrees, minutes, and proceed- ings required to be recorded with him; and to sign, as clerk of his court, -all citations and other writs and process, and to admin- ister oaths, and certify the same for use in his court; and the * As to the books to be kept by the surrogate of Queens county, see L. 1848, c 168, § 1. f This act is not applicable to the counties of New York and Kings. ORGANIZATION OF SUBROGATES' COURTS. Stenographer. — Fees. clerk's certificate, under the seal * of tlie surrogate's court, enti- tles any paper so certified to be received in evidence (Z. 1863, c. 362, § 9). The clerk to any surrogate or surrogate's court may also take and certify affidavits, oaths, and acknowledgments to any petition, bond, inventory, or other paper or instrument authorized or required to be used, made, or filed in any matter, case, or proceeding in any surrogate's court, or before any surrogate, of or to which he is clerk. He may administer oaths and affirma- tions in all matters, cases, and proceedings pending or insti- tuted before such surrogate or surrogate's court; and in the absence of the surrogate, or in case of his sickness or inability to perform his duties, he may adjourn any matter, case, hearing, or proceeding pending before such surrogate, or before or in the surrogate's court, to some convenient time, but he cannot ad- journ it more than thirty days at one time (Z. 1874, p. 602, c. 456, § 1). Stenographer.] — The surrogate may also employ a sworn stenographer to take notes of all proceedings in which oral proofs are given. These notes, after being transcribed and signed by the witnesses, &c., are to be filed in the surrogate's office. By consent of the parties and the surrogate, however, the signing of the record of proof by the witnesses, &c., may be waived, and in such case, the record, after being authenticated by the certificate of the stenographer or of the surrogate, is to be deemed to be the record of the proofs or proceedings so taken (Z. 18T1, c. 8Y4, § l).t Fees.] — Surrogates are not allowed to receive any fee or com- pensation for the performance of any official service, except for making and certifying copies of records and papers, for doing which fees are fixed by Z. 1844, c. 300, § 2 (Z. 1867, c. 782, § 16, as * The surrogate's court has a seal. A description of the seal ia required to he deposited with the secretary of state, and provision is made by statute for providing a new seal when the old one ia unfit for use (2 R. S. 221, §§ S, 4, 5; L. 1847, c. 280, § 72). Whenever the county judge acts as surrogate, by reason of a vacancy in the office of surrogate, he uses the surrogate's seal (£. 18S7 c. 465, § 1). f The act is declared not to apply where stenographers were then employed under any provisions theretofore made {lb. § 2 ; see Code of Pro. % 256, and i. 1871 c. 271,|§1, 2). ORGANIZATION OF SURROWATES' COURTS. Disability to Practice aa Attorney. amended by L. 1869, c. 246, § 1, and L. 1870, c. 359, § 14),* and these he must accomit for. Disability to practice as attorney. \ — Being a judicial officer, the surrogate cannot act as attorney, counsellor, or solicitor in his court, nor in any cause originating therein. Neither can any one connected in law business with him act as attorney, &c., in any cause or proceeding before him, or originating before him (Z. 1847, c. 470, § 51 ; see L. 1844, c. 300, § 4). The statute also forbids him being counsel, solicitor, or attorney, for or against any executor, administrator, guardian, or minor, in any civil action, over whom or whose accounts he could have any jurisdiction by law (2^.^^. 223, §13). * As to his official fees before the passage of the act of IBS'? (April 25th, 1867), and his accountability therefor to the county treasurer, see L. 1847, o. 277, §§ 8, 9, 11, as am'd by L. 1849, c. 96, § 1 ; and see L. 1843, c. 206, § 1. CHAPTER II. JURISDICTION AND POWERS OF SURROGATES' COURTS. Art. 1. — General statutory jurisdiction. 2. — Limitation of general powers. 3. — Incidental jurisdiction and powers. 4. — Concurrent and exclusiTe jurisdiction. 5. — ^Deposit and custody of wills. AETICLE FIRST. GENERAL STATUTORY JURISDICTION. Limitation of jurisdicbion.] — The Revised Statutes as originally adopted, and taking effect in 1830, after conferring specified powers upon tHe surrogates, declared (2 H. S. 221, § 1, last clause) that the powers thus conferred should he exercised ia the cases and in the manner prescribed by the statutes of this state, and in no other ; adding, " and no surrogate shall, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given by some statute of this state." This restriction gave rise to much difficulty, and seriously embarrassed the due ex- ercise of the functions of these courts, and was consequently re- pealed in 1837 (Z. 183Y, c. 460, § Yl ; Pew v. Hastings, 1 Barb. Ch. 454). The effect of this repeal of the restrictive clause was, of course, to restore to these courts stibstantially the same powers which they possessed before the enactment of the Eevised Statutes, except so far as they had been meanwhile specifically restricted by statute, and thus to restore to them such powers as were incidental and necessary to a proper discharge of the functions of the court {Sipperly v. Baucus, 24 N.. T. 46; BricJ^a Estate, 15 All. Pr. 12; DolTte v. MoGlaran,^! Ba/rb. 491; Campbell v. Thatcher', 54 Id. 382 ; Pew v. Hastings, supra). This principle has been asserted, not only with respect to incidental powers, such as inhere by reason of necessity in the exercise of the judicial function, but JURISDICTION AND POWERS OF SURROGATES' COURTS. 11 Limitation of Jurisdiction. also with respect of- matters of jurisdiction, to supply a casus omissus in those provisions of the statute which attempt to enumerate or define in detail the general jurisdiction over estates. Thus, the provisions of 2 R. S. 73, § 23, declaring that the surrogate of each county shall have sole exclusive power within his county to grant administration in specified cases, is not to be regarded as covering all the cases in which he may grant administration ; and in a case within the general principle of jurisdiction, he should not decline to exercise that jurisdiction because the mode is not prescribed by the statute {Kohler v. Knajpp, 1 Bradf. 241 ; and see Campbell v. Logan, 2 Id. 90). In all the cases enumerated by the statutes, the surrogate must exercise his powers ia the cases and in the manner prescribed ; and so far as the statutes go, therefore, they regulate imperatively the exercise of the jurisdiction in the particular classes of cases specified (2 B. S. 220, § 1). They are courts of peculiar and special jurisdiction, and can only exercise the jurisdiction and powers which, by a favorable construction of the statute, are found to have been conferred upon them {Cleveland v. Whiton, 31 Barb. 644 ; Sibley v. Waffle, 16 W. Y. 180 ; and see Seamian v. Buryea, 11 N. T. 324; Willoox v. Smith, 26 Barb. 316 ; Magee v. Vedder, 6 Barb. 352 ; Wilson v. Baptist, c&e., Society, 10 Id. 308). If, how-, ever, the authority may be fairly and reasonably inferred from the general language of the statute, or if it be necessary to accom- plish its objects, and to* the just and useful exercise of the powers which are expressly given, it may be taken as .granted {Seaman v. Buryea, 10 Barb. 253, per Beown, J.) Where after the due application of these principles it is still clear that the court, in a matter regulated by the statute, has departed therefrom, and -assumed to exercise powers for which it has no authority,' or to exercise them in a manner different from that pre- scribed by the statute, its acts, like similar acts of other courts of special and limited statutory jurisdiction, are void {People v. Cor- lies, 1 Sandf. 228; People v. Barnes, 12 Wend. 492; Corwiny. Merritt, 3 Barb. 341 ; Paff v. Kinney, 1 Bradf. 1 ; Sheldon v. Wright, 5 W. T. 494, affi'g 7 Barb. 39). It will be seeuj however, hereafter, that in the class of cases in which this principle has been found most important and has been most frequently invoked, viz., that of sales of real property by the surrogate's order, for the pay- ment of debts, the principle is now no longer appHcable, by reason 12 JURISDICTION AND POWERS OP SURROGATES' COURTS. Subjects within the Jurisdiction. of the statute (Z. 1860, c. 82, § 1 ; 1 L. 1869, c. 260 ; 1 Z. 1873, a 211) making such sales valid as if made by a court of original and general jurisdiction. Subjects withwi the jurisdiction.] — ^The powers and jurisdic- tion of the surrogate's court, which are .particularly defined by the Eevised Statutes, have been enlarged and extended froin time to time by subsequent legislation, the disposition being apparent to amplify rather than confine the limits. This disposition, shown in the general statutes before referred to, has been especially noticea- ble in the case of the court of the surrogate of the county of New York, recent legislation having given to that court certain special powers of considerable importance, convenient to the due admin- istration of estates, which will be pointed out in connection with the subjects which they concern. Before proceeding to consider the precise limits of the juris- diction and the mode of procedure of these courts in each class of cases, it will be convenient to enumerate them generally. Thus, surrogates' courts have power; 1. To take the proof of wills of real and personal property in the cases prescribed by law ; to admit wills to probate (2 B. S. 220 ; 2 Id. 58, § 14 ; 61, § 28), and to revoke the probate of wills of per- sonal estate (2 R. S. 61, § 31) ; and to admit foreign wills to record {2Ii. S. 67, § 68a; Z. 1872, c. 680, amendjng Z. 1864, c. 311). 2. To grant letters testamentary and letters of administration (2 B. S. 220, § 1, subd. 2), and to revoke the same in the cases prescribed by law (Z. 1837, c. 460, § 34 ; 2 H. S. 78, § 46 ; 2 H. S. 72, § 18)_. 3. To direct and control the conduct, within certain limits, and settle the accounts of executors and adniiaistrators'('2 B. S. 220, § 1, subd. 3 ; 2 Id. 92). 4. To enforce the payment of debts and legacies and the distri- bution of estates of intestates (2 H. S. 220, § 1, subd. 4 ; 2 Id. 87). 5. To order the sale and disposition of the real estates of de- ceased persons, or the real estate which they have contracted to pur- chase (2 R. S. 220, § 1, subd. 5; 2 Id. 100 ; Z. 1837, c. 460, § 42). 6. To administer justice ia all matters relating to the affairs of deceased persons according to the provisions of the statutes of this state (2 R. S. 220, § 1, subd. 6). 7. To appoint guardians for minors (and for lunatics and idiots. JURISDICTION AND POWERS OF SURROGATES' COURTS. IS Void or Voidable Decree. — Jurisdiction not Presumed. in certain cases, Z. 18T2, c. 693, § 2), to remove them, to direct and control their conduct and to settle their accoimts as prescribed by law, and to require them to give security (2 R. 8. 220, § 1, subd, T ; 'i Id. 150 ; L. 1871, c. 482 ; 2 L. 1867, c. 782, § 1). 8. To cause the admeasurement of dower to widows (2 R. S. 220, § 1, subd. 8 ; 2 ^. S. 488). 9. To compel testamentary ti'ustees to give security and to account (1 Z. 1871, c, 482 ; 2 Z. 1867, c. 782, § 1). 10. To take proof of heirship or inheritance (Z. 1873, c. 554, as amended by Z. 1874, c. 127). Void or voidable decree.] — The force and effect of a surrogate's decree are determined by the rules which govern the judgments of all courts of limited jurisdiction. It may be attacked either directly or collaterally as being void for want of jurisdiction over the sub- ject-matter. If the surrogate did not have jurisdiction over the subject-matter, his decree is not merely voidable — subject only to be reversed on appeal or to be vacated in a direct proceeding for that purpose, but it is absolutely void, and affords no protection for acts done under it. If the surrogate has not jurisdiction of the subject-matter, it cannot be conferred on him by the assent or sub- mission of the parties {Ddkin v. Remming, 6 Raige, 95 ; Tucker V. Tucker, 4 Ahh. Vt. App. Rec. 428), and the objection of want of jurisdiction may be taken for the first time on appeal {Rudley V. May hew, 3 iV. Y. 9). If, however, the court has jurisdiction of the subject-matter, consentwiU confer jurisdiction of the person {BumsteadY. Read, 31 Rari. 661 ; McCormick v. P. O. R. R. 49 If. Y. 303) ; and such consent will in general be taken to be given by an appearance and answering to the merits {McCormick v. C. P. R. R. 49 If. Y. 303). If the court possesses jurisdiction over the subject-matter, and has. acquired jurisdiction over the person, irregularities in the proceedings wiU not divest the surrogate of the jurisdiction {Bloom v. Burdick, 1 Hill, 130 ; Lawrence v. Par- sons, 27 Horn. Pr. 26). Jurisdiction not presumed^ — ^Where any right in another court is based on a surrogate's decree, all the facts necessaiy to give the surrogate jurisdiction must be alleged and proved. The exist- ence of such facts however need not (unless the statute expressly requires it), appear by any record evidence of his court; but 14 JURISDICTION AND POWEKS OF SURROGATES' COURTS. Decree when Conclusive. may be proved by evidence aliunde {Van Deusen v. Sweet, 51 N. Y. 378). But a recital in the proceedings of the surrogate's court of the jurisdictional facts is prima fade evidence of the facts so recited {Bolton v. Jachs, 6 Edbt. 203 ; Barber v. Wmslow, 12 Wend. 102 ; Bard v. Skipman, 6 Barh. 625 ; Potter v. Mer- chajits' BanJc, 28 N. Y. 653; Belden v. Meeker, 4T JSf. Y. 307); or if proof of the facts was made before the surrogate by petition or affidavit (even although no such proof was required by law), and the affidavit, &c. is made a part of the records of the surrogate's office, on which the decree is founded, it is prima facie evidence of the jurisdictional facts contained in it {Bolton v. Jacks, supra). Decree when conclusive.] — ^Where the jurisdiction depends upon the existence of certain facts, as e. g., the domicil of the de- ceased in the county, or the existence of assets therein, and this question is litigated before the surrogate^ his decision thereon is conclusive when brought in question collaterally {Slate v. Scott, 1 Bailey Law li. 294 ; Holcomb v. Phelps, 16 Conn. 127 ; Brittain V. Kinnard, 1 Brod. c& Bing. 432 ; Dyakman v. Mayor, <&c. of New Ywk, 5 ISf, Y. 434; Sheldon v. Wright, 5 N. Y. 497; Bumstead v. Read, 31 Barb. 661 ; Bolton v. Jacks, 6 Robt. 166) ; and his decision his equally conclusive, although the question was not litigated, if there was evidence of the fact adduced before him, and the proper parties appeared in the proceedings {Sheldon v. Wright, Bumstead v. Read, Bolton v. Jacks, supra / Morrell v. Dennison, 8 Abb. Pr. 401) ; and it seems that his decision would have the same effect, although the parties did not appear in the proceedings, if they were duly sei^ved with process for their appearance {Erwin V. Lowry, 7 How. U. S. 172 ; Bumstead v. Read, supra). Juris- diction over the person must be shown in the same manner as jurisdiction over the subject, and in hke manner a lack of it renders the decree void. Though the court had Jurisdiction of the subject- matter, its decision binds only those who were properly before it, and this ground of objection to the decree may be.taken in any proceeding where it is brought in question. Thus, in case admin- istration were granted on the estate of one supposed to be dead, but in reality living, the adjudication by the surrogate would be conclusive as to all strangers and aa to all parties in interest who were before the court upon the adjudication, but would be absolutely JUKISDICTION AND POWERS OF SURROGATES' COURTS. 15 Recital of Juriadiotional Facts. — Proof of Jurisdictional Facta. void as to tlie supposed deceased, who was not a party to the pro- ceedings. Recital of jurisdictional facts.^ — In the consideration of the question whether the records of the proceedings of the surrogate's court must show affirmatively on their face the jurisdictional facts, a distinction must be taken between those cases in which a court of inferior jurisdiction is authorized, upon certain proof, as by affidavit, &c. being made to it of certain facts, to take jurisdiction, and of those cases in which the court is authorized to act on the existence of certain facts.* In the former case, the jurisdiction vests so soon as the affidavit is presented to the court, whether the affidavit is true or not, and the order made thereon is valid until revoked. The only way in which it can be attacked is by a direct proceeding to set it aside ; and therefore in such a case the question to be determined in deciding whether the court had jurisdiction is, not whether the fact actually existed, but whether a proper affidavit or petition alleging such fact was pre- sented. Thus, the provision of 2 R. S.d ed. 26, § 46, subd. 6-^ giving jurisdiction where the decedent was an inhabitant of another state, and died there, provided " any real estate devised by the testator is situated " in the county — means if the will purports on its face to devise real estate in the county ; and the surrogate need not inquire into the title and the validity of the devise ( Yreeland V. McClelland, 1 Bradf. 393). This petition, &c. being a record of the court, in such a case the record, if the court had juris- diction, will always show such jurisdictional fact on its face. Proof* of jurisdictional facts.] — In the other case, however, where the jurisdiction depends upon the actual existence of the jurisdictional facts, these facts must be proved whenever the decree is called ia question. As stated before, however, the surrogate has power to decide as to the existence of a jurisdictional fact, and his decision thereon, if he had jurisdiction of the person, is conclusive in a collateral' matter. The only case, therefore, in which, when his decree is brought in question collaterally, proof outside the rec- ord can be offered to show want of jurisdiction, by reason of some jurisdictional fact not appearing, is where there is no record of any * A case of the former kind is Miller y. Brinehoroff, 4 Den. 118. A case of the latter kind is Bolton y. Jacks, 6 Boht. 166. 16 JURISDICTION AND POWERS OP SURROGATES' COURTS. Surrogate of New York County. — Not a Court of Record. — Mode of Procedure. proof of such fact having been adduced before the surrogate, or where the evidence is offered to show that jurisdiction over the parties was not acquired. Surrogate of Uew YorTc county.] — It is specially provided bj statute that the objection of want of jurisdiction can be taken to a decree or order of the surrogate of the county of New York only by appeal or by a proceeding before him to set it aside or modify it ; and the powers of courts of record of general jurisdiction to set aside, vacate and modify their orders, is conferred upon the surro- gate of that county (Z. 1870, c. 359, § 1). , I^ot a court of record.'] — The surrogate's court is not a court of record, and therefore, although a decree made by it would form the basis of an action at law, yet a suit on it, unless brought within six years, is barred by the statute of limitations {Paff v. Kinney, 1 Bradf. 1). The surrogate has not the power of a judge of a court of record over attorneys or counsel as officers of his court. A surrogate cannot, therefore, compel an attorney or counsel for a guardian to ac- count for moneys in his hands belonging to the infant, or punish him for injury to the estate (Matter of Writner, 1 Tuoh. 15). The statute 'in regard to giving security for costs — 2 H. S. 620— which applies only to courts of record, does not apply to the sun'o- gate's court in an application by a creditor, &c. to compel the ex- ecutor to pay out of the fund in his hands ( Westervelt v. Gregg, 1 Bark Oh. 469). Mode of procedure.] — In order to render effective the general powers conferred on surrogates, and provide them with the proper and adequate means of exercising their jurisdiction, the statute has given them certain special powers relating to their mode of pro- cedure. Thus, the surrogate may, in order to bring before him the proper parties to the determination of any matter cognizable in his court, issue citations to the parties thereto, and, in certain cases, compel the appearance of such parties (2 R. 8. 221, § 6, subd. 1). See form No. 1. In almost, if not quite, all instances, the substance of the citation and the mode of service is pointed out by the statute (see next chapter). He may adjourn from time to time, as the ends of justice may require, any proceeding pending before him (Z. 1837, c. 460, § 61), and this may now be done by the clerk of his court in certain cases (see ante, p. 8). JURISDICTION AND POWERS OF SURROGATES' COURTS. 17 Means of Procuring Evidence. — Enforcement of Orders. Means of procuring evidence.] — He may issue subpoenas to compel the attendance of any witness residing or being in any part of the state, or the. production of any paper material to any inquiry pending before him (2 li. S. 221, § 6, subd. 1, as amended .by Z. 1830, c. 320, § 66) ; and may punish disobedience to any such subpoena in the same manner and to the same extent as courts of record {Id. subd. 2).* He may issue a commission to take the testimony of a witness out of the state, in the same manner as may be done by a court of record (Z. 1837, c. 460, § 77). He may administer oaths to witnesses in any matter or cause pending before him, and in aU other cases where it may be necessary in the exercise of his powers and duties {Id. § 62). See ante, p. 1, as to the power of the clerk to administer oaths. He may punish witnesses for refusing to testify, after appearing, in the same manner and to the same extent as courts of record (2 H. S. 221, § 6, subd. 2) ; and may commit any party or witness who appears to have testified falsely on a material point (2 H. S. 681, § 5, as amended by Z.' 1867, c. 782, § 15). Enf(yrcement of orders.] — He may enforce all lawful orders, process, and decrees of his court, by attachment against the per- son of any one who neglects or refuses to comply with such orders and decrees, or to execute such process, — such attachment being in form similar to that used by the court of chancery in analogous cases t (2 B. S. 221, § 6, subd. 4 ; JPeople v. Pelham, 14 Wend. 48 ; Seaman v. Duryea, 11 N. Y. 328 ; Doran v. Bempsey, 1 JBradf. 490; Matter of Zatson, 1 Duer, 696; Frear's Case, 15 Abh. Pr. 350 ; Saltus v. Saltus, 2 Zans. 9). If a decree is made by him for the payment of money, a certiRcate thereof may be filed in the county clerk's office, and docketed as a judgment, and execution * Though a surrogate may punish a witneea for refusal to appear and testify, he has no power to issue process to bring him forcibly into court and compel him to testify {Perry v. Mitchell, 6 Den. BS*?). An attachment for contempt in not exeou-t ing such process, is void, and, if the attachment be executed, the surrogate is liable for false imprisonment {Id.) f The precept " used by the court of chancery in analogous cases " was an ordi- nary capias ad satisfaciendum ; under such a commitment the prisoner is (it seems) entitled to the jail liberties, and to be discharged under the non-imprisonment act (Matter of Watson, S Lans. 408, affirmed in 5 Id. 466).' But see chap. Ill, art. second. 2 18 JURISDICTION AND POWERS OF SURROGATES' COURTS. Execution of Process. — Costs and Allowances. issued upon it as upon a judgment of the county court * (Z. 183Y, c. 460, § 64, amended by L. 1844, c. 104, § 2 ; Davies v. Skid- more, 5 Hill, 501). Some discussion lias arisen as to the power of the surrogate to enforce, by attachment, the payment of money ordered by a decree of his court. In some early cases this power was denied (Matter of Zatson, 1 Duer, 696 ; see Hosach v. Rogers, 11 Paige, 603) ; f but is now fully recognized {Doran v. Dempsey, 1 Bradf. 490 ; Seaman v. Buryea, 11 N. Y. 328 ; affirming 10 Barb. 523 ; Frear's Case, 15 Aih. Pr. 350 ; Sallms r. Saltus, 2 Zans. 9 ; Woodkead's Instate, 1 Tuok. 92). Although the surrogate may en- force all his lawful orders and decrees by process of attachment, yet such process does not issue as a matter of right to the party asking it, and the surrogate may refuse to grant it ; and he will Dot, as a general rule, issue an attachment for the non-payment of money until an execution has been issued and returned unsatisfied, and not then, unless the case is such that the party would be liable to arrest in a civil action. See jpost, chap. Ill, art. second. , Execution of process.] — All sheriffs, ]ail"ers, coroners, &c., are required to execute the process issued by surrogates' courts, in the same manner as process issued by a court of record, and are liable in the same way for neglect or misfeasance (2 B. S. 223, § 9). The surrogate of one county may issue attachments or other compul- sory process, to the officers of any other county in the state, returnable to his own court, and the officer to whom it is issued has power to arrest the person against whom the same is issued, and convey him to the coimty where the writ is returnable (Z. 1837, c. 460, §§ 66, 67). Costs and allowances.]— bi cases of contest before him, the surrogate may award costs to the party in his judgment entitled thereto, to be paid either by the party personally, or out of the estate which is the subject of controversy (2 R. S. 223, § 10). * From the time of docketing, it is a lien on lands, in the county where the cer- tificate is filed, of any person against whom the decree is entered {Id.) On produc- tion of a release duly acknowledged, the surrogate is required to satisfy such a decree (2 L. 1867, p. 1928, c. 182, § 9). f In this case it was held that since the act to abolish imprisonment for debt, an attachment could not issue against an executor to compel satisfaction of a final decree against him for money due upon a contract of his testator. JURISDICTION AND POWERS OF SURRO&ATES' COURTS.. 19 Miscellaneous Powers. This power cannot, however, be exercised arbitrarily (Ralsey v. Tan Amringe, 6 Faige, 12 ; Burtis y. Dodge, 1 Barb. Ck. 11 ; Devin v. Patohin, 26 N. Y. 441). Apart from the provisions of the statute, he has no power to award costs {Shultz v. Pulver, 3 Paige, 182). The Code of Procedure does not give him this power (Devin v. Patchin, 26 iV. T. 441). He has no power to award counsel fees to be paid out of the estate to ioth of the con- testing parties, but only to the one in his judgment entitled thereto {Lee v. Lee, 39 Barb: 112 ; s. c. 16 Abb. Pr. 127) ; nor to any person not a party before him {Matter of Gates, 16 Abb. Pr. N. S.) The costs, when allowed, are the same in amount as were allowed in 1837 for similar services in the courts of common pleas (Z. 1837, c. 460, § 70 ; Western v. Pomame, 1 Bradf. 37 ; Willoox V. Smith, 26 Barb. 316 ; Zee v. Lee, 39 Id. 172). * By special statute (Z. 1870, c. 359, § 9), the surrogate of 'New York I county is authorized to grant allowances to counsel in lieu of costs, in any proceeding before him, in the cases provided by the Code of Procedure in civil actions. The practice of the surrogate of that county is to grant allowanees to counsel for both parties in a proper case. Miscellaneous powers.^ — He may exemplify, under his seal of office, transcripts of the records and proceedings of his court, and they are thereby made generally receivable in evidence in all courts with the like effect as the exemplifications of the records, &c., of courts of record (2 R. S. 221, § 6, subd. 5). He may enjoin exec- utors, administrators or guardians from acting until the further order of the court, where a citation to show cause against their removal has been issued (Z. 1837, c. 460, § 61). He may com- plete the imfinished business pending before his predecessor in office, and certify and sign the reco^ thereof (2 B. S. 223, § 11 ; Z. 1870, c. 74, § 2; see also, Z. 1871, c. 424, § 2, and Z. 1874, c. 9). Though the surrogate has no power to summon jurors to decide an issue of fact, yet where issues of fact are joined in his * The provisions of law in regard to the costs allowed in the courts of common pleaa in ISSV, may be found in i B. 8. 636, part 3, c. 10, tit. 3, § 27. These pro- visions have been for every other purpose obsolete since 1840 (X. 1840, c. 386, § 40), and are not to be found either in Edmonds' General Statutes or the 6th edition of the Revised Statutes. 20 JURISDICTION AND POWERS OF SURROGATES' COURTS. Limitation of General Powers. court to be tried by a jury, such issues may be sent to tbe county court and tried there (Z. 1847, c. 280, § 45). He has power to pre- serve order in his court during any judicial proceeding by punishing contempts which amount to an actual interruption of business, or to an open and direct contempt of his authority or person, in the same manner, and to the same extent, as courts of record (2 R. S. 221, § 6, subd. 6). And the provisions of §§ 10, 12, 13 and §§ 16 to 32 inclusive, of part iii, c. 8, tit. 13, of the Eevised Statutes, in regard to " proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions," apply to attachments issued by surrogates (Z. 1837, c. 460, § 67). He can not, however, under these provisions, as a court of record may, punish dis- obedience to his orders by fine, and by imprisoning for non-payment thereof, as for a contempt, but his power to pimish for contempt in the same manner as a court of record, is confined to the cases mentioned in 2 R. S. 221, supra {Matter of Watson, 3 Lans. 408, affirmed in 5 Id. 466). He may administer affidavits and take acknowledgments and proof of deeds ■ and other instruments in the same manner as a county judge (Z. 1851, c. 176, § 1). Other incidental and special powers have been conferred by law upon the surrogates of some particular counties, which will be- pointed out hereafter. ARTICLE SECOND. LBirrATIOIT OF GENERAL POWERS. The general principle laid down in the preceding article, that the power must be one fairly and reasonably inferred from the general language of the statute, or necessary to accomplish its objects, should not be forgotten. It may be useful to exhibit the application of this principle by referring to the instances' in which a limited application has been given to general lan- guage in the statute. For instance, the surrogate has no power to determine the amount and validity of a disputed demand against the estate, upon the final accounting of an executor or administrator, notwithstanding by 2 R. 8. 221, § 1, he is author- ized to enforce the payment of dehts, and by 2 R. S. 96, § 71, he is authorized, on the final accounting of an executor or adminis- JUEISDICTION AND POWERS OF SURROGATES' COUllTS. 21 Limitation of General Powew. trator, to make a decree for the payment and distribution of the surplus, and in such decree to " settle and determine all questions concerning any debt, claim, &c., to whom the same shall be payable, and the simi to be paid to each person." The surrogate's court (it is held) was not constituted or intended for the trial of disputed claims {Tucker v. Tucker, 4 AbT). Ct. App. Dec. 428, following 6 Barb. 352; 10 Id. 308; 24 Id. 60; 32 Id. 354; 8 Abh. Pr. 425, :and distinguishing 6 N. Y. 216). And even if, upon such an ac- •counting, a contested claim were submitted to the surrogate by aU the parties in interest, his decision in regard to it and a decree made thereon would not be blading on any of the parties, and could not be sustained even as an arbitration (75.) Ifor does the surro- gate of New York county, under L. 1870, c. 359, § 6, giving him power in any accounting, &c. to appoint a referee " to hear and determine aU disputed claims and other matters relating to said .accounts," have power to pass upon the disputed claim of a creditor .against the estate, so as to bar the creditor's common law remedy {Cooper V. Felter, 6 Lans. 485). Nor has he power, under 2 B. S. 116, § 18, allowing him six months after the time of granting letters of administration to decree payment of a debt of the intes- tate, &c., to order payment of a contested claim {Ruthven v. Patten, 1 Eobt. 416 ; s. 0. 2 Abb. Pr. JV. S. 121). Nor can the surrogate pass upon the validity of a collector's claim of title to property alleged to belong to the estate, the title having been acquired prior to the period of his coUectorship (Ootisberger v. Smith, 2 Bradf. 86). Nor can he compel an executor to account for property re- 'ceived by his testator, as executor, unless it has come into the last ■executor's possession (Montrose v. Wheeler, 4 Zans. 99). The pro- visions of 2 B. 8. 220, § 1, subd. 3 — giving him power to direct and control the conduct of executors and administrators — ^have been lield to give him no authority to control them in regard to the prosecution of suits in other courts affecting the estate {Matter of Parker, 1 Barb. Ch. 154). Nor can he, by virtue of his general power in such cases, compel an administrator, who has been removed from office, to deliver over to his successor the assets in his hands {Annett v. Kerr, 2 Bobt. 556 ; Marston v. Paulding, 10 Paige, 40) ; Ijiough by Z. 1865, p. 1455, c. T83, he now has sucTi power. The surrogate has no power to accept the resignation of an admin- istrator, except in the cases mentioned in the statute, even althoijgh 22 JURISDICTION AND POWERS OF SURROGATES' COURTS. Implied Powers. he may have erred in appointmg hun {Flinn v. Chase, 4 Den. 85 j, see Matter of Dyer, 5 Paige, 534). Nor can he, on a summary application, compel an administrator to deliver to a claimant prop- erty taken possession of by the administrator as part of the estate * {Marston v. Paulding, 10 Paige, 40). He may, however, compel executors to perform their duty by expending for the benefit of infant legatees the interest of a sum of money intrusted to them for that purpose by the testator, notwithstanding that the executors might be made liable in an equitable action in the supreme court {Dubois V. Sands, 43 JBar^. 412). ARTICLE THIRD. INCIDENTAL JUEISDICTION AND POWERS. Implied powers.] — The. principle is now fuUy established by authority, and daily recognized in practice, that, although where the statute du'ects the surrogate to proceed in any certain way, he must proceed in that way, and no other, yet if justice demands that, in regard to some subject that is within his jurisdic^ tion, he should exercise an incidental power which has not been expressly given to him by the statute, he should not for that reason decline to exercise it. "Within the domain of his statutory juris- diction of the subject-matter, he may exercise any powers not in- consistent with existing law, which were enjoyedl by the colonial courts of probate, or the successors of such courts, previous to the adoption of the Revised Statutes {SMdmore v. Davies, 10 Paige, 318 ; Proctor v. Wanmaher, 1 Barl. Ch. 302 ; Isham v. Gibbons, 1 Bradf. 69 ; Vreedenbv/rgh v. Calf, 9 Paige, 128 ; Matter of Parher, 1 Barb. Ch. 154 ; compare, however, Farnsworth v. Oliphant, 19 Ba/rb. 30 ; Halsey v. Van Amringe, 6 Paige, 12). It has been explained in the preceding article that the inci- dental powers taken away by the Eevised Statutes have been re- stored by the act of 1837 ; and that thereby the incidental powers belonging to the surrogates' courts, apart from any statutory J s * For proceedings for the recovery of possession of property of deceased persons^ see L. IS'ZO, c. S94, and L. 1870, c. 8B9. « JURISDICTION AND POWERS OF SURROGATES' COURTS. 23 Implied Powers. provision, as well as those exercised by them previous to the Ee- vised Statutes, were restored by that act {Campbell v. Thatcher, 54 Barb. 382).* The surrogate's court proceeds in all matters relat- ing to the probate of testaments and the administration of the estates of deceased persons in conformity with ^prescription and established usage, except as modified from time to time by statu- tory regulations, and in a case where the statute prescribes no par- ticular method of proceeding, it f oUows the practice of the English * The extent of the statutory and implied powers of the surrogates, previous to the adoption of the Revised Statutes, has been examined with unequaled industry, and stated with great clearness, by Chief Justice Daly, of the New York Common Pleas, while sitting as surrogate of the county of New York. The powers which surrogates' courts possessed before the enactment of the Re- vised Statutes, and which are continued by the provisions of 2 E. S. 220, as amended by L. 183Y, p. 536, c. 460, § 71, were examined and declared to be as fol- lows ; (1.) To take proof of the execution of wills, and to admit them to probate. (2.) To grant letters testamentary and of administration. (3.) To swear executors or administrators to the truth of the inventories and accounts exhibited by them. (4.) To call administrators to account; to decree the just and equal order of distri- bution after the payment of debts and expenses ; to compel administrators to ob- serve and pay the same ; and to enforce it by execution against the person. (6.) To hear and determine any cause touching a legacy or bequest in any will ; to decree the payment of it, and to enforce it by execution against the person. (6.) To order the admeasurement of dower, upon the application of the widow, of any heir, or of the guardian of a minor. (Y.) To order the sale of real estate for the payment of debts, when the personal estate was insufficient, and when the real estate proved insufficient, to divide the proceeds, after the payment of expenses, proportionally among credit- ors ; to confirm all such sales, and direct conveyances to be made by executors or administrators, and to order the mortgaging or leasing of the real estate of any testator or intestate for the same purpose, where infants are interested. (8.) To appoint guardians for infants, as the chancellor might do. (9.) To record all wills proved before them, with the proof thereof, letters testamentary and of administra- tion granted by them, with all things concerning the same, all orders or decrees made by them for the sale of real estate, and all instruments, writings, or documents of a like nature, left unrecorded by their predecessors, and to complete the unfinished business of their predecessors. (10.) To institute inquiry respecting the personal estate of intestates, not delivered to the public administrator, nor accounted for law- fully by persons into whose hands it was supposed to have faUen. (11.) They had authority to compel the attendance of witnesses, the production of wills, documents, or writings, and for disobedience in such cases, to commit the party offending for contempt; and, lastly, in all matters submitted to their cogniz&,nce, they were authorized to proceed according to the course of the court having, by the common law, jurisdiction of such matters, except so far as they were restricted by statute; and they had such incidental powers as were necessary to carry those which were necessary into effect (Brick's Estate, 15 Abb. Pr. 12). 24: JUEISDICTION AND POWERS OF SURROGATES' COURTS. Implied Powers. ecclesiastical courts in testamentary matters {Campiell v. Logan, 2 Bradf. 90; Pew v. Eastings, 1 Barb. Oh. 452). Examiples.] — Under this implied authority, the court has power, for instance, to open a decree which it had no power to make ( Yreedenhurgh yt Calf, 9 Paige, 128), or which was entered by default, in consequence of a mistake or accident depriving the applicant of a hearing {Pew v. Hastings, 1 Barb. Ch. 452 ; Har- rison V. McMahon, 1 Bradf. 283) ; and it has power to correct mistakes, the result of oversight or accident {Sipperly v. Battens, 24 JV. jr. 46).* The power thus to open a decree founded in misapprehension or mistake, and rehear the matter upon the merits, is incident to the statutory power to take proofs, and hear and determine the contention ; and the exercise of this power may be necessary to prevent the greatest injustice {Dobke v. McCla/ran, 41 Barb. 491). For instance, the statute has made no express pro- vision for revoking a probate, where another and later will has been discovered, but the power to do so is implied in the section declar- ing the force of the probate as evidence, until reversed on appeal, revoked on allegations, or declared void by a competent tribunal. Such a power is incidental to the surrogate's jurisdiction of the proof of wiUs, and is essential to the administration of justice {Camipbell V. Logan, 2 Bradf. 90). This incidental authority of the court, which is in the nature of a power to amend, is however to be carefully distinguished from a general power to grant new trials (see People v. Justices of Chenango, 1 Johns. Gas. 180). And where all the parties in interest are represented at the hearing, and the court has given its final sentence or decree, it has not the general power of opening and rehearing it again, merely because it may have erred either as to the law or the facts (see BricKs Estate, 15 Abb. Pr. 12).f By his implied power he may appoint a special guardian or guardian ad litem for a minor, though over fourteen years of age, without the consent of the minor, as this is a power incident to every * As to the time within which the application must be made, see Sipperly v. Bauaus, 24 N. Y. 46. f The surrogate of the county of New York, however, has the same power to set aside, open, vacate, or modify the orders of his court as is exercised by courts of general jurisdiction (X. 18T0, c. 359, § I). JDBISDICTION AND POWERS OF SURROGATES' COURTS. 25 Juriadiction of Probate. court of justice, whether of inferior or general jurisdiction {Bride's Estate, 15 Abb. Pr. 12). And so he nfey enter an order nunc pro tunc {Butler v. Emmet, 8 Paige, 21). But apart from the provisions of the Revised Statutes, he has no power to award costs to either party {Shultz t. Pulver, 3 Paige, 182 ; Halsey v. Van Amringe, 6 Id. 12 ; see ante, p. 18). ARTICLE FOURTH. CONCTJEEENT AUD EXCLUSIVE JTJEIBDICTION. Probate of wills.] — The surrogate's court of the proper county has power (except in the case of lost and destroyed wills, of which mention is made hereafter) to taie proof of aU wills of real and personal property of persons dying domiciled, &c., in the state, in the cases specified by the statute, and also of aU wills relating to real estate situated within this state (2 B. 8. 220, § 1, subd. 1 ; Vreeland v. McClelland, 1 Bradf. 393). This jurisdic- tion, in respect to wiUs of personal property, is exclusive of all other courts within the state, except in the cases hereafter men- tioned, and the probate is conclusive evidence of the due execution of the will. The surrogate must determine all questions of fraud, imposition, imdue influence, mistake, and other circumstances re- lating to i\iB factum of the instrument propounded. In general, nustakes and variances between the will as prepared, and the in- structions given for preparing it, can be reformed only by the surrogate {Burger v. Hill, 1 Bradf. 360). In respect to wills of real property, probate was, before the Kevised Statutes of 1830, made only in the supreme court or county common pleas. * The Eevised Statutes gave the surrogates' courts jurisdiction also to take probate of wills of real property (not lost or destroyed) under certain • restrictions as to the effect of the probate where all the witnesses to the will were dead or without the state (2 R. S. 58). How far this jurisdiction is in any case exclusive of other courts within the state, is perhaps a question.f There fs a statu- * For statute regulating proof of wills of real estate before the R. S., see 1 7J. X. of 1813, 366, §r f It has been recently held that where a vendof claims under a devise, he must show probate of the will in order to compel the vendee to take title {Thorn t. SJieiU, 16 Ahl. Pr. N. 8. 71). 26 JURISDICTION AND POWERS OF SURROGATES' COURTS. Foreign Witnesses, and Wills in Custody of Foreign Courts. tory provision allowing the validity of any actual or alleged devise or •will of real estate to be determined by an action in tbe supreme court, in the same manner as the validity of any deed conveying or purporting to convey lands may be determined, and allowing heirs claiming real estate by descent from an ancestor who died in possession, to prosecute an action for the partition thereof, not- withstanding any apparent devise by such ancestor, provided that in such action they shall allege and establish that such apparent devise is void (Z. 1853, p. 526, c. 238). Whether the intent of the statute goes further than to allow the question of the proper construction of the will to be so determined, may be open to ques- tion ; though in one case, at least, the issue of testamentary capacity was raised and tried, without objection {Marvin v. Marvin, Ct. of App. Oct. 22, 1869, MSS.) It is clear, however, that this jurisdic- tion is restricted to wiQs of real estate, and that legatees can not maintain an action for the construction of a will ( Woodruff v. Cooh, 47 Barh. 304). Foreign wills of personalty.}— The Supreme Court has juris- diction, where a will of personal estate made by a non-resident of the state, has been duly executed according to the law of the place where the will was made, to take proof of it by a commission for that purpose. And when such a wiU has been so proved, the court may make a decree establishing it as a wiU. of personal estate, and if such a decree is made, the court is required to transmit the de- cree to be recorded in the office of the surrogate having .jurisdic- tion, with directions to such surrogate to issue letters testamentary or of administration with the will annexed, in the same manner as upon wills duly proved before him (2 E. S. 67, § 68 ; B B. 8. 5th ed. 152, and L. 1847, c. 280, § 16 ; Alexander's Estate, 1 Tuck. 114). Foreign witnesses, and wills in custody of foreign courts.] — The supreme court has power also to take proof of a will duly executed'according to the laws of this state, where the witnesses to it reside without the jurisdiction of this state ; or a duly exem- plified or authenticated copy thereof, when the original will is in the possession of a court or tribunal of justice in another country or state, whence it cannot be obtained (2 R. S. 67, § 63 ; 3 ^. ^. 5th ed. 151, and Z. 1847, c. 280, § 16). For that purpose the court' JURISDICTION AND POWERS OF SURROGATES' COURTS. 2T Foreign Witnesees, and Wills in Custody of Foreign Courts. may, on application made to it, issue a commission upon tlie pe- tition or complaint of any person interested in the establisliment of the will. Such notice as the court may direct must be given to the parties interested to oppose the probate. But the court may dispense with notice where, from the circumstances of the case, notice may be deemed unnecessary {Id. % 64). Such a commission will be issued whenever, from the absence of the will or the non- residence of the witnesses, it can not be proved in the usual man- ner before the surrogate {Matter of Hornby, 2 Paige, 429). But the court has no power to tate proof of a will where all the wit- nesses to it are dead. The court may, however, perpetuate the testimony of witnesses in support of the will {Stevens v. Brooks, Clarice, 130). A notary public, in a foreign country, will not be presumed to be " a court or tribunal of justice " within the mean- ing of the statute ; that fact must be proved {Matter of Diez, 56 Ba/rb. 691). The refusal of the supreme court to issue a commission to prove an exemplified copy of a foreign will (under 2 E. 8. 67, §§ 63, 6Y), on the ground that the case is not within the statute, is no bar to proving the original will, before the surrogate, even though the order of refusal adjudged that the paper was not the testa- tor's will {Matter of Dies, 50 iT. Y. 88).* If the facts are suffi- cient to establish the validity of the will, the court must direct the will or copy, and the proofs or examinations, to be recorded in the office of the clerk of the court {Id. § 65). Every will or copy so proved must have a certificate of such proof indorsed thereon, signed by the clerk and attested by the seal of the court, and may then be read in evidence without further proof thereof ; and every record so made, or an exemplification thereof, is receivable in evi- dence, and is as effectual, in all cases, as the original will would be if produced and proved, and may, in Hke manner, be repelled by contrary proof {Id. § 66). The provisions of §§ 63-66, inclusive (above), extend to wills of personal as well as of real property, and to wills executed before the passage of the act, as well as to those thereafter executed. Where there are assets of the testator within the state, and due notice has been given to the parties * The statement In the report, that the application was under the act of 1840, is an error (see 56 Barb. 691). 28 JUEISDICTION AND POWERS OF SURROGATES' COURTS. Lost or Destroyed Wills. interested to oppose the will, the court may, by decree, establish the same as a wiU of personal estate ; and in such case, must trans- mit such decree to be recorded, as in the case of foreign wills of personalty {Id. % 67). But no wiU of personal estate, made out of the state, by a j)erson not a citizen of the state, can be admitted to probate under either of the provisions of the statutes above stated, imless such wiU has been executed according to the laws of the place where the will was made (2 R. 8. 67, § 69 ; Z B. 8. 5th ed. 152; Matter of Boberts, 8 Paige, 446). This section (§ 69) does not apply to a citizen resident abroad, whose domicil in this state has not been lost by such residence abroad {Dupuy v. Seymour, 64 Ba/rK 156). As to the proper method of proceeding under the statute, and the ■contents of the petition, &c., see Matter of Easton (6 Paige, 183) ; Matter of Atldnson (2 Paige, 214). Lost or destroyed wills.]— ho?>t or destroyed wills cannot be 3)roved in the surrogates' courts {Buckley v. Bedmond, 2 Bradf. 281), except in the county of New York.* The remedy is by a proceeding in the supreme court under the statute. The statute provides that whenever any will of real or personal estate is lost or destroyed, by accident or design, the supreme court has the same power to take proof of the execution and validity of such will, and to establish it, as in the case of lost deeds (2 B. 8. 67, § 63 a ; Z B. 8. 5th ed. 153). Upon the will being established by the decree of a competent court, the decree must be recorded by the surrogate before whom the wiU might have been proved, if not lost or destroyed, and letters testamentary, or of administra- tion with the will annexed, must be issued in the same manner as upon wills duly proved before him {Id. § 64 a). If before or during the pendency of an application to prove a lost or destroyed wiU, letters of administration are granted on the estate of the testator, or letters testamentary on any previous will of the testator are granted, the court to which such application is made has authority to restrain the administrators or executors so appointed * Whenever any will of real or personal estate has been lost or destroyed by ac- cident or design, the surrogate of New York county, if such will might haye been proved before him, has the same power to take proof of its eiecution as is vested in the supreme court (1 Z. 1870, c. 367, § 8). JURISDICTION AND POWERS OF SURROGATES' COURTS. SO Exclusive Jurisdiction of Surrogates as between Themselves. from any act8 or proceedings, wMcli it may judge would be in- jurious to the legatees or devisees claiming under such lost or de- stroyed will {Id. § 65 a). The provisions of the statute extend to wiUs of real and personal property executed before the statute was passed {Id. § €6 a). The statute further provides (§ 67 a) that " no will of any testator who shall die after this chapter shall take effect as a law, shaU be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator ; or be shown to have been fraudulently destroyed in the lifetime of the testator ; nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness." As to the jurisdiction of the court of chancery in such cases before the E.. S., see Bowen v. Idley (6 Paige, 46). As to the proof of the fact that thewiU has been lost or destroyed, see Schultz v. Schultz (35 N. Y. 653). As to proof of its con- tents, see Orcmt v. Grant (1 Sandf. Ch. 235) ; and as to when a wiU is " fraudulently destroyed," within the statute, see Voorhees V. Vom-heea (39 If. Y. 463 ; affi'g 50 £arb. 119) ; and Timon v. Clafy (45 Bari. 438). Exoluaive jurisdiction of surrogates as hetween themselves.'] — Except in the cases before mentioned, the surrogate's court of the proper county has exclusive jurisdiction to take proof of wiUs of personal property which can be proved in this state {Burger v. Hill,lBradf.MQ). It may occasionally happen, however, that more than one surrogate may be asked to exercise power to take proof of a will and grant letters, as e. g. where the deceased is not an inhabitant of the state, and dies out of it, leaving assets in sev- eral counties. In such a case the surrogate of the county in which he left assets — as wiU be seen in the chapter on Probate — may take proof of his wiU. In order to prevent a conflict of juris- diction, the statute provides that when " any will of personal prop- erty shall have been proved before any surrogate having jurisdic- tion, the jurisdiction over the executors, and the power of granting- letters testamentary and of administration with the will annexed, with all powers incidental thereto, shall be exercised exclusively by the surrogate who first took the proof of such will ; and no other surrogate shall have power to grant letters of administration so JTJEISDICTION AND POWERS OF SURROGATES' COURTS. Deposit and Custody of Wills. upon the estate of such testator " (2 B. S. 61, § 28 ; Z B. 8. 5th ed. 141). And that " when jurisdiction shall haye been acquired hy any surrogate's court, ia relation to any matter or proceeding, such jurisdiction, oyer the same matter and aU its incidents, shaU be exclusiye of all other surrogates, except when otherwise pro- vided by law. And whenever any guardian shaU have been ap- pointed, or any other proceeding shall have been commenced, in relation to any other matter, in any surrogate's court, aU other proceedings in relation to such guardian or other matter, shall be had and continued in the sui-rogate's court of the same county " (2 B. S. 223, § 12; 3 B. S. 6th ed. 36T; and see 2 B. S. Ill, § 24 ; 3 B. S. 5th ed. 205). The question as to when a surrogate has gained or acquired jurisdiction will be considered in the chapter on Probate (and see Bolton y. Jacks, 6 Bobt. 166-193). ARTICLE FIFTH. DEPOSrr AST) OtrSTODT OF WILLS. It is not necessary that a will which it is desired to prove should be produced from any special custody or have been deposited by the testator in any particular place. Provision has been made by the statute, however, for the deposit, by a testator, of a will made by him and for its custody in the possession of certain public officers. By the statute, every county clerk and surrogate, and the regis- ter of deeds in the city and county of New York (upon payment of fees) is required to receive and deposit in their offices respect- ively, any last wiU or testament which any person may deliver to them for that purpose, and to give a written receipt therefor to the person depositing the same (2 B. 8. 404, § 67 ; S B. 8. 5th ed. 688). Such will must be inclosed in a sealed wrapper, so that the contents thereof can not be read, and have indorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered ; and must not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as directed by the statute (§ 68). The statute directs that a will so deposited shall be delivered orily — " 1. To the testator in person : or, JURISDICTION AND POWERS OF SURROGATES' COURTS. 31 Deposit and Custody of Wills. " 2. Upon his written order, duly proved by the oath of a sub- scribing witness : or, " 3. After his death, to the persons named in the indorsement on the wrapper of such will, if any such indorsement be made theron: or, " 4. If there be no such indorsement, and if the same shaU have been deposited with any other officer than a surrogate, then to the surrogate of the county " (§ 69). If such a will has been deposited with a surrogate, or been de- livered to him in accordance with any of the provisions of § 69 (above), then upon the death of the testator th^ surrogate is required to publicly open and examine it, and make known its con- tents and file it in' his office, there to remain, until it has been duly proved, if capable of proof, and then to be delivered to the per- son entitled to the custody thereof; or until required by the authority of some competeijt court to produce it in such court (§T0). ^ In practice, it is found that, testators seldom avail themselves of the prbvisions of the statute, and wiUs are generally found in the possession of the executors, or attorneys of the deceased, or among his private papers. CHAPTER III. COMMENCEMENT OF PROCEEDINGS AND EXECUTION OF PROCESS. Abt. 1, — Original proceaa and its service. 2. — Execution of mesne and final process. ARTICLE FIRST. OEIGINAL PKOCESS AND ITS SERVICE. The original process issuing from the surrogate's court, hj wMcli a proceeding is commenced, is either (1) citation, (2) order to show cause, or (3) summons. Theoretically, the citation or summons issues only upon an order of the surrogate regularly entered in the proceeding, upon an application made. In practice, however, this order is not a necessary prerdfc[uisite to the issuing of process ; and if the application of a party for a citation is entertained, the surrogate issues the citation at once, the order therefor being entered afterwards in a book kept for that purpose. The application or petition for the citation need not be in writing (unless expressly required by statute), and frequently is not {Smith v. Hendngton, 42 £arb. 75), although the surrogate's power to require the petition to be in writing is undoubted {Foster V. Wilher, 1 Paige, 537). The petition may be verified before a conimissioner of deeds {Bolton v. Jacks, 6 Robt. 166). Citaiion?^ — The citation is the process most frequently em- ployed to bring parties before the court and obtain jurisdiction over them. It is the appropriate process to compel the appear- ance of parties on an application for probate, or for letters of ad- ministration, or to compel executors, administrators or guardians to account, and other similar proceedings. The parties being once before the court in such proceedings, they are of course always subject to the caU of the court by order to show cause. Order to show cav^e.] — A proceeding to compel the perform- ance of a duty by an executor, &c., or to enjoin the executor, COMMENCEMENT OF PROCEEDINGS. 33 -m — Summons. — Form of the Citation. — Service of Citation. &c., in a given case, is iisually commenced by an order to show cause. Summons.] — The process of summons is designated in the statute as the proper process in two proceedings only, to wit : the compelling the return of an inventory (2 Ji. S. 85), and the com- pelling of an executor to appear and qualify (2 i?. S. TO). It in no way differs in form from a citation, except that the word sum- moned is nsed instead of cited, to conform to the precise language of the statute in the two cases mentioned (see Form No. 1). Form of the citation.] — The statute does not require that the citation should be in any particular form, but it is subject to the general provisions of the statute in regard to the process of courts, requiring such process to run in the name of the people, to be in the Enghsh language, &c. (2 B. S. 276, §§ 8, 9). It is issued under the seal of the court, and subscribed or witnessed by the surrogate or his clerk. The contents of . the citation vary in accordance with the proceeding in which it is employed. In some cases, as in the case of a citation to attend the probate of a wiU (Z. 1837, c. 460, § 7), the statute requires various facts to be stated in the citation, and in other cases it is silent on the subject. For infor- mation on this head, the various proceedings must be consulted, and the forms in the appendix. In general, however, in addition to the mandatory clause, the citation need contain nothing more than a statement of the time and place of appearance, and a general reference to the nature of the proceedings. Service of citation.] — The citation or other process may be served in any part of the state, and madcTetumable before the surrogate who granted it (Z. 1837, c. 460, §§ 66, 67 ; People v. Pelham, 14 Wend. 48). With respect to the time and mode of service, the statutes prescribe greatly varying rules in the different proceedings, and for information on that point the chapters on those proceedings must be consulted.* There are, however, some * See, with respect to the service of citations, &s follows : citation to attend the probate of a will, L. 183V, c. 460, § 8, as amended by L. 1840, c. 384, § 1 (3 iJ. 8. 5th ed. 147 ; 4 Mm. 488), and L. 1863, u. 362 (6 Edm. 124) ; citation upon an application to revoke probate, 2 R. 8. 61, 62, part 2, c. 6, tit. 1, §§ 32, 34 (3 R. 8. 6th ed. 142; 2 Edm. 61); citation upon an application for letters of administration, 3 34 COMMENCEMENT OF PROCEEDINGS Service of Citation3 on LuDatics, cfec. — Service on Minors. general statutory provisions whieli apply in all proceedings, and in those cases where the statute does not expressly prescribe the course to be followed, it is understood that the practice in the former court of chancery and the present supreme court governs. The citation, however, unlike the summons under the Code of Procedure, may be served by a party to the proceeding ( Wetmore V. Parker, 52 i7. Y. 450, affi'g 1 Zans. 121). Service of citations on lunatics, cfec] — Where any party en- titled to be served with a citation is insane or an idiot, the citation must be served on the lunatic or idiot, and on the committee of his person and estate, or of either ; and in case there is no com- mittee of his person and estate, or of either, then the citation must be served on the lunatic or idiot personally, and also on the person in whose care and custody he is (Z. 1872, c. 693, § 1). And whenever a citation has been served on- any lunatic or idiot, the surrogate must appoint a special guardian for such person, whose duty it is to take charge of his interest on the proceedings for which he is cited {Id. § 2). Service on minors.] — The mode of service of citation upon minors is regulated by statute (Z. 1847, c. 460, as amended, Z. 18Y4, c. 156). If the minor is under fourteen years of age, serv- ice is made by delivering a copy to the minor personally, and also to his father, mother, or guardian, or if there be none within the state, then to any person having the care and control of the minor, or with whom he may reside or be employed by. If he is over fourteen years of age, service may be made by delivering the copy to him personally (see Kellet v. Eathhun, 4 Paige, 102 ; Brich^s Estate, 15 Abh. Pr. 12)? In proceedings for admeasurement of dower, notices must be served on the guardian of a minor party (2 R. S. 488, § 3 ; see post, chap. Y, art". 2). 2 Ii:S. 76, part 2, c. 6, tit. 2, § 36 (3 if. 8. 5th ed. 160 ; 2 Edm. 11) ; citation to » collector who has neglected to deposit money, L. 1864, c. 71, § 8 (6 Sdm. 232). See also, with respect to the service of other kinds of process, as follows : order to show cause against selling real property, 2 i?. S. 101, part 2, c. 6, tit. 4, §§ i-1 (8 i?. 8. 5th ed. 18"? ; 2 Edm. 105) ; summons to a person named as executor to appear and qualify, 2 R. S. 10, part 2, c. 6, tit. 2, § 10 (3 R. S. 6th ed. 155; 2 Edm. 72); order to account, L. 183V, c. 460, § 16 (8 R. S. 5th ed. 178 ; 4 Edm. 500). AND EXECUTION OF PROCESS. 35 Service by Publication. — Proof of Service. — Appearances by Attorney. Service hy puUication]. — Where necessary parties reside out 'of the state, service may be made by publication (see post, chap. Y, art. 2). By a recent statute (Z. 1874, c. 43T), it is provided tbat notices and citations shall novf be published, except in certain cases, in a paper published in the county of the surrogate instead of the state paper as formerly. Proof of service.] — The service of the^citation or other orig- inal process is usually proved by affidavit, and in the case of a citation upon an application for probate, the statute expressly re- quires the proof to be so m*,de (Z. 1837, c. 460, § 9 ; Z E. S. 5th ed. 148 ; 4 Edm. 488). In practice, however, proof of service in all cases is allowed to be made by an admission in writing of the person served, and proper proof of his signature. And in a case of admeasurement of dower it was held that an admission of service, signed by the general guardian of a minor, was binding on the minor {Board v. Board, 4 Abh. Pr. 295). If the parties voluntarily appear in person, no proof of service of procJess is necessary to give the surrogate jurisdiction {Everts v. Everts, 62 Barb. 577). Appearances iy attorney.] — Notwithstanding the imperative language of the statute requiring evidence of service by affidavit on application for probate, it has been the constant practice of the court, in that class of cases as weU as in others,, to accept the ap- pearance in person, or by attorney, of the party cited, as sufficient in the place of an affidavit. It is desirable that all appearances by attorney should be in writing, and filed in the office of the sur- rogate. It is not to be understood, however, that a general ap- pearance by an attorney in a proceeding in surrogates' courts will authorize him to waive the personal service on his client of any papers or citations which are required' to be so served in the course of the proceedings. In New York county, however, all persons may appear in the surrogate's court by an attorney of the supreme court; and in such casp service of papers (other than those re- quired by statute or the order of the surrogate to be personally served) may be made upon the attorney (Z. 1870, c. 359, § 2). And in that county an appearance in the surrogate's court is pro- hibited, except in person or by an attorney of the supreme court (Z. 1870, e. 369, § 2). In othe:? counties, however, it is the gen- 36 COMMENCEMENT OF PROCEEDINGS Execution of Mesne and Final Process. eral practice to allow any person to practice as an attorney in the- surrogate's court (Bevisor's note to draft Revised Stcdutes). When by due service of process or voluntary appearance in person, or by attorney, the parties are regularly in court, proceedings may be taken in much the same way as in ordinary actions in courts of record. When a decree is made — ^if it be for the payment of money — ^it may be docketed with the county clerk, and an execu- tion issued thereon (see ante, p. 17, and Form No. 6 ) ; or it may be enforced by process of attachment, in that case, as in all other cases. ARTICLE SECOND. EXECUTION OF MESNE AND FINAL PROCESS. The surrogate's court has the same power that the late court of chancery had to enforce its lawful orders, process and decrees by attachment to compel personal appearance, and by commitment to punish disobedience to the order, process or decree. This extends < to orders or decrees for the payment of money as well as to those for the delivery of specific property, or the performance of specific acts. And it extends to decrees against guardians {Seaman V. Duryea, 11 iT. T. 324). This power is not derived from the statute of contempts applicable to courts of record {Matter of Wat- son, 5 Zans. 46*6, affi'g 3 Id. 408 ; Seaman v. Duryea, 10 Barb. 632), but exists independently of it. Certain sections of the statute of contempts are, it is true, applicable to proceedings in a surro- gate's court {Matter of Watson, 5 Zans. 466), but the court does not proceed by virtue of that statute, and can not, for the benefit of the injured party, fine for a contempt, and then commit for non- payment of the fine {lb.) The power is that of chancery, which is exercised by an attachment commanding the sherifi to bring the person charged before the surrogate, to answer for his alleged mis- conduct. The party charged may be allowed to give bonds to appear. Upon the return of the attachment, if the party charged does not exonerate himself, the surrogate may make an order that he comply with the order, process or decree in question, and that he be committed until he does so, and pays the fees, unless sooner discharged according to law. • AND EXECUTION OF PROCESS. 37 Commitment for Contempt. Vorwmit merit for contempt.'] — Upon this order a precept or -warrant may be issued to the sheriff, under the seal of the surro- gate, commanding the sheriff to take the body of 'the person charged, and keep him in custody until he pays the money or per- forms the acts specified. Properly, the warrant of commitment, as well as the rule or order, should show the failure to pay or do the other act required; but this is not regarded as essential, if it appears by the other proceedings {Seaman v. Duryea, 10 Barb. 536). The leading authority upon this subject, is Seamam v. Duryea (11 If. Y. 324, affi'g 10 Barb. 523). That case arose on a guardian's account; but determined the construction of the ■statute as to surrogates' powers in the case of executors and ad- ministrators. Whether a person committed under such process, is to be deemed committed for contempt, and therefore to be kept in close custody, or whether he is to be deemed committed as upon an ordinary execution against the person, and therefore en- titled to the Jail libertiel, and to be discharged under the non- imprisonment act, is a question left in some doubt by the authorities {Matter of Watson, 5 Lans. 466). The confusion in the cases has, in part at least, arisen from not observing the principle that the power to commit in this court does not come from the statute of contempts, but exists independently of it. The question in each ease is, whether this commitment was for a contempt, or merely a process in the nature of an execution against the person. And the case of People v. Cowles * (3 Abb. Ct. App. Deo. 507) settled the rule that where there is an adjudication that a party has a sum of money, and that he should pay it over, and he refuses to do so, the disobedience is a contempt, and the prisoner is not entitled to the liberties. The power of the surro- gate in this respect has been best expounded by Allen, J., in teaman v. Duryea {supra), and although the question there arose "In regard to the control of the court over a guardian, the remarks there made are applicable to aU classes of cases. The learned judge says : i , * The dissenting opinion of Woodrutf, J., in this case, printed in 4 Keyes, 46, is •quoted in Matter of Watson, 6 lam. Hi, being supposed to be the opinion of the ■court. The court held the contrary. 3-8 COMMENCEMENT OF PROCEEDINGS Commitment for Contempt. " For the purposes of settling accoimts between guardians and wards, and finally adjudicating thereon, the surrogate's court was. clothed with all the jurisdiction which had before been exercised by the court of chancery, to be exercised, however, in the cases and in the manner prescribed by statute ; and while surrogates' courts- can only exercise the jurisdiction expressly conferred upon them, the statutes, being remedial and for the advancement of justice, should receive a favorable construction, and such as will give to them the force and efficiency intended by the legislature {People V. Pelham, 14 Wend. 48). If the powers of the surrogate should be restricted to .requiring the guardian to render an account of his doings, which may, in a limited sense, be held to be an accounting, or if it should be held that the surrogate is invested with power to examine the account rendered, allow and disallow items, and finally adjust and settle the same, and 'strike a balance, without power to decree the payment of such balance, the remedy will come far short of that afforded by^ the court of chancery, and the legislature wiU have failed to pro- vide the substitute they designed. The parties pursuing will be compelled to resort to another court by an independent action, to obtain the relief which before would have been had in one action. The payment is a part of the accounting. An officer or trustee could not be said to have accounted to his government, superior officer, or destui que trust, in respect to his office or trust, who should state a just account of the moneys in his hands, and which he oulght to pay, but which he should, nevertheless, neglect or refuse to pay. The bond of a guardian is conditioned that he -syUI, in all things, discharge the duty of a guardian to the minor according to law, and that he will render a true and just account of aU moneys, and property received by him, and of the application thereof, and of his guardianship in aU respects, to any court having cognizance thereof, when thereunto required (2 P. S. 151, § 8). And it would hardly be claimed that the refusal to pay over an ascertained bsfl- ance would not be a breach of this condition. The law of 183Y (c. 460, § 63), authorizing the docketing of any decree which may be made by a surrogate for the payment of money by a guardian, and an execution to be issued thereon, is a strong expression of the leg- islative opinion of the power of the surrogate to make such decree, for it assimies that the power exists. The surrogate has authority- AND EXECUTION OF PEOCESS, 39 Commitment for Contempt. to compel the guardian to account, wMcli includes the payment of any sum which may be found in his hands, and necessarily implies power to make the necessary order or decree in the premises, and this aside from the general power to control and direct the conduct of guardians. The accounting is incomplete until payment of the money, and the whole is a process which may be enforced by attachment, to be issued by the surrogate, under 2 It. S. 221, § 6." This, opinion, it will be seen, goes far to support the doctrine that an unexcused breach of the fiduciary d.uty of an executor, admin- istrator, or guardian, in respect to the payment of money, is, when judicially ascertained by the surrogate, a contempt, irrespective of the question whether the executor, &c. had the money at the time the order for its payment was made. A breach of the duty and of the oath of the trustee may well be deemed a contempt of the court. CHAPTER IV. PARTIES TO PEOCEEDINGS m SURROGATES' COURTS. Aet. 1. — Heirs at law under the statute of descent. 2. — Next of kin under the statute of distribution. 3. — Other parties. AETICLE FIRST. HEIRS AT LAW UNDER THE STATUTE OF DESCENT. The persons who are necessary parties to a proceeding in the surrogate's court are usually those who are ultimately entitled to the fund or estate in question in the ordinary course of law, apart from any disposition made of it by the deceased — in other words those who are the "heirs" and "next of kin" of the deceased. The "heirs" and the "next of kin" are often the same persons, although they constitute separate and distinct classes. In legal phraseology, the word " heirs " is used to designate those relatives who succeed to the real property; while the words "next of kin" are used to designate often the same relatives who succeed to the personal property. Who these persons are in any particular case must be determined by an examiaation of the statutes of descent (1 H. S. 751) and of distribution (2 JR. S. 96). It is not intended, in this place, to do more than point out the provisions of these statutes, which, regulating as they do the descent of real, and the distribution of personal, property, neces- sarily determine the proper parties to a proceeding affecting such descent or distribution. For it may be stated as a principle that every person having an interest in the estate which can be af- fected by the proceeding should be made a party to it. "We have deferred the consideration of who may institute particular pro^ ceedings, or who are necessary to be cited to appear therein, until we come to consider, in their order, the various proceedings known to surrogates' courts. PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 41 Lineal Descendants in equal Degrees. . Order of descent of real estate.'] — The statute known as the statute of descent provides that " the real estate of every person, who shall die without devising the same, shall descend in manner following ; 1. To his lineal descendants; 2. To his father; 3. To his mother ; and 4. To his collateral relatives ; subject in all cases to the rules and reflations hereinafter prescribed" (1 Ji. S. 751, §!)• • Lineal descendants in equal degrees.] — "If the intestate shal leave several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, the inherit- ance shall descend to such persons in equal part, however remote from the intestate the common degree of consanguinity may be " {Id. § 2). Children li/ving, and descendants of dead children.] — " If any of the children of such intestate be living, and any be dead, the inheritance shaU descend to the children who are living, and to the descendants- of such children as shall have flied ; so that each child who shall be living, shall inherit such share as would have de- scended to him, if aU the children of the intestate who shall have died leaving issue, had been living ; and so that the descendants of each child who shall be dead, shall inherit the share which their parent would have received if living" {Id. § 3). Descendants of unequal degrees.] — " The rule of descent pre- scribed in the last section shall apply in every case where the de- scendants of the intestate, entitled to share in the inheritance, shaU be of unequal degrees of consanguinity to the intestate ; so that those who are in the nearest degrees of consanguinity shall take the shares which would have descended to them, had aK the de- scendants in the same degree of consanguinity, who shall haive died leaving issue, been Uving ; and so that the issue of the descendants who shall have died, shall respectively take the shares which their parents, if living, would have received" {Id. § 4). When father to inherit?^ — " In case the intestate shall die with- out lawfid descendants, and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and such mother be living; but if such 42 PARTIES TO PROCEEDINGS IN SURROGATES' COUltTS. Collateral Relatives. motlier be dead, the inheritance descending on her part shall go to the father for life and the- reversion to the brothers and sisters of the intestate and their descendants, according to the law of inherit- ance by collateral relatives hereinafter provided. If there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee" {Id. § 5). , When mother to inherit for life.] — " If the intestate shall die vrithout descendants and leaving no father, or leaving a father not entitled to take the inheritance under the last preceding section, and leaving a mother, and a brother or sister, or the descendant of a brother or sister, then the inheritance shall descend to the mother during her hf e, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter pro- vided" {Id. § 6). • When to inherit fes.] — " If the intestate in such case, shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance 'shall descend to the mother in fee " {Id. § 6). Collateral relatives.] — " If there be no father or mother, capa- ble of inheriting the estate, it shall descend, in the cases herein- after specified, to -the collateral relatives of the intestate" {Id. § Y). Hule when all. of different degrees.] — " If there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate the common degree of consanguinity may be" {Id. § 7). Brothers and sisters and their descendants.] — "If all the brothers and sisters of the intestate be living, the inheritance shall descend to such brothers and sisters ; if any of them be living, and any be dead, then to the brothers and sisters, and every of them who are living, and to the descendants of such brothers and sisters as shall have died ; so that each brother or sister who shaU be liv- ing, shall inherit such share as would have descended to him or her, if aU the brothers and sisters of the intestate, who shall have died leaving issue, had been living; and so that such descendants shall inherit the share which their parent would have received, if living" {Id. § 8). PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 4:S Brothers and Sisters of Father, and their Descendants. Rule where such descendants are of unequal degrees i\ — "The same law of inlieritance, prescribed in tlie last section, shall pre- vail, as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, whenever such de- scendants are of unequal degrees " {Id. % 9). Representation among collaterals.] — Under the statute of de- scent of 1786 (1 R. L. of 1813, p. 52), no representation was allowed among collaterals beyond brothers' and sisters' children. By the Kevised Statutes, however, the principle of representation is changed, so as to extend to all lineal descendants of a brother or sister, however remote {Hannan v. Osborne, 4 Paige, 340). Be- fore the Kevised Statutes, aU linecd descendants, of equal degrees of consanguinity, took equally, however remote they all might be from the intestate ; and if any of that class had died, leaving issue, such issue took by representation. But, in regard to colla.terals, they took by representation, although they all stood in' equal de- gree. By 1 R. S. 752, §§ 8, 9, 10, lineals and collaterals are placed on the same footing, and both take as do lineals {Pond v. Berghy 10 Paige, 140). The rule now among both lineals and collaterals is, that, if aU the heirs are in the same degree of consanguinity to the intestate, they take equally, however remote they may be from him ; but, if some of the class of relatives nearest to the decedent are dead and leave issue, the survivors of the cMss take equally among themselves, and the representatives of those who are dead take the share which their ancestors of that class would be entitled to if Uving {Ih. and Hyatt v. Pugsley, 2€Barb. 301). Where the in- heritance descends to or through brothers or sisters, or both, the primary division is to be made between the nearest surviving rela- tives and the descendants of those of the same degree ■ who may have died, so that the descendants of such shall collectively take the share which would have fallen to their ancestor, had he or she been Hving. This is the construction to be put on 1 R. 8. 751, §§ 7, 8^ 9, taken together {Hyatt v. Pugsley, 23 Barh. 300). Brothers and sisters of father, and their descendants.] — " If there be no heir entitled to take under either of the preceding sec- tions, the inheritance, if the same shall have come to the intestate on the part of his father, shall descend — 44 PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. Brothers and Sisters of Mother, and their Descendants. —9 ~ 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living ; 2. If any be living, and any shall have died, leaving issue, then to such brothers and sisters as shall be living, and to the descend- ants of such of the said brothers and sisters as shall have died ; 3. If all such brothers and sisters shaU have died, then to their descendants. In all cases, the inheritance shall descend in the same manner as if aU such brothers and sisters had been the brothers and sisters of the intestate" (1 JR. S. 75, § 10). brothers and sisters of mother, and their descendants.] — " If there be no brothers or sisters, or any of them, of the father of the , intestate, and no descendants of such brothers and sisters, then the inheritance shaTl descend to the brothers and sisters of the mother •of the intestate, abd to the descendants of such of the said brothers and sisters as shall have died, or if all shall have died, then to their descendants, in the same manner as if aU such brothers and sisters had been the brothers and sisters of the father " {Id. § 11). When brothers and sisters of mother, and their descendants, will he preferred to those of /ather.]—" In all cases not provided for by the preceding sections, where the inheritance shall have come to the intestate on the part of his mother, the same, instead of de- scending to the brothers and sisters of the intestate's father, and their descendants, as prescribed in the preceding tenth section, shall descend to the brotheA and sisters of the intestate's mother, and to their descendants, as directed in the last preceding section ; and if there be no such brothers and sisters, or descendants of them, then such inheritance shaU descend to the brothers and sisters, and their descendants, -of the intestate's father, as before prescribed " {Id. §12). Inheritance from the first purchaser.] — The Eevised Statutes have abolished the rule of the common law which declared that, when the intestate was the first purchaser of the inheritance, rela- tives on the side of the father should be entitled to take so as to exclude those on the side of the mother, until the blood of the father was wholly exhausted {Brown v. Burlimgham, 5 Sandf. 418). This rule, at any rate, was only applicable when the descent, PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 45 Illegitimate Intestate. — Relatives of the Half Blood. from the want of near relatives, could pass to collaterals only, and when, consequently, those only could be entitled to take who were able to trace their descent from, a common ancestor. It did not apply as between brothers and sisters. Thus, where A., the first purchaser, died intestate, leaving B., a niece, and C. and D., her brother and sister by the half blood, it was held that B., C. and D. each took one-third of the estate {lb.) When hrothers and sisters of ioth father and mother, c&c. ^viU inherit equally.] — " In cases where the inheritance has not cojne to the intestate on the part of either the father or mother, the inher- itance shall descend to the brothers and sisters both of the father and mother of the intestate, in equal shares, and to their descend- ants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate " (1 Ji. S. T53, § 13). Illegitimate intestate.} — " In case of the death, without descend- ants, of an intestate who shall have been illegitimate, the inherit- ance shall descend to his mother ; if she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate " {Id. § 14). Relatives of the half hlood.~\ — " Relatives of the half blood shall inherit equally with those of the whole blood in the same degree ; and the descendants of such relatives shah inherit in the same man- ner as the descendants of the whole blood; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors ; in which case, all those who are not of the blood of such ancestor, shaU be excluded from such inheritance " {Id. § 15). The provisions of this section refer to the immediate, and not the remote, source of the intestate's title — ^that is, an ascendant of the intestate in the right line, as father, &c. The statute does not include col- lateral relatives, as brothers and sisters. Thus, y^here A. died in- testate, and seized of land, and leaving children, B., C. and D., and a widow, who married again, and had a cluld, E., and afterwards the widow died, and the children 0. and D. died, without issue, and afterwards B. died, without issue, it was held that, on her death, B. owned the whole estate — one-third by direct descent from her father, and two-thirds by descent from her sisters 0. and D., and that, as to the one-third she derived directly from her father, it 46 PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. Cases Unprovided for. — ^Alien Ancestor. went to his brothers and sisters, to the exclusion of her half-sister E. ; but that the two-thirds which she derived by descent from her own sisters C. and D., went to her half-sister E. {Valentine t. Wetherill, 31 Barb. 655). As to the meaning of the terms " the blood " of the ancestor, under this section, see Beebe v. Oriffing' {l^N. T. 235); and as to when the half-blood 'are entitled, see Champlin v. Baldwin (1 Paige, 563). Cases unprovided for.} — " In all eases not provided for by the preceding rules, the inheritance shall descend according to the course of the common law " (1 S. 8. T54, § 16). Shares of heirs.} — " Whenever there shall be but one person entitled to inherit, according to the provisions of this chapter, he shall take and hold the inheritance solely ; and whenever an in- heritance, or a share of an inheritance, shall descend to several persons, under the provisions of this chapter, they shall take as tenants in common in proportion to their respective rights " {Id. % IT ; and see Cole v. Irvine, 6 Hill, 638). * Posthumous descendants and relatives.} — "Descendants and relatives of the intestate, begotten before his death but born there- after, shall in all cases inherit in the same manner as if they had been bom in the lifetime of the intestate, and had survived him " {Id. % 18 ; and see Mason v. Jones, 2 Bari. 25). Illegitimate children and relaOves.} — By 1 P. S. Y54, § 19, it was provided that children and relatives who were iUegitimate should not be entitled to inherit under any of the provisions of that chapter ; but that provision is now modified by Z. 1855, which is as follows : " Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother, as if legitimate ; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased " (Z. 1855, p. 1046, c. 547, §1). Alien ancestor.} — The statute provides that no person capable of inheriting under the provisions of the statute, shall be precluded from inheritance by reason of the alienation of his ancestor {Id. § 22). This provision, however, is prospective, and has no appli- PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 47 Application of Statute and Definition of Terms. cation to cases which occurred previous to its adoption, *. e., Jan- nary 1st, 1830 {Jackson v. Oreen, 1 Wend. 336 ; Bedpath v. Rich, 3 Scmdf. 81). As to meaning of term "ancestor," see Banks v. Walker, 3 Barb. Oh. 438 ; McCarthy r. Marsh, 5 if. Y. 262 ; People V. Irvin, 21 Wend. 127 ; McLean v. Sxoanton, 13 iV. iF. 635 ; McOreery v. Somerville, 9 W^Aea^. 354. Application of statute and dejmition of terms.] — The statute is declared not to affect the estate of a husband as tenant by the curtesy, nor of a widow as tenant in dower, nor any limitation of any estate by deed or will (1 R. S. 754, § 20). It is also provided that real estate held in trust for any other person, if not devised by the person for whose use it is held, shall descend to his heirs according to the abo^>e provisions {Id. § 21). The term " real estate," as used in the statute, is declared, by section 27, to include every estate, interest, and right, legal and equitable, in lands, tenements, and hereditaments, except such as are determined or extinguished by the death of an intestate, seized or possessed thereof, or in any manner entitled thereto, and except leases for years and estates for the life of another person ; and the term " inheritance," is to be understood to mean real estate, as above defined, descended according to the provisions of the stat- ute.* The statute further provides (§ 28) that ' whenever any person is described in the statute as living, " it shall be understood that he was living at the time of the death of the intestate from whom the descent came ; and whenever any person is described as having died, it shall be understood that he, died before such in- testate." So the expressions, " where the estate shall have come to the intestate on the part of the father " or " mother," as the case may be, is to be construed to include every case where the * Thus, wliere a testator devised lands with certain limitations, by which, accord- ing to the construction put upon the devise, M. had an equitable life estate, and his son a remainder in fee, it was held that, upon the death of the son without lineal descendants, this remainder in fee passed to M., his father, under the statute of descent ( Vanderheyden v. Crandall, 2 Den. 9), Where land is sold in a partition suit, and the money paid into court, or otherwise disposed of, until the persons entitled to such money come of age, and they die before majority, the money is divided as if it were real estate ( Valentine v. Welherill, 31 Barh. 655). And money invested in land for the use of the intestate follows the same rule {Champion v. Baldwin, 1 Paige, 48 PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. ComputiDg Degrees of Kindred. inlieritance shall have come to the intestate by devise, gift, or descent from the parent referred to, or from any relative of the blood of such parent" (1 B. S. Y55, § 29). Miscellaneous provisions in regard to descent.'] — Besides these provisions, however, it should be observed that for a brief period (viz., 1860 to 1862) reference shoidd be had as to the life estate of the surviving husband or wife or minor child to the Z. 1860, p. 1S7, c. 90, §§ 10 and 11, which are repealed by L: 1862, p. 344, c. 172, § 2. After-bom children, too, unprovided for in the parent's will, are entitled to share in the estate (2 S. S. 65, § 49, as amended by Z. 1869, c. 22). The property of an insane person descends as if he were of soimd mind (2 B. S. 55, § 25). Certain remedies also as to real property pass at once to the heir (1 B. S. 747* § 23 ; 2 Id. 334, §4; Z. 1846, c. 274). AETICLE SECOND. NEXT OF KIN UNDBE THE STATUTE OF DISTEIBUTIONS. Computing degrees of Mndred.] — On the question who are- " the next of kin in equal degree," within the meaning of that phrase as used in the statute of distributions, reference is to be had to the ' English ecclesiastical law {Sweeseyr. Willis, 1 Bradf. 495), which adopted in respect to personal estate the rule of the civil law, not as in case of real estate, that of the canon law (2 Blachst. Com. 604, 515). The rule of the civil law is to count up from either of the persons related to the common ancestor, and then down to the other person related, reekonitig a degree to each person ascending and descending. The canon law reckoned by counting down, from the common ancestor, the number of removals in the longest line. Grandfather. \ Father. Uncle. \ InteBtate. Brother. Cousin, Son. Nephews and nieces. PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 49 Computiag Degrees of Kindred. In other words, if we regard the lines as forming a triangle, of which the common ancestor is the apex, the civH law counts all the spaces in both legs of the triangle ; the canon law comits only the spaces in the longest leg. Thus, by the canon law, the son of the intestate is in the third degree, alike from the cousin of the intestate, from the uncle of the intestate and from the grandfather of the intestate, while, by the civil law, the son of the intestate is in the third degree from the grandfather, the fourth degree "from the uncle, and the fifth from the cousin {Bogert v. Furman, 10 Paige, 496, and cases cited ; Sfweesey v. Willis, 1 Bradf. 495 ; Earring v. Coles, 2 Id. 349 ; Hurdn v. Froal, 3 Id. 414). The statute of distributions of this state is fonmd in2 F. S.9Q (3 F. S. 5th ed. marg. p. 183, § T5, &c.) It should be observed, in reading it, that its provisions do not apply to the estates of mar- ried women who leave no surviving descendants {Barnes v. Under- wood, 47 iV. Y. 351, rev'g 3 lans. 526) ; and that the words " legal representatives " do not, as in some other statutes, mean executors or administrators, but issue who, in certain cases, are allowed to represent, or take in place of, their deceased parent or grandparent. The share which comes to a person under this statute is designated " a distributive share." If a son or daughter of the intestate died before the mtestate^ but left children or grandchildren who survive the intestate, the law preserves to these, his grandchildren or great-grandchildren, the distributive share which their parent, his child, would have taken had he survived ; and the share is divided among them according to their number. This is not regarded as affecting the rules which govern the computation of degrees, but the children of the second or third generation represent their de- ceased parent for the purpose of distribution. If, however, the intestate's son or daughter suiwives him, and afterward, but before distribution, dies, leaving issue, fhe .doctrine of representation does, not apply. The right to a distributive share of the intestate's estate is, in general, vested on his death ; and if a distributee, having a vested right, dies before distribution is made, the share is to be paid to his executors or administrators (Fose v. Clark, 8 Fadge, 614). It is part of his estate to be distributed,, not by the doc- trine of representation, but according to the other provisions of the statute of distributions as applied to his family. 4 60 PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. ■ Order of Distribution. Order of distribution. \ — The order of distribution is set forth in the statute, as follows : " "Where the desceased shall hare died intestate, the surplus of his personal estate remaining after pay- ment of debts, and where the deceased left a will, the surplus remaining after the payment of debts and legacies, if not be- queathed, shall be distributed to the widow, children, or next of Mn of the deceased in manner following : " 1. One-third part thereof to the widow, and all the residue by equal portions among the children and such persons as legally represent such children, if any of them shall hare died before the deceased ; " 2. If there be no children, nor any legal representatives of them, then one moiety of the whole surplus shall be allotted to the widow, and the other moiety shall be distributed to the next sA kin of the deceased, entitled under the provisions of this section ; " 3. If the deceased leave a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus ; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to a moiety of the surplus as above provided, and to the whole of the residue where it does not exceed two thousand dollars; if the residue exceed that sum, she shall receive, in addition to her moiety, two thousand dollars, and the remainder shall be dis- tributed to the brothers and sisters, and their representatives ; " 4. If there be no widow, then the whole surplus shaU. be dis- tributed equally to and among the children, and such as legally represent them ; " 5. In case there be no widow, and no children, and no repre-. sentatives of a child, then the whole surplus shall be distributed to the next of kin, in equal degree, to the deceased, and the legal representatives ; . • " 6. If the deceased shall leave no children, and no representa- tives of them, and no father, and shall leave.a widow and a mother, the moiety not distributed to the widow shall be distributed in- equal shares to his mother and brothers and sisters, or the repre- sentatives of such brothers and sisters ; and if there be no widow the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters. PARTIES TO PEOCEEDINGS IN SURROGATES' COURTS. 51 Illegitimates. " Y. If the deceased leave a father, and no child or descendant, the father shall take a moiety, if there be a widow, and the whole, if there be no widow ; " 8. If the deceased leave a mother, and no child, descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take a moiety, and the whole, if there be no widow ; and if the deceased shall have been an ille- gitimate, and have left a mother, and no child or descendant or widow, such mother shall take the whole, and be entitled to letters of administration, in exclusion of all other persons, in pursuance of the provisions of this chapter. And if the mother of such de- ceased shall be dead, the relatives of the deceased on the part of the mother shall take, in the same manner as if the deceased had been legitimate, and be entitled to letters of administration in the same order ; " 9. Where the descendants or next of kin of the deceased, en- titled to share in his estate, shall be all in equal degree to the deceased, their shares shall be equal ; " 10. When such descendants or next of kin shall be of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks, so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to. which the parent whom they represent, if living, would have been entitled. " 11. No representation shall be admitted among collaterals after brothers' and sisters' children ; " 12. Relatives of the half blood shall take equally with those of the whole blood in the same degree ; and the representatives of such relatives shall take in the same manner as the representatives of the whole blood ; " 13. Descendants and next of kin of the deceased, begotten before his death but bom thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him" (2 i?. A?. 96, § T5). Illegitimates.] — 'Bj L. 1855, c. 54T, § 1 (see ante, p. 46), ille- gitimate children inherit real and personal property from their Tnother as if legitimate. 52 PARTIES TO PEOCEEDIKGS IN SURROGATES' COURTS. Married Women. — Partial Intestacy. — "What Law goveraa the Distribution. Married women.] — The provisions of the statute respecting- the distribution of estates apply to the personal estates of married women dying, leaving descendants them surviving ; and the hus- band of such married woman is entitled to the same distributive share in the personal estate of his wife to which a widow is entitled, under the statute, in the personal estate of her husband (2 JS. S. 98^ § 79, as amended by Z. 1867, c. 782, § 11). Partial intestacy. ] — The statute applies not only to cases of total, but also to cases of partial, intestacy. "Whatever personal assets are not effectually disposed of by the will, or consumed in the administration of the estate, come within its scope. Thus, where residuary legatees are by the terms of the will tenants m common, and not joint tenants, and one dies before the testator, the share of such one constitutes assets not disposed of by the will, and must be distributed according to the statute {Hart v. Maries, 4 Bradf. 161). And where a testator, having bequeathed to his children a contingent interest for life in the income which might accrue from a residuary fund, after the happening of a particular event, and provided for the disposal of a portion only of the in- come previous to that time, it was held that the surplus must be distributed as in case of intestacy ( Vail v. YaM, 4 Paige, 317). What law governs the distribution.'] — The law of the place of the domicile of the intestate governs in the distribution of his es- tate, even though he were domiciled in another state, and there are assets here upon which administration has been granted, and the surplus of which is distributed by the surrogate here. Thus where the intestate wb^ an illegitimate, and by the law of his dom- icile, his relatives on his mother's side were not entitled to share in. his estate, they were not allowed to share in the distribution of the surplus made here,- although by our law they would be entitled to share {Public Administrator v. Hughes, 1 Bradf. 125). Although, in general, the surrogate here will distribute the surplus of assets here of a foreign intestate, where the whole surplus of the intes- tate's estate can thereby be disposed of, yet the provisions of the statute do not contemplate the distribution of part of an entire estate of a non-resident, the residue of which is subject to the con- trol of the probate tribunal of his foreign domicile ; and in such a case assets collected here belonging to the estate of a decedent who PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 53 General Effect of the Statute. was a resident of anotlier state, will be remitted by the surrogate here to the courts of that state for distribution {Parsons v. Lyman, 20 N. Y. 103). General effect of the statute.] — The policy of the statute gen- erally is, after providing for the widow, children, father and mother of the intestate, to give the estate to the next of kin of equal degree. Where the claimants are of an unequal degree, the nea/rest of kin takes the whole, unless the remote class can come in by representation, which by the. statute is prohibited as to col- laterals, except in the solitary case of brothers' and sisters' chil- dren {Doughty v. Stillwell, 1 Bradf. 302). If there is no de- scendant, parent, brother or sister, nephew or niece, the widow has the whole ; and if there is no descendant or parent, but there is a brother or sister, nephew pr niece, then she has half and two thousand dollars besides. If there are no children nor representa^ tives of a child, she has one-haK, but if there is either a child or a representative of any, then she has only one-third. The children, or their representatives, if there is no widow, take the whole ; and if there is a widow, then two-thirds. As above stated, the hus- band of a married woman dying leaving no surviving descendants, takes the whole surplus, and if she leaves descendants surviving, the husband has the same distributive share in her personal estate as a widow is entitled to in the personal estate of her husband <2 L. 1867, p. 1929, c. 782, § 12 ; see Barnes v. Underwood, 47 W. T. 351 ; McCosJcer v. Golden, 1 Bradf. 64 ; and Vallance v. Bausch, 28 Barh. 635). "Where the dec^ent leaves no descendant, the father of the deceased takes the whole if there be no widow, and half if there be one ; and this to the exclusion of the brothers and sisters of the deceased. The mother, however (except in the case of an illegitimate), only takes an equal share vdth the brothers and sisters (there being no father, widow or descendant), and the whole only in case there be no brothers or sisters. If the deceased was an illegitimate, and left no child, descendant or widow, the mother takes the whole, in exclusion of all other persons. And if the mother be dead, the relatives of the deceased on the part of the mother, take in the same manner as if the deceased had been legitimate. Subject to the above rules, if there be no widow or descendant, the whole 54: PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. General Effect of tte Statute. surplus is distributed to the next of kin * in equal degree to the deceased, and their legal representatives ; or if there is a widow, then one-half is so distributed. When all the descendants or next of Mn of the deceased stand in equal degree, they take equal shares, or fer capita; but when of unequal degrees, then each stock takes an equal share, and those representing the stock take what the one through whom they claim would have taken had he been alive. Among descendants representation contiuues indefinitely ; but among collaterals it is not admitted after brothers' and sisters' children. The half blood is placed on the same footing as the whole blood, f and for the purpose of sharing ia the surplus, the being begotten is regarded as being the same as being born. The application of these rules in the actual distribution of sur- plus will be stated in its more appropriate place in connection with the payment of distributive shares, and the ultimate settlement of the estate. * The words "next of kin" have received various constructions according to the connection in which they are used. Thus in a deed of trust of personal property by which the trustees were to account to the " next of kin " of the grantor " in the man- ner and proportions prescribed by the statute of distribution," the widow was held to come within the words "next of kin/' and to be entitled to share {Knickerbacker T. Seymour, 46 Barb. 206). So also the widow was held to be within the meaning of the words "next of Mn" as used in 2 R. S. 89, § 45, allowing a creditor of the estate to recover against the " next of kin " the amount received by them as a distributive share (Merchant Ins. Co. v. Hinman, 4 Abb. Fr. 313; s. o. 16 How. Pr. 183). In general, however, and unless qualified by the context, the words "next of kin'" wherever used, mean not the nearest of kin, but the next of kin who take as such under the statute, including those claiming by representation. Thus in a marriage settlement the property was limited over to the "next of kin of the party of the first part," who died leaving two sisters and children of a deceased brother. It was held that such children took the share their father would have taken if alive {Slosson v. Lynch, 43 Barb. 161). f A relative of the half blood may — as can a relative of the whole blood — take, although his or her descendants could not take by representation. Thus the next of kin being an aunt of half blood on the part of the father, and an aunt of the whole blood on the side of the mother, they were allowed to take equally {HallettTr. Hare, 5 Paige, 316). PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. 55 Minors and their Guardians. ARTICLE THIRD. OTHEE PAKTIE8. Besides tlie heirs at law and next of kin of the decedent, par- ties not holding that relation frequently become parties to proceed- ings in surrogates' courts. Thus it is competent for a legatee or a creditor to petition to compel an accoimting by an executor, ad- ministrator, or a collector. Even a contingent interest is sufficient ( Wever v. Marvin, 14 Bari. 376). In such a proceeding, how- ever, the person whom it is sought to compel to account is the only one entitled to notice. But it is competent for any person interested in the estate to come in at any tune in the com'se of the proceeding to protect his own interests. The same observations may be made with regard to proceedings for the proof of a will, proceedings to contest probate, &c., but the reader is referred to the chapters devoted to such proceedings for a more particular statement of the practice in each case. Minors and ihsir guardians.'] — It must frequently happen that one of the heirs, or next of kin, or one of the legatees in a will, or one otherwise interested in an estate is a minor, or a person judi- cially declared a lunatic, or one incapable in law of acting on his own behalf, or becoming a party to an action or proceeding. The surrogate's court, in common with every other court, whether of general or limited jurisdiction, has, as one of its incidental powers, and apart from any statutory provisions, the power to appoint a guardian ad litem for any infant who is a party to a proceeding before it {JSricFs Estate, 15 Alli. Pr. 12). The consent of the infant to such appointment, even though he is over fourteen years of age, is unnecessary. In every case the surrogate may, therefore, on his own motion, appoint a special guardian or guard- ian ad litem for an infant party. In certain cases the statute re- quires him to do so, as on an application for probate of a will (Z. 1837, e. 460, § 8, as amended "by L. 1863, c. 362) ; in proceedings for settlement of executors' and administrators' accounts (Z. 1874, p. 178, c. 156) ; and on application by executors, &c., to mortgage, lease or sell real estate for the payment of debts (2 R. S. 100, § 3). Such special guardian should be an attorney at law {Spicer's Estate, 66 PARTIES TO PROCEEDINGS IN SURROGATES' GOIIRTS. Jjunatics and their Goardians. — Intervention of Interested Parties. 1 Tuok. 80), and should be independent of any other interest than that of the miner {Allen's Estate, 1 Tuck. 69). Lunatics and their guardians.'] — The surrogate will not de- termine in the first instance whether or not a party to a proceeding before him is a lunatic ; he will take notice that such is the fact only when it has been declared by a court of competent jurisdic- tion. When this appears, aU process, &c., must be served on the committee of the lunatic, if he have any, and the committee should be made a party to the proceeding. The surrogate will appoint a special guardian (Z. 18T2, c. 693, §§ 1, 2 ; see ante, p. 34). Married women.] — It was formerly held that as a mamed woman could not act without her husband's concurrence, and he was responsible for her acts, both husbajid and wife should be made parties in a matter in which the wife was interested (see Westervelt v. Gregg, 1 Barh. Ch. 469 ; Guild v. PecJc, 11 Paige, 475; Wood v. Cox, 2 Bradf. 153; Marre v. GinocMo, Id. 165). Married women are now declared capable of acting as executors, administrators and guardians of minors, as though they were single women (Z. 1867, c. 782, § 2), and the law and practice now is to permit a married woman to institute proceedings and defend her separate interests in her own name (see ante, p. 62, and ;posi, p. 66). Intervention of interested parties.] — In addition to those who are necessary parties to proceedings before the surrogates' courts, there are many cases in which other persons may, at their option, become parties and acquire a right to be heard. Any person in- terested in the estate, who, though not entitled to be cited, yet de- sires to intervene for the protection of his own iaterests, may ap- ply to the surrogate by petition for leave to do so (Foster v. Foster, 7 Paige, 48). A legatee named in a wiU propounded for probate is such a person. In practice, a fonnal petition for leave to inter- vene is not required. If the party, although not named in the citation, appears on the return day, he is entitled to be heard be- fore the surrogate {Norton v. Lawrence, 5 N. T. Surr. [1 Pedf.] 473) ; and also in the appellate court upon appeal -from the surro- gate's decision {Marvin v. Marvin, 11 Abb. Pr. N. 8. 97). It is essential, however, that he should have an interest in the estate. on an appeal from the surrogate's decision. The executor institut- ing the proceedings for the probate represents the interests of all the legatees, and they are bound by his acts, where they do not intervene until after the rendition of judgment {Marvin v. Mar- mn, 11 Abb. Pr. JV. S. 97). A legatee named in a wUl of prior date to the one offered for probate, may intervene to oppose the probate of the subsequent will {Terkune v. Brookfielci, 5 iV. Y. Surr. [1 Redfl\ 220). And so a legatee may intervene to oppose the probate of a codicil revoking the legacy in the wiU ( Walsh v. Ryan,\ Bradf. '^ZZ). Interest, how shown.] — A claim of interest, positively sworn to, wiU make the claimant a contestant before the court, and a party to the proceedings {Norton v. Lawrence, 5 N. Y. Surr. [1 Hedf.] 473) ; and even if his claim of interest is denied, this will not ou^t him, for the surrogate will not determine the question of his interest before determining the main issue, but wiU try both together. But his interest should be stated with certainty {Public Administrator v. Watts, 1 Paige, 347). In the case of a creditor, it is sufficient if he states the fact that he is a creditor, •without specifying the nature and amount of the debt. It is un- necessary for him to state that his claim is against the personal estate in his petition to compel an accounting ( Wever v. Marvin, 14 Barl. 376). CHAPTER V. THE PROBATE OF WILLS. Art. 1. — Proceedings before application for probate. 2. — Application for probate. 3.— Proof of will. 4. — Codicils and instruments annexed. 6. — ^LoBt and destroyed wills. 6. — H"unoupative wills. 7. — ^Decree granting or refusing probate. 8. — Record of will and probate. AETICLE FIRST. PEOCEEDINGS BEFOEE APPLICATION FOE PEOBATE. Upon the death of any person owning property, the ownership of such property is instantly transferred to some other person, — the property is never for a single instant without an owner, — ^but the right to the possession of such property, and the power to dis- pose of it, does not pass in the same way. The right of ownership in the property frequently, if not usually, depends on an ohscure and complicated state of facts, and therefore, for a time the power of disposal ia held in suspense or incumbered with restrictions and conditions until those rights can be judicially ascertained. The proceedings had for this purpose, the identification and collection* of the property, and its allotment and distribution according as the rights of the successors are made to appear, constitute the adminis- tration of the estate. The first step in the proceedings to obtain such a judicial determination is to apply to the court for the pro- bate of the will, if any, or for letters of administration if there be no will. Production of 'will.'\ — The law prescribes no formalities neces- sary to the opening and reading of the wiU of the deceased, but this is left as a question of fair dealing among persons having THE PROBATE OF WILLS. 59 Duty to Apply for Probate. diverse interests in the property disposed of by it. And the fact that the will was first opened and read by one claiming an interest in the estate, casts no suspicion on his claim. But if there are other reasons to suspect fraud, a clandestine use of knowledge, acquired from the will, and concealed from others equally inter- ested, might be an important circumstance if a controversy should arise between the parties. The proper course is for those into whose hands the will falls to give immediate notice of its existence to the parties most nearly interested, and to the executor named therein. Duty to apply for probate.] — It seems hardly necessary to re- mark that the application for the proof of the will, if there is one, should be made without delay, and that mere considerations of delicacy should not, in this matter, be allowed to control the action of the person who is charged with the custody of the estate. In early times, in England, it was customary for those standing nearest an iatestate to take charge of his estate, upon his death, and for the executors or beneficiaries named in the will of a testator to take immediate custody of his estate, without, in the first instance, re- sorting to the courts for sanction. The result was that a creditor could maintain an action against one who thus assumed to adminis- ter ; and so one who should interfere with the effects could be held responsible as an executor or administrator. The law has changed in this regard. The Eevised Statutes make it the duty of the exec- utor or administrator to obtain letters in the first instance, and they take away the remedy which creditors had against those who, Avith- out such authority, interfere with the assets, and require that the executor or administrator duly appointed shall pursue a remedy for the benefit of the creditors or others concerned. The statute pro- vides that " no person shall be liable to an action as executor of his own wrong for having received, taken or interfered with the prop- erty or effects of a deceased person" (2 R. S. 449, § 11). This does not mean that a person wrongfully interfering is not liable to an action ; but only that he is not so liable in the capacity of an executor or administrator. The statute further declares that he " shall be responsible as a wrong-doer in the proper action to the executors or general or special administrators of such deceased per- son for the value of any property or effects so taken or received, 60 THE PROBATE OF WILLS. Interference with Estate. — Possession of Estate before Probate. and for all damages caused by his acts to the estate of the deceased." Hence, if persons pretending to be executors take possession, the next of kin or others interested should procure an administrator to be appointed, or letters testamentary to be issued ; and the exec- utor or administrator so appointed may recover the property (J/ww- V. Trustees, e &Z. Dec. 191 ; s. c. 8 Keyes, 607 ; Kinne v. Johnson, 60 Barb. 69 ; VanEanswych v. Wiese, 44 Barb. 494 ; Clarice v. Davies, 5 W. T. Surr. [1 Redf.'\ 249 ; Turhime v. Brookfield, Id. 220 ; Julke v. Adam, Id. 454 ; Newhouse v. God- win, 17 Barb. 236). But it may be proved by circumstantial evidence ; and where, in addition to opportunity and interest, it was shown that the party in whose favor the will was made, had refused to aUow the one disinherited to have private interviews with the testatrix, this was held sufficient to set aside the will THE PROBATE OF WILLS. 85 Mistake. {Marvin v. Marvin, 3 Abh. Ot. App. Dec. 192 ; s. c. 4 Keyes, 9 ; and see Nexsen v. Nexsen, 3 Ahh. Ct. App. Dec. 360). It is said that one has a right, by fair argument, or persuasion, to in- duce another to make a will, and even to make it in his own favor {BlancJiard v. NesUe, 3 Den. 37 ; and see Tunison v. Tuni- son, 4 Bradf. 138). But the law looks with a very jealous eye upon any one who standing in a relation of confidence and influ- ence with the testator, superintends or in any way influences the testator's disposition of property, especially if such disposition is to his personal advantage. The presumption is against the in- strument {Matter of Welsh, 5 iT. Y. Surr. [1 Bedf:\ 238 ; Leay- craft V. Simmons, 3 Bradf. 35 ; ClarJc v. Fisher, 1 Paige, 171 j Matter of Paige, 62 Barh. 476 ; Voorhees v. Voorhees, 39 JT. Z". 468 ; Allen v. Public Administrator, 1 Bradf. 378 ; BleecTcer v. Lynch, Id. 458 ; G'Neil v. Murray, 4 Id. 311 ; and see Ashwell V. Lomi, 4 Engl. P. {Moah^s ed.'] 700, 710, note). To establish imdue influence over the testator at the time of executing his will, such as to preclude the admission of the will to probate, it niust be made to appear that the importunity or influence was such as to deprive the testator, at the time, of the free exercise of his will. Influence exerted only to give efiect to the testator's previously declared intention of producing ' equality between the brothers or their families in the distribution of the estate, is not undue {Gar- diner V. Gardiner, 34 JV. Y. 155). It is not within the scope of this volume to illustrate the fore- going general principles by discussing the numerous cases upon which they are founded. The general subject of wills has been so fully treated in recent treatises specially devoted to it, that we shall do no more here than refer in a note to the cases in this state in which the rule of law as to testamentary capacity was discussed and applied to particular facts.* Mistake.] — ^While it is true in general that in proceedings for the probate of a will, the jurisdiction of the surrogate is limited * The principles stated in the text are deduced from the following cases in which they were applied. Doubtless many other cases might he adduced : Incapacity, generally. Alston t. Jones, 17 Barb. 276 ; Burger v. SiU, 1 Bradf. 360 ; Bleecker T. Lynch, Id. 458 ; Meehan r. Rourlce, 2 Id. 386. Undue influence. Wigliiman y. Stoddard, S Id. 393 ; Selafield v. Parish, 26 N. 7. 9 ; affi'g 6 N. Y. Surr. (1 Bed/.) 1 ; 42 Barb. 274 ; Sherman's Appeal, 16 Abb. Br. 86 TifE PROBATE OF WILLS. Mistake. to ascertaining the fact of the due execution of the will pro- pounded, and the testamentary capacity and freedom of will of the testator at the time ; yet where, from weakness of capacity or 39Y, note ; Julke t. Adam, 5 N. Y. Sure. (1 Redf.) 454 ; Clarke v. Dav'ts, Id. 249 ; Turhune v. Brookfield, Id. 220 ; Fam Banswyck v. Wiese, 44 Barb. 494 ; Seguine v. 8e- ffuine, i Abb. Ct. App. Dec. 191; a. o. 3 Keyes, 663; 35 How. Pr. 336; Gardiner v. Gardiner, 34 N. Y. 165; Gardiner y. Tyler, 35 Id. 659. — by wife. Brmher y. Holland, 1 Bradf. 461 ; Timismi v. Tuntson, 4 Bradf. 138 ; Delafield v. PansA, 25 iV^. F. 9, affi'g 6 iV. F. *%»•?•. (1 Redf.) \ ; 42 iJarJ. 274-; Gar- diner y. Gardiner, Zi N. Y. 155; Gardiner r. Tyler, %5 Id. 659. — ty child and legatee. Leaycraft r. Simmons, 3 Bradf. 35 ; Mowry v. Silber, 2 J(i 133 ; Bleecker v. Xync^, 1 /rf. 458. — by physician. Orespell v. Dubois, 4 5ar5. 393. — by grandson, a legatee. Carroll y. Norton, 3 Bradf. 291. — by executor and legatee. Vreeland y. McClelland, 1 Bradf. 393. — by legal adviser and legatee. Wilson v. Moran, 3 /(?. 1'72. — by spiritual adviser. In re Welsh, 5 iPi Y. Surr. (!■ Rfdf) 238; McGuirey. Xerr, 2 5ra(?/'. 244. — by draftsman of wiU, whose wife ie legatee. Leake y. Sarmey, 33 Barb. 49 ; see €offin y. Coffin, 23 N. Y. 9. — by guardian over minor ward. Limburger v. Ranch, 2 Abb. Pr. N. 8. 279. — by guardian, a draftsman and beneficiary. Matter of Paige, 62 Barb. 476. — by clergyman, whose church was a beneficiary. Zangton's Estate, 1 T'uck. 301. — by father of infant legatee. ONeil y. Murray, 4 Bradf. 311. — by a legatee not next of kin. Weir y. Fitzgerald, 2 Bradf. 42 ; Hutchings y. Cochrane, 7d 295. — to induce charitable bequests. Wightman v. Stoddard, S Bradf. 393. Incapacity and undue influence. Allen v. Public Administrator, 1 ^rat?/'. 378 (affi'd in Ct. of App., no opinion reported, Seld. Notes, AprU, 1853, p. 57); Hutchings y. Cochrane, 2 Id. 295; Thompson y. Quimby, Id. 449. Age and undue influence. Butler v. Benson, 1 .Bar*. 526 ; Matter of Eomaine, 6 iV. Y. Leg. Obs. 156 ; Weir y. Fitzgerald, 2 5raS/. 42 ; Maverick y. Reynolds, Id. 360 ; Oreely y. Ostrander, 3 Id. 107. Age, undue influence, and insanity. Morrison y. Smith, 3 Bradf. 209. Old age, but unimpaired faculties. Maverick y. Reynolds, 2 Bradf. 260 ; Leaycraft y. Simmons, 3 Bradf. 35; Creelyy. Ostrander, 3 /rf. 107; Wightman y. Stoddard, 3 /A 393; Bleecker y. Lynch, 1 Jrf. 458. Age and impaired powers. Moore v. Moore, 2 Bradf. 261 ; Pitting y. Pilling, 46 Barb. 86; Carroll y. Norton, 3 ^ra^f. 201 ; &ZZ v. i);K, 11 Abb. Pr. 214. — and deafness. Gombault y. Public Administrator, 4 Bradf. 226 ; Mowry v. iSe?- ic!-, 2 Id. 133. — and blindness. Weir v. Fitzgerald, 2 Bradf. 42. Loss of memory. Bleecker y. Lynch, 1 Zfmrff. 458 ; Creelyy. Ostrander, 3 7(/. 107; Wci»- y. Fitagerald, 2 /A 42 ; ilfow)-^ v. Silber, 2 /OTJs, 5 N. Y. Surr. (1 iJeef/'.) 249; Clark v. i%A«j-, 1 Paige, 171 ; Watson Y. Donnolly, 28 jBarJ. 663. , For the foregoing arrangement of the cases, the author, in common with every lawyer, is under obligations to the editor of Abbott's Digest. 88 THE PROBATE OF WILLS. Custody of Will. receive proof of the instructions given by the deceased, his dec- larations, the position of his estate, his previous testamentary in- tentions, the condition of his family relations, the state of his- affections, and a variety of other facts bearing upon the ascertain- ment of the fact whether the particular instrument conformed to the real intentions of the deceased. This is not admitting parol testimony to vary the will, but to ascertain whether it is really the will of the decedent {Burger v. Hill, 1 Bradf. 360). The neces- sity of exercising this jurisdiction on a probate proceeding i& apparent, from the fact that, after the will is admitted to probate, there is no remedy for the mistake in any other court. Thus, when it appears that a legacy was inserted by mistake, the surro- gate may treat it as a mere interlineation, and reject it as no part of the decedent's wiU, and admit the rest to probate {Id. and see Hill v. Berger, 10 How. Pr. .264). So where the executor or legatee was described by a wrong name, or a legacy was omitted by mistake in a will perfect on its face, the court wiU correct the- error on granting probate. Conditional will.'] — It not infrequently happens that by the terms of a will its operation is made conditional, and occasionally very embarrassing questions arise as to the construction of the language employed by the testator. Although' the surrogate wiU not, in the proceeding for the proof of the will, entertain any ques- tions of construction, yet where the paper propounded is clearly made dependent upon a condition precedent in its very terms, per- fonnance of the condition must be shown before the paper can be upheld as a will. If it clearly appears, on its face, that the paper was not intended to remain an operative will, except on the hap- pening of a certain event, or other contingency, then we presume the surrogate would inquire, before granting probate, whether that contingency has arisen. If the condition is of partial application, however, and does not express that the entire instrument is to take effect or fail, upon a particular event, probate will be granted and the effect of the condition upon particular legacies be left to future consideration (see Map. Lindsay, 2 Bradf. 204). SuBD. 4. — Custody of -will. Circumstances of execution, delivery and custody of will.] — Besides the formalities requisite for the due execution, publication THE PROBATE OF WILLS. 89 Revocation of Will. and attestation of the paper propounded, the surrogate may inquire, if he desire to do so, into the circumstances of the delivery and possession of the will, and for that purpose may require the oath of the person who received the will from the testator, if he can be produced, together with the oath of the person presenting it for probate (Z. 1837, c. 460, § 17 ; S B. S. 5th ed. 149, § 66). He must " inquire particularly into the facts and circumstances be- fore establishing the same," &c. {Id. § 10), and must be satisfied of the genuineness and validity of the document propounded. He may therefore determine the question of forgery of signature, or revocation of the instrument, or, as we have seen, the existence of other testamentary papers {Taylor Will Case, 10 Aii. Pr. N. S. 300; Matter of Forman, 54 Barb. 274; see ante, p. 73). While the surrogate may, in his discretion, require the examination of the person who has had possession of the will since its execu- tion, he can not compel the examination of the lawyer who drew the wiU {Taylor Will Vase, 10 Alb. Pr. N. S. 300). As to the provisions of law respecting the deposit of wills in certain public offices, see ante, p. 30. Sued. 5. — Retooation of will. It sometimes becomes a question in proceedings for the probate of a will, whether or not the paper propounded was revoked by the testator. When a wiU has once been duly executed, it remains as a disposition of the testator's property,, to take effect at his death, and can only be revoked in the manner provided in the statute.* The statute provides that a will may be revoked by the testatpr, in writing, as by his making a later will, or by his altering, burning, &c., the one already made ; and also provides for a constructive or implied revocation, arising from the marriage of the testator, or his having children bom to him subsequently, &c. But an express revocation by the testator must be proved either by a written instnmient, executed in accord- ance with the statute of wills, or by proof of the cancellation,. &c., of the will. Revocation of a will of land can not be proved by parol {Jackson v. Kniffen, 2 Johns. 31). All that can be shown are extrinsic circumstances, showing a change in the subject of the devise, but nothing more {Adams v. Winne, 7 Paige, 97). * As to how a will executed lefore the etatute could be revoked after the etatnte- took effect, see Sherry v. Lozier (1 Bradf. 437) ; Matter of Oriswold {\5 Abb. Pr. 299).. ■90 THE PROBATE OF WILLS. Written Revocation. Direct revocation.] — The method in whicli a testator may, by Ms direct act, revoke a will already made, is declared by the statute in the following terms : " No will in writing, except in the cases hereinafter mentioned,* nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of, the testator, declaring such revocation or altera- tion, and executed with the same formalities with which the will itself was required by law to be executed ; or unless sudh will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the salne, by the testator himself, or by another person in his presence, by his direction and consent ; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses " (2 li. S. 64, § 42).f Written revocation.] — ^In respect to written revocations, the statute is just as rigid as in regard to the execution of wiUs. A • revocation in writing, to be valid, must be executed with the same formalities with which the wiU itseK is required by law to be executed {Nelson v. Public Administrator, 2 Bradf. 210 ; Map. Lindsa/y, Id. 204 ; Leaycraft v. Simmons, 3 Id. 36 ; Langdon v. Astor, 16 N. T. 9, rev'g 3 Duer, 4Y7; McGloskey v. Reid, 4 Bradf. 834). So a codicil can not be deejned effective to revoke a prior will, unless it is proved to have been a valid testamentary disposition {Delafield v. Parish, 25 If. Y. 9, affi'g s. c. ^ N. Y. Surr. [1 Eedf.] 1, 130 ; 42 Barh. 2Y4 ; and sub nom. Sherman^ s Appeal, 16 Abb. Pr. 397, note). A revocation in writing may be either by a clause of revocation iu a later will or other instrument in writing, executed in conformity with the statute, or it may be implied from the fact that a later will is. inconsistent with the one already executed. If the later wiU contains a clause revoking a iormer will, then the former will is rendered absolutely nugatory, although the later will does not dispose of the property embraced in the' first {Matter of Thompson, 11 Paige, 453) ; but if the later will contains no such revoking clause, then the former will is * The cases thereafter mentioned are those in which, by the marriage of the tes- tator, the birth of children, &c., the will is by the statute made wholly or partially inoperative. f For the distinction between the revocation of provisions in a wiU, and the jidemption or satisfaction thereof, see Langdon v. Asior (16 N. Y. 41). THE PROBA.TE OF WILLS. 91 Destruction of Will. revoked ^TO tanto only, i. e., only so far as it is inconsistent with tlie later one {Nelson t. McGiffei-t, 3 Barb. Ch. 158 ; Brant v. Wilson, 8 Cow. 56 ; Robinson v. Smith, 13 Abb. Fr. 359 ; Mo- Loskey v. Reid, 4 Bradf. 334). On tlie same principle, a codicil is not a revocation of a will further than in respect to provisions in the will inconsistent with those of the codicil {Conover v. JSoff- man, 15 Abb. Pr. 100). But a will which makes a full disposition of all the testator's property, renders useless, and therefore amounts to a total revocation of, every prior will {Simmons v. Sim- mons, 26 Barb. 68 ; Van Wert v. Benedict, 1 Bradf. 114). And an inconsistent devise in a later will is a revocation of the other devise in the earlier {Barlow v. Coffin, 24 Bow. Pr. 54). The mere existence, however, of a later will, is not necessarily a revoca- tion of a former will ; so that, where the later will has been lost or destroyed, and its provisions can not be ascertained, the mere fact that such a will was duly executed is not a ground for refus- ing probate of the former will {Nelson v. McOiffert, 3 Barb. Ch. 158).* When it clearly appears, however, that a subsequent wiQ, duly executed, contained a revocation clause, though the will itself can not be found, probate will be refused {Moore v. Oriswold, 5 N.' Y. Surr. [1 Bedf.'\ 388 ; and see Bloomer v. Bloomer, 2 Bradf. 339). Destruction of will.'] — As we have already seen, revocation of a wiU may be accomplished by burning, tearing, canceling, obliter- ating or destroying the instrument itself, with the intent of revok- ing the same, in the manner provided in the statute (2 P. S. 64, § 42). The revocation by destruction or cancellation may extend to the whole will or only to a part of it, e. g., a clause containiug a particular bequest or devise may be revoked by canceling or oblit- erating it {McPherson v. Clark, 3 Bradf. 92). But where in such a case there is an attempt by the testator to give the legacy or be- quest thus revoked over to other persons by inserting their names in the wiU, and this attempt fails for want of re-execution and attestation of the wUl, the revocation will not be carried into effect, since the revocation of the legacy and the giving of it over to the third persons are regarded as forming parts of the same plan of * In that case it waa.held that a surrogate may receire proof that the will pro- pounded for probate, was revoted by a subsequent one, which was fraudulently de- stroyed, or destroyed by the testator when incompetent to perform a testamentary act. 92 THE PROBATE OF WILLS. Intent to Beyoke. — ^Implied Bevqcation. the testator, and it is a settled rule in regard to revocations, that effect should not be given to a part of the testator's intention when effect can not be given to the whole of it {lb.) In order to constitute revocation, complete destruction or cancellation of the wiU is not necessary. Tearing the wiU into several fragments ia sufficient, although the fragments are capable of being restored {Sweet V. Sweet, 6 JST. Y. Surr. [1 Redf?^ 451). Intent to revoke.] — To effect a revocation by destruction or can- cellation of the iustrument, it is essential that there should be an intention, as weU as a physical act ; the mere act of canceling a wiU is not a revocation, unless it be done animo revocandi {Jack- son V. Holloway, 7 Johns. 394 ; and see Jackson v. Potter, 9 Id. 312). But a mere intention to revoke, however strongly declared, is of no effect unless carried out by some act amountiug to a can- cellation or revocation {Clark v. Smith, 34 Barb. 140). The act, however, being done, the intention may be inferred from the cir- cumstances attending the act. Thus the fact that the instrument was last seen in the decedent's possession, but could not be found, after due search, after his death, raises a presumption of intended revocation by destruction {Idley v. Bowen, 11 Wend. 227, affi'g 1 Edw. 148 ; BulkUy v. Redmond, 2 Bradf. 281 ; Holland v. Fer- ris, Id. 334; Belts v. Jackson, 6 Wend. 173.)* And where it was found in his drawer with his signatin-e canceled, it was pre- sumed that he revoked it {Claris Estate, 1 Tuck. 445). Since an animus revoeandi is essential, it must be shown that the testa- tor was of sound mind, and that the act of destruction was done freely, and not under undue influence. It must appear that the testator had at the time of the act of destruction sufficient capacity to understand the nature and effect of the act, and performed it, or directed it to be performed, freely and volimtarily, with the in- tent to effect a revocation {Idley v. Bowen, 11 Wend. 227, affi'g 1 Edw. 148 ; Smith v. Wait, 4 Barb. 28 ; Matter of Forman, 54 Barb. 274; and see Nelson v. McGiffert, 3 Barb. Ch. 158). Implied revocation.] — Revocation may be effected not only directly, as we have seen, by a subsequent writing, or by the de- * But for the case of a will lost from the posseasion of a third person to whom it had been intrusted hy the testator, compare Sdmltz v. Schwltii (35 JT. Y. 683). THE PROBATE OF WILLS. 93 Implied Revocation. struction or cancellation of the instrument itself, bnt it may be accomplislied indirectly or impliedly. Thus certain changes by the testator in his personal and family relations, operate as an im- 3)lied revocation of his will, it being presumed that he has changed his intention correspondingly with the change in his family {Brush T. Wilkins, 4 Johns. Ch. 506 ; and see Hwoens v. Van Denhurgh, 1 Den. 2Y). And where a testator, having devised or bequeathed specific property, afterwards in his lifetime sells or otherwise absolutely disposes of the same property, this amounts to revocar tion of such devise or legacy. * In regard to such revocations' the common law rule has, in most cases, been declared or modified by the statute. According to the statute (2 B. ,5'. 64, § 43 * ) if a tes- tator, having disposed of the whole of his estate by will, afterwards marries and has issue of such marriage, bom either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at his death, such will is deemed revoked, unless provision is made for such issue by some settlement, or unless such issue be provided for in the will, or ia such way mentioned therein, as to show an intention not to make such provision. ISTo other evidence to rebut the presumption of such revocation can be received, f It is further provided that whenever a testator shaU have a child bom after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will, every such child shall suc- ceed 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 shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such wiU (2 B. 8. €5, § 49 ; as amended L. 1869, c. 22, § 1). It is also provided that a will executed by an unmarried woman is revoked by her * But where the testator does not whoUy divest himself of his interest in the property, but retains any portion thereof, as, e. g., a life estate in lands devised, this will not be a revocation ( Vreeland v. McClelland, 1 Bradf. 3&3). f It was held before the Revised Statutes, that marriage and birth of a child might amoimt to an implied revocation, and that such revocations were not within the statute of frauds {Brvsh v. Wilhins, 4 Johns. Ch, 806 ; Sherry v. Lozier, 1 Bradf. 437; and see Bloomer v. Bloomer, 2 Id. ; 94 THE PROBATE OF WILLS. Revocation of Subsequent Will. subsequent marriage (2 H. S. 64, § 44) ; and this provision is not repealed by implication by the married woman's apts of 1848, 1849, and 1860, but is stiU in force {Loomis v. Loomis, 57 Barb. 257). As above stated, an absolute conveyance of specific prop- erty devised or bequeathed is a revocation of such devise, &c., but a mere .agreement to convey is not a revocation, but the property passes by the devise or bequest, subject to the same remedies for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them (2 H. 8. 64, § 46 ; and see Knight v. Weatherwax, 7 Paige, 182). In the same way a charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, is not a revocation of any will relating to the same estate, previously executed ; but the devises and legacies therein contained, pass and take effect, subject to such charge or incum-, brance (2 H. S. 65, § 46 ; . and see Vandermarh v. YandermarJe, 26 Barb. 416). ISTor is any act of a testator, by which his interest in property is altered, but not whoUy divested, to be deemed a rev- ocation of a previous devise or bequest of such property ; but the devise or bequest gives to thp devisee or legatee the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin ; unless in the instrument by which such alteration is made, the intention is declared that it shall operate as a revocation of such previous devise or bequest {Id. § 47). But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and na- ture of the previous devise or bequest, the instrument operates as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition is not performed, or such con- tingency does not happen {Id. % 48). Seoooation of subsequent will.'] — Where a subsequent wiU affects one previously made (which, as has been seen above, is not always the case), the revocation of the later wiU does not revive the first, unless it • appear by the terms of the revocation that it was the testator's intention to revive his first will ; or unless after such revocation he duly republishes his first will (2 H. S. 66, § 53). THE PROBATE OF WILLS. 95 What Law GoTerns Formalities of Execution. Sued. 6. — What law governs fokmalities of execution. The formalities requisite to the due execution of a wUl are gov- erned by the law existing at the time of the testator's death, unless otherwise provided by the law. For a will is ambulatory while the testator lives, and it takes effect only on his death. Hence, a statute affecting wUls, which is enacted after a will is made, but before a testator's death, must, unless there be a saving clause as to such wills, take effect thereon {Root v. Stuyvesant, 18 Wend. 2oY ; Bishop v. Bishop, 4 Hill, 138). But it is usual for the leg- islature, in changing the formalities prescribed for the due execu- tion of wills, to except instruments previously executed but not yet made effective by death. Such provision, was made in the Kevised Statutes {Lawrence v. Hebhard, 1 Bradf. 252 ; Price v. Brown, Id. 291). But by adding a codicil after a new statute has been passed, the testator republishes his wiU, and subjects it in some degree, at least, to the effect of the new statute {Salmon v. Stvyvesant, 16 Wend. 321 ; Moot v. Stuyvesant, 18 Id. 257, 315). In respect to the mode of proof, the ease is governed by the law in force when the will is propounded for probate {Jauncey v. Thornsy 2 Barh. Ch. 40). In respect to real property within this state, the formalities of execution must be those prescribed by the law of this state. In respect to personal property, the settled rule in this state — ^much more restricted than that which prevails in some other jurisdictions^is that, when probate is made before the sur- rogate, the formalities must be those prescribed by the law of the place where the testator was domiciled at the time of his death. This decision proceeds upon the doctrine that as a wUl is wholly inoperative until the testator's death, and as the law of the domi- cile applies to the person and the personal property, the will, wherever made, and notwithstanding any changes of domicile, must be sustained, if at all, in respect to its formalities of execu- tion, by the law which was applicable to his person and his per- sonal property at the time he died * {Moultrie v. Hunt, 23 N. Y. 394, reversing 26 Barl. 252, and 3 Bradf. 322). And the law of the domicile not only governs the formalities of execution of a —^ ■ * Real and personal property, though given by the same clause of a will, and upon the same trust, are severable, and the validity of one does not depend upon that of the other {Knox v. Jones, i1 N- Y. 389). 96 THE PROBATE OF WILLS. SubscribiBg Witnesses to be Examined. — will of personal property, but also determines the question of tes- tamentary capacity {DwoisorCs Estate, 1 Tuck. 479) ; and tlie riglit of the person to dispose of the estate {Schults t. J)a/mhmann, 3 Bradf. 379 ; Wood v. Wood, 5 Paige, 596), as well as the con- fitruction of the instrument {Chamberlain v. Chamberlain, 43 N. Y. 424 ; Knox v. Jones, 47 JV. T. 389 ; compare Mills v. Fogal, 4 Edw. 559 ; Isham v. Gibbons, 1 Bradf. 69 ; Matter of Roberts, 8 Pa^p'e, 446 ; 1 Redf. on Wills, 393). Wills of non-residents.] — The same rule is prescribed by the statute which gives the surrogate jurisdiction to take proof of a will of a non-resident of this state, where there are personal assets in the county of the surrogate. To entitle such a will to probate, it must be shown to have been executed as a valid testamentary paper in accordance with the laws of the place of the decedent's domicile at the time of his death (2 R. S. 220, § 1). It is to be observed, however, that an exception to this rule is created by the statute which gives the supreme court jurisdiction to take proof of a will of personal property of a non-resident * (2 R. S. 67, § 68). By that statute the will of a person residing out of this state, duly executed " according to the laws of the state of country in which the same was made," may be proved under a commission issued out of the supreme court. SECTION THIRD. MEAI^S OF PEOOF AND COMPETENOT OF ETDOENCB. Sdbd. 1. — ^Tlie subGcribing and other witnesses. 2. — Competency of witness. 3. — Experts. 4. — Non-resident witnesses and foreign probate. SUBD. 1. SUBSOEIBING AND OTHER WITNESSES. Subscribing witnesses to be examined.] — The surrogate is re- quired to cause the witnesses to be examined before him (Z. 1837, * For the construction of this statute, see Matter of Hornby (2 Paige, 429) ; Ste- phens v. Brooks {Clarke,. 130); Matter of Roberts (8 Paiffe, 446). THE PROBATE OF WILLS. 97 Dead, Absent or Insane Witnesses. c. 460, § 10) ; * but, except in contested cases, this is seldom done, the proof being by deposition, verified by the witnesses, before the clerk. All the proofs and examinations must be reduced to writing {Id. § 10). At least two of the witnesses to the will (if so many are living in this state, and of sound mind, and not disabled from age, sickness, or infirmity from attending), must be produced and examined, and the death, absence, insanity, sickness, or other infirmity of any of them must be satisfactorily shown to the sur- rogate {Id.) In a case of contested probate, however, any con- testant has the right to file with the surrogate a request in writing that all the witnesses to the will be examined. In that case, all the witnesses to the will who are living in the state, and of sound mind, and who are not disabled, from age, sickness, or infirmity, from attending, must be produced and examined ; and the death, absence, insanity, sickness, or other infirmity of any of them must be satisfactorily shown to the surrogate (Z. 1837, c. 460, § 11 ; 3 i?. S. 5th ed. 148, § 67). f In case such a request is duly filed, and either of the witnesses, who is aged, sick, or infirm, resides in the same county with the surrogate, it is his duty, after examining the other witnesses, to go to the residence of such witness and take his examination {Id. § 12). In case such a witness resides in a different county, the surrogate may direct his examination to be taken before the surrogate of the county in which the witness re- sides {Id. § 13), and the surrogate of that county may thereupon take hip examination and certify it, together with a statement of the proceedings before him, to the surrogate directing the exam- ina,tion. Upon such deposition the application for probate will be determined {Id. §§ 14-16 ; see Forms E"os. 26-28). Dead, absent, or insane witnesses.] — ^Where the witnesses reside in this state, at least two of them, if of sound mind and otherwise competent to testify, must be examined {Id. § 17). When one or more of the subscribing witnesses to a will have been examined, * By this statute, wUls of real and of personal property, as regards their proof, are placed on the same footing {Caw t. Robertson, 5 N. Y. 125, reversing 3 Barb. 410). f The party requesting such examination must give written notice of the time and place appointed for the examination, for such length of time as is required in cases of trials of issues of facts in the supreme court, to all the parties who appeared hefore the surrogate (X. 1841, c. 129, § 3). 7 98 THE PROBATE OF WILLS. ContradictiDg Subscribing Witnesses. and the other witnesses are dead, or reside out of the state, or are insane, then such proof must be taken of the handwriting of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances as would be suflficient to prove such will on a trial at law (2 B. S. 58, § 13). In case all the wit- nesses to a wiU are dead, insane, out of the state, or incompetent to testify, the surrogate may take proof of the handwriting of the testator and of the subscribing witnesses, and of such other facts and circumstances as would be proper to prove such wiU on the trial of a civil action.* If the proof is satisfactory to the surrogate, the will may be admitted to probate, and be recorded as a will of per- sonal estate only, and so as to affect only the personal estate of the testator (Z. 1837, c. 460, § 20). But the mere absence of an at- testing witness from the state, abroad on a journey or tour, is not such a residing " out of the state," within the statute, as will author- ize proof of the wiU by proving the handwriting of the testator and of the witness {Stow v. Stow, 5 JV. Y. Surr. [1 Bedf.'] 305). Other witnesses.] — The probate of a wUl does not stand or fall with the testimony of the subscribing witnesses ; if they fail to prove the subscription of the wiU, other witnesses may be called {Butler V. Benson, 1 Barb. 526). But in such a case, especially if the evidence of the subscribing witnesses is not impeached, the proof should be very clear. In a ease where the sole surviving witness is examined pursuant to the statute, and fails to prove the execution of the will, other evidence — e. g., proof of the handwrit- ing of witnesses signing a fuU attestation clause," and of the hand- writing of the testator — ^may be resorted to {Lawrence v. Norton, 45 Ba/rl. 448). Contradicting subscribing witnesses.] — A will may be sustained even in opposition to the positive testimony of one or more of the subscribing witnesses, who, either mistakenly or corruptly, swear that the formalities required by the statute were not complied with, if, from other testimony in the case, the court or pry is satisfied that the contrary was the fact {Jauncey v. Thome, 2 Bai^. * The execution of a will may be proved on a trial at law by one vAtrmsi, if he is able to prove its perfect execution ( Cornwdl t. Wooley, 1 Abb. Ct. App. Sec. 441 ; d. ti. 43 How. Pr. 475). THE PROBATE OF WILLS. 99 Competency of Witnesses. — Disqualification of Interested Witnesses. CA. 40; 1843, GhaffeeY. Baptist Missionary Gonvention^O Paige, 85 ; Peebles v. Case, 2 Bradf. 226 ; Jackson v. Christman, 4 Wend. 377). Sued. 2. — Competenot of witmesses. Interested parties as witnesses.'] — The provisions of the Code of Procedure removing the disqualification of parties and interested persons to testify as witnesses,* contain restrictions as to the case of personal transactions or communications between the proposed witness and a person, at the time of the examiaation, deceased, &c., when the witness is offered against the personal representative or successor in interest of the deceased {Gode of Pro. § 399). It would not be within the scope of this work to treat of the general construction of this statute ; but it should be observed here that, in a protate proceeding, a person named in the will as executor is not, before probate, to be regarded as an executor within the mean- ing of the statute {DietericKs Estate, 1 Tuck. 129). The husbands and wives of parties are also, in general, no longer incompetent (2 Z. 1867, p. 3221, c. 887). Disqualification of interested witnesses.] — -The Revised Stat- utes provide that " if any person shall be a subscribing witness to the execution of any wUl, wherein any beneficial devise, legacy, interest, or appointment of any real or personal estate, shall be made to such witness, and such will can not be proved without the testimony of such witness, the said devise, legacy, interest, or ap- pointment shall be void, so far only as concerns such witness, or any claiming under him ; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made " (2 P. S. 65, § 60). " But if such witness would have been entitled to any share of 'the testator's estate, ia case the will wap not established, then so much of the share that would have de- scended or have been distributed to such witness shall be saved to * Before the Code, it was held that as the probate of a ■wUl was as to persons interested, lis inter paries, none of the parties were competent witnesses, except so far as the statute authorized their examination touching the circumstances of the execution, delivery, and custody of the instrument {Brush v. Holland, 3 Bradf. 240). 100 THE PROBATE OF WILLa Disqualification of Interested Witnesses. him as will not exceed the value of the devise or bequest made ta him in the will, and he shall recover the same of the devisees or legatees named in the wiU, in proportion to and out of the parts devised and bequeathed to them " {Id. % 51). It is provided by another section that " if by any wOl any real estate be charged •with any debt, and the creditor whose debt is so charged shall attest the execution thereof, such creditor, notwithstanding such charge, shall be admitted as a competent witness to prove the exe- cution of such win " {Id. 57, § 6). These provisions do not disqualify the person named as- exec- utor or trustee in the wiU, by reason of the compensation which will accrue to him, even where the will gives him a special pecun- iary compensation in excess of legal commissions. Such a gift is not an absolute gift {McDonough v. LoughUn, 20 Barb. 238; Levy's Estate, 1 Tuck. 81 ; Downing v. Marshall, 1 Abb. Ct. App. Dec. 525, 547 ; Pruyn v. Brinlcerhqff, 1 Abb. Pr. W. S. 400 ; s. c. 57 Barb. 176). It has been held (as was suggested in the last- named case) that the provisions of the Code removing the disqual- ifications of witnesses, resulting from interest, have abrogated the foregoing provision {Cornwell v. Wooley, 47 Barb. 327). It should be considered, however, that the rule in question is not a rule making certain persons incompetent as witnesses ; it is a rule forbidding those concerned in the attestation of a will from taking a benefit thereby. The Code does not remove any disqual- ification of attesting witnesses to prove the alteration, for they were not previously disqualified. And it would be carrying the doctrines of repeal by implication unusually far to infer from the statute allowing interested witnesses to testify, an abrcfgation of the statute intended to secure at least two disinterested wit- nesses for the attestation of a testamentary paper, as distinguished from other instruments. It is settled, however, that the forfeiture of such advantage as might be gained by the attesting witness under the wiU, does not foUow from his being a witness {Caw v. Robertson, 5 N. Y. 125, reversing s. c. 3 Barb. 410), or even from his being examined as such on the probatCj if his examiaation was not necessary, as, for instance, where he was a non-resident, and the will was sufficiently proved, under the statute, by the testimony of the other witness {Cornwell v. Wooley, 47 Barb. 327; 1 Abl. Ct. App. Dec. 441). THE PROBATE OF WILLS. Privileged ComimiDicationB. Prvoileged GommunioaHons.] — As to the competency .attorney who drew the will, see Sanford v. Sanford (61 £ari. 293) ; Brand r. Brand (39 Bow. Pr. 193) ; Qraham v. People (63 Barb. 468) ; Sogers v. Lyon (64 Id. 373) ; Games r. Piatt (15 Aii. Pr. JV. S. 337) ; Britton v. Zorem (45 i\7: F. 51) ; Tay- lor Will Case (10 Ail. Pr. IST. S. 300). As to incompetency or privilege of clergymen, see 2 P. 8. 406, § 72 ; People v. Gates (13 TFent?. 311). As to the competency, or privilege of a duly authorized physician or surgeon, see 2 P. 8. 406, § 73 ; Johnson v. Johnson (14 Wend. 637, rev'g 4 Paige, 460) ; Kendall v. C'y'e^/ (2 .Si7i5. 300) ; People v. /Stow^ (3 P»r^. Cr. 670). The privilege of commimications to a physician or surgeon, and between at- torney and client (and we take it that the same principle applies to the privilege of communication between clergymen and laymen), is that of the party, . and not of the witness. And although it can not, perhaps, be said that the privilege dies with the party, yet, where from the death of the person there is no one to claim the privilege, its assertion is, of necessity, excluded, except so far as may depend upon the discretion of the court. In the case of Allen V. The Pvhlio Administrator (1 Bradf. 221), where, on a proceeding for the probate of a wUl contested for incapacity, &c., objection was taken to the examination of the physician who attended the deceased about the time of the execution of the will, Surrogate Bradford overruled the objection, and laid down the principle applicable to the case, in the following language, which, to some extent, at least, is equally applicable to other cases of privi- lege: "If after probate or administration, personal representa- tives or devisees might claim the benefit of such a personal privi- lege in controversies with third persons growing out of his estate, yet before any grant of administration, in a proceeding as it were in rem to ascertain what is the last will of the deceased, and who are entitled to succeed to his estate, and represent him, there is, in fact, no one competent to assert such privilege, even if it survived. It is not the case of an attempted use of confidential intercourse adversely to the interests or rights of a party, or of those who take under him ; or who, as representing him, might equitably be con- -sidered subrogated to his privileges. But the entire object of the -investigation is to ascertain what constitutes the will of the de- ceased, an inquiry in which, if we speculate at all as to the personal 102 THE PROBATE OF "WILLS. Expert Witnesses. priTileges of the dead man, and the propriety of extending them beyond the period of his dissolution, we can suppose him to be quite as much interested, as in the preservation of his professional , confidence in a physician. Evidence of this kind is almost, if not quite, always pointed to the capacity of the decedent, and can sel- dom, if ever, be legitimately led to the injury of character. Doubt- less the control of the court would always be exercised in the re- straint of any wanton attempt to blacken the reputation of the de- ceased ; and in view of the relationship of the parties interested in, the probate, and the class of questions generally involved in these cases, the occasion will rarely, if ever, occur for the exercise of such a discretionary power. I do not, ia the first place, think that testamentary cases are within the reason or the intention of the statute in question ; and secondly, if covered by its letter, then the decease of the party puts it beyond possibility to assert the privi- lege ; and if still, from reasons of public policy, the court should feel bound to extend aiid keep alive the privilege, that will not be done any further than is consistent with justice and good morals." SXJBD. 3. — ExPEETa. In proving the mental capacity or incapacity of a testator, the evidence is either proof of the acts and declarations of the testator, evincing his mental condition ; or the opinions of witnesses, as to whether he was or was not competent. In respect to the compe- tency and weight of the opinions of witnesses, there are three classes of witnesses to be considered : 1. 'Experts, or medical witnesses, who are specially competent to express an opinion, by reason of their professional acquaintance with mental disorders. 2. The attesting witnesses of the wiU, who though not experts, are by reason of their essential connection with the testamentary act, entitled to speak upon the question of the testator's compe- tency; and, 3. Other non-professional witnesses. Expert witnesses.] — An expert witness may testify as to the mental capacity of the testator, although he never saw him, and is unable to judge of his capacity from personal knowledge of him ; but in such cases the witness should be asked whether THE PROBATE OF WILLS. 103 Attesting Witnesses. such facts as have been sworn to, would, if they existed, in- dicate mental incapacity. In the examination of experts, facts are often, and necessarily assumed, and this mugt be so where the experts have no personal knowledge of the facts, upon the efEects, power or influence of which they are called to give an opinion. So long as the facts assumed may be fairly claimed to be within the evidence adduced, the question is not objectionable {Jackson v. iV^. Y. Central B. R. Co. 2 Supreme Ct. 653), and provided the opinion is drawn out as expressly based upon the hypothesis of the existence of such facts. But the opinion of an expert witness, whose only knowledge of the case is that he has heard part of the testimony as to the matter iu question, is not competent {Sanchez V. People, 22 N. Y. 147, 154). Nor are the doubts of a witness, who has not formed an opinion, competent (/5.) There are three methods of presenting the testimony of a medical expert in such a case : 1. If the witness was the medical attendant of the person whose capacity is in question, or has adequately examined him, he may testify to his opinion as to such person's capacity, especially if his opinion is given in connection with his statement of the facts of the person's condition.* 2. A medical expert who has heard aU the testimony adduced upon the trial bearing upon the mental condition, may give his opinion on the question of what the facts proved, or claimed to be proved, indicate as to the mental condition (see People v. Lake, 12 N. Y. 358, affirming 1 Park. Cr. 495). 3. A medical expert may be a'sked wjiat a supposed state of facts put to him hypotheticaUy, but corresponding in. details to the facts already in evidence on the trial, would indicate as to the mental condition {Id. and BonarWs Will, 16 Abb. Pr. N. S. 128). Attesting witnesses.} — The ordinary rule in regard to non- professional witnesses is that they may be questioned as to any facts and circumstances within their personal knowledge, but can not give their opinions upon or inferences from those facts. An exception to this rule is recognized in the case of attesting wit- * For recent illustrations of this method, see People t. Montgomery, 18 Abb. Pr. N. 8, 207; Macfarland's Trial, 8 Id. 57. 104 THE PROBATE OF WILLS. Ordinary Non-professional Witnesses. nesses. Thoy are present at the very act of execution, and their opinions on the general question of testamentary capacity are ad- mitted OT necessitate. It is the policy of the law to provide all possible safeguards for the protection of the heir as well as the testator. No light is excluded in reference to the res gestm which can be furnished by the immediate actors. The subscribing wit- nesses may be required to state not only such facts as they remem- ber, but their own convictions as to the testator's capacity ; for it may well happen that on so vital a point they may retain a clear recollection of the general results, long after the particular circum- stances are effaced by lapse of time or obscured by failing memory {Glapp V. Fullerton, 34 JST. Y. 190). Ordinary non-professional witnesses.] — An ordinary non- professional witness can not be asked the broad question whether he considered the testator non compos mentis, or, which is the same thing, incapable of managing his afEairs {Dewitt v. Barley, 9 N. Y. 371, as modified on a further decision given in 17 If. Y. 340). Where, however, the alleged imbecility is attributed to old age, idiocy, or intoxication, these being causes which indicate themselves in outward appearances, in motions, gestures, tones of voice, and ex- pression of the eye and face, the opinion of the witness who has tes- tified to these facts is admissible. These causes show themselves by indications which are equally patent to aU ; any man of sound judgment and experience in life is competent to observe these in- dications, and to draw just inferences from them {Dewitt v. Barly, IT N. Y. 340, 350). And it seems that the same rule applies in cases of insanity, strictly so called, if the derangement of the mind is general, for, in such cases, scientific knowledge is rarely neces- sary to enable persons having opportunities for personal observa- tion to judge of its existence {Id.) "When a layman is thus exam- ined as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of the mind alleged to be diseased, he may characterize as rational or irrational the acts and declarations to which he testifies {Clapp v. Fullerton, 34 N. Y. 190). In Sisson v. Conga (1 Supreme Ct. 564) a stricter rule was laid down, but the only authority cited was a criminal case, and the distinction between cases of that class and cases of wiUs and deeds was not noticed (see O'Brien v. People, 36 If. Y. 276 ; s. c. 3 Abb. Pr. N. S. 368, affi'g 48 Barh. 274). THE PROBATE OF WILLS. 105 Non-resident "Witnesses. — Order of Evidence. Sued. 4. — Non-eesident witnesses and fokeiqn peobate. Non-resident witnesses.] — If any necessary witness reside in , any other state or territory, or any foreign place, upon the require- ment of any party to the proceeding, the surrogate must issue a commission to take his testimony, in the same manner as may be done in any court of record (Z. 183Y, c. 460, § 11 ; and see ante, p. 26 ; see Form No. 29). Proof hy production of foreign probate.] — Where a will of . personal estate, duly executed in this state by a person not a resi- dent of this state, has, in the first instance, been duly admitted to probate in a court of a foreign state or country, letters testamentary or of administration with the will annexed, may be issued thereon by iny surrogate having jurisdiction, upon the production of a duly exemplified or authenticated copy of such will, under the seal of the court in which the same was proved (Z. 1840, c. 384, § 2 ; and see Isham v. Gibbons, 1 Bradf. 69). So as to wills of real property, where any real estate situate in this state is devised by one not a resident of this state, but a resident of some other state or territory of the United States, and the wiU shall have been finally admitted to probate ia such other state or territory, and fiOled and recorded in the ofiice or court where the probate was granted, an exemplified copy of the will or of the record and proofs thereof, may be recorded in the office of the surrogate of any county of this state where the real estate devised is situated. Such record is presumptive evidence of the will and its due execu- tion, where the original can not be produced, in aU actions or pro- ceedings relating to such real estate * (Z. 1872, c. 680). SECTION FOURTH. OKDEE OF EVIDENCB. PEESTJMPTIONS. BURDEN OF PEOOF. Order of evidence.] — On a question of probate, the orderly and proper course for the introduction of evidence is, first, to prove the requisite formalities attending the execution, publication, and * For the statute providing for the recoi'ding in the office of the county clerk or register wills relating to real estate, see L, 1846, u. 182, § 1 ; L. 1851, c. 277. 106 THE PROBATE OF WILLS. Burden of Proof Generally. attestation of the will, and then to show that the testator was at the time of proper age and mental soundness, and was not un- duly influenced in the testamentary act. Accordingly, it has been held that where the probate is contested in respect to the genuine- ness of the paper, the testamentary capacity of the decedent, and the freedom of the act, the contestant's evidence as to the gen- uineness of the paper should first be received, and that relating to capacity and undue influence successively afterward [Taylor Will Case, 10 Abb. Pr. N. 8. 300). The question of the contestant's interest, and of his right to oppose the probate, is not a prelim- inary matter which the court will decide first, but the questions of interest and of validity of the instrument will be tried together (see ante, p. 57). Burden of proof generally.] — The proof of a will must Be in accordance with the rules of evidence which prevail in all judicial investigations {Peebles v. Case, 3 Bradf. 226). The party pro- pounding the wiU has the affirmative, and the burden of proof rests on him to show to the satisfaction of the court that the instrument was duly executed by a testator of sound mind and lawful age, &c. {DeUfield v. Parish, 26 N. Y. 9, 97, affi'g 5 N. Y. Surr. [1 Eedf-I 130). In general, the burden of proof re- mains with the proponent to the end of the trial, and if, upon con- sideration of all the evidence on both sides, the court is not satis- fied that the paper propounded contains the last will of the deceased, it must refuse probate. Indeed, if there is a reasonable doubt whether one or more of the directions of the statute have not been omitted, the probate must be refused, although it may appear probable that the paper expresses the testator's intentions {Theological Seminary of Auburn v. CdUiown, 25 N. Y. 422 ; and see Irwin v. Irwin, 5 N. Y. Surr. [1 Pedf] 495 ; Crispell v. Dubois, 4 Barb. 393 ; and Burritt v. Silliman, 16 Id. 198). Even where the will has once been admitted to probate, and allegations against its validity or the competency of its proof are filed, the burden of proving anew is upon the parties resisting the allega- tions {Collier v. Idley, 1 Bradf. 94). The execution of the will must be proved by evidence of what took place at the time the wiU was signed, and can not be proved by declarations of the tes- tator that he had made such awOl, naming the witnesses and where THE PROBATE OF WILLS. lOT Proponent's Burden of Proof. the will was made, &c.* {Johnson v. Hioks, 1 Lans. 150) ; althougli after the proponents have made out a prima facie case, such dec- larations may be introduced as corroborative evidence in respect to the genuineness of the signature or the freedom of the testator from undue influence, or to rebut the contestant's evidence on these points {TaylorWill Case, 10 Abb. Fr. N. S. 300).t Proponents hurden of •proof.'] — No unvarying rule as to the amount of evidence necessary to establish the execution of a will can be laid down, which is to control in every case, as the circum- stances of each case must differ from any other. It is the duty of the court to ascertain, from the facts and circumstances, whether the instrument offered is established with reasonable certainty {Rider v. Legg, 51 Barb. 260 ; Nexsen v. Nexsen, 3 Abb. Ct. App. Bee. 360 ; s. c. 2 Keyes, 229). The instrument propounded for probate must stand or fall on the testimony adduced before the surrogate in the proceeding for its proof. The fact that the in- strument propounded has been already proved in the supreme court, as a will of realty is not a material fact in a proceeding for its proof as a will of personalty in the surrogate's court % {Isham V. Oibbons, 1 Bradf. 69 ; see Collier v. Idley, 1 Id. 94). The pro- ponent is not required to produce all the witnesses, except in cer- tain cases already pointed out {ante, p. 97) ; and even in those cases it is not essential that each witness should be able to testify that all the formalities required by law were complied with {Jauncey v. Thome, 2 Ba;rb. Gh. 40 ; Weir v. Fitzgerald, 2 Bradf. 42 ; ifew- house V. Godwin, 17 Barb. 236). And where the witnesses are dead or, from lapse of time, do not remember the circumstances attending the attestation, if there are no circumstances of suspicion, * And declarations by the testator are not admissible to show his age {^Matter of Paige, 62 Barb. 476). Repeated statements of testamentary intentions, made to ac- qnaintances, may, however, have weight in ascertaining whether the will accorded with his mind {QNeily. Murray, 4 Bradf. 311). f It was also held in that case that the contestants might examine the private papers of deceased, in the administrator's hands, bearing on the personal rela- tions Involved in the issues ; family letters being first submitted to the court to determine their relevancy, before disclosing their contents by putting them in evi- dence. X And conversely, a wiU once proved as a will of personalty, may afterwards, on. the discovery of real property, be proved anew as a will of real estate (SmitKs Mtate„ 1 Tuck. 108). 108 THE PROBATE OF WILLS. Proponent's Borden of Proof. and all the evidence then existing has been produced, a proper execution of the will may be presumed, particularly where the at- testation clause is full {BuUer v. Benson, 1 Barb. 526 ; to the same effect, see CheeTiey v. Arnold, 18 Id. 434; Nelson v. McOiffert, 3 B(wb. Ch. 158 ; Sunn v. Case, 5 W. T.^ Surr. [1 Eedf.'\ 307 ; Van Sooser v. Yan Hooser, Id. 365 ; Moore v. Griswold, Id. 388 ; and see Lawrence v. Norton, 45 Barh. 448 ; Rider v. Legg, 51 Barb. 360). But where the will has been recently executed, the pre- sumption is not so strong, and, in one case, where not more than three months had intervened between the execution of the will and the application for probate, and neither of the witnesses could re- member any testamentary declaration, it was held that due execu- tion of the will could not be presumed, and probate was refused ( Wilson V. Rettrick, 2 Bradf. 427). The testimony of the sub- scribing witnesses has no controlling effect, and it may be rebutted by other evidence, either direct or circumstantial ; although, on ac- count of their direct participation in the transaction, their testi- mony has great weight (Orser v. Orser, 24 N. IT. 51). And if the attesting witnesses contradict each other as to the formalities of execution, the surrogate is not, therefore, bound to pronounce against the validity of the will, but may give credence to the affirmative rather than to the negative testimony {Hum.jphrey's Estate, 1 Tticlc. 142).* And, in such a case, other things being equal, the testimony of lawyers will outweigh that of laymen {Id.) As already stated {ante, p. 98), other witnesses may be called if the subscribing witnesses fail to prove the execution ; and the sub- scribing witnesses may be contradicted, and the will sustained against their evidence. And where there is a full and complete attestation clause, properly signed, the will may be admitted, even against the direct testimony of the sole surviving witness {Orser v. Orser,2^N.T.hl).\ * And see, as to the effect of conflict or uncertainty in witnesses' testimony as to "publication. Matter of Forman (54 Barb. 274, affi'g 1 Tuck. 205) ; Newton's Estate (1 Tuck. 349); Laurence's Will {Id. 243); Hopper's Estate (Id. 378); Merclumts Estate (Id. 151). , ■)• In that case, a will was attested by two witnesses, one of whom was. dead, and the other testified that the will was not signed, or the signature thereto acknowledged in his presence, and that it was not declared by the testator to be his will. The at testation clause was full, and recited a perfect compliance with the provisions of the statute ; and the signatures of the testator and the deceased witness were shown to be THE PROBATE OF WILLS. " 10& Burden of Proof as to Mental Capacity. Burden of jproof as to raental capacity. \ — The testamentary capacity of the testator is one of the essential facts which, as we have seen, must be shown to entitle his will to be admitted to probate. In imcontested cases the depositions of the witnesses contain the general allegation that the testator was, at the time of the execution of the will, "of sound mind and mem- ory, and in aU respects competent to devise real estate, and not under restraint," &c.. Where, on the demand of an interested party, an oral examination of the witnesses is had — that is, in cases where there is a contest over the probate — the witnesses are required to testify to the same facts as in uncontested eases, in- cluding that of testamentary capacity. This being done, probate will be granted, unless the contestant disproves the facts thus established, either by the cross-examination of the subscribing witnesses themselves, or by other witnesses. The proponent is bound to show general competency to perform ordinary business transactions, and having done this, the burden is shifted from the proponent ; and the contestant must show that at the time of the execution of the will the testator labored under a delusion, aberration, or weakness of mind {Allen v. Public Administrator, 1 Bradf. 378) ; or that the wiU was obtained by undue influence [Marvin v. Ma/rvin, 3 Ahh. Ct. App. Dec. 192 ; s. c. 4 Keyes, 9).. There is an apparent inconsistency and want of reasonableness in requiring the proponent to prove as a fact what the law has invariably declared to be presumed, and as of course. It has never been doubted, as the law of England and of this country, that " every person is presuncfed.to be of perfect mind and mem- ory, unless the contrary be proved " {Sioinb. 45, pt. 2, s%c. 3, pi. 4) ; and yet the law requires evidence of the fact as requisite to the genuine. It appeared that the deceased mtness was in the habit of drawing wills, and was familiar with the requiaitea to due execution, and that the certificate or at- teatation clause waa in hia handwriting. On the other hand, the witness who was sworn had never been called upon to witness a will, and knew nothing of the form- alities required. Held, sufficient to authorize a jury to find that the will was duly executed. In Peebles v. Case (2 Sradf. 226), two wills, bearing' the same date, and purporting to be attested by the same witnesses, were propounded. The wit- neaaes testified to the execution of one, and disclaimed all knowledge of the other ; and yet, upon proof of their handwriting, and that the testator, snd proofs by mem- oranda of the testator, and otherwise, it waa held that the latter waa eatablished aa. the will). 110 THE PROBATE OF WILLS. Burden of Propf as to Mental Capacity. probate of the person's will. It is true that the suhscribing wit- nesses, though not experts, are allowed to satisfy this requirement of the law, by expressing naked opinions as to the testator's men- tal capacity, and are not required to state any facts upon which they base their opinions — ^which can not, of course, be considered of any value as evidence — and, therefore, no hardship is imposed upon the proponent of the wiU. A reasonable explanation of this anomalous requirement, as given by a learned writer,* is, that by requiring the proponent to ask the opinion of the subscribing wit- nesses upon the point of testamentary capacity, or apparent ca- pacity, the object is not to prove the fact, but to give the con- testants an opportunity of cross-examining these confidential witnesses in the first instance, in order to become apprised of what passed at the execution of the wiU ; and the law will not, therefore, compel the contestants to make the subsci^ibing witnesses their own, by recalling them upon any point involved in the- entire issue, and thereby lose the advantage of cross-examination. This explanation, in which we * concur, will not in any way afiect the question of burden of proof, or entitle the contestant to claim the right to go forward with his case, and thus give him the advantage of closing the proof and argument. It maybe said, therefore, that so strong is the presumption of sanity, that the only burden on the proponent is to produce the subscribing witnesses, when required to do so, and obtain their general opinion as to the mental ca- pacity of the testator at the time of the execution of the will. Not more than this is required, even in a case where it appears that there had been formerly a want of testamentary capacity {Brown v* Torrey, 24 Barb. 583 ; and see Ean v. Snyder, 46 Id. 230).t * Redfield'B American Cases upon Wills, 31, note. f But compare Jackson v. Van Dusen (3 Johm. 144), where it was held, that after a general derangement has been shown, the other side must show that the party was sane at the very time the act was performed ; and Matter of Taylor (1 JEdm. 3'76), where it was held that the fact that the testator, two years before making his will, was adjudged insane, and that he was insane at the time of his death, two years after maMng his will, although it was not conclusive upon his insanity at the time of making the will, yet it threw the burden of proof upon the proponents ; see, however, GombaitU v. PvMic Adminittrator (4 Bradf. 226). THE PROBATE OF WILLS. lil Presumptions of Fraud, &c. Presumptions of frauds cfec.J — Nevertheless, it is the duty of the proponent to satisfy the conscience of the court, and where there are circumstances of suspicion, as where the will was drawn up by a devisee {Lake v. Sanney, 33 Barb. 49 ; Vreeland v. Mc- Clelland, 1 Bradf. 393 ; Mowry v. Silher, 2 Id. 133 ; Lansing v. Bussell, 13 Barl. 510 ; Coffin v. Coffin, 23 JST. Y. 9), or by a per- son standing in a confidential relation, as a family physician {Oris- jpell V. Dubois, 4 Barb. 393), or a clergyman {In re Welsh, 6 JV. Y. Surr. [1 Bedf-I 238), or guardian of a testator who was his ward (Lunherger v. Ranch, 2 Abb. Pr. N. 8. 279), or where the testator was blind ( Weir v. Fitzgerald, 2 Bradf. 42), or was unable to read or write, and ^m weak in body and mind, and susceptible of un- due influence ( Yan Pelt v. Van Pelt, 30 Barb. 134), and the will was not in harmony with his previously expressed intentions and dispositions (Lee v. Dill, 11 Abb. Pr. 214 ; Mowry v. Silber, 2 Bradf. 133), the ordinary presumption flowing from the fact of formal execution does not obtain, and the proponents must give affirmative evidence that the testator knew its contents, and that it expressed his real intentions {Lake v. Banney, 33 Barl. 49 ; Delafield v. Parish, 25 N. Y. 'd; and cases above cited, see ante, p. 109) ; but any evidence is sufficient for this purpose which shows that the testator had full knowledge of the contents of the will, and executed it freely, and without undue influence, and large latitude will be allowed in the admission of any such evi- dence {ld>) But old age of a testator alone is not sufficient ground for presuming imposition {Butler v. Benson, 1 Ba/rb. 526). Secrecy and contrivance may be a badge of fraud in the execution of a will when they indicate coercion, persuasion, &c., of oth^ persons, which influenced the testator. But when they can be clearly traced to the wishes of the testator himself, they can not be received as having any tendency to impeach his testament {Coffin v. Coffi/n, 23 N. Y. 9). 112 THE PROBATE OF WILLS. Execution and Effect of Codicil. AETICLE FOUETH. CODICILS AND INSTRUMENTS ANNEXED TO "WILL. Execution and effect of codicil.'] — ^A codicil is defined to be a. supplement or an addition to a will, for an explanation or altera^ tion of the former dispositions of the testator, and is to be taken as a part of the will, aU making but one testament. TJnless a con- trary intention be expressed or shown, the effect of a codicil is to bring down the date of the will to the date of the codicil, making the will speak as of that date,* unless the effect of the change of date is to alter the meaning of the will (see Stilwell v. Mellersh^ 5 Eng. L. c& Eq. B. 185). The execution of a codicil amounts to a republication of the will to which it refers, unless a contrary in- tention appears on the face of the pape^ (Id. and see Yrni Cortland y. Eip, 1 mil, 590). As to the effect of a, codicil to revoke the wiU, se0 ante, p. 89. There can be but one last will, but the tes- tator may make any number of codicils, aU being of equal force,, if not contradictory. It is not necessary that the codicil should be written on the same sheet with the will, nor that it be afSxed to it " physically, but to entitle a codicil to be proved and so take effect as a part of the will, it must be executed, published, and attested with the same formalities as the will itself. f The statute declares that the term " will," as used in the statute, includes all codicils as weU as wills (2 B. S. 68, § Yl ; 3 B. S. 5th ed. 153). Where, on the probate of a will, an alleged codicil is brought in by parties who are interested, but who were not cited, the proper course is to direct ihem to file an allegation propounding the codicil for proof, as a part of the pending proceeding {Carle v. Underhillj'S JSradf. 101 ; and see Van Wert v. Benedict, 1 Id. 114). * By adding a codicil, after the Revised Statutes, the testator republishes his. will, and subjects its construction, and the validity of its trusts and powers to those statutes {Salmon v. Stuyvesant, 16 Wend. 821 ; Root v. Stuyvesant, 18 Id. 257 ; see Zanffdon v. Astor, 16 iV. T. 9). f If a paper purporting to be a codicil to a wUl is not executed with the form- alities required by law, the fact that the same has been presented to the surrogate, with the will, evidence received with regard to it, and the paper recorded by tha surrogate in connection with the will, does not establish it as a codicil (Burhant v. Seawell, 43 Barb. 424). THE PROBATE OF WILLS. 113 Revocation of Codicil. — Instruments Eeferred to in Will. Revocation of codicil.'] — A codicil may be revoked to the same extent, and in the same manner, as a will. But the destruction or mutilation of the will is not necessarily a revocation of a codicil,, if the latter is so independent of and unconnected with the will that, under the circumstances, it solely expresses the testator's, testamentary intentions ( Wms. on Ex^rs, 126 ; Exp. Day, 1 Bradf. 4Y6). But it is the general rule that a codicil is prima/ facie dependent on the wiU, and that the destruction of the will is an implied revocation of the codicil. Instruments referred to in will.'] — The surrogate can only prove, as a will or part of a will, such instruments as have been made conformably to the statute. Instruments incorporated in a will constructively by reference are not proved or recorded with_ it. .Whether such papers have existence or not, or whether the reference is properly nfade, or the provisions of the will are nuga- tory, has no effect on the question of probate {Hatter of Tonnele,. 6 N. Y. Leg. Obs. 254). Keference may, however, be made in a. will to another document already in existence, for the mere pur- pose of description, but there can be no vahd disposition except in the will ; and a will can not reserve the power to give by an instrument not executed as a will (Thompson v. Quimby, 2 Bradf. 449). But a provision that advancements or beneficial provisions for persons and purposes provided for in the will, " if charged in my books of account, shall be deemed so much on account of the provision in my vdll or codicils in favor of such persons or pur- poses," is valid ; and gifts actually made in the testator's lifetime,, and so charged, are to be deemed advancements [Langdon v. Astor,, 16 W. Y. 9). Several testamentary instruments executed at the same time will be taken and construed together as one instrument, {Howland v. Union Theo. Sem. 5 N. Y. 193 ; JSoven v. Hoven,, & JSl. Y. Surr. [1 Redf] 374). 114 THE PROBATE OF WILLS. Lost and Destroyed "Willa. — Kequisite Proof. ARTICLE FIFTH. LOST AND DESTEOTED WILLS. Jurisdiction of surrogate.'] — By 1 L. 18T0, p. 828, c. 359, § 8, the surrogate of the comity of New York, whenever any will of real or personal estate has been lost or destroyed by accident or design, may, in case such will might hare been proved before him, if not lost or destroyed, take proof of its execution, in the same manner as the supreme court may do. The eases in which the supreme court, as the successor of the late court of chancery, may take such proof, are defined by the Eevised Statutes {ante, p. 28). The statute gives that court the same power to take proof of the execu- tion and validity of any will of real or personal estate, lost oi: de- stroyed by accident or design, and to establish the same, as it has in the case of lost deeds (2 B. 8. 67, § 63").* Sequisite proof. 1 — ^But to entitle a will to be proved as a lost or destroyed will, it must be shown to have been in existence at the time of the d.eath of the testator, or to have been fraudulently destroyed in the lifetime of the testator ; and its provisions must also be clearly and distinctly proved by at least two credible wit- nesses, a correct copy or draft being deemed equivalent to one witness (2 M. S. 6T). "Where a will has been lost or destroyed, under circumstances showing that it has not been lost or destroyed with the knowledge of the testator, the fact of its legal existence at the death of the testator may be proved by circumstantial testi- mony (Schultz V. Suhultz, 35 N. T. 653). Thus where it was proved that the will, at the time of its execution, was placed by the testator in the hands of another per- son as custodian, who testified that he took charge of it, and locked it up in a trunk, and supposed it was there at the time of the testator's death, but upon search after his death it could not be found, the evidence of its legal existence, at the time of the testa- tor's death, was held sufficient under the statute (75.) If the will was not, in fact, in existence at the death of the testator, it is to * This power chancery had before the Revised Statutes in respect to wills of real estate (Bowen v. Idley, 6 Paige, 46, 49). THB PROBATE OF WILLS. 115 Fraudulent Destruction. — Requisites of Execution. . ^_n be inferred under sncli circumstances tliat it was fraudulently de- stroyed or lost during his lifetime, and in that case as well it was his last wiU and testament {lb.) But a lost will not traced out of testator's possession is presumed to have been revoked by him, by destruction {Idley v. Bowen, 11 Wend. 227, affi'g 1 Edw. 148 ; Bulkley v. Redmond, 2 Bradf. 281 ; Holland v. Ferris, Id. 334 ; €larTc's Estate, 1 T-ucTc. 445). Fraudulent destruction^ — A will is "fraudulently destroyed" within the meaning of the statute, when it is destroyed by the testator himself, in consequence of- the undue influence exercised over him, and the misrepresentations made to him by a person interested to have the will destroyed. It is not necessary that the will should have been destroyed by some one else than the testa- tor, or that the means by which the testator was induced to destroy it shoxdd have amounted to force or coercion ( Voorhees v. Vbor'hees, 39 iV^. y. 463). But in order to avoid being " fraudulently de- stroyed," it is not necessary that it should be destroyed in such a manner as to amount to a valid revocation (Timon v. Glaffy, 45 Barl. 438). Bequisites of execution.'] — The fact that the will is lost or has been destroyed does not affect the requisites to its due execution. These requisites must be proved as if the will were present. It can not be done, it is true, by the same description of evidence, in all respects, but some evidence sufficient to show a compliance with the statute, in all its provisions, must be given {Or ant v. Grant, 1 Sandf. Ch. 235, 243 ; YoorKees v. Yoorhees, 39 N. Y. 463). These facts are to be proved in the usual way, as other facts are required to be proved, to make them evidence in a court of justice. While the' statute prescribes rules to be observed in the execution and publication of wills, which it does not prescribe in regard to the execution and delivery of other written instruments, the proof of the several acts so prescribed is the same as the proof required to establish any other fact. The law lays down no stubborn inflexible rules in such cases, but accepts the best evidence that can be pro- cured, adapted to the nature of human affairs, human jnfirmities, and casualties, which tends with reasonable certainty to establish the fact in controversy. The proof of a lost or destroyed wiU pro- ceeds upon the theory that it is not in existence and cannot be pro- 116 THE PROBATE OF WILLS. The Probate. — Ifuncnpative Wills. f . duced before the surrogate ; and therefore the case is one of secondary evidence exclusively {Eoeritt v. Everitt, 41 Barb. 385).* The probate.} — The statute further in effect provides that upon probate of the lost or destroyed will, letters may issue as in other cases ; and that pending an application to prove such a will, the court may restrain executors or administrators who may have pre- viously obtained letters on the estate, from any act or proceedings which it may judge would be injurious to the legatees or devisees claiming under such lost or destroyed will (2 JR. S. 6Y, §§ 64*", 65"). For forms of petition for the proof of a lost or destroyed wiU, and a decree establishing the same, see Forms Nos. 11 and 31 respectively. ARTICLE SIXTH. , ■ NUNCUPATIVE WILLS. Who m.ay mahe.] — In the early history of wills, before the statute of frauds, the act of the testator in disposing of his prop- erty was not attested by any writing, but his will was declared by him verbally in the presence of witnesses, usually when he was in his last sickness. But for the statute which declares the mode of executing testamentary dispositions of property, it is not essential that a will should be in writing.f The statute of this state restricts the making of unwritten or nuncupative wills to saUors and sol- diers while in actual service and danger. It is provided by statute that no nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual mili- tary service, or by a mariner while at sea (2 H. S. 60, § 22). Be- sides the restriction thus imposed by the statute, there is a common law restriction, stiU recognized, that the will must be made when the testator is in extremis, or overtaken by sudden and violent sickness, and has no opportunity to make a written will {Prince v. Hazleton, 20 Johns. 502) ; though it is not necessary that it should * As to admissibility of declarations made by the testator, see Gh-ant v. Orant (1 Bandf. Ch. 235, 243) ; Timon v. Olaffy (45 Barb. 438). f For a history of the law of nuncupative wills, the curious reader is referred to the opinion of Chancellor Kent, in Prince v. Hazleton (20 Jolins. 502), and of Surro- gate Bradford in Exp, TJiompson (4 Brad/. 164). THE PROBATE OF WILLS. 117 Mode of Execution. — Surrogate's Decision. "be made in the last sickness {Exp. Thompson, 4 Bradf. 154). As to wliat is actual service at sea, &c., within the meaning of the statute, see Exp. Thompson (4 Bradf. 154) ; OwirCs Estate (1 TuoTc. 44) ; Hubhard v. Rvhlard (8 N. Y. 196). Mode of execution.^ — ^Nuncupative wiUs not being regulated hy statute as to their mode of celebration or execution, the single question for the judgment of the court is vrhether the nuncupation was made by a person entitled to that privilege. It is sufficient that the testator, in prospect of death, states what disposition he desires to make of his property ; and it is enough if he does this in answer to questions. No particular form of language is neces- sary, nor need he request the persons present to be witnesses that it is his will ; nor need he name an executor, (Exp. Thompson, 4 Bradf. 154 ; Hubbard v. Hubbard, 8 N. T. 196). A letter writ- ten by a soldier in actual military service, in anticipation of battle and in view of death therein, has been held a valid nuncupative will, although the testator was not killed till several months there- after [Botsford V. Erake, 1 Abb. Pr. 'N. 8. 112). No particular number of witnesses of the nuncupation is required to entitle such a wiU to probate, if the court is satisfied with the proof {Exp. Thompson, 4 Bradf. 154). Probate of'\ — ^Precisely the same proceedings, by petition and citation, are to be adopted to prove a nuncupative will as have been detailed in regard to the proof of a duly executed written will. The petition, however, should set forth the fact that the decedent was either a soldier or sailor, his rank or capacity, the extremity of his iUnesp at the time, and the particular words or language used which it is proposed to establish as a will (see Form No. 10). ARTICLE SEVENTH. DEOEEE GEANTmO OE EEFUSING PEOBATB. Surrogate's decision.] — The parties for and against the probate having introduced their proofs, and summed up the case — ^the pro- ponents being entitled, as having the affirmative of the issue, to the opening and closing, — the admission or rejection of the instru- 118 • THE PROBATE OF WILLS. Probate of Part of Will.— Conclusiveness of Decree. ment propounded then awaits the decision of the surrogate upon- the law and facts. The statute provides that he shall enter in his miautes the decision which he may make concerning the sufficiency of the proof or validity of any will which may be offered for pro- hate ; and that ia case he shall decide against the sufficiency of the proof or the validity of any such wUl, he shall, without fee or charge, state the grounds upon which the decision is made, if re- quired by either party (Z. 1837, c. 460, § 21).* Probate of pan-t of willl\ — ^Part of a will may be established and part refused probate, if incapacity, fraud, or imposition be shown at the time of the execution of the latter part. If a par- ticular clause has been iiiserted by fraud or mistake, without the knowledge of the testator, probate will be granted with the reser- vation of that clause. It is not necessary that the whole wUl must stand or faU {Burger v. Hill, 1 Bradf. 360 ; In re Welsh, 5 W. 7. [1 Redf] 238). So codicils, which are as much parts of wiUs as if incorporated therein, and draw the will down to their date, as if then republished, may be rejected, leaving the wiU to stand. Conclusiveness of decree.]— A wiU may be proved, at one and the same time, both as a will of real and of personal property. The effect of the probate differs, however, as to each class of property. As to the real estate, the probate is not conclusive either as to the validity or due execution of the will. These questions may be litigated whenever rights to real estate claimed under the will are controverted. But in respect to dispositions of personal property * The purpose of this provision seems to be the same as that contained in the Code of Civil Procedure, § 267, requiring that, on the trial of a question of fact by the court, its decision shall contain a statement of the facts found and the conclusions of law separately — i. e., to enable the appellate court to correct an erroneous con- clusion of law, without the necessity of examining and passing upon all the facts ; and therefore the ordinary form of a decision by a single judge, on » trial before him, would probably furnish a convenient precedent for the minutes of the surrogate. We do not mean to be understood as saying, however, that such a course of procedure would preclude the appellate court going into an examination of the facts. It is at present the general rule for the supreme court as well as the court of appeals, in all cases of appeals from surroga.tes' decrees, to examine the whole case, as well upon the facts as upon the law, so far as questions are presented by the appeal (Bchencky. Dart, 22 N. Y. 420 ; CaujoUe v. Ferric, 23 Id. 90 ; Robinson v. Raynor, 28 Id. 494 ; HmoUaiS, V. Taylor, hS Id. 627). THE PROBATE OF WILLS. 119 EevoMng Decree. contained in the will the rule is different [Matter of Kelkim, 50' If. Y. 298). The statute provides that the probate of any will of personal property, taken by a surrogate having, jurisdiction, shall be conclusive evidence of its validity, until reversed on appeal or revoked by the surrogate, or the will is declared void by a com- petent tribunal (2 E. S. 61, § 29 ; Zli.S. 6th ed. 142).* This provision is not modified by L. 1837, c. 460, § 18, which makes the provision of the Revised Statutes relating to reading in evi- dence wills of real property (2 H. 8. 58, § 15) applicable to wills of personal property ( Vanderpool v. Van YalJcenburgh, 6 -ZV^. Y. 190). To entitle a surrogate's decree to be considered conclusive of the validity of the will, it must appear that surrogate had jurisdiction. The decree (except that of the surro- gate of New York county) may be attacked in all courts, either directly or collaterally, as being void for want of jurisdiction over the siibject-matter (see L. 1870, c. 359). If the court has jurisdic- tion of the subject-matter, consent will confer jurisdiction of the person. If the court possesses jurisdiction over the subject-matter and has acquired jurisdiction over the person, irregularities in the proceedings will not divest the surrogate of jurisdiction. It is un necessary to pursue this subject further in this place, as we have- already discussed the questions involved in a preceding chapter (see ante, pp. 13-16). It should be remarked here, however, that an action based upon a sui-rogate's decree should be brought with- in six years, the surrogate's court not being a court of record {Paff V. Kinney, 1 Bradf. 1). . It would, doubtless, be held otherwise as to a decree of the surrogate of the county of New York, since the passage of the act declaring the surrogate's court of that county a court of record (see Form No. 30). M&uoking decree.] — Of course, the probate of a will is not con- clusive of its validity in a proceeding instituted for the purpose of revoking or modifying the probate {Campbell v. Logan, 2 Bradf. 90 ; Kerr v. Kerr, 41 N. Y. 272). The surrogate, as we have seen * In addition to the cases previously cited {ante, pp. 13-16), the following may be consulted: fiejerv. -Biirg'erCSb^m. 1); MorrellY. Dickey(lJohns. CA.153); Pritch- ardr. Hides (I Paige, 210); OoltonY. Boss {2 Paige, 396) ; MuirY. Trmtees of the Leake and Watts Orphan House (3 Barh. Oh. ill) ; Van Rensselaer v. Morris (1 Paige, 13) ; Bogardus v. Clark (4 Paige, 623, affirming s, o. 1 Edw. 266). 120 THE PKOBATE OF WILLS. WiU aod Proofs to be Recorded. {ante, p. 24), may open a decree which he had no power to make ( Vreedenhurgh t. Calf, 9 Paige, 128), or which was entered by default, in consequence of a mistake or accident depriving the applicant of a hearing {Pew v. Hastings, 1 Barb. Gh. 452 ; Ha/r- rison v. McMahon, 1 Bradf. 283) ; and he may correct mistakes, the result of oversight or accident {Sipperly v. Baueus, 24 iV. Y. 46). The power thus to open a decree founded in misapprehension or mistake, and rehear the matter upon the merits, is incident to the statutory power to take proofs, and hear and determine the contention {Dohhe v. McClaran, 41 Barb. 491), and is essential to the administration of justice. But this incidental authority is to be carefully distinguished from a general power to grant new trials. And where all the parties in interest are represented at the hearing, and the court has given its final sentence or decree, it has not the general power of opening and rehearing it again, merely because it may have erred either as to the law or the facts (see Brich's Estate, 15 Abb. Pr. 12). ARTICLE EIGHTH. EEOOED OF WILL AND PEOBATB. Will and proofs to be recorded.'] — Each surrogate is required to record in his books aU wiUs proved before him, with all things concerning the same (2 P. S. 80, § 58). The records of such wiUs, and transcripts thereof duly certified, under his seal of oiEce, by the surrogate having the custody of such records, are — so far as respects the personal estate — receivable in evidence in the same manner as if the originals were produced and proved {Tb.) The Kevised Statutes also provide particularly that " if it shall appear upon the proof taken, that such will was duly executed ; that the testator, at the time of executing the same, was in all re- spects competent to devise real estate, and not under restraint, the said wiU and the proofs and examinations so taken, shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him " (2 P. S. 58, § 14). This section was originally applicable only to wills of real property ; but by Z. 1837, c. 460, § 18, was made, applicable to wills of personalty also (see Form No. 32). THE PROBATE OF WILLS. 121 Certificate to be Indorsed. Certificate to he indorsed-l — ^With the exception of wills of real estate, proved without the production of any subscribing witness, which is hereafter explained, it is required that every will proved, whether it relate to real or personal estate or both, " shall have a certificate of such proof indorsed thereon,, signed by the surrogate and attested by his seal of office, and may be read in evidence with- out further proof thereof. The record of such will, made as afore- said, and the exemplification of such record, by the surrogate in whose custody the same may be, shall be received in evidence, and shall be as effectual in all cases as the original will would be, if pro- duced and proved, and may, in like manner, be repelled by con- trary proof" (2 B. S. 58, § 15, as extended by L. 1837, c. 460, § 18).* In order that the record of a wiU admitted to probate and the exemplification of the will by the surrogate may be received as evidence, jfec, it is necessary that the record of the will should be accompanied by the proofs and examinations taken before the sur- rogate, although such proofs and examinations are not thereby made evidence in the cause in which the will is offered {Nichols v. Romavne, 3 Abb. Pr. 122). Where all the subscribing witnesses to a will of real estate are dead, insane, or non-residents, and proof of the handwriting of the testator and the subscribing witnesses is taken under 2 R. 8. 69, § 16 (see bell v. Pawdon, 18 /d 414 ; compare Lovett v. Kvngsland, 35 /rf. 617, affi'g 44 ^az-J. 560 ; Everitt v. ^m«, 29 ii^. Y. 39, rev'g 29 jB«?"J. 112). But the rule is inflexible that guesses at the testator's intention will not be indulged in. The court will not make a wiU for the testator by inference or argument from other parts of the will, or other instnmients, any more than from facts and circum- stances outside the wiU. To effect a clear and distinct devise or bequest requires that equally clear and distinct words should be used by the testator. It can not be effected by any reasons assigned by him therefor.* Meaning of particular words.] — The tenn " heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless other- wise limited (1 P. 8. 748, § 1). Eeal or personal property, em- braced in a power to devise, passes by a will purporting to devise " aU the real or personal property " of the testator {Id. 737, § 16 ; see Van Wert v. Benedict, 1 Bradf. 114). A devise or bequest of " all the testator's real or personal property," in express terms, or in any other terms denoting his intent to dispose of aU his real or personal property (except of the residue), passes all the real or personal property which he was entitled to dispose of by will at the time of his death (2 P. S. 57, § 5 ; see McNaughton v. Mo- * See the Draft of Civil Code, § 684, and cases cited in note. It will be diiBcult to find anywhere a clearer exposition of the existing law relating to the general sub- ject of wills than this draft of a proposed Code (Title V). The canons of inter- pretation, in chapter ii, are especially valuable. CONSTEUCTION AND INTERPRETATION OF WILLS. 131 Devises and Bequests to a Class. — Extrinsic Evidence. Naughton, 41 Barb. 50). As to the effect of a devise of the res- idue of the testator's estate, see Van Cortlandt v. Kip (1 EUl, 596 ; Y Id. 352), and Tucker v. Tuelcer (5 N. Y. 408). Devises and bequests to " heirs" " relations" " nearest relations" " repre- sentatives" " legal rejpresentaiimes" or ^^ personal representatimes" or '■'■family" " issue" '^descendants" "nearest," or " nextofTtin" oi any person, without other words of qualification, and when ' the words are used as words of purchase or donation, and not of limitsr ti6n, vest the property in those who would be entitled to inherit the property of such person. These terms are to be considered used as words of purchase or donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person. "Words referring to death or survivorship simply (at least in wills of personalty),* are to be deemed as relating to the time of the testator's death, tmless possession is actually postponed, in which case they refer to the time of possession {Adams v. Beehman, 1 Paige, 631 ; compare Van Alstyne, v. Van Alstyne, 28 N. Y. 375). Devises and heguests to a class.^ — ^A devise or bequest to a class includes every person answering the description at the testator's death {Tucker v. Bishop, 16 N. Y. 402 ; Campbell v. Bawdon, 18 Id. 415 ; Stires v. Vam, Rensselaer, 2 Bradf.Vl'^; but when possession is postponed to a future period, it includes also aU per- sons coming within the description before the time to which pos- session is postponed (Johnson v. Valentine, 4 Sandf. 36). A child who was conceived before, but was not bom until after, a testator's death, or any other period when a disposition to a class vests in right or in possession, will take, if it answers to the description of the class {Jenkins v. Freyer, 4 Paige, 53). Extrinsic evidence.] — ^Parol evidence is always admissible to impeach the validity of a will, or of any part of it, tod to rebut the presumption of a resulting trust ; but it is a familiar principle that such evidence can not be received to influence the construction of a will founded on clear language and well settled rules. But a distinction is to be observed between evidence to prove the inten- tion of the testator, and evidence to explain the meaning of the * As to wiHs of realty, see Moore v. Lyons (2B Wend. 119). 132 CONSTRUCTION AND INTERPRETATION OF WILLS. Extrinsic Evidence. words of the will. Evidence of the intention of the testator is as to an independent fact which can not be proved by extrinsic evi- dence ; evidence of the meaning of the words used by the testator is ancillary only to owe right understanding of them. Hence^ when there is an imperfect or erroneous. description of a person or thing, or where no person exactly answers the description, or there is some other mistake or omission or peculiarity of expression^ parol evidence wiU be received to explain, (1) false or imperfect descriptions of persons or things ; (2) how certain words came to- be used by the testator ; (3) the sense in which the testator was; accustomed to use nicknames or soubriquets, or even occult phrases of any kind. As an example, where there are two objects or pet- sons to whom the words of the will apply with equal certainty, so that either might be justly regarded as coming within the terms of the instrument if it were not for the other, extrinsic evidence may be given to show which was meant (see Momn v. Mann., 1 Johns. Gh. 231 ; Connolly v. Pardon, 1 Paige, 291 ; Smith v. Smith, 4 Id. 271 ; Wightman v. Stoddard, 3 Bradf. 405 ; Hart v. Maries, 4 Id. 161 ; Roman Catholic Orphan' Asylum v. Emmons, 3 Id.\^; Smith v. Wyckoff, Z Sandf. Ch. 82). This is called a latent, as distinguished from a. patent, ambiguity. The subject of the admissibility of extrinsic evidence in aid pf the interpretation of wills has been treated by Si/r James Wigram, in such a manner as to leave nothing to be said on the subject further than to refer to his well known work, and the seven prop- ositions of law upon which it is based.* The reader will also find * The following are the seven propositions applicable to the erpositions of wills, as laid down in Wigram on Extrinsic JEkidence in Aid of the Interpretation of Wills, p. 55 (Baker, Voorhis & Co., N. Y., 18'72) : " Proposition I. A testator is always presumed to use the words in. which he ex- presses himself, according to their strict and primary acceptation, unless from the context of the will it appears that he used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. " II. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic drcumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no othei', although they may be capable of some popular or secondary interpretation. CONSTRUCTION AND INTEEPRETATION OF WILLS. 133 From what Time the Will speaks. the subject clearly expotmded in Jarman on Wills (vol. 2, p. T62 et seq.), and in Redfield on Wills (vol. 1, c. tx). From what time the will s]peaks.\ — On the general subject of interpretation, it only remains to observe that, so far as facts and circumstances are susceptii)le of anticipation by the testator, so as to enable him to place himself in the position he wiU be at the and although the most conclusive evidence of intention to use them in such popular and secondary sense be tendered. " III. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with refer- ence to extrinsic circumstances, a court of law may look into the extrinsic ciroum- •stances of the case to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable. " IV. Where the characters in which a will ia written are difficult to be deci- phered, or the language of the will is not understood by the court, the evidence of persons sMUed in deciphering writing, or who understand the language in which the wiU is written, is admissible to declare what the characters are, or to inform the court •of the proper meaning of the words. " V. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a ■court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of dis- position, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The ,«ame (it is conceived) is true of every other disputed point respecting which it can "be shown that a knowledge of extrinsic facts can, in any Way, be made auxiliary to the right interpretation of a testator's words. " VI. Where the words of a will, aided by evidence of the material facts of the -case, are insufficient to determine the testator's meaning, no evidence will be admis- sible to prove what the testator intended, and the will (except in certain special cases, .see Proposition VII) will be void for uncertainty. " VII. Notwithstanding the rule of law, which makes a will void for uncer- tainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the, testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for that purpose. These cases may be thus defined : when the object of a testator's bounty, or the subject of disposition (t. «., the person or thing intended) is described in terms which are ap- applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the tes- tator.' 134 CONSTRUCTION AND INTERPEETATION OF WILLS. From what Time the Will speaks. time of his death, relatively to his property and his family, he is presumed to speak in his will with reference to that time. This is not the invariable rule, however (see CoUin v. Collin, 1 Barb. Ch. 630 ; Yan Veghten v. Van Yeghten, 8 Paige, 104 ; Lynes v. Townsend, 33 N. T. 558 ; McNaughton v. Mc.Naughton, 34 /c?^ 201 ; Yan Alstyne v. Yan Alstyrie, 28 Id. 3Y5 ; Egerion v. ConkUn,, 25 Wend. 224 ; am,te, p. 310). CHAPTER VIII. LETTERS TESTAMENTARY. Art. l.-^When and to whom letters issue. 2. — ITeceBsary qualifications. 3. — Renunciation and acceptance of appointment. 4. — Revocation of letters. 5. — Supplementary letters. 6. — Foreign letters. Y. — Effect of letters as evidence. ARTICLE FIRST. WHEN AND TO WHOM LETTEES ISSUE. The probate wnd letters testamentary.] — The " probate " of a will may be considered to be the official record of the proceedings for the proof of the will, including the final decree of the surrogate adjudging the will duly proved, and a copy of the will itseK. The letters testamentary are separately recorded, and consist merely of a certificate of the surrogate of the due proof of the will and of the authority of the executor to administer the goods, &c., and to exe- cute the will of the testator. It is not uncommon, however, to find the words probate and letters testamentary used as convertible terms, meaning the same thing. The executor is the person to whom the testator by his will con- fides the admiuistration of his personal estate. The appointment is usually, though not necessarily, made by explicit words in the will. The statute generally speaks of the executor " named in the will," and by 2 B. S. 69, § 1, directs letters testamentary to be is- sued to him ; but these words may be construed as including one who, though not expressly named in the will, is by necessary infer- ence from it, shown to be intended as executor. But the appointment of executors by construction or implication is not favored, and, in doubtful cases, administration with the wiU an- 136 LETTERS TESTAMEHTARY. Letters on Proof of Will by Surrogate. nexed must be resorted to {EartnettY. Wandell, 2 Mim. 552, revers- ing s. c. sub nom. Matter of Alexander, 16 Abh. Pr. N. 8. 9, and following Branson's Estate, 1 2'uch. 464).* The executor's ap- pointment is tlius always derived from the wiU, but, as has been explained {ante, p. 60), this gives him very little power in reference to the personal estate, without formal authorization by the surrogate, which is granted in the form of letters testamentary issued when the win has been proved. The cases in which a surrogate in this state is authorized to issue letters testamentary may be divided into three classes : (1) where the wiU has been proved before him ; (2) where it has been proved in the supreme court and recorded with him ; (3) where the will has been proved in another jurisdiction, on which letters were granted there, and an exemplified copy of which, and of the probate, are produced here. Letters on proof of will iy surrogate.']- — In regard to the first class of cases, the statute provides that the surrogate who took the proof of a wiU shall issue letters testamentary thereon to the per- sons named therein as executors, who are competent by law to serve as such, and who shall appear and qualify (2 B. 8. 69, § 1). Letters on proof of will ' in sujareme court.'] — The statute which allows lost or destroyed wUls to be proved in the supreme court, provides that when such a wUl is established by a decree of a competent court, and the decree recorded by the surrogate before whom the will might have been proved, if not lost or destroyed, letters testamentary, or of administration with the will annexed, shall be issued thereon by him, in the same manner as upon wills proved before him (2 H. 8. 67, § 64*) ; f and in the other cases in which wills may be proved in the supreme court, letters may be issued by the surrogate, upon the decree establishing the wiU beiag recorded in his office (2 B. 8. 67, §§ 67 % 68 »). * For the doctrine of implied appointment see also Bayeux v. Bayeux (8 Paige, 333); mep. McDonald (2 Bradf. 32); Mxp. McCormich (Id. 169). f If before, or during the pendency of, an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court to which Buch application is made has authority to restrain the administrators or executors so appointed from any acts or proceedings which it may judge would be injurious to the legatees or devisees claiming under such lost oj destroyed wiU (2 R S. 61, § 656). LETTERS TESTAMENTARY. 137 Letters on Exemplification of Foreign Probate. Letters on exemplification of foreign prohate.] — ^Where a will of personalty, executed without this state by a non-resident, accord- ing to the law of the state or country in which it was made, has been duly admitted to probate in such state or country, letters testamentary, or of administration with the will annexed, may also be issued thereon by the surrogate having jurisdiction, upon the production of a duly exemplified or authenticated copy of the wiU, under the seal of the court in which it shall have been proved (2 B. S. 67, § 68 % By Z. 1840, c. 384, § 2, these provisions are ex- tended to the case of a will of personal estate duly executed in this state by a non-resident. In order to prevent the executors under a foreign wiU from taking out letters here and then removing from the state all the assets of the testator, and thus compelling creditors resident here to resort to the courts of foreign states to enforce their demands, provision has been made for giving notice of the application for letters on such a will to the creditors of the dece- dent, and for compelling the persons taking out letters to give security for the payment of such debts. It is accordingly provided (Z. 1863, c. 403) that,* whenever the will of a person, domiciled without this state at the time of his death, shall have been admitted to. probate within this state, on the production of an exemplification of the foreign record thereof, or otherwise, and whenever adminis- tration of a non-inhabitant intestate's estate shaU have been granted by competent authority, in the state or eoimtry of his domicile, let- ters testamentary or of administration may be granted by the sur- , rogate by whom the wiU shall have been admitted to probate, or by any other surrogate having jurisdiction, to the execu- tor, administrator or other person entitled to, the possession of the personal estate in the state or country of such domicile, or to any person authorized by him to receive the same. The persons to whom letters are issued must furnish such amount of security as may be required by the surrogate, in his discretion, to be given in consideration of the probable amount of debts due or owing by the decedent to residents of this state, to be proved to his satisfac- tion, and as in his judgment may be sufficient to secure the pay- ment of such debts. Before granting letters in such a case, the surrogate must cause notice of the application for letters, and of hear- ing of the same, to be published once in each week for six months, in the state paper and in a newspaper published in the county of 138 . LETTERS TESTAMENTARY. Married Women. the surrogate. The surrogate must also examine on oath the party so applying for letters, or his agent, as to the resident cred- itors of the deceased. In case there are any such creditors, they must be cited to appear before the surrogate on the granting of letters ; the citation must be served on such creditors in the like manner as citations are required to be served on the proof of wiUs, at least thirty days before the day specified in the published notice. Proof of service of the citation must be filed with the surrogate. (See Forms Nos. 37, 38.) ARTICLE SECOND. NECESSAET QUALIFICATIONS. ISTotwithstanding a person is named in the will as executor thereof, he is not entitled to have letters issued to him, unless he has the necessary qualifications of an executor as provided by the statute. Such qualifications are that he stall be of the age of twenty-one years and capable of making a contract ; that he shall not be an alien non-resident of the state, nor one convicted of an infamous crime, nor one whom the surrogate, on proof, shall ad- judge incompetent to execute the duties of the trust by reason of drunkenness, dishonesty, improvidence, or want of understanding (2 E. 8. 69, § 3, as amended L. 1830, c. 230, § lY; Z. 1873, c. 79). And in his discretion the surrogate may refuse to grant letters testa^ mentary or letters of administration to a person unable to read and write the English language (Z. 1867, c. 782, § 5). * The stat- ute as to the disqualifications of administrators is couched in simi- lar, though not identical language (see Chapter X, post) ; and the convenience of the reader wiU be consulted by referring here to the cases which have settled the construction of either statute. Married women.] — By the Kevised Statutes (2 R. S. 70, § 4) no married woman was entitled to letters testamentary, unless her husband's consent was filed with the surrogate. But now, by Z. * Before the passage of this statute it was held that mere illiteracy did not au- thorize the surrogate to supersede the letters testamentary (Emerson v. Bowers, 14 N. Y. 449, reversing 14 Barh. 6S8). LETTERS TESTAMENTARY. 139 Non-resident Aliens.— Infamous Crime and Want of Understanding, &o. 186Y, c. 782, § 2, married women are capable of receiving let- ters, whether testamentary, or of administration or of guardian- ship, and of giving bonds thereon, as if they were sole. * Non-resident aliens.'] — Subdivigion 3 excludes only those who' are both " aliens," that is, not citizens of the United States, and non-residents of this state. One who is a citizen of any of the TJnited States may receive letters testamentary under our laws,, notwithstanding he resides in another state {MoOregor v. Mc- Gregor, 3 Abb. Ct. Ajcyp. Dec. 86; s. c. 1 Keyes, 133; s. c. 33 How. Pr. 456). Where the disability of an alien is removed be- fore the complete execution of the will, he is entitled to apply for supplementary letters (2 R. 8. YO, § 5). Infamous crime and want of understanding, c&c.J — lS.o degree of legal or moral guilt or delinquency is sufficient to justify the rejection of one as administrator, unless he has' beJen actually con- victed of an infamous crime, upon indictment or other criminal proceeding {Coope v. Lowerre, 1 Ba/rb. Ch. 45). Immoral habits or offenses of moral turpitude are not grounds of objection {SMI- ton's Estate, 1 Tuck. IS). Nor is drunkenness, when not so gross as to justify a finding that the person is an habitual drunkard under the statute {Elmer v. Kechele, 5 N. Y. Surr. [1 Redf] 4Y2). The fact, however, that a man is a professional gambler, is pre- Bimaptive evidence of such " improvidence " as to render him incom- petent to discharge the duties of executor or administrator {Mc- Mahon v. Harrison, 6 N. Y. 443, affirming 10 Barb. 659, and reversing 1 Bradf. 283). The improvidence contemplated by the statute is that want of care or foresight in the management of property which would be likely to endanger the estate, or diminish its value {Coope v. Lowerre, 1 Barb. Ch. 45), and refers to such habits of mind and body as render a man generally, and under all ordinary circumstances, unfit to serve {Emerson v. Bowers, 14 N. Y. 449, reversing 14 Barb. 6^8). So a " want of understanding " * As to effect of marriage after letters, see Bunce v. Vander Grift (8 Paige, 31) ; Woodruff y. C V. Meserole, 1 All. Ct. App. Dec. 362 ; Z. 1865, p. 1455, c. 733) ; and may maintain an action for an accounting against such predecessor, or against his personal representative after his death, for assets left unadministered by such predecessor * ( Walton v. Walton, 4 All. Ct.App. Dec. 512). Performing the will.'] — The statute provides that " in all -cases where letters of administration with the will annexed shall be granted, the wUl of the deceased shall be observed and per- formed ; and the administrators with such will shall have the rights and powers, and be subject to the same duties, as if they had been named executors in such will " (2 B. S. 12, § 22). This provision has been the subject of much controversy. There is eminent au- thority for regarding it as only declaratory of the common law, and applicable neither to real property in any case, nor to discre- tionary powers, nor to gifts in trust, nor to powers inseparably connected therewith {Dominick v. Michael, 4 8andf. 3Y4). It is well settled that devises to the executors, and discretionary powers relating to real property, at least, do not pass to the administrator * An administrator with the will annexed, appointed in this state, can not maintain an action against the agent of the deceased executor to compel him to account for money collected as rents of lands in another state, nor for money collected as rents of lands in this state, in respect of which there is a devise in trust or power of sale to such deceased executor. Nor is the agent of the executor liable In an ordinary action of account, at law, for proceeds of personal property belonging to the estate in his hands, to such administrator. The agent is liable to the executor and his per- sonal representatives ; the executor is liable to the estate, and the remedy of the ad- ministrator at law is against his personal representatives. If he has a remedy against the agent, it is in equity {Smith v. Edmonds, 10 N. Y. Leg. Obs. 185). ADMINISTRATION WITH THE WILL ANNEXED. 155 Performing the Will. with the will annexed {Beekman v. Bonsor, 23 N. Y. 298, affirm- ing Beehman v. People, 27 Barh. 260).* The decided weight of authority supports also the proposition that the administrator with the will annexed has no power in respect to the real property by virtue of this section, and that the statute was intended to refer only to personal property f {Conklin v. Egerton, 21 Wend. 430 ; 25 Id. 224 ; Dunning v. Ocean Nat. B% 6 Lans. 296). Where, however, an administrator with the will annexed assumes to act as trustee of the real property under the wOl, he may be held to ac- count therefor as such trustee {Le Fort v. Delafield, 3 Edw. 32). For forms of petition, letters, and all proceedings, see Forms Nos. 51-52). . * The necessity of such a construction has, howerer, been questioned by Davis, J., in Roome T. PMli'ps (27 K Y. 357, 363). f The contrary was held in Matter of Anderson (5 N. Y. Leg. Obs. 302), in respect to powers which the executor would have had as exeeutor ; the distinction being taken that it is only where an executor takes as trustee that the power of chancery to fill his place is exclusive. CHAPTER X. INTESTACY AJSD LETTEES OF ADMINISTRATION. Abt. 1. — Jurisdiction in cases of intestacy, 2. — Who are entitled to letters. 3. — Proceedings to obtain letters. 4. — Qualifications of administrator. 6. — Effect of grant of letters. 6. — Revocation of letters. 7. — Administration de bonis non. ARTICLE FIRST. JURISDICTION IN CASES OF INTE8TACT. Where the administration of an estate — ^that is, the collection and preservation of the personal effects of a deceased perspn, and their final disposition according to law — ^is not conferred upon any particular person by the will of the deceased himseK, or where such person if appoiated, is incapable of performing that function^ the duty devolves upon the surrogate of appointing one who can. The last chapter was devoted to the consideration of the surrogate's power of appointment in cases where the will of a deceased failed to appoint, or where its appointee was either incapacitated or ceased to act for any cause. We now come to consider the subject of administration in cases of intestacy. The jurisdiction of surrogates is more restricted in the matter of the administration of intestates' estates than is their jurisdiction in matters of probate. The statutes relating to the general juris- diction of surrogates {ante, p. 12), and those defining their special jurisdiction as to probate {ante, p. 61), should be read in connec- tion with the statute conf eiTing jurisdiction in cases of, intestacy. The latter statute is as follows : " The surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant INTESTACY AND LETTERS OF ADMINISTRATION. 157 Limitation of Jurisdiction. letters of administration of tlie goods, chattels, and credits of per- sons * dying intestate, in the following cases : "1. "Where an intestate, at or immediately previous to his death, was an inhabitant of the cotmty of such surrogate, in what- ever place such death may have happened : " 2. Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein : " 3. Where an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such sur- rogate, and in no other county : " 4. Where an intestate, not being an inhabitant of this staife, shall die out of the state, not leaving assets therein, but assets of . such intestate shall thereafter come into the county of such surro- gate "(2^.^. 73, §23). " Whenever an intestate, not being an inhabitant of this state, shall die out of the state leaving assets in several counties, or assets of such intestate shall after his death come into several counties, the surrogate of any county, in which such assets shall be, shall have power to grant letters of administration on the estate of such intestate " {Id. § 24, first clause). Limitation of jurisdiction. — The statute, it will be seen, recog- nizes two general classes of persons : (1) inhabitants of the state ; and (2) non-inhabitants. By the first subdivision of § 23, jurisdic- tion is conferred in cases of intestacy of all inhabitants of the state ; while by the next following three subdivisions of § 23 and the first clause of § 24, jurisdiction is conferred in cases of the intestacy of some non-inhabitants only. The jurisdiction in cases of non-inhab- itants depends on the existence of personal effects of the deceased in the state, and is expressly conferred by the statute (1) whenever the deceased dies in the state, leaving assets in the county of his decease ; and (2) when he dies out of the state, leaving assets in the state, or assets thereafter come into the state. Under the gen- eral jurisdiction conferred on the surrogate, however, his powers are held to extend to all cases in which the deceased left assets in * Indiana; althougli living within the state, if belonging to a tribe whose separate government is recognized, and resident upon their reservation, are not within the statute, and the surrogates have no power to grant letters of administration upon the estates of such persons (Dole v. Irish, 2 Barb. 639). 158 INTESTACY AND LETTERS OF ADMINISTRATION. Exclusive Jurisdiction. — Proof of Jurisdictional Facts. the state or assets thereafter come into the state, without regard to the place of his death {Kohler v. Knapp, 1 Bradf. 241 ; and see a/Thte, p. 63). The surrogate's jurisdiction in regard to probate is more exten- sive, since he may also grant probate of a will which purports to devise, or relates to, real estate situate within this state.* Exclusive jurisdiction,.] — In addition to the general provision as to exclusive jurisdiction already stated {cmte, p. 30), it is par- ticularly provided by the last clause of § 24, that the surrogate first granting letters of administration shall thereby acquire sole and exclusive jurisdiction over the estate, and be vested with all the powers incidental thereto ; and by § 25, it is further pravided that the persons appointed administrators shall have sole and ex- clusive authority as such, and be entitled to demand and recover from every person subsequently appointed administrator of the same estate, the assets of the deceased in his hands. Eut aU acts in good faith, of such subsequent administrator, done before notice of such previous letters, are valid ; and all suits commenced by him, may be continued by, and in the name of, the first adminis- trators. Proof of jurisdictional facts.] — The statute confers on the surrogate jurisdiction in certain cases over the estate of an intes- tate decedent. The facts of death and intestacy, as well as the facts of inhabitancy or assets, are, therefore, jurisdictional. The statute further requires that before any letters of administration are granted on the estate of a decedent, the fact of the person's dying intestate must be proved to the satisfaction of the surro- gate t (2 JR. S. 74, § 26), and it is made the duty of the surrogate * The cases in which the surrogate of the proper county may admit a will to pro- bate or grant administration may he summed up as follows : He may take probate or grant administration whenever the deceased was an inhabitant of the state, or left assets here, or assets thereafter come into the state, and he may besides grant pro- bate whenever the wiU purports to devise, or relates to, real estate situate in the state. f It would be beyond the scope of the present work to discuss the class of cases in which there is no direct evidence of death, and where the fact of death is sought to be established by proof of the absence of the person, and that he has not been heard from, (fee. On this subject, consult Stouvmel y. Sl^liem (2 Daly, 819); Oppen- heim v. Wolf (3 Sandf. Ch. 511); Gerry y.-Post (13 How. Pr. 118); Merritt v INTESTACY AND LETTERS OF ADMINISTRATION. !!59 Order of Preference. to examine the persons applying for letters on oath, touching the time, place and manner of the death, and whether or not the party dying left any will (2 R. S. 74, § 26). He may also, in like manner, examine any other person, and may compel such person to attend as a witness for that purpose (li.) The fact that the deceased was not intestate may be shown either by original proof of a will, or by evidence that a wiU had been duly proved in a court of competent jurisdiction. But it is proper, upon an allega- tion of the existence of an unproven wiU, to stay proceedings to afford opportunity to have it proved in due course {Isham v. Oibbons, 1 Bradf. 69). If it is alleged that the decedent left a will, and an executed will is traced last to his possession, there must be proof of search for it among his papers. If it can not be found, the presumption is that he revoked it by destroying it {BulMey v. Redmond, 2 Bradf. 281 ; see ante, p. 92). AETICLE SECOND. WHO AEE ENTITLED TO LETTERS. Order of preference.'] — The statute secures the right to ad- minister the estate of an intestate to those who, in other respects being proper persons, have the greatest interest in the distribution of the personal estate without reference to the interests in the real property (Sweezey v. WilUs, 1 Bradf. 495). This right is a per- sonal right, and one who is entitled thereto can only deprive others of their claim by taking letters himseK. He is not entitled to nominate a third person {Matter of. Root, ^ N.Y. Leg. Obs. 449 ; Matter of Ward, 6 Id. 111). The persons entitled to priority are enumerated by the statute as follows : " Administration, in case of intestacy, shall.be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order : Tkompson (1 Silt. 5S0) ; ICing y. Paddock (18 /oAns. 141); McCartee v. Camd{\ Barb. Oh. 4S5); Eagle v. Mmmett (4 Bradf. IIY ; s. c. 3 Abb. Pr. 218) ; Moehring v. Mitchell (1 Barb. Oh. 264) ; Clarke v. Cummings (5 Barb. 339, 354) ; Ram ore Facts, 110). 160 INTESTACY AND LETTERS OP ADMINISTRATION. Construction of the Statute. " Firsi. To Ms widow ; "Second. To Ms children ; ''Third. To the father; " Fourth. To the mother ; "Fifth. To the brothers ; " Sixth. To the sisters ; " Seventh. To the grandchildren ; " Eighth. To any of the next of kin Avho would be entitled to share in the distribntion of the estate. " If any of the persons so entitled be minors, administration shall be granted to their guardians. "If none of the, said relatives or guardians will accept the same, then to the creditors of the deceased, and the creditor first applying, if otherwise competent, shall be entitled to a preference. "If no creditor apply, then to any other person or persons legally competent ; but in the city of New York [and in Kings county also, by 1 Z. 18T1, p. 648, c. 335, § 4], the public adminis- trator shall have preference, after the next of kin, over creditors and aU other persons; and in other counties of this state, the county treasurer shall have preference over all other persons ; and in case of a married woman dying intestate, her husband shall be entitled to administration in preference to any other person " (2 E. S. 74, § 27, as am'd Z. 1863, c. 362, § 3 ; Z. 1867, c. 782, §6). Consiyruction of the statute.] — Under tMs statute, it is not every relative of the deceased who is entitled to administer in preference to creditors and the pubhc administrator. Interest is a necessary qualification. The statute does not secm'e the right to a relative who might in some contingencies be entitled to a share at the time of distribution, but who was not entitled at the decedent's death. Those only are to be considered who will be entitled to share in the surplus, if any, by virtue of their right of succession as the next of kin. So, also, a relative who, by right of succes- sion, comes in to take the place of one of the next of kin who was entitled to a distributive share, but who died before the ap- plication for letters, is not within the statute, and is not entitled to take in preference to creditors and the public administrator (Z. 1863, p. 607, c. 362, adopting the doctrine of Puhlio Admin- INTESTACY AND LETTERS OF ADMINISTRATION. 161 Preference of Persons in same Class. istrator v. Peters, 1 Bradf. 100, and superseding Lathrop v. Smger, 24 N. Y. ilT, whicli affirmed 35 Barb. 64). And on a contest for preference between relatives whose priority is not des- ignated by the statute, the single point to be ascertained is who will be entitled to the surplus of what is confessedly personal estate (Sweezcy v. Willis, 1 Bradf. 495). Thus where the intes- tate was illegitimate, and unmarried, and died domiciled in a coun- try by the law of which he could have no legal kindred, except lineal descendants, a lawful son of the mother of the intestate has no right to a distributive share ia the estate of the decedent, and consequently is not entitled to letters of administration here {Puhlia Administrator v. Hughes, .1 Bradf. 125). Where admin- istration is claimed by an alleged son of the intestate, but his legitimacy is denied, proofs must be taken, and the question of interest determined {Ferrie v. Public Administrator, 3 Bradf. 151). The fact that the claimant is a nearer relative of the in- testate than any other person within the United States, does not entitle him to administer, if there are elsewhere next of kin of a prior class. If the next of kin entitled under the statute is not herej or is not legally competent, the public administrator or cred- itors are entitled * {PuUio Administrator v. Watts, 1 Paige, 347 ; reversed on other grounds in 4 Wend. 168). Preference of persons in samie class?i^ — As the statute enumer- ates the persons having a right to administration in classes, it be- comes necessary to distinguish between several persons of the same class, and successive provisions of the statute provide for cases of this character. When there shall be several persons of the same degree of kindred to the intestate, entitled to administration, they are preferred in the following order : First. " Males to females." Second. " Relatives of the whole blood to those of the half ^lood." Third. " Unmarried women to such as are married." * Where a special statute was passed vesting in the relatives of a deceased il- legitimate domiciled abroad the interest of the people of the state in his assets situated here, it was held that the statute gare the relatives a right to administra' tion, although it was passed pending an appeal taken from an order granting letters to the public administrator (Pctos v. 2'ublic Administrator, I Bradf. 200). 11 162 INTESTACY AND LETTERS OF ADMINISTRATION. Husband and "Wife. And when there are several persons equally entitled to admin- istration, the surrogate may, in his discretion, grant letters to one or more of such persons * (2 H. S. 74, § 28). Where there are several claimants for administration, between whom the court must choose according to its discretion, the court wiU, other things being equal, decree administration to the one who has the greatest interest {Tucker V; Westgarth, 2 Adda/mSy 352). t Husband and wife.} — Formerly, %, husband as such, if other- wise competent according to law, was solely entitled to administra- tion of his wife's estate, 'and was required to give bonds as other persons (2 E. S. 15, § 29, 1st clause ; S/mmway v. Cooper, 16 Barl. 656; Hansom v. Nichols, 22 N. Y. 110; Watson v. Bonney, 2 Sandf. 405 ; MoCoster v. Golden, 1 Bradf. 64). Now, however, the succession to the personalty of a married woman dying leav- ing descendants, is regulated by the statute of distributions (see ante, p. 52). But where a married woman leaves no descendants, the rule embodied in the statute last quoted still apphes. The common law right of the husband to administer his deceased wife's estate, and, through such administration, to acquire the title to her personal property not reduced to possession during coverture, sub- ject only to the payment of her debts, is held not to have been affected by the statutes of 1848 and 1849 in relation to married women. Those statutes give the wife control of her separate estate, with power of testamentary disposition, during her life ; but, if she dies intestate, the rights of her husband, as her succes- sor, are not affected, and he is not prevented from administration and consequent enjoyment of the property. The amendment of the 79th section of the statute of distributions, in 1867, did not, therefore, affect the right of the husband to administration and enjoyment of his deceased wife's personal estate, except in the case therein specified, of her dying, leaving descendants (Barnes * Under the old statute (1 R. L. 1802), directing administration to be issued to the widow, or next of kin, or some of them, the surrogate might, in his discretion, grant administration to any one of the next of Hn, to the exclusion of the others in . equal degree ; and to a woman to the exclusion of a man ( Taylor v. Delancey, 2 Oai. Cos. 243). ■j- On the question of who are next of Mn, the reader must consult the statute of distributions, which we have fully discussed in a previous chapter (see ante, p. 48). INTESTACY AND LETTERS OF ADMINISTRATION. 163 Non-resident Intestate. — Application for Letters. V. Underwood., 47 N. T. 351, rev'g 3 Lans. 526). If tlie husband does not take out letters of administration in such a case on his wife's estate, he is presumed to have assets in his hands, sufficient to satisfy her debts, and is liable therefor; and if he dies, leaving any assets of his wife unadministered, they pass to his executors or administrators, as part of his personal estate, but are liable for her debts to her creditors, in preference to the creditors of the husband (2 R. S. 75, § 29, last clause). Non-resident intestate.'] — In the case of an intestate who was not an inhabitant of this state, and who died leaving assets in the state, if no application for letters of administration is made by a competent relative entitled thereto, a person who has obtained letters of administration or letters testamentary from competent authority in any other state of the United States is, on producing such letters here, entitled to letters of administration in preference to creditors or other persons, except the public administrator in New York city and in Kings county (2 E. S. 75, § 31, and ante, p. 153).* ARTICLE THIRD. PEOCEEDINGS TO OBTAIN LETTERS . AppUoaUonfor letters.]— The person having the first right to administration upon the estate of an intestate, or, in case of his refusal to accept the trust, the one having the next preference, may apply, upon petition, to the surrogate of the proper county for a grant of letters. Where the applicant is solely entitled to the preference given by statute, or where he files a renunciation of those having such a preference, letters issue to him ex parte, as of course. In case the application is not made by such a person, the prayer of the petition is that a citation issue to those entitled to notice of the application. The application is by petition, duly verified, setting forth the facts upon which depends the juri^dic- * As to the powers of a foreign executor or administrator to take charge of the estate here, to collect and release dehts, ^ Barb.l'd2). Not even where there are other persons belonging to the same class as the applicant, and equally entitled to administer {Peters v. Public Administrator, 1 Sradf. 200). Penunoiation.] — As in the case of one appointed executor by the will {ante, p. 140), a person entitled, in the jfirst instance, to administer may, by an instrument in writing, renounce such right. In such case, the right passes to the one next in order entitled, subject however to being recalled by a retraction of the renuncia- tion at any time before an actual grant of letters (2 P. S. T6, § 35). Upon an application for administration, either with, the will an- nexed, or in case of intestacy, by one other than the person having prior right to the administration, the applicant must produce, prove, and file with the surrogate a written renunciation of the * The object of stating the value of the personalty is to enable the surrogate to fix the amount of the bond {see post, p. 16Y). I The facts of death and intestaa/ must be proved to the satisfaction of the surrogate, and he must examine the party applying for letters on oath in regard thereto. If, therefore, the petition is not verified, there must be an oral examina- tion of the applicant, under oath, before the surrogate. It seems, however, that the provision requiring the applicant to be examined as to the time, place, LIABILITIES OF EXECUTORS, &c. 221 The Office of Administrator. — Representative Character of Executors, LIABILITIES OF EXECUTORS, &c. Sources of Authority to Sell. order of sale by the surrogate, is void * {Hernch v. Orow, 5 Wend. 579). An executor's authority to sell the real estate is de- rived from the will when it gives him a power in trust to seU and apply the proceeds for certain speciiSc objects, or where it contains a general power and direction to seU for the purposes of the ad- ministration of the estate generally. ' Where an executor is a donee of a power in trust, he takes as such and not as executor, and he derives his right to" exercise the power from the will itself and not from its probate. Hence he may execute the power before pro- bate or the issuing of letters testamentary f {Bolton v. Jacks, 6 Robt. 166 ; Judson v. Oibbons, 5 Wend.. 224). But probate and and letters testamentary are necessary to give him authority to sell under a general direction in the wiU (2 E. S.11,%1Q; see Con- over V. Hoffman, 1 Bosxo. 214). If the will gives the executors no authority to sell, they can not sell any portion of the real estate for the purposes of division or otherwise {Craig v. Craig, 3 Bari. Ch. 76). If they are merely directed to seU real estate, " as they shall deem expedient and for the best interests " of certain lega- tees named, they have a power in trust, without an interest. Such a power is not well executed by the conveyance to one of the legatees of a portion of the real estate of the testator, in payment of a debt due from the testator to the legatee, except upon an order of the surrogate, on application to sell to pay debts after the personal estate is exhausted {Russell v. Russell, 36 JST. Y. 581).:|; * The subject of sales of real estate to pay debts and legacies, under the author- ity of the surrogate is reserved for separate consideration (see chap. XVI). \ An executor appointed here, may, where the power to do so is contained in the will, convey land situate in another state. In so conveying, he acts as the dev- isee of a power, not under an authority conferred by the surrogate {Nemton v. Bron^ son, 13 iV. Y. 687) ; but sales of lands in another state must be governed by the law of such slate (Hawley v. James, 5 Faige, 318, 476). if Compare Kiunier v. Sogers (42 N. Y. 531). In that case the testator, by his will, after directing pajrment of his debts, and making various bequests and a devise of his interest in certain designated realibstate, gave "all the rest, residue and remainder " of his estate, " both real and personal," to his children. He then pro- ceeded to name executors, and authorized them " to sell all^r any part of his real estate at any time in their discretion," and to execute valid deeds of conveyance for the same to the purchasers. It was held that this power of sale did not charge the real estate embraced in the residuary clause, with the payment of the debts and be- quests, but was a valid power in trust to convert it into personalty, for convenience of distribution, to avoid the expense and delay of partition or other legal proceed- RIGHTS AND LIABILITIES OF EXECUTORS, Joint Authority of several Executors. — Exercise of Power. Joint authority of several executors.] — ^Where a power in trust is vested in several persons, all must unite in its execution, or their survivors in case of the death of either (1 jR. S. 735, § 112) ; and so also, under a general power to several, they hold in joint ten- ancy, and on the death of either, the whole estate vests in the sur- vivor (1 Id. 727, § 44 ; ante, p. 225). In ease of the neglect or refusal of one of several executors to take upon him the execution of the will, a sale may be made by those who do take upon them the execution of the wUl, and is equally valid as if the others had. joined* (2 i?. S. 109, § 55 ; JEouse v. Baymond, 3 Him, 44). Exercise of power.] — His power is personal and can not be delegated. He can not authorize an agent to contract for the sale- of the trust property ; and a contract by an agent is void, though the principal may render it valid by ratifying it with full knowl- edge of all the facts. In ratifying it he exercises the personal qualities essential to the due execution of the trust (Newton'^ . Branson, 13 W. T. 687). A power to sell must be exercised in the mode prescribed by the will. If the will directs a sale of real estate by public auction, to pay ofE legacies as they become due, and the executor sells at private sale, and before the legacies be- come due, the sale is void f (Pendleton v. Eay, 2 Paige, 202 ; see McDermut v. Lorilla/rd, 1 Bdw. 273). And so, in a conveyance under a power in a wiU, the forms prescribed by the power must be followed (see Waldroti v. McCorrib, 1 Mill, 111, 115) ; and where, under a power of sale in a will, the executor is invested with discretion as to the time for the sale, in the absence of bad faith, the court will nt)t control such discretion {Ghamplin v. Cha/mplin, 3 Edw. 571 ; Selden v. Vermilyea, 1 Ba/rb. 58). inge, thus beneficial to those interested in the residuary estate, and that the executors could convey good title. * For the ease of the removal of a trustee, see a'nie, p. 229. One of several exec- utors or administrators who neglects to return, or unite in, an inventory has no power over the personal estate (2 R. S. 86, § 23 ; Jeroms v. Jerome, 18 Barb. 24). It seems that an executor who has been removed by the surrogate from his office as executor, is not a necessary party to a conveyance of land sold under an act of the legislature, which authorizes a sale to be made by the trustees who held the property under the will at the time of the act {Matter of Bull, 45 Barb. 334 ; s. c. 31 Sow. Pr. 69). ■)• In a pecular case, a power to seU and dispose of real estate was held to sanction a decree authorizing the executors to lease for a term of twenty-one years {Hedges v- Riker, 5 Johns. Ch. 163). 236 EIGHTS AND LIABILITIES OF EXECUTORS, But he can not vacate it and order a resale merely because suck new bid can be obtained. Even if a larger bid can be obtained, yet if the sum bid was, at the time, an adequate price, the sale should not be disturbed, unless the proceedings were unfair {Kavn, V. Masterton, 16 iT. Y. 174). Audi the fact that several lots were * Sales tefore the Revised Statutes, in which irregularities had occurred, ■were subject to confirmation by a proceeding before the chancellor (2 R. S. 110, §§ 61-66). MORTGAGE, &o. OF REAL PROPERTY FOR DEBTS. 273 Execution of Conveyances. — Purchaser in good faith. sold together, being described together in the petition and order of sale, is not ground for vacating the sale, unless it appears that they would have brought more if sold separately (Morton v. Morton, 2 Bradf. 200). The power to confirm the sale, which is conferred on the surrogate, does not, it seems, include the power to compel payment of the bid and the taking of a conveyance, and the surrogate can not exercise that power {Butler v. Emmett, 8 Paige„ 12). Execution of conveyances.'] — Conveyances are executed to the purchaser by the executors or administrators, or the person ap- pointed by the surrogate to make the sale. They must contain, and set forth at large the original order authorizing a sale, and the order confirming the same and directing the conveyance. They convey all the estate, right, and interest in the premises of the de- ceased at the time of his death, free and discharged from all claim for dower of the widow of the testator or intestate (2 R. S. 105, § 31). A conveyance which omits to recite at large the order of sale is void at law, though it may be confirmed by the supreme court {Atkins v. Kinnan, 20 Wend. 241). But an error in the re- cital of the order of sale may be disregarded, where the dis- crepancy appears on the face of the deed {Sheldon v. Wright, 6 iT. T. 49Y, affi'g s. o. 7 Barh. 39). Ajid if the deed is inopera- tive by reason of defective recitals, the defects may be healed by a second deed, which may be treated as relating back {Sheldon v.. Wright, 7 Barh. 39). The provision in regard to the conveyance; being free from all claim, of the widow for dower does not affecfc the case where the widow has had her dower assigned to her. la that case the sale is subject to her dower right {Lawrence v. Miller ^ 2 N. T. 245 ; Lawrence v. Brown, 5 N. T. 394 ; Maples v. Mowe^ 3 Barh. Ch. 611). Purchaser in good faith.'] — ISTo offense, in relation to the giv- ing of notice of sale, or the taking down, or defacing such notice, affects the validity of such sale to any purchaser in good faith, without notice of the irregularity (2 P. S. 110, § 59). Every sale and conveyance made pursuant to the statute is subject to aU charges by judgment, mortgage or otherwise, upon, the lands sold^ existing at the time of the decedent's death (2 P. S. 105,^ 1 32).. 18 274 MORTGAGE, &o. OF REAL PROPERTY FOR DEBTS. Proceeds of Sale. — Compelling Account of Proceeds. Proceeds of sale.] — ^If the proceeds of the mortgage, &c., paid over to the surrogate, are sufficient to pay all the debts established, the heirs and devisees, and all the remaining lands of the deceased are exonerated from aU claim or charge by reason of such debts. If the proceeds are not sufficient, the exoneration is pro tanto only (2 E. 8. 105, § 33).* Compelling account of proceeds.] — The surrogate has the same power to compel any executor or administrator to account for the proceeds of the sale, &c. ; to compel the payment of debts, and the payment of moneys arising from such sales, and the delivery of securities taken thereon, as if the real estate had been origiuaUy personal estate, in the hands of such executor or administrator (2 B. S. 106, § 34:).f The proceeds of the sale must be brought into the surrogate's office for the purpose of distribution, and must be retained by him for that purpose (2 B. S. 106, § 35). The executors or other persons authorized to sell are allowed their expenses in conducting the sale, including two dollars for every deed prepared and executed by them, and a compensation not ex- ceeding two dollars a day for the time necessarily occupied in the sale (Z. 1844, c. 300, § 2 ; Z E. S. 5th ed. 919). Under this stat- ute a reasonable allowance for professional advice and assistance is a necessary expense, but where there is no contest, charges such as allowed by the chancery fee-biU for services in litigated cases, would be excessive {Sigbie v. Westlahe, 14 N'. Y. 281). But the ^er diem allowance can only be granted for the time necessarily and actually occupied in the business. It does not warrant an .allowance as a salary during the conduct of the business {HiffMe v. * The proceeds of a sale of real estate made in pursuance of an authority given hy any last will, may be brought into the office of the surrogate before whom the will was proved, for distribution; and the surrogate must proceed to distribute the same in like manner and upon like notice as if such proceeds had been paid into his office in pursuance of an order of sale of real estate for the payment of debts (i. 1831, c. 460, § 16). Before the Revised Statutes, it was held that where the land has been sold to pay the debts of the estate, by order of the probate court, the estate of the heir is gone, not by his own act but by act of law, and the fact was a bar to an action against him as heir thereto (Covell v. Weston, 20 Johm. 414). f Under 1 iJ. L. of 1813, 452, the executors were held responsible to the surro- gate, as trustees, and the proceeds were equitable and not legal assets ( Tappen v. Kain, 11 Johns. 120; and see Willoughby v. McOluer, 2 Wend. 608; Peck v. Mead, Id. 470). MORTGAGE, &o, OF REAL PROPERTY FOR DEBTS. 275 Expenses of Sale, Dower, &c. — Distribution among Creditors. Westlahe, 14 iT. Y. 281). There can be no lien upon sucli money, even for the fees and disbursements upon the application for the sale. The entire fund must be brought intact into the office of the surrogate, and the attorney can then apply to that officer, whose duty it will be before making the general distribution, to award and pay him a reasonable fee for his services in the matter of the sale, together with his necessary ou^ay thereon. Eor the services rendered to the administratrix, apart from the matter of the sale of the real estate there is not only no lien, but no right to priority of payment. Such priority is confined to the " charges and expenses of the sale." And apart from the statute, in any case where moneys are realized or received imder the orders of a court competent to deal equitably with the fund, there can be no lien upon the same for any services rendered ; but such services mijst be paid for, if it be sought to charge the fund, by the order of the court where the matter is pending {Matter of Laniberson, 63 Barl. 297). Expenses of sale, dower, c&c] — From the moneys thus brought into his office, the surrogate must pay (1) the charges and expenses of the sale ; (2) he must satisfy any claim of dower of the de- ceased's widow in the lands sold, by the payment of a sum in gross, according to the annuity tablfes, providing the widow con- sents to accept such sum in lieu of her dower, by an instrument imder seal, duly acknowledged or proved, in the same manner as deeds entitled to be recorded ; and (3), from the residue he must pay any sum found due the executors or administrators upon the settlement of their accounts after applying thereon the proceeds of the personal estate of the testator or intestate (2 H. S. 106, § 36, as am'd Z. 1863, c. 400, § 1). If, after reasonable notice, the widow do not consent to receive a suin in gross, the surrogate must set apart one-third of the purchase money to satisfy her claim, and cause it to be invested in permanent securities on annual interest, in his name of office, which interest must be paid to her during life (2 H. S. 106, § 37). Distribution among creditors.] — If, after making these deduc- tions, there is not sufficient money remaining to pay aU the debts, then the balance must be divided pro rata among the creditors without giving any preference to bonds, or other specialties, or to 276 MORTGAGE, &o. OF REAL PROPERTY FOR DEBTS. Notice of Distritution. — Surphia. any demands on account of suit brought (2 H. S. 106, § 38), and creditors whose debts are not due may share with the others, upon deducting from the debt due them, a rebate of interest for the un- expired period of credit (2 B. S. 107, § 39). By Z. 1874, p. 323^ c. 267, however, the charges for the funeral expenses of the de- ceased are made a preferred debt, and must be paid out of the pro- ceeds of the sale before a general distribution to creditors is made. Notice of distribution.] — Before any distribution is made, notice of the time and place of making the same, must be pub- lished for six weeks successively, in a newspaper printed in the county where the surrogate resides. He may also publish such notice in such other newspaper as he may deem most likely to give notice to the creditors (2 H. S. 107, § 40). At the ,time fixed for making the distribution, the surrogate must ascertain the valid and subsisting debts against the deceased, and must hear the allegations and proofs of the claimants and of the executors, ad- ministrators, heirs, devisees, or any other person interested in the estate of the deceased, or in the application of the proceeds of such sale (2 H. S. 107, § 41). But debts established on the appli- cation for the sale, can not again be controverted, unless upon the discovery of some new evidence to impeach them, and then only upon due notice given to thS claimant. All other debts or de- mands must be proved to the satisfaction of the surrogate ; and the same proceedings may be had to ascertain the same as on the application for the order of sale (2 li. S. lOT, § 42). In the dis- position of the proceeds, regard may be had to the fact that some of those debts are also entitled to be partially or fully paid out of funds arising from the sale of other real estate in another state {Za/wrence v. Elmendorf, 5 Barb. 73). The heirs may set up equitable as well as legal defenses to creditors' claims on the pro- ceeds {Campbell v. BenwicTc, 2 Bradf. 80). A claim for mesne profits may be enforced agaiust the proceeds {Zb.) Surplus.] — If after paying from the proceeds of the sale, the debts and expenses, there is any overplus, it must be distributed among the heirs and devisees of the deceased, or the persons claiming under them, in proportion to their respective rights in the premises sold (2 R. S. 107, § 43).. The surrogate may admit claims by lien on the land against the heirs, as a valid charge MORTGAGE, (1 Id. 120); Younr/ v. Brush (28 K Y. 66*?). ■)■ In a recent case in Pennsylvania it was held that the expenses (Si a tombstone could be allowed, even as against creditors (Porter's Appeal, 61 Leg. Intell. 338, and see Fairman's Appeal, 30 Conn. 205). Otherwise of a monument costing $285 {Springsteen v. Samson, 32 N. Y. 1\i). PAYMENT OF FUNERAL EXPENSES AND DEBTS. 281 Classes of Debts. of the deceased. Thus, an undertaker, who superintended the burial of an intestate having no friends or relations in the city, was allowed to recover the charges therefor from the administrator, who afterwards took out letters, and, having in his hands sufficient assets, refused to pay the bill {Eappelyea v. Russell, 1 Daly, 214). Though the estate is ultimately liable for the funeral expenses of the deceased, and they are to be allowed to the executor, on his final accounting, the executor is, in the first instance, personally liable to the one who furnishes them on his order. And, in case of his death or removal, after giving the order, and the appoint- ment of a new administrator in his place, no action against the latter, as representing the estate, can be maintained thereon {Ferrin v. Myrick, 41 N. Y. 315).* ARTICLE SECOND. PEEFEEEED DEBTS. Glasses of debts.'] — After deducting the funeral expenses and the costs of administration, the money remaining in the hands of the executors or administrators is to be applied to the payment of the debts of the deceased. f Every executor and administrator is, by the statute, directed to proceed " with diligence " to pay the debts of the deceased, and is required to pay them according to the following order of classes : " 1. Debts entitled to a preference, under the laws of the United States : * In that case an administrator, having made a contract with the plaintiff, engag- ing him to furnish gravestones for the grave of the intestate, was subsequently re- moved, and the defendant appointed administrator in his place. Held, on demurrer to a complaint, alleging the contract of the defendant's predecessor for the grave- stones, their construction by the plaintiff, his readiness to deliver them, and sufficient assets in the hands of the defendant, that it did not state facts sufficient to constitute a cause of action, and the demurrer must be sustained. And it was said by Hunt, Ch. J., that, in all causes of action arising upon contracts made by executors or ad- ministrators, the claim is against the executor or administrator personally, and not against the estate, and the judgment must be de bonis propriis. f The question as to what expenses of administration are allowable, will be con- sidered in the chapter on Accounting. 2S2 PAYMENT OF FUNERAL EXPENSES AND DEBTS. Classes of Debts. " 2. Taxes assessed upon the estate of the deceased, previous to his death : " 3. Judgments docketed, and decrees enrolled, against the de- ceased, according to the priority thereof, respectively : " 4. All recognizances, bonds, sealed instruments, notes, bills . and unliquidated demands and accounts" (2 E. 8. 87, § 27). Kents due or accruing, upon leases held by the deceased at the time of his death, may, by order of the surrogate, be paid before debts of the fourth class, if it appears to the satisfaction of the sur- rogate that such a preference will benefit the estate (2 M. 8. 87, § 30). With the exception of rent, no preference can be given in the payment of any debt, over other debts of the same class, ex- cept those specified in the third class ; i. e., judgments and decrees, which are to be paid according to the time of their docketing (2 Id. 87, § 28). Debts not due are placed on an equality with debts due and payable {Id.), and may be paid by an executor or adminis- trator, according to the class to which they may belong, after de- ducting a rebate of legal interest upon the sum paid, for the time unexpired {Id. § 29). The commencement of a suit for the recov- ery of any debt, or the obtaining a judgment thereon against the executor or administrator, does not entitle such debt to any pref- erence over other debts of the same class (2 M. 8. 87, § 28).* A debt due to an executor or administrator has no preference over others of the same class, and he can not retain funds in his hands for the payment of such a debt (2 Id. 88, § 33).-t- "We wUl now consider in detail the different classes of debts made by the statute. * Before the Revised Statutes, if one of two creditors, of equal degree, com- menced an action first, he gained a priority which could not he defeated by the executor's voluntary payment to another ; but the executor might give a preference to the other, by confessing judgment to him pending the suit of the first, and plead- ing such judgment in bar (Ruggles v. Sherman, 14 Johns, 446). And a creditor who obtained the first judgment against the executors of one who died before the Re- vised Statutes, and levied upon legal assets thereafter, was entitled to priority of payment (Mapes v. Coffin, 5 Paige, 296). \ Before the Revised Statutes, an executor was entitled to retain his debt, in pref- erence to other creditors of the lite degree ; and to have the assets in his co-execu- tor's hands applied to his debt, the assets in his own being insufficient (Decker v. Miller, 2 Paige, 149). An executor who assumed his trust . previous to the passage of the Revised Statutes, might — after the passage of the statute — retain for a debt due him in the same way [Rogers v. Hosach, 18 Wend. 3i9; 6 Paige, 415). PAYMENT OF FUNERAL EXPENSES AND DEBTS. 283 Preference under United States Laws. — Judgments and Decrees. Preferenoe under United States laws.'] — By the Revised Stat- utes of tlie United States (p. 691, §§ 3466-34:68) it is provided that,, whenever the estate of any deceased debtor in the hands of the ex- ecutors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satis- fied ; and every executor or administrator who pays any debt due by the estate for which he acts, before he satisfies and pays the debts due to the United States, is answerable in his own person and estate for so much as remains unpaid. It is also provided that, whenever the principal in any bond given to the United States is deceased, and his estate and effects are insufficient for the payment his debts, and in case any surety in the bond or his executor, ad- ministrator or assignee pay to the United States the money due on the bond, such surety, his executor, administrator or assignee shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of the deceased principal as is secured to the United States, and may maintain a suit upon the bond, in law or equity, in his own name for the recovery of all moneys paid thereon. Taxes.] — The taxes upon the real property of the deceased,, which are to be paid out of the personal estate, are only those which were assessed previous to the death of the deceased ; and the executors or administrators are not, therefore, warranted in paying taxes assessed subsequent to his death ( WiUfOX v. Smith, 26 Barb. 316). • There is no ratable apportionment, varying accord- ing to the period of the year the decedent died, but taxes due at the death of the decedent should be paid from the personal estate,, ajid taxes accruing subsequently are chargeable upon the land {Oriswold v. Oriswold, 4 Bradf. 216). The term "taxes" does not include assessments, and although an assessment, which was confirmed at the time of the decease of the testator, is a personal debt and should be paid out of the personal estate, it is not entitled to any priority before other debts {Seabuvy v. Bowen, 3 Bradf. 207). Judgments and decrees.] — Judgments and decrees are to, be paid according to the -priority, in point of time, of their docketing {AinsUe v. Badcliff, 7 Paige, 439). A justice's judgment is not a debt of record {Sherwood v. Johnson, 1 Wend. 443), and therefore ^84: PAYMENT OF FUNERAL EXPENSES AND DEBTS. Rent. is not entitled to a preference until a transcript of the judgment ias been filed with the county clerk, and the judgment docketed in his office {Stevenson v. Weisser, 1 Bradf. 343). Judgments rendered iu sister states cannot be docketed here under the statute, and therefore rank only as simple contract debts {Brown v. PvMic A dm,'mistrator, 2 Bradf. 103). In order to give a judgment any priority, it must be against the deceased ; a judgment against his personal representative is not preferred {Parker v. Gainer, 17 Wend. 559). And the judgment must be perfected before the ■death of the debtor ; if it is not perfected until afterwards, it is not entitled to preference {Mitchdl v. Mowrd, 31 N. Y. 356 ; s. o. 19 Abb. Pr. 1). Thus, a judgment entered after the decedent's death, upon a stipulation in admiralty given by him, is not entitled to pri- ority {Bernes v. Weisser, 2 Bradf. 312). A surety who has paid a joint judgment against himself and the deceased, his principal, may take an assignment of the judg- ment, and enforce it as a preferred claim against the estate {Good- year V. Watson, 14 Barb. 481). But where creditors of a firm, having obtained judgment against all its members, release two of the partners, upon receiving the covenant of the third to pay out of a particular fund, they must come in, upon the de^ith of the covenantor, not as judgment creditors, but as specialty creditors of his estate {Hosack v. Rogers, 8 Paige, 229, affi'd, 25 Wend. 313). Pent^ — Rent is not, in the absence of proof of peculiar circum- stances, a preferred demand ; and where no proof of actual benefit is made or stated in the petition upon which the surrogate assumes toihear the claim, it is error if he adjudge it a preferred claim, un- der the statute {Cooper v. Felter, 6 Lans. 485). But where the surrogate's decree stated that it appeared, to his satisfaction, that a preference allowed by him would benefit the estate, it was held conclusive upon appeal {Eovey v. Smith, 1 Barb. 372). Rent of a pew in church is not a preferred debt, unless it be due on a lease for years, which is assets m the hands of the personal representative {Johnson v. Oorhett, 11 Paige, 265). PAYMENT OF FUNERAL EXPENSES AND DEBTS. 285 Payment of Debts in General. ARTICLE THIED. • PAYMENT OF DEBTS IN GENERAL. Having considered tlie question as to what debts are entitled to a preference in payment by tbe executors, we now pass to the ex- planation of what claims are to be paid by the execntors or admin- istrators from the personal estate. The rights of action against a deceased person which' survive have already been stated {ante, p. 240), and all such claims on being liquidated and the amount de- termined in the proper manner are to be paid out .of the personalty. In addition to such debts, we may mention certain other demands- as constituting valid claims against the estate. They belong to the fourth class of debts enumerated in the statute, and are to be paid jpro rata after the preferred debts. Thus, a balance due from a deceased partner to a surviving copartner, on account of the part- nership transactions (Bahoock v. Lillis, 4 Bradf. 218 ; s. o. sub- nom. Sellii Case, 4 Mb. Pr. 272 ; Payne v. Matthews, 6 Paige^ 19) ; * the purchase money of land contracted but not paid for by the decedent, unless the venders elect to look to the land {Johnson V. Corbett, 11 Paige, 265); and an order for judgment as in case of nonsuit, against the decedent in his lifetime, entered in the minutes of the court, though the record be not signed or filed till after his death {Salter v. Neaville, 1 Bradf. 488), are examples, of this class of debts. So, if an executor or administrator pays debts of the estate out of his own funds, to the value of the per- sonal assets in hand, he may apply those assets to reimburse him- self {LvoingstouY. Wewkirh, 3 Johns. Ch. 312); and if one of several joint debtors dies solvent, and the survivors are insolvent, equity will decree payment out of the assets of the deceased {Mar- shall V. De Orqot, 1 Cai. Cas. 122). Where a married woman authorized her husband to contract for work and materials for a house she was erecting upon her separate estate, and for the repair of other buildings belonging to her estate (the contract being par- tially executed during her life, and completed after her death), it was held that the administrator of the estate with the will annexed * But compare Kirhy v. Carpenter {1 Barh, 373). 286 PAYMENT OF FUNERAL EXPENSES AND DEBTS. ' Debts barred by Statute of Limitations. — Rent of Pew. was bound to pay the debt out of the assets in his hands (Rihlet v. Wallis, 1 Daly^ 360). There is also a class of debts not mentioned in the statute which are nevertheless good as against the executors or administrators, and form a sort of fifth class — e. g., a volimtary bond of the testator, given in his lifetime, payable at, or immedi- ately after, his death. In the absence of fraud, &c., such a bond has been held a valid debt against the estate, and to have a prefer- ence over legacies, though it must be postponed to debts contracted for valuable consideration {Isenhart v. Brown, 2 Edw. 341). Debts barred hy statute of limitations.'] — A claim which, al- though otherwise valid, is ban-ed by the statute of limitations, is not a debt due by. the estate, and a provision in the wiU for the payment of all just debts does not revive a debt so barred, nor can the executor revive it by a new promise {Bloodgood v. Bruen, 8 W. T. 362, rev'g 4 Sarndf. 427), nor can he retain for a debt of his own barred by the statute iu the lifetime of the testator {Rogers v. Rogers, 2 Wend. 503). And an executor or administra- tor having a claim against the estate, who neglects, for more than the statute period, to take proceedings to have the same allowed by the surrogate, is barred from, a recovery by the statute of limitations {Matter of Rogers, 11 iV. T. Leg. Obs. 245).* Mortgage debts.} — The payment of the bond of the testator secured by a mortgage of .real estate is, by 1 R. S. T49, § 4, pri- marily charged upon the real estate mortgaged, and can not be made out of the personal estate, unless by an express provision, or a nec- essary implication, in the will ( Waldron v. Waldron, 4 Bradf. 114). But a vendor's lien for the payment of the purchase money is not a mortgage within the statute, and except as against creditors having prior right, an heir or devisee can compel the ex- ecutors or administrators to pay the unpaid purchase money, unless ' it is secured by an executed mortgage on such land {Lamport v. Beeman, 34 Barb. 239). Rent of pew.] — The rent of a pew in church for the use of widow and children, after testator's death, is not a charge upon the personal estate {Scott v. Monell, 5 ]V. Y. Surr. [1 Redf] 431). * By 2 i?. 8. 448, g 8, the period of eighteen months after the death of a testator or intestate is not reckoned in computing the time within which a suit is barred by the statute. And see Scovil v. Scovil (30 ffow. Pr. 246). PAYMENT OF FUNERAL EXPENSES AND DEBTS. 287 Contract of Executors. — Marshaling Assets. Contract of executors.] — A contract made by executors in form as such, in consideration of services to be rendered in vindicating and asserting their claims to property in their representative capacity, and for the benefit of the estate they represent, does not bind the estate, or create a charge upon the assets in their hands, although, where the executors pay such a claim, it may, if reason- able, be allowed them on their accounting [Austin v. Munro, 4:1 N. Y. 360). Nor will the executors of a deceased partner be held liable as partners for transactions subsequent to the death of the decedent, on the ground that they consented that the business might proceed under the direction of the surviving partner for a time, and that a debt for necessary goods, either previously furnished to the firm, or subsequently furnished to meet the necessity of the business, should be paid {Eiohter v. Poppenhusen, 9 AU. Pr. [iT. S.] 263). Defense to suit.] — No payment of debts of the fourth class, however, can be made, either whoUy or partially, until all the debts of the previous classes have been paid in fuU. It was specially provided by statute that, in any suit against an executor or administrator, the defendant may show, under a notice for that purpose, given with his plea, that there are debts of a prior class unsatisfied, or that there are unpaid debts of the same class with that on which the suit is brought, and judgment shall be rendered only for such part of the assets in his hands as shall remain after satisfying the debts of the prior class, and as shall be a just pro- portion to the other debts of the same class with that on which the suit is brought. The plaintiff may, however, as in other cases, take judgment for the whole or part of- his debt, to be levied of fu- ture assets (2 P. S. 88, § 31 ; see ante, p. 246, note). And the usual . practice is for the creditor to take judgment for the full amount of his claim, and the question of the amount of assets applicable to the payment of the judgment will be determined on a motion for leave to issue execution, as explained hereafter (Art. 5). Marshaling assets.] — Questions frequently arise between heirs or devisees and executors as to how far the personal property must be exhausted in the payment of debts before the real estate can be resorted to, and how far the executors can be compelled to pay off incumbrances on the land out of the personal property. 2S8 PAYMENT OF FUNERAL EXPENSES AND DSBTS. Marshalimg Assets. These questions do not usually arise in .the surrogate's court, but as they are subjects concerning which an executor or administrator must be informed, the effect of the decisions is given in a note.* * Thus, where the testator specifically bequeathed his chattels to one pei'son and devised his real property to another, without any direction as to which should be ap- propriated to satisfy an existing judgment against him, it was held that the personal property must be applied first {Sogers v. Rogers, 3 Wend. 503). And where the per- sonal property is not sufficient to pay all the debts, and the real estate must be resorted to, the land which is not devised must, as between heirs and devisees, be first taken {Graham v. Dickinson, 3 Barb. Ch. 169 ; and see Livingston v. lAvingston,^ 3 Johns. Ch. 148). But where the testator charged the payment of his debts upon certain specified real estate, and if that should prove insuflScient, then upon his other real estate, Held, as between the legatees and devisees, the personal estate was exone- rated from the debts ( Youngs v. Youngs, i5 N. Y. 254). In determining what part of a testator's property is to be resorted to for payment of debts, a plain intention,, gathered from the will, that certain personal property shall be treated as real, must. be regarded as effecting a conversion thereof, and, specific legacies must be resorted to before chattels so converted are applied {Downing v. Marshall, 1 Abh. Ct. App. Dec. 525) The testator mortgaged his individual real estate to secure the payment of the notes of his firm, and died before their payment, having devised the mortgaged property without express direction in his will for payment of the mortgage. It was held that the firm assets were primarily liable to satisfy the mortgage. And it seems the devise would (under 1 R. 8. 749, § 4) be chargeable with payment of the mortgage to the extent of any deficiency of the firm assets for that purpose ( Robin- son V. Robinson, 1 Zans. 111). Ordinary taxes, interest, and repairs, subsequent to the testator's death, should be paid out of the income (where it is given to the widow and son during their joint lives, with remainder over), but interest accum- ulated on mortgages before the testator's death should be paid out of the prin- cipal of the estate {Unburn v. Hepburn, 2 Bradf. M). Where the real and personal property are thrown into one fund, in which the same parties are interested equally,, the executor may, for the benefit of the estate, apply personal property to pay a. mortgage on the realty {Id.) And in a peculiar case, where the personal prop- erty in hand was insufiicient, the surrogate directed debts to be paid by the executors out of rents of the real estate then in hand, leaving the rights of the parties to be subsequently settled {Skidrmre v. Romaine, 2 Bradf. 122). Where land held under an unpaid contract of purchase, is devised for life, with remain- der in fee, the unpaid purchase money is to be paid out of personal assets. But the tenant for life can not require the application of the residuary personal estate to- improvements of the land, so as to render it productive for his benefit {Cogswell v. Cogswell, 2 Edw. 231). When a person toot a conveyance of land subject to a mort- gage, covenanting to indemnify the grantor against it, and, having paid part of it, died intestate, it was held the land was the primary fund for the payment of the resi- due, and the personai estate was to be resorted to only as auxiliary (CfemJeWand v. Codrington, 3 Johns. Ch. 229). As to discrimination in the distribution of legal and equitable assets among all the creditors pro rata, without preference, see Moses v. Murgatroyd {I Johns. Ch. 119); Thompson v. Brown (4 Id. 619). Those who take of PAYMENT OF FUNERAL EXPENSES AND DEBTS. 2S9 Law of Place of Assets, — Personal Liability of Executor. The general rule on this subject is, that the personal estate of the testator is deemed the natural and primary fund for the payment of debts and legacies, and the testator is presumed to act upon this legal doctrine, untU he shows some other distinct and un- equivocal intention (Roes t. Yan Hoes&n, 1 N. Y. 120, affi'g 1 Barb. Ch. 379 ; and see McKay v. Qreen, 3 Johns. Oh. 56 ; Hawley Y. James, 5 Paige, 318-448) ; and that the order of marshaling assets towards payment of debts is to apply: (1) the personal estate ; (2) lands descended ; (3) lands devised {Livingston v. Wew- JcirJc, 3 Johns. Gh. 312). A creditor who has a security upon another fund which is primarily liable, is boimd to exhaust his remedy against it, and can only come in against the personal estate for the deficiency (Halsey v. Reed, 9 Paige, 446). As to what are legal and what equitable assets, See Rogers y. Hosaclc (18 Wend. 319) ; Benson y. Le Roy (4 Johns. Ch. 651) ; Thompson y. Brown (4 Johns. Ch. 619) ; Pascalis y. Canjield (1 Edw. 201). Law of place of assets.] — In paying the debts of a decedent, the executors or administrators are to be goYerned by the law of the place in which the assets are situated, but in such administrar tion, respect should be had to the aggregate amount of the estate and debts, foreign and domestic {Lawrence y. Elmendorf 5 Ba/rb. 73 ; compare Lynes y. Coley, 6*N. Y. Surr. [1 Redf] 405). Personal liability of executor.] — The promise of an executor or administrator to pay a debt of the deceased out of his own estate is not binding on him unless it is founded on a new con- sideration {Schoonmaker y. Roosa, 17 Johns. 301);* nor unless the agreement for that purpose, or some note or memorandum thereof, is in writing and signed by the executor or administrator, or by some other person by him thereunto specially authorized (2 R. S. 113, § 1 ; see ante, p. 248). the legal assets will receive no part of the equitable assets, until they have been so applied as to produce equality among all ( Wilder t. Keeler, 3 Paige, 167 ; and see Purdy V. Doyle, 1 Id. 658 ; Thompson v. Brown, 4 Johns. Ch. 619). * In that case, the rule requiring a consideration to support the executor's prom- ise was applied where the executor, on submitting a claim to arbitration, gave his note, that the arbitrators might indorse thereon the amount due {Schoonma&er v. Boosa, lY Johns. 301). 19 290 PAYMENT OF FUNERAL EXPENSES AND DEBTS. Ascertaining Creditors. ARTICLE FOUETH. TIME OF PAYMENT. Ascertaining creditors.] — After an executor or administrator has paid the funeral expenses and other necessary costs of admin- istration, he can not go on and pay claims as they are presented, or if he does so, he takes the risk of being charged personally with the amount paid, in case the effects turn out insufficient to- pay all the dehts in full {Nichols v. Chapman, 2 Wend. 452 ; Clay- ton v. Wardell, 2 Bradf. 1). The executor becomes, in such case,, a trustee for all the creditors {Buchhouf v. Hunk, 16 Mow. Pr. 407), and he is bound to apply the assets among the creditors pro rata, where it appears that the estate can not pay all demands in full. To this end, and in order to enable him to determine defi- nitely the amount of claims against the estate, provision is made by the statute, as hereafter shown, requiring all claims to be presented, within a certain time. And in furtherance of the same object,, judgment creditors are restrained by statutory provision from is- suing execution upon a judgment against an executor or adminis- tratorji untU an accoimt of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him. And if an account has been rendered to the surrogate by the executor or administrator, execution can issue only for the sum that appears on the settlement of the ac- count, to be a just proportion of the assets applicable to the judgment (2 R. B. 88, § 32). As a further restraint upon cred- itors, it is provided that costs can not be recovered against ex- ecutors or administrators, except in certain cases where the claims sued on have been rejected by the executors (see^os#,p. 299). The principle on which the statute proceeds is that the representative being a trustee, is, like all trustees, where the names of the cestuis que trust are not given in the deed, bound to exercise the utmost care before he accepts a claim as entitled to payment, and the law will 'afford him a reasonable time to examine it. The reme- dies of the creditor, in the mean time, however, are not absolutely suspended ; he may prosecute his action, but he must do so at his own costs and expense, and not at the costs and expense of the PAYMENT OF FUNERAL EXPENSES AND DEBTS. 291 Notice to Creditors to Present Claims. — ^Place of Presentment. estate, miless he can Show that the executor has been guilty of some laches or illegal act in regard to the adjustment of his claim {Buckhout V. Hunt, 16 Bow. Pr. 407). Notice to creditors to present claims.] — The statute provides that, six months at least having expired since the granting of let- ters, the executor or administrator may insert a notice once in each week for six months, in a newspaper printed in the county, and in so many other newspapers as the surrogate may deem most likely to give notice to the creditors of the deceased, "requiring all persons having claims against the deceased, to exhibit the same,, with the vouchers thereof, to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first pubKcation of such notice " (2 E. 8. 88, § 34). Order for publication.] — The surrogate wiU grant an order for publication of this notice upon an ex parte application of the executor or administrator, on it appearing by affidavit that six months have elapsed since the granting of letters testamentary or of administration ; and it would seem that to enable the surrogate to designate the newspaper " most likely to give notice to the creditors," such facts as the residence or place of business of cred- itors, or other circumstances, should be laid before the surrogate on which his discretion can operate ; and it is said that there is room for considerable doubt whether a mere order of publication is sufficient without a formal adjudication that a publication in such newspaper alone is deemed most likely to give notice to cred- itors as required by the statute (see Murray v. Smith, 9 Bosw. 689 ; see Forms JSTos. 91, 92).* Place of presentment^ — The notice need not specify, as the place of presentment, the place where the executor transacts his * So held, at special term, on a motion for costs against an executor. The court also took occasion to observe in that case that there was great room for questioning the reasonableness of the decision in Dolheer v. Casey (19 Barb. M9), that publication in one newspaper was sufficient. It seemed to the court that the statute contemplated the duty of the executor to publish the notice in one county paper, and of the surro- gate to designate what other paper, whether in the county or not, was most likely to convey information to creditors. 292 PAYMENT OF FUNEEAL EXPENSES AND DEBTS. Publication of Notice. — What Claims may be Presented. own personal business, or his private residence. Executors may select a place as their place of business or residence, so far as their relation to the estate is concerned; and the designation of such place in the notice makes that the residence or place of business of the executors, for that purpose, within the meaning and object of the statute iSoyt v. Bonnett, 58 Barb. 529, disapproving Murray V. Smith, 9 Bosw. 689). * But the notice is defective if it re- quires presentment to be made to the attorney of the executors instead of to the executors themselves (Hardy v. Ames, 47 Barl. 413). Publioation of notice.] — Publication in one newspaper printed in the county, pursuant to the order of the surrogate, is sufficient, unless he directs a publication in some other paper also {Dolbeer V. Casey, 19 Bari. 149). It has been doubted, but, as we thiak, without good reason, whether a publication in one paper alone was sufficient {Murray v. 'Smith, 9 Bosw. 689, and see above). What claims may be presented.} — Under the notice all claims against the estate, of whatever character, may be presented, pro- vided they are claims which existed against the deceased in his lifetime. Contingent liabilities, for which the estate is not pecun- iarily liable, and upon which its KabUity has not been fixed — e. g., claims against the estate of a deceased partner, for partnership debts, while the survivor is living and the remedy against him has not been exhausted — ^may properly be presented under the exec- utor's notice ; but it seems they can not be effectually rejected while contingent ; and if they could be, they are not barred by the stat- ute before they become due [Hoyl v. Bonnett, 50 N. Y. 538, reversing 58 Ba/rb. 529). "Where executors or administrators a]>e substituted for a deceased defendant in a pending action, they are not entitled to presentation of the demand [Tindal v. Jones, 11 Abb. Pr. 258 ; 19 Row. Pr. 469.) * In Murray v. Smith it was said that much mischief might result to creditors from allowing an executor to select a place to exhibit claims to him, where there was no obligation on him to be found, and no motive to be present, and that the executor must bring his notice clearly within the statute. On this ground it was held that publication of a notice requiring presentment at a place which was neither the ex- ecutor's residence nor the place of the transaction of his business, but merely the office of his counsel, was insufficient. PAYMENT OF FUNERAL EXPENSES AND DEBTS. 293 Mode of Presentment. — Eflfeot of Omission to Present. Mode of presentment.'] — ^Upon any claim being presented, the executor or administrator may require satisfactory vouchers in sup- port thereof. He may also require the affidavit of the claimant that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of such claimant. The oath may be taken before any justice of the peace, or other officer authorized to administer oaths (2 H. 8. 88, § 35). The claim may be presented by letter or in any other way which deals fairly with the executor and the interests he represents; and the claimant need not produce vouchers in support of the demand, nor make affidavit of its jus- tice, &c., unless requested to do so by the executor {Gansevoort v. Nelson, 6 Kill, 389), and tjie claim need not be presented to each of two executors {Genet v. Binsse-, 3 Daly, 239). "Where a debt has been actually presented and acknowledged by the executor or administrator, before notice, it is not necessary to present it again for allowance ; and where the executor or administrator admits the validity of a debt, by paying the interest from time to time, or a part of the principal, it is tantamount to a formal admission of its justice upon presentment under the notice {Johnson v. Corbett, H . Paige, 265). In regard to debts due executors or administrators, however, the statute specially provides that no part of the property of the deceased shall be retained by an executor or administrator, in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate (2 li. 8. 88, § 33) ; * and under this clause it is held that an administrator who makes a claim against the estate, must support it by a sworn voucher, such as he may require from others ; and it is error for the surrogate to allow his claim, whatever the force of the proof, unless so verified {Terry V. Dayton, 31 Barh. 519 ; Olarh v. Viable, 8 Faige, 152). To the contrary, however, is Be Cunningham (1 Hun, 214). For Form of affidavit, &c., see Forms Nos. 94, 95. Effect of omission to present.] — The only effect of omitting to present a claim within the six months is to limit the recovery, in a subsequent suit upon the claim, to the amount of assets in the hands of the administrator or executor at the commencement of * By i. 1837, V. 460, § 37, it is provided that the proof of the debt or claim of any executor, (fee, required by the statute, may be made on the service and return, of a citation for that purpose, directed to the proper persons, or on the final account. 294 PAYM'ENT OF FUNERAL EXPENSES AND DEBTS, Agreement to Refer. — What may be Referred. the suit, and to deprive the creditor of the right to costs. The right of action is not barred where the claim was not presented at all, but only where it was presented and disputed or rejected, and was neither referred nor prosecuted within six months afterwards {Baggott v. JBoulger, 2 Duer, 160 ; Ervnn \. Zoper, 43 N. Y. 521). A debt established by judgment or otherwise before the commencement of the six months' publication, is of the same force as if presented within the sis months {Matter of Phyfe, 5 W. Y. Leg. Ohs. 331). Any creditor, however, who neglects to present his claims according to the notice may, notwithstanding, recover them of the next of kin and legatees of the deceased, to whom any assets have been paid or distributed (2 B. 8. 90, § 42). Agreement to refer.'] — If the executor or administrator doubt the justice of any claim presented, he may enter into an agree- ment in writing with the claimant, to refer the matter in contro- versy to three disinterested persons, or to a disinterested person, to be approved by the surrogate, and upon filing such agreement and approval of the surrogate in the office of the clerk of the county in which the parties, or either of them, reside, an order may be entered by the clerk, referring the matter in controversy to the person or persons so selected (2 B. S. 88, § 36, as am'd Z. 1859, c. 261, § 2). The agi-eement to refer is the commencement of the action, and should present substantially the issue between the parties. It is a substitute for the pleadings in an ordinary action * ( Woodin v. Bagley, 13 Wend. 453. See Form No. 97). What may he referred.] — Only those claims are referable which accrued during the decedent's life, or would have accrued against him if he had lived {Godding v. Forter, 17 Abb. Pr. 374). Thus, where a testator,^ in his will, gave to his widow as much as she would need for support, the court held that an account against the estate for support furnished by a third person, was not referable under the statute (75.) Ifor does the statute extend to the Hability of the estate of a deceased executor, for assets held by him as such at his death {Sands v. Craft, 10 All. Pr. 216 ; 18 How. Pr. 438), * An agreement between the executor and a creditor to " submit" the matter in controveray to certain persons, to " determine and award " upon the same, and that judgment shall be entered " upon such award and determination," ia not an agree- ment, under the statute, to refer (Akely v. Akely, 11 Ssw. Pr. 21). PAYMENT OF FUNERAL EXPENSES AND DEBTS. 295 Order of Reference. nor to claims made by the executor against other parties, and in favor of the estate, except strictly in the way of set-off {Akely v. AJcely, 17 Ilmo. Pr. 21). The reference is not, however, confined io claims arising on contract, nor to those cognizable in the com- mon law conrts. The object of the statute is to allow a reference of aU claims against the estate, whether of a legal or an equitable nature, which the executor or administrator was competent to ad- just and settle {Brocket v. Bush, 18 All. Pr. 337) ; White v. Story, 43 Barl. 124 ; 28 How. Pr. 173) ; and a claim against the estate for a tort of the deceased — e. g., the conversion of personal property — is referable under the statute {Brocket v. Bush, 18 All. Pr. 337), and so are imliquidated claims by a surviving partner, against the estate of a deceased partner, growing out of the part- nership, including payments made after his death {Frandsco v. Fitch, 25 Barl. 130).* Order of reference.} — A substantial compliance with the terms •of the statute is enough to confer jurisdiction on the referees, to decide the controversy, and on the court to confirm their report. Thus, an order signed by the surrogate reciting the presentation of the claim, and that the parties were agreed on a reference, and a consent to the order signed by the attorneys on behalf of the parties, amount to an agreement in writing, to refer, which is suffi- cient under the statute. The naming of the referees in the order is sufficient evideflce that they were approved by the surrogate {BucUvn V. Chapin, 53 Ba/rl. 488; 36 How. Pr. 155.) The order should be entitled in the supreme court, though it is no ob- jection that it was entitled in the suiTogate's court. The order and agreement should be ffied with the county clerk, but it may be ffied nunc pro tunc to sustain the judgment on the referee's report {11. ; see Comstock v. Ohnstead, 6 How. Pr. 77 ; Bolert v. Bitjnas, 7 Wend. 522. See Forms Nos. 97, 98).t * In York v. Peck (9 Sow. Pr. 201), an opinion was intimated that the statute ap- plied to claims of a legal nature only. The same view was taken in Sands v. Craft (10 Abb. Pr. 216 ; s. c. 18 How. Pr. 438), where an order awarding costs against an executor, granted on the ground that he had refused to refer a strictly equitable cause was set aside. But the mere fact that the executor has an equitable defense, has never been held to be a. ground for his refusing to refer [Robertson v. Sheill, 3 Den. 161). f The filing of a stipulation to refer a claim and entry of order*of reference is to '2Q6 PAYMENT OF FUNERAL EXPENSES AND DEBTS. The Reference. — Confirming Report. The rpference.] — The reference is to proceed as in an ordinary action. The referee makes his report to the supreme court. He has the same powers, and is entitled to the same compensation, and is subject to the same control ^s referees in an action. The court may set aside the report of the referee, or appoint another ia his place, and may confirm their report and adjudge costs, as in actions against executors. The judgment of the court thereupon, is made valid and effectual in aU respects, as if the same had been rendered in a suit commenced by the ordinary process (2 H. S. 89, § 37). The defendants standing upon their denial, in the agree- ment to refer, of the justice of the claim, may make any defense that the decedent might if a|ive, and the same were properly pleaded in an action brought upon the claim — e. g., they may avail themselves of the statute of limitations {Tracy v. Suydani, 30 Bari. 110). The report of the referees is a verdict, within 2 i?. S. 38T, § 4, allowing judgment to be entered by leave, on the death of a party, within two terms after verdict {Burhcms v. Burhans, 10 Wend. 601).* Costs.'] — The rule of costs is the same as in actions against ex- ecutors. Costs are not allowed unless the claim has been unrea- sonably resisted or neglected, (JRdbert v. Ditmas, 1 Wend. 522; followed in Ga/rhart v. Blaisdell, 18 Id. 531). But the claimant is entitled, against the executors, to the necessary disbursements of fees of officers allowed by law, including the ccJmpensation of ref- erees, although the court may have adjudged that he is not entitled to costs {Newton v. Sweet, 2 Code i?. 61 ; 4 Mow. Pr. lS4). Confirming rejport^ — The court have no power to order judg- ment against the report of the referee. It must be confirmed, and judgment ordered thereon, or it must be set aside, in which case a new trial foUows before" the same referees, or others ap- pointed in their places {Coe v. Goe, 14 Abb. Pr. 86 ; 2 ^. 8. 89^ § 3T ; 37 Barb. 232). Where the unsuccessful party has taken no exceptions to the report of the referee, and has made up no case,. be deemed the commencement of an action (Sanford v. Sanford, 4 Supreme Ct.. 686 ; Bucklin v. ChajAn, 1 Lans. 448, 449 ; Tracy v. Suydam, SO Barh. 110). * As to how far these proceedings are to be deemed actions, see Coe v. Coe (14 Abl. Pr. 86 ; s. c. 87 Barh. 232); Munson v. Howell (12 Abb. Pr. 11 ; s. o. 20 Sow.. Pr. 59). PAYMENT OF FUNERAL EXPENSES AND DEBTS. 29T Effect of Failure to Refer. the court, on a motion for judgment on the report, can not do otherwise than to confirm the report, with leave to enter judg- ment ; but may, in its discretion, give the unsuccessful party leave to except to the report, and to make a case and exceptions which may form part of the judgment roll, so that he can review the de- cision of the referee by an appeal {Coe v. Coe, 14 Abb. Pr. 86).* But where, upon a motion to confirm the report, the moving papers showed incontrovertibly a claim of a nature not referable, the defendant was allowed to oppose the motion to confirm the report of the referee without making a case {Godding v. Porter, 17 Abb. Pr. 374). In such a case, however, the court, on denying the motion to confirm the referee's report, will not give costs, the reference having been made en consent of the parties. ISTor will it order the report to be set aside, for the plaintiff may desire to test its validity as an award (75.) Effect of failure to refer.] — If a claim exhibited be disputed or rejected by the executor or administrator, and is not referred, the claimant must, within six months after such dispute or rejec- tion, if the debt, or any part thereof, be then due, or within six months after some part thereof becomes due, commence a suit for the recovery of it, or be forever barred from maintaining any action thereon. No action can be maintained on it after that period, by any other person deriving title from such claimant. The executor or administrator may, on the trial of the action^, prove (if pleaded) the refusal and neglect to commence a suit (2 P. S. 89, § 38). In the case of actions brought on claims not presented to the executor or administrator within six months from the first publication of the notice, the executor or administrator is not chargeable for any assets or moneys that he may have paid in satisfaction of any claims of an inferior degree or of any legacies, or in making distribution to the next of kin, before the suit^was commenced, but may prove publication of the notice by him, and the payment and distribution, in support of his plea of having ad- ministered the estate of the 'deceased {Id. § 39). And in such an action, the plaintiff can recover only to the amount of the assets in * In that case, leaye to file such exceptions mme pro tunc, and time to make a. ease and exceptions, was given by the court at general term, on appeal from an order confirming the report. • :29S PAYMENT OF FUNERAL EXPENSES AND DEBTS. Disputing or rejecting Claim, the hands of the executor or administrator, at the time of the •commencement of the suit; or he may take judgment for the amount of his claim, or any part thereof, to be levied and collected of assets which may thereafter come into the hands of the exec- utor or administrator {Id. § 40). But in such suit no costs can be recovered against the defendants ; nor can any costs be recovered in any suit at law, against any executors or administrators, to be levied of their property, or of the property of the deceased, un- less it appear that the demand on which the action was founded was presented within the time fixed by the notice, that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same, pursuant to the statute.* In such cases the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just, having reference to the facts that appeared on the trial. If the action be brought in the supreme court, such facts must be certified by the judge be- fore whom the trial is had {Id. 90, § 41). Disputing or rejecting claim.'] — The statute requiring the suit io ■ be brought within six months, is highly penal, and must be strictly construed {Elliot v. Cronk, 13 Wend. 35), and there must be decisive evidence of the rejection of the claim before the stat- ute wiU be held to apply {Reynolds v. Collins, 3 Bill, 36). To bar a claim, the disputing or rejecting must be unequivocal. Re- fusing to pay as at present advised, and asking particulars, is not disputing, within the statute {Hoyt v. Bonnett, 60 N. Y. 538, re- versing 58 Bari. 529, and overruling in effect Cooper v. Felt-er, 6 lans. 485) ; f and a mere negleot to pay an honest debt upon de- * An offer to refer an account need not 'be in writing ; it ia good by parol (Lan- ning t. Smarts, 9 How. Pr. 434). f In Hoyt T. Bonnett, the plaintiffs presented to defendants, as executors of W., certai* claims against the latter's estate. The latter caused to be served upon the former » written notice, stating in substance that as at present advised they de- clined to pay the claims, and stated that as they had no other means of information, "they would be greatly obliged if appellants would furnish them with a bill of par- ticulars. The claims so presented were claims against two firms in which defend- ant's testator had been a partner. At the time of the presentation no steps had been taken to collect these claims of the surviving partners or out of the partuersliip property. No action was commenced by plaintiffs within six months after the serv- ice of notice, nor did they make any offer to refer. In the account presented by de- fendants, upon their final accounting, plaintiffs' claims were omitted. They appeared PAYMENT OF FUNERAL EXPENSES AND DEBTS. 299 Costs in Suits against Executors. mand, or even a refusal to pay it, if put upon any other ground than that the debt, or some part of it, is not legally or equitably due,' is not a disputing or rejection within the statute {Kiddx. Chapman, 2 Barb. Cli. 414). The statute applies only where the demands were made and rejected after an advertisement, pursuant to law {Flagg v. Buden, 1 Bradf. 192 ; Tucker v. Tucker, 4 Ahh. Ct. App. Dec. 428 ; s. c. 4 Keyes, 136) ; and a valid rejection may be waived by the subsequent acts of the executor ; thus, where an executor to whom a claim was presented, rejected it, but after- wards entertained negotiations in reference to settlement, and pro- cured delay, it was held that the first rejection could not be deemed to make effectual the statute bar, but. must be deemed waived by the subsequent acts of the executor, and that the statute only be- gan to run from the time when he finally rejected the demand {Calam,an v. McGlure, 47 Barb. 206). Costs in suits against executors.] — In addition to the provisions of the Revised Statutes above stated, the Code of Procedure (§ 317) •provides that, in an action prosecuted or defended by an executor, administrator, trustee, &c., costs shall be recovered as in actions affecting persons in their own right, but shall be chargeable only on the fund, &c., imless the court direct them to be paid person- ally, for mismanagement or bad faith. But this section is not to be construed to allow cbsts against executors or administrators where they are exempted therefrom by 2 B. S. 90, § 41. The and objected to the account upon that ground. The surrogate OTerruled the objec- tion, passed the accounts, and decreed distribution without reference to plaintiffs' claims. Held error : that defendants had not disputed or rejected the claims so as to put the statute in operation, and the action was not barred ; also held that there was no absolute or certain debt due, either at law or in equity, from the estate of the decedent to plaintiffs, at the time they exhibited their claims ; that such claims did not constitute debts against the estate until the liability had become fixed by an inability to collect the same against the surviving partners, and that even if the claims had been rejected or disputed by the notice served, the statute did not then begin to run, and that the surrogate, instead of making a final distribution of the estate, to the exclusion of plaintiffs, should have made a reasonable provision for their claims by directing a sum sufficient to satisfy the claim to be retained to be applied to the payment thereof when due. In Cooper v. Felter, which was overruled by Hoyt v. Bonnett, it was held that if, upon the presentation of a claim, an executor does not admit or reject it, he must be regarded as disputing it. See also a dictum to the same effect in Tiicker v. Tucker {i Abb. Ct. App. Dec. 428; s. o. 4 Keyes, 136). 300 PAYMENT OF FUNERAL EXPENSES AND DEBTS. Costs in Suits against Executors. court of appeals has heH, in Morgan v. Skidmore (MSS. 1870) that section 41 of the Revised Statutes still applies in its full ex- tent to all cases which fall within its scope, and thus overrules,, on this point. Fish v. Crane (9 Ahl. Pr. N. S. 252) ; and Murray v. Smith (9 Bosw. 689). The provisions of the Eevised Statutes ap- ply, however, only to suits commenced against the executors or administrators, and do not affect suits commenced against the de- ceased in his lifetime [Benedict^^ . Gaffee, 3 Buer, 669 ; Merritt V. Thompson, 27 N. T. 225 ; Mitchell v. Mount, 17 Mb. Pr. 213) ; * nor to claims created since his decease, by or under the supervision of the executors ; f nor does the statute apply to costs on appeal or interlocutoiy costs {Runt v. Connor, 1^ Ahb. Pr. 466 ; Judah V. Stagg, 22 Wend. 641) ; nor to proceedings under section * The decision in Benedict v. Caffee (3 Duer, 669) was to the effect that an action commenced against the deceased person in his lifetime and continued against his per sonal representative is not within § 41 ; and the same was held in Lemen v. Wood{l6 How. Fr. 285), which two cases were relied on by the court of appeals in Merritt v. Thompson (27 N. T. 225), in reaffirming the same doctrine. Merritt v. Thompson (above) expressly overrules McOann v. Bradley (15 How. Pr. 79), which had given a contrary construction of the statute, but in which another ground for denying plaint- iff's motion to be allowed costs existed, and was noticed by the court. Mitchell v. ' Mount (17 Abb. Fr. 213), decided at about the same time as Merritt y. Thompson (above), followed Lemen Y. Wood (above), and a view in harmony therewith was ad- hered to in Tindal v. Jones (11 Abb, Pr. 258). The same conclusion as that in Mer- ritt V. Thompson (above) is said to have been reached by the general term in Haight V. Hayt, which, however, is not reported upon tliis point, but was affirmed on the merits by the court of appeals (19 N. Y. 464), and the costs of the several appeals allowed on the gTOund that an appeal is in the nature of a new action, and that, as to the appeal, the executors ceased to be defendants. f Smith V. Patten, 9 Abb. Pr. N. S. 205. That was an action by attorneys at law against executors as such for compensation for services in procuring the probate of the will. Judgment was entered against the defendants as executors, with costs, without special application to the court for the allowance of costs. It was held at special term (May, 1870), that section 41 did not apply to any claim created by executors after testator's death, but only to demands which existed in decedent's lifetime, and therefore that no special application was necessary to the allowance of costs. Slocum V. Barry (4 Abb. Fr. JSf. S. 399 ; s. o. 38 iV". Y. 46) was a suit by trustees of a fund to recover defendant's subscription thereto. The complaint was dismissed by default, and judgment entered, and execution issued to collect the costs of plaintiffs personally. The general term ordered the execution to be set aside, on the ground that the subscription paper set out in the complaint showed that plaintiffs were trustees, had no individual interest, and so were trustees of an express trust, as defined in the Code of Procedure, section 113, and a special order of the court was nec- essary to charge them personally. This order was affirmed by the court of appeals. PAYMENT OF FUNEEAL EXPENSES AND DEBTS. 301 Costs in Suits against Executors. 3Y6 of tlie Code, by summons against heirs, executors or adminis- trators to show cause why judgment should not be enforced against the estate of a deceased judgment debtor, because such proceeding is not an action {Mills v. Thursby, 12 How. Pr. 385). Since the Code, an action brought hy an executor or adminis- trator is not within the exemption from costs provided by the Ee- vised Statutes ( Wilson v. Woodruff, 14 How. Pr. 481 ; Fox v. Fox, 22 Id. 453 ; Cv/rtis v. DuUon, 4 Sandf. Y19). When the executor or administrator seeks to avail himself of the statutory exemption from costs, he must bring himself clearly within the condition contemplated by the statute. * In cases, however, that come within the statute, costs are not taxable against executors or administrators as of course, but are taxable only by * The refusal to refer must be explicit, or at least to be irresistibly implied, as from neglect to answer a proposal to refer, in order to charge the executor therefor. Refusal to refer will not be implied from 'a rejection of the claim by him {Proude v. Whiton, 15 How. Pr. 30i, aiE'd in Id. 305, note; Buckhout v. Hunt, 16 Id. 407). In the case of Fort v. Gooding (9 Barb. 388) it had been held that, if the executo'r un- qualifiedly rejected the claim, the person who set it up was not bound to demand a reference in order to charge the executor with the consequences of refusing such ref- erence, but could construe such rejection as a refusal to refer. This point was ex- pressly overruled in Proude v. Whiton (above), however, which has been followed as above. In Qorham v. Ripley (16 How. Pr. 313) the creditor's demand having' been re- jected, he offered to refer to referees to be approved by the surrogate. The execu- tors, instead of accepting this ofirer, offered to refer to three referees named by them- selves, to be approved of by the surrogate. It was held that this was a refusal to refer, under the statute, which rendered |^hem liable for costs, in an action on the demand. That omission by the executor to publish notice to creditors of the estate does not have the effect to charge him with costs, was decided in BuUoele v. Bogardus (1 Den. 276), the recovery thereof being urged upon that ground, and in that case Harvey v. SMllman (22 Wend. 571), so far as it holds to a contrary doctrine, was expressly overruled. The court referred to Walrath v. VanDuzen (1 Den. 278, note), which sustained the doctrine on which Bullock v. Bogardus {above) went, and this rule has also been recognized as law in Russell v. Lane (1 Barb. 523); Foot v. Good- ing (9 Barb. 388) ; Cemsioch v. Olmstead (6 How. Pr. '11). In the earlier case of Knapp V. Curiiss (6 Hill, 386) the court declined to be governed by the rule in Harvey v. Skillman {above), which case, however, it attempted to distinguish. In Beeden v. Knowlton (3 Sandf. 768) plaintiff's application for costs against an adminis- tratrix was denied, on the ground that the check drawn by the intestate, on which the action was brought, was not presented to the administratrix for payment as re- quired by section 41 of the Revised Statutes. In this case the defenses set up seem to have been without foundation. It does not appear that notice to the creditors was ever published. 302 PAYMENT OF FUNERAL EXPENSES AND DEBTS. Effect of Judgments. order, upon motion * {Howe v. Lloyd, 2 Lans. 335 ; s. c. 9 Abb. Pr. N. S. 257), and the claim on which the recovery is had, must be substantially the same as the one which, was presented to the executors {Oenet y. Binsse, 3 Daly, 239). If the order contains no special direction that the executor or administrator pay the costs personally, the judgment for costs can only be collected out of the estate {Dodge v. Urandall, 30 If. Y. 294 ; Lindslay v. Deafen- dorf, 43 How. Pr. 90). Where the cause of action sued on by the representative arose after the death of the deceased, and con- sequently the action might have been brought by him in his private right, he can not, if he fails to obtain judgment, escape the penalty of costs by suing in. his representative capacity {HoMrige V. Scott, 1 Lans. 303, overruling Woodruff v. Cooh, 14 How. Pr. 481 ; and see Brockett v. Bush, 18 Abb. Pr. 337 ; Dubois v. Sands, 43 Barb. 412). But no executor or administrator can be made personally liable for costs, by reason of his having pleaded any false plea (2 E. S. 448, § 10). ARTICLE PIFTH. COMPELLING PAYMENT OF DEBTS. Effect of judgments.'] — A judgment recovered against an executor or administrator does not entitle the judgment creditor to coUect the judgment by execution as of course, either out of the estate or from the executor personally. Such a judgment is not evidence of assets. It is l^dence only of the amount due the creditor, and that is all. The judgment creditor can have the estate distributed, with a view of satisfying his judgment, only through the medium of the sun-ogates' courts or a court of eqiiity. He can not, therefore, lawfully issue execution on his judgment without permission of the surrogate. The judgment is, in fact, only a liquidation of the debt. It' does not conclude the adminis- trator or executor on the question of assets {Oinochio v. Porcella, 3 Bradf. 277).t The statute provides that an execution can not * Taxation of costs in such a case, ■without order of the court, is a substantial de- fect, and not an irregularity, in the judgment, which is waived by appeal (Howe v^ Lloyd, supra). f The proper mode of proceeding by a judgment creditor against the executor of PAYMENT OF FUNERAL EXPENSES AND DEBTS. 303 Enforcement of Judgments. issue upon, a judgment against an executor or administrator, until an account sliall have been rendered by him and settled, or an order for the purpose obtained from the surrogate who appointed him (2 R. 8. 88, § 32 ; Winne v. Tan Sohaich, 9 Wend. 448) ; and to authorize the surrogate to make such order, there must have been a trial on the merits {People v. Judges of Albany Mayor's Court, 9 Wend. 486 ; but compare Butler v. Hempstead, 18 Id. 666). Where the account of executors has been rendered and settled, it is unnecessary to procure an order of the surrogate granting leave to issue execution. But in such case execution can issue only for a just proportion of the assets applicable to the judgment (2 R. 8. 88, § 32 ; Code of Procedure, § 471 ; Olmsted V. Yredenburgh, 10 How. Pr. 215) ; and execution for the full amount of the judgment, when there are not sufficient assets to pay all claims, is irregular {Id.) Enforcement of judgments.] — The method of applying for leave to issue execution is minutely regulated by the statute, which provides that where a creditor has obtained a judgment against any executor or administrator, after a trial at law upon the merits, he may at any time thereafter apply to the surrogate having juris- diction for an order against such executor or administrator to show cause why an execution on such judgment should not be issued (2 R. 8. 116, § 19*"). Thereupon the surrogate must issue a citation requiring the executor or administrator to appear and account be- fore him ; and if, upon such accounting, it appears that there are assets in his hands properly applicable, under the statute, to the payment, in whole or in part, of the judgment, the surrogate will make an order that execution be issued for the amount so appli- cable {Id. 116, § 20). Such an order, when made, is conclusive evidence that there are sufficient assets in his hands to satisfy the amount for which the execution is directed to be levied ; and no appeal can be made from any such order unless the appellant executes to the plaintiff in the execution a bond, with sufficient his debtor is stated in Milh v. Thurshy (2 Ahb. Pr. 432 ; 12 How. Pr. 385). The statute specially provides that the real estate which belonged to any deceased person shall not be bound or in any way affected by any judgment against his executors or administrators, nor shall it be liable to be sold by virtue of any execution issued upon such judgment (1 B. L. p. 313, § 14 ; "i R. 8. 449, § 12). SOi PAYMEKT OF FUNERAL EXPENSES AND DEBTS. Enforcement of Judgments. sureties, to be approved of by tbe surrogate, conditioned for the payment of the fuU amount directed to be levied, with interest thereon, and the costs of defending the appeal, in case the order appealed from shaU be affirmed {Id. 116, § 21). If the whole amount of the judgment is not collected on the execution, and assets thereafter come into the hands of the executor or adminis- trator, the surrogate must make a further order for issuing execu- tion, upon the application of the creditor, his personal representa- tives or assignees, and must proceed in the same manner, from time to time, whenever assets come to his hands, until the judg- ment is satisfied (Id. Ill, § 22). Under the foregoing provisions of the statute, the surrogate may allow an execution to issue as well on a judgment obtained against the executors or adminis- trators, for a debt contracted by them for the necessary expenses of administration, as on a judgment reversed for a debt of the deceased. Thus, the surrogate may allow execution to issue where an attorney recovers a judgment against the personal repre- sentative of a decedent for sei-vices rendered to the representative in the matter of the estate {Matter of Thompson, 41 Barb. 237 ; 6 N. T. Burr. [1 Redf?^ 490). The provisions of the statute prescribing the order of preference and payment of debts {ante, p. 281), and those authorizing the suri'ogate to allow execution to issue, are to be read and construed together — ^the former as a direction to executors and administrators as to the performance of their duty, and the latter as a remedy for a creditor in case of neglect. And the surrogate has power, in a proceeding under the latter provisions, to allow execution to issue where there are assets, unless it is made to appear that there are debts of the decedent entitled, under the former provisions, to preference over the de- mand of the creditor applying. But the existence of such debts is not to be presumed {Mitchell v. Mount, 31 N. Y. 356 ; 19 All. Pt. 1, rev'g 17 Abh. Pr. 265). The provisions which direct that, upon an application for leave to issue execution, the surrogate shall require the executor or administrator to appear and account, do not .contemplate a settled or liquidated account, but -only re- quire such an accounting of the condition of the assets as will enable the surrogate to determine whether there is any property applicable to the debt in question {II.) In case permission to issue execution is granted, the execution issues against the exec- PAYMENT OF FUNERAL EXPENSES AND DEBTS. 305 Judgments agaiust Deceased. Titors or administrators who liaye appeared in the action and the others named in the first process, in the same manner as if they had all appeared (2 B. S. 448, § 5). Judgments against deceased.] — The foregoing provisions of the statutes, however, apply only to Judgments recovered against the executors or administrators. In the case of a judgment re- covered against the deceased in his lifetime a different remedy is provided. Execution on such a judgment may be issued against any property, lands, tenements, real estate, or chattels real, upon which the judgment may be a lien, in the same manner as if the party were living, except that it can not be issued within a year after the death of the defendant, nor in any case unless upon per- mission granted by the surrogate having jurisdiction to grant letters, which permission may be given on sufficient cause shown (Z. 1850, c. 295). The authority of the surrogate in the matter of issuing executions in such a case is not exclusive. The court in which the judgment was obtained has the power to control the execution of its judgment ; and the Code of Procedure (§ 376) provides that the personal representatives of a judgment debtor at any time within one year after their appointment, may be sum- moned to show cause why the judgment should not be enforced against the estate (see Marine Bank of Chicago v. Yan Brunt, 49 N. T. 160, affi'g 61 Ba/rl. 361, approving Alden v. Clarice 11 How. Br. 209, and Fnnh v. Morrison, 13 Abh. Br. 80, and disapproving Wilgus v. Bloodgood, 33 How. Br. 289, and Flan- agan V. Tmen, 53 Barh. 587).* Where application is made, under Z. 1850, for leave to issue execution, the claimants of the property sought to be applied in satisfaction of the judgment, and * In Marine Bank v. Van Brunt it was held that the act of 1850, c. 295, is not in conflict with the provisions of section 376 of the Code, in reference to enforcing- judgments against the estate of a deceased judgment debtor, nor is it inconsistent, with the remedy given by the Code. Tbat the act of 1850 is cumulative, and makes, the leave of the surrogate necessary, in addition to the order and judgment of the? court ; and that an execution can not issue without the order and permission of both, tribunals. The court of law (it was said) adjudges the legal rights of the parties^ and that the creditor is legally entitled to enfore^ the judgment against property in possession of the parties to the proceeding. The surrogate passes upon the rights of the creditor, in view of the conflicting or equal claims of others upon the estate.. Either proceeding may be first taken, or they may proceed joan pasm. 20 306 PAYMENT OF FUNERAL EXPENSES AND DEBTS. Enforcing Payment of Ordinary Debts. — Application for Order. the personal representatiyes of the deceased, are entitled to be heard, and shoiild have notice ; and without notice to the parties affected, the jurisdiction of the surrogate is improperly exercised {Marine Bank v. Van Brunt, 49 iV. Y. 160). The notice must be served in a manner to be prescribed by the court {Alden v. ClarJc, 11 How. Pr. 209). The facts that the judgment is unpaid and that the personal estate of the deceased is insufficient to pay the debts should both appear, iu order to warrant the surrogate's granting permission {Matter of Bentley, 16 AVb. Pr. 89). It is the better practice, on such application, to set forth also a descrip- tion of the real estate to be affected by the proceeding. Enforcing payment of ordinary debts.] — The surrogate may also, upon the application of a creditor, decree the payment of a debt, or a proportional part thereof, at any time g-f ter six months have elapsed from the granting of the letters testamentary or of administration (2 P. S. 116, § 18). This power of the surrogate is discretionary, and where the evidence of the claim is suspicious, the motion will be denied {Flagg v. Ruden', 1 Bradf. 192 ; com- pare CampbeU v. Bruen, Id. 224 ; Jennings v. Phelps, Id. 485).* But the denial of the application is not conclusive against the justness of the claim, and hence does not prevent the creditor from maintaining an action {Fiizpatrick v. Brady, 6 Mill, 581 ; and see Butler v. Hempstead, 18 Wend. 666 ; Magee v. Vedder, 6 Barb. 352 ; Flagg v. Puden, 1 Bradf. 192). Indeed, neither the amount nor the validity of the claim, if disputed, can be tried by the surrogate {Ruilvoen v. Patten, 1 Robt. 416 ; 2 Mb. Pr. N. 8. 121 ; and see ante, p. 21). Application for order.] — By analogy to the statute of limita- tions, the proceeding should be instituted within the same time in which suits of the same character are required to be commenced in courts of common law or of equity {Mc Cartes v. Camel, 1 Barb. Ch. 455). The process is by citation, and not by order to show * In Flagg Y. Bvdm (above), the demand was a bond which had been due eighteen years before the obligor's death, without any demand of payment, so far as appeared, until after his death, when it was sdhdenly transferred by the obligee to a third per- son, who made claim through an attorney, without a verification on personal knowl- edge, — ffeld, that the application should be denied. As to the amount and quality of proof required, see J/aAoney v. Chinter (10 Abb. Pr. iSl). PAYMENT OF FUNERAL ElXPENSES AND DEBTS. 30T Order for Payment and Certificate. — Enforcement of Decree by Attachment. cause. "But the defect of omitting a citation is waived hj the executor or administrator appearing and proceeding without objec- tion {St. John V. Voorhies, 19 Ahh. Pr. 53). Order for payment cmd certificate.] — If the surrogate orders the payment of the claim, the statute requires him, at the same time, on application, to make out a certificate stating the names of the parties against and in favor of whom the decree is made, with the trade, profession, or occupation of the parties respectively, and their places of residence, in which he shall state the amount of debt and costs directed to be paid by. the decree (Z. 183T, c. 460, § 63 ; see Form No. 6). On this certificate being filed with any county clerk, he is required to enter and docket it on his books, in the same manner as transcripts of judgments. It thenceforth becomes a lien on aU the real estate of the person against whom the decree is entered, and execution may be issued thereon in the same manner as on any other judgment (Z. 183T, e. 460, § 64, am'd Z. 1844, c. 104, § 2). Such a decree or order of a surrogate for the payment of money may be discharged by filing with him a release of the amount, executed by the person to whom the money is directed to be paid, and acknowledged or proven, as a conveyance of real estate is required to be, in order to be recorded. The sur- rogate, on the filing of such a release, must indorse the discharge on the margin of the record of the decree or order ; and on filing with the clerk of any county where the decree or order has been docketed a certificate from the surrogate of such discharge, such clerk must enter in his docket the fact of such, discharge (Z. 1867, c, Y82, § 9). Assignment of representat/ive^ s hond-l — K the execution is issued and returned unsatisfied, the surrogate must, on application, assign the executor's or administrator's bond given to the person in whose favor the decree is made for the purpose of being prose- cuted (Z. 1837, c. 460, § 65). Enforcement of decree hy attachment.] — The surrogate may also enforce the decree by process of attachment {Seaman v. Dur- yea, 11 iT. Y. 328 ; Boron v. Dempsey, 1 Bradf. 490 ; and see p. 17, aMe^. CHAPTER XVIII. LEGACIES. Art, 1. — Gifts mortis causa. 2. — Of legacies generally. S. — ^Dififerent kinds of legacies. 4. — Legacies to debtors and creditors. 5. — Ademption and-satisfaction of legacies. 6. — Abatement of legacies. 7. — Lapse of legacies. 8. — Trusts. Restraints upon alienation and accumulations, 9. — ^Payment of legacies and interest. AETICLE FIRST. GIFTS MOETIS CAUSA. Testamentary nature of the ^*fi5.]^-Before proceeding to the consideration of the general subject of legacies, it will he proper in this place to mention the principles governing what are called " gifts mortis causa." Such gifts are, in reality, as much , testa- mentary dispositions as any other ; and the only essential difEer- ence between such a gift and an nuncupative will, is, that in the former, a delivery of the property by the donor to the. donee, or to some agent or mistee for him, is indispensable to the validity of the gift ; while in the latter, delivery is not essential. Such a gift differs from a gift inter vivos in that it is ambulatory, incomplete and revocable during the testator's life, and it is also liable to the debts of the testator on deficiency of assets. It differs from a legacy in that it need not be proved in the surrogate's court ; and no act or assent on the part of the ex- ecutor or administrator is necessary to perfect the donee's title. These gifts being essentially testamentary, the same considerations of prudence and caution which induced the legislature to require wills of personal property to be executed publicly and attested with great formality, would seem to forbid these informal dispositions LEGAClfeS. 309 The Subject of the Gift. of property, in expectation of death. The temptation to fraud and imposition in regard to these gifts, is as powerful and as dan- gerous as in the cases of wills, and yet has been left unchecked and unregulated by statute. It is said, therefore, that the courts ought not to tolerate them unless they are attended by all the re- quisites which the common law prescribes to give them validity {Harris v. Clark, 3 HI'. Y. 121 ; see also Kinney v. Public Ad- ministrator, 2 Bradf. 319), and to this end, the most clear, circum- stantial and satisfactory proof wiU be required to support such a disposition (Belmotte v. Taylor, 5 N. Y. Surr. [1 Jtedf.'] 417; Bedell v. Ca/rll, 33 J^. Y. 681). It is not necessary that the donee, in order to sustain the claim, should show affirmatively, and with minuteness, the circumstances under which the alleged gift was made, nor is he required to prove affirmatively that the donor was of sound disposiag mind and memory when he made the gift, and that the delivery of the subject was his free and voluntary act. He establishes a jarvma facie case when he shows that the dispo- sition has been attended by aU the requisites which the common law prescribes to give it validity {Bedell v. Carll, 33 N. Y. 581). The svhject of the gift.'\ — Only personal property capable of delivery, is subject to a gift mortis causa ; and it may embrace all the testator's personal estate, however large the amount and value {Meach v. Meach, 24 Venn. 591 ; White v. Wager, 32 Bart. 250). A bond and mortgage, stocks, or any other chose in action, whether negotiable or not, may constitute the subject-mat- ter of a good gift m^ortis causa, and pass by delivery to the donee, without any formal assignment by the donor. And a delivery of a formal written assignment dof the contract as the symbol of the delivery of the gift, may be sufficient to perfect the gift, even without the delivery of the contract or instrument itself {Qrymes V. Howe, 49 N. Y. IT).* The delivery of a mortgage as a gift * In that case, the defendant's testator being the owner of 120 shares of bank stock, included in one certificate, made an absolute assignment, in writing, of twenty .shares to the plaintiff. This he handed to his wife, to be kept by her and delivered to the plaintiff upon his death. At the time of executing the assignment, the donor was about eighty years of age, in failing health, and so continued until his death, which occurred about five months thereafter. It was held this was a valid gift mortis causa; that the equitable title to the stock passed by the assignment; that the defendant was trustee for the plaintiff by operation of law, to make the gift 310 LE&ACIES. Requisites of Gift. mortis causa, is treated, not as a complete act passing tlie property,, but as creating a trust by operation of law, in fayor of tbe donee, which a court of equity will enforce in the same manner as it would the right of the donee to a bond (1 Story Eq. Jur. § 607). A delivery of the donor's promissory note, without other contract, by which he undertakes to pay money, either during his 'life or out of his estate after his. decease, wiU not constitute a valid gift mortis causa; and a draft unaccepted is equally incapable of be- coming the subject of such a gift {Harris v. OlarTe, 3 N. Y. 93 ; 2 JBarh. 94 ; Coutant v. Schuyler, 1 Paige, 316 ; see Craig v. Craig, 3 Barh. Ch. Y6 ; Wilson v. Baptist Education Society, 10 Barh. 315 ; Huntington v. Oilmore, 16 Barb. 243). It is well settled that one may remit a debt due him, by way of a gift mortis causa by a formal surrender of the securities, with a verbal decla^ ration of intention to that effect {Moore v. Darton, T Eng. Law & Eq. 134). Requisites of gift.l — To constitute a valid gift in view of death, it must appear : 1. That the gift was made with a view to the donor's death from present illness or from external and appre- hended peril. 2. The donor must die of that ailment or peril. 3. There must be a delivery of the subject of the gift {Orymes v. Howe, 49 N. Y. 17). It is not necessary that the donor should be in extrem,is, but he should die of that aUment. If he recover from the illiieBS or survive the peril, the gift thereby becomes void. Whether the testator was so seriously iU as to be apprehensive of death, so that he was legally acting " in view of death," must de- pend upon the circumstances of each case. The time of the death is not material except as the fact bears upon the question of the testator's apprehension of that event. There is no rule which limits the time within which the donor must die, to make the gift valid {Ih.) Where it appears that the gift was made during the effectual, and that a judgment requiring him to produce the certificate and cause a transfer of the twenty shares to be made to 'the plaintiff was proper. In another case {Weaterh v. De WiU, 35 Barh. 215), the deceasedbeing conscious that her death was near, requested B. to give her a parcel, out of which she took money to pay some debts, and returned the rest of the parcel, including some money and a certificate of deposit, to B., saying that she gave it to the latter for her own use. The certificate- was unindorsed. It was held that this was not sufficient evidence of a gift of the- certificate, under all the circumstances. LEGACIES. 311 Death of Donor. — Delivery. testator's illness, and only a few days or weeks before his- death, the law presumes that the gift was made in contemplation of death {Merchant v. Merchant, 2 Bradf. 432). Death of donor.] — The death of the donor is essential to the validity of the gift. If the gift be made during the donor's last illness, the law infers the condition that the donee is to hold the gift only in case the donor die of that indisposition. It is not essential that the donor should expressly declare that the gift is to take effect only on his death. Until death, the donor may reclaim the gift, and his recovery makes the gift void. Delivery.] — It is also requisite in order to give effect to the gift (if by parol), that the donor should, at the time of the deliv- ery, not only part with the possession, but also with the dominion, over the subject of the gift. The delivery of possession need not be to the donee personally, but may be given to a third party for the donee's use {Grymes v. Howe, 49 N. Y. IT, and cases cited). So far as possible there must also be an acceptance of the thing by the donee. The mere fact that it has passed into the possession of the donee, even by l^he act of the donor himself, is said not to be enough. Thus where the deceased in his last illness expressed a desire to his daughter that she should have his carriage and horses, but did not request her to take possession of them, nor direct the stable-keeper to deliver them to her, and it did not appear that there had been any actual transfer or change of possession, though they were afterwards used by her, it was held not such a delivery as was necessary to complete the gift {Delmotte v. Taylor, 5 N. Y. Sun\ [1 Bedf.] 417). Where the nature of the subject-matter of the gift will not admit of a coi'poreal delivery, the delivery of the means of obtaining possession, or making use of the thing given, amounts to a delivery of the thing itself. Thus the delivery of the key of a trunk or bureau by the donor, accompanied by the declaration of the donor that he gave all his property to the donee, is a good delivery of the contents, though they were not removed {Cooper V. Burr, 45 Barh. 9 ; Allerton v. Lang, * 10 Bosw. 362). * In that case, the deceased shortly before her death took from her drawer a cloth pocket containing a pocket-book, and took out the pocket-book, and, after giy- ing away money which she took from it, and expressing her intentions as to a devise of real property, replaced the pocket-book in the cloth pocket, and gave it to her 312 LEGACIES. Eevocation. — Operation of Will. ■ In regard to tlie delivery of things in action, it is well settled that all that is necessary is a delivery of the contract or note upon which the cause of action is founded (see Bedell v. Carll, 33 TT. Y. 581). Re/uocation.} — A gift mortis causa is revocable in case the donor recover, and this, notwithstanding the gift was in express terms absolute, and the delivery was absolute. It may be revoked in the donor's lifetime, by his resumption of possession. It is not necessary that the donor should actually regain the possession of the subject of the gift ; it is sufficient if he reclaims it from the donee, or from the person with whom it had been intrusted, with intent to recall the gift. It is not even necessary that the reclama- tion should be made with the knowledge of the donee at the time, and if the donee subsequently resume the possession of the sub- ject-matter of the gift, without the consent of the donor, or after his decease, and retain such possession, claiming it as his property by virtue of the gift, he may be compelled to surrender it to the personal representatives of the donor, or, if he be himself such representative, to account for it as belonging to the estate {Mer- chant V. Merchant, 2 Bradf. 432). It has been held that any act, such as the subsequent birth of a child, which operates to revoke a wUl, should have the same effect in regard to a gift mortis causa {Bloomer v. Bloomer, 2 Bradf. 340), But the bequest of aU the testator's property to another will not operate to revoke such a gift, since the wUl only becomes operative at the death of the testator when the gift also becomes irrevocable (2 Redf. on Wills, 331). AETICLE SECOND. OF LEGACIES GENERALLY. Operation of wiZ^.J^-With respect to personal property, a will operates upon whatever personal estate the testator died possessed of, whether acquired before or subsequent to the execution of the daughter-in-law, saying, " Here, I give you this, I make you a present of it. I have another, and want you to wear them, they are so very handy." It was held that this was a valid gift to the latter of stock belonging to the giver, a certificate for which, in the giver's name, was then contained in the pocket-book. LEGACIES. 313 Who may be Legatee. instrument (see Collin v. Collin, 1 Barh. Ch. 630 ; Hone v. Kent, 6 N. Y. 390). "With respect to real estate, a man could, at com- mon law, devise only these lands which he had at the date of the devise, but by the Eevised Statutes (2 B. 8. 57, § 2), every estate and interest in real property descendible to heii-s may be devised, including expectant estates (1 Id. Y25, § 35) ; and it is further de- clared that every wiU made in express terms of all the testator's real estate, or which in any other terms denotes his intent to de- vise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death * (2 Id. 5Y, § 5 ; see Terry v. Wiggins, 47 iT. Y. 512 ; Ellison v. Mil- ler, 11 Barb. 332). Whether a will operates, to pass particular parcels of land, or after-acquired land, must depend upon the in- tention of the testator as derived from the language of the wiU (see Pond v. Berg, 10 Paige, 140 ; Havens v. Havens, 1 Sandf. Ch. 324). It is a familiar canon of interpretation (as already stated, ante, p. 128) that the law favors a construction which will not tend to the disinheriting of heirs, unless the intention to do so is clearly expressed (see Scott v. Guernsey, 48 iV. Y. 106). Hence devises by implication are not favored. Such a devise is sustain- able only upon the principle of carrying into effect the intention of the testator, and unless it appears, upon an examination of the whole win, that such must have been the intention, there is no such devise {Post v. Hover, 33 JY. Y. 593 ; see Martin v. Martin, 43 Barh. 172 ; Lovett v. Kingsland, 44 Barl. 560). Who may he legatee.] — With some exceptions, every person is capable of taking by bequest or devise. The statute provides that every person who is legally capable of holding real estate may take by devise ; but no corporation, not expressly authorized by its char- ter or by statiite, can take by devise (2 P. S. 57, § 3). A devise of * Descendible and devisable are convertible terms in respect to contingent inter- ests ( Wilson V. Wilson, 32 Barb. 328). The interest of the tenant in a lease in fee is deYisahle (Van Derzee y. Van Derzee, SO Barb. 331). A devise of lands, N. Y.A24c\ see post, .Ajt. 9). Aliens.^ — ^Inasmuch as an alien can not inherit real property, he can not take by a devise. His subsequent naturalization has no re- troactive efEect, and wiU not give him any title {Smith v. Smith, 33 Barb. 371, note ; Heeney v. Brooklyn Ben&oolep,t Society, X 39 I Thus, where the testator, having specifically bequeathed a bond and mortgage, foreclosed the mortgage and sold, and the pur- chaser gave him a new bond and mortgage for the price, and the testator left a memorandum declaring that the new mortgage was but a renewal of the one bequeathed, and that he intended it should pass to the legatee, it was, nevertheless, held that the legacy was adeemed {BecTi v. McGillis, 9 Barl. ,35; see Gardner v. Printup, 2 Id. 83 ; Gilchrist v. Stevenson, 9 Id. 9 ; Paughty v. Stillwell, 1 Bradf. 300 ; Logan v. Deshay, Clarice, 209). Pemonstrative legacies.} — Difficult questions sometimes arise upon the question whether a bequest was intended by the testator to be paid at aU events, the fund being pointed out by the way only of demonstration. The leading principle is, that when the testator bequeaths a sum of money, or, which is the same thing, a life annxdty, in such a manner as to show a separate and inde- pendent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the wUl that the money is to be raised in a particular way or out of a particular fund ; although no positive rule of ready application to every case can be laid down, but each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances re- specting the testator's family and estate, which may be fairly- brought to bear upon the question of intent {Pierrepont v. Edwards, 24 How. Pr. 419 ; Giddings v. Seward, 16 N. Y. 365). LEGACIES. 329 General Legacies. — General Doctrine. Oeneral legacies.] — Courts of equity liave always been dis- posed to treat advancements, by way of portions, as a satisfaction of general legacies given by a parent or other person in loco parentis, to a cbild oi; grandchild. There is a presumption of satisfaction in such a case, and therefore it need not be expressed to be in lieu of the legacy {Story Eq. Jur. §§ 1111, 1112 ; Roper on Leg. 374 ; Hine v. Hine, 39 Barb. 507 ; Langdon y. Astor,. 16 JV. Y. 34). Even 'where the testator stands in the relation of a stranger, and not of a father, or in that relation, if the legacy is given for a particular purpose specified in the wUl,. and the testator, during his life, accomplishes the same purpose, or furnishes the intended legatee and beneficiary with money for that purpose, the legacy will be deemed satisfied {Sine v. Hine, 39 Ba/rb. 507). But the presumption of satisfaction may always be rebutted, for, as already intimated, the question, in all cases, de- pends upon the declared or presumed intention of the donor. There is no presumption of satisfaction, however, where -the ad- vancement depends upon a contingency, and the provision in the will is certain, nor where the advancement is expressed to be in satisfaction of an interest to which the child is entitled not under the will, nor where the bequest to the child is of a residue or some portion of the residue, in which cases it is not regarded as a portion. And the principle of ademption by subsequent portion has not been applied to devises of real estate * (2 Redf. on 'Wills, 538). Legacy to debtpr.} — We have already spoken of the effect of a legacy to a debtor {ante, p. 326). The general principle is that a legacy of a debt is adeemed by the collection of the debt by the testator {Sholl v. ShoU, 5 Barb. 312). ARTICLE SIXTH. ABATEMENT OF LEGACIES. General doctrine.] — In case the assets are insufficient, after answering the debts f and specific legacies, to satisfy the general * The ReTised Statutes provide for th^ deduction of advancements made to chil- dren from their distributive shares of an intestate father's estate (see post, Chap. XIX). f It seems to he well settled that the executor may retain the assets to meet a 330 LEGACIES. General Doctrine. legacies in full, the latter are subject to abatement in equal pro- portions. This is the rale at common law and as declared by the Revised Statutes (2 R. S. 90, § 45). Cases may arise where even specific legacies (as where the testator directs that they shall come out of his personal estate, or where they are charged with the pay- ment of general legacies) may also be subject to abatement (see Pierrejpont v. Edwards, 25 N. Y. 128). Where there are suffi- cient assets to payaU the debts in full, and* the specific legacies, but not enough to pay all the general legacies in full, the latter are subject to abatement between themselves. In this connectioni, a distinction is to be observed between legacies which are mere bounties, and such as are given in consideration of a prior indebted- ness by the testator to the legatee, or of the relinquishment of dower or otherwise. These latter do not, except as between them- selves, so abate, but must be paid in full ( Wood v. Yandeniurgh, 6 Paige, 277 ; * Williamson v. Williamson, 6 Paige, 298 ; Isen- hart V; Brown, 1 JEdw. 411). A legacy to the executor as such for his services in that relation has no preference, however, over general legacies, and is subject to abatement with them, and an assignment of the legacy will not discharge it from abatement {Glapp V. Meserole, 1 Abh. Gt. App. Bee. 362). It should be observed, also, that a strictly residuary bequest must defer to all general legacies and annuities, and can only be paid after all such claims are satisfied. As to legacies which the testator intended should be paid in full and at all events, and which he has charged upon a particu- lar fund or upon real estate, the general rule is that they are not subject to abatement with general legacies. There is no positive rule, it is said {Pierrepont v. Edwa/rds, 25 JY. Y. 128 ; 24 How. Pr. 419), for determining whether a particular legacy is "to be paid in full, at all events, or whether, in case the estate is insuffi- cient to pay all, it shall abate in proportion to others. Each case will depend upon a consideration of aU the material provisions of contingent obligation of the testator, and is not obliged to part with them to iegateeSj unless indemnified against such contingent claim (see post, Art. 9). As to how far devisees are liable to contribute to the payment of debts, see Stuart v. Kissam ill Barb. 111). * In that case, a legacy for the erection of a tombstone at the grave of a near relative was exempted from abatement. LEGACIES. 331 Order of Abatement. — Subscribing Witness. the will to be construed, and of the extrinsic circumstances whicli bear upon the question of intent.* Order of abatement?^ — In the absence of any express direction in the will giving a priority of payment of a particular legacy, any deficiency of assets is to be charged in the following order : (1) Kesiduary legacies. (2) General legacies. (3) Legacies given for a valuable consideration, or for the relinquishment of dower or some right or interest. (4) Specific and demonstrative legacies. Birth of fost-testamentary child.'] — In case of the birth of a post-testamentary child, who, under the statute (2 It. 8. 65, § 49) is entitled to the same portion as would have descended or have been distributed to him, if the father \ had died intestate, all the devisees and legatees, whether specific, general or residuary, must contribute ratably, in proportion to the value of the estate de- vised or bequeathed to them respectively, to make up the share of such child.| In estimating the amount of the several contribu- tions, even a legacy to the widow in lieu of dower, must be taken into account {Mitchell v. Blain, 5 Paige, 588). Subscribing witness.} — The statute provides (2 E. 8. 65, § 51) that if a subscribing witness, who shall have forfeited any bene- ficial interest, &c., under a will by reason of his being examined as a witness on the application for probate, be one who " would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended or have been distributed to such witness shall be saved to him as will not exceed the value of the devise or bequest * As, to the various classes of cases in which a charge of a legacy ou the real property may be implied, see Reynolds v. Meynolds (16 i\^. Y. 25'7 ; Oerken's Estate (1 Tach. 49) . f Hence the statute does not apply to the case of a woman having post-testa- mentary children born to her, unprovided for, and unmentioned In her will ( Cotheal V. Cotheal, 40 N. T. 405). The effect of this decision is to overrule Flummer v. Murray (51 Barb. 201). \ The remedy of such a child to recover hie share is not, it would seem, by action to recover from children born before the will, any portion of advancements made to the latter, but by proceedings under the statute (2 E. S. 97, § Y6 ; 1 Id. 754, § 23) to compel distribution, and to determine what, if any, portion of the testator's estate devised to the children who have received advancements, shall belong to them (San^ fordy. Sanford, 5 Lam. 486; 61 Barb. 293). 332 LEGACIES. Death of Legatee Pfior to Testator's Death. made to Mm in the will, -and he shall recover the same of the dev- isees or legatees named in the will, in proportion to and out of the parts devised and bequeathed to them." ARTICLE SEVENTH. LAPSE OF LEGACIES. Death of legatee prior to testator's death.] — The common law rule that the legacy is extinguished by the death of the legatee before the testator's death, was modified by the Eevised Statutes, which provides that whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testa- tor, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such devisee or legatee had survived the testator, and had died intestate (2 ^. S. 66, § 52). It wUl be observed that the statute provides only for the case of a testator who is the ancestor of his legatee or devisee. The word descendant is limited to issue in any degree of the person referred to, and does not, therefore, embrace collateral relations {Van Beuren v. Dash,* 30 iT. Y. 393 ; compare Bishop v. Bishop, 4: Hill, 138; Christie v. Divide, 22 Barh. 195; Armstrong v. Moran, 1 Bradf. 314). In view of the remedial character of the statute, the courts have given its provisions a liberal construction, and in one case, the words " shall die," in the statute, have been construed as not referring to a time intermediate to the making of the will and the death of the testator, and hence that the stat- ute would apply to the case of the death of a proposed legatee before the date of making the will {Barnes v. Huson, 60 Barb. 598). * In that case the testatrix devised separate aliquot shares of her real estate to two sisters and to certain nephews and nieces, several of whom died in her lifetime, some leaving children and others without issue. It was held that the shares of all those devisees so dying before her, lapsed, and that such shares descended to her heirs-at-law {s&sHamLin v. Osgood, 5 N. Y. Surr. [1 Red/.] 409). LEGACIES. 333 Joint Legacy. — Death of Legatee Subsequent to Testator's Death. Joi/nt legacy.] — ^Where a legacy is given to two or more persons jointly, if one dies, even in tlie lifetime of the testator, such interest does not lapse, but the survivor will take the whole (Gardner v. Printnip, 2 Barb. 83).* But in the case of a bequest to several legatees named, " equally share and share alike," the legatees are tenants in common, and the share of any one happen- ing to die before the testator, lapses for the benefit of the testator's next of kin {Hart v. Marks, 4 Bradf. 161 ; MoLoskey v. Reid, 4 Id. 334 ; Floyd v. Barker, 1 Paige, 480 ; see Weyman v. Bip,- gold, 1 Bradf. 40 ; Downing v. Marshall, 1 Abb. Ct. Apjp. Dec. '525). Death of legatee subsequent to testator's death.'] — Although legacies are not payable until after the expiration of a year from the date of the letters testamentary, the legacy vests on the death of the testator, unless a future time of payment is fixed by the will, and hence the death of the legatee within the year does not effect a lapse, but the interest of the legatee passes to his personal representatives. The distinction between vested and contingent legacies is important as bearing upon the doctrine of lapse. If the legatee acquires only a contingent interest, his death before the happening of the contingency, even after the death of the testator, wiR effect a lapse of the legacy. The cases are very numerous, but uniform in holding the principle that where the wiU defines a future time of payment, the legacy will be vested or contingent, according as it appears whether the intention of the testator was to annex the time to \h.e payment or to the bequest of the legacy — in other words, whether the testator intended as a condition pre- cedent that the legatee should survive the time appointed. The mere circumstance that the gift is future, does not make time of the substance of the gift. That question is determined by the intention as gathered from the whole will, and not by particular expressions ( Yan Wyck v. Bloodgood, 1 Bradf. 154 ; Bxp. Turk, Id. 110). If a legacy is directed to be paid when the legatee attains full age, the gift is absolute, and vests on the death of the testator ; but if it is payable when he comes of age, or if, or pro- vided, he lives tni he is twenty-one, it does not vest tiU the contin- * The principle of survivorship, aa applied to legacies, is stated in Everitt v. Meritt (29 iV. Y. 39, rev'g 29 Barb. 112). 334 • LEGACIES Lapse of Prior Estate. gency happens, and if it never happens, the legacy lapses {Patter- son V. Ellis, 11 Wend. 259 ; Burrill v. 8heil, 2 Barb. 457; Eone V. Van Schaick, 20 Wend. 664 ; Weyman y. Bingold, 1 Bradf. 40). So a bequest of money at' a particular specified time is con- tingent ; though a bequest of money, payable or to be paid at such time, is vested. Thus, where the testator, having bequeathed sev- eral annuities, added, " after the death of the last annuitant, I give and bequeath to A. $2,000," the bequest was held contingent {Andrews v. W. Y. Bihle Society, 4 Sandf. 156). A mere direc- tion as to manner of raising the legacy, as a direction to the exec- utors to seU the real and personal estate after the expiration of one' year from the testator's death, does not make the legacy contingent {Marsh v. Wheeler, 2 Edw. 156). * Lapse of prior estate.] — Where the bequest depends upon an intervening estate imder the will, and is thus made to take effect only at the termination of the prior estate, and the prior estate lapses by the death of the legatee or devisee during the life of the testator, this will not defeat the estate over, but it will take effect immediately (see Ncnrris v. Beyea, 13 W. Y. 273 ; Taylor v. Wen- del, 4 Bradf. 324). In such a case both estates vest at the same time, and if both devisees survive the testator, the estate in re- mainder will not fail by the device in remainder dying before the tenant for life {Terrill v. Public Adm^r, 4 Bradf. 245 ; f BarTcer V. Woods, 1 Sandf. Ch. 129 ; see Conklin v. Moore, 2 Bradf. 179). * For other illustrations of legacies held to be contingent or vested, see Tucker V. Ball (1 Barh. 94) ; Sharpsteen v. Tillau, (3 Cow. 651) ; Post v. Horner (30 Barb. 312) ; Williams v. Conrad {Id. 624) ; Theological Seminary v. Kellogg (16 Nl Y. 83) ; Tucker Y. Bishop {Id. 402); Dubois v. Bay {1 Bom. 244); Ennis v. Pentz (3 Bradf. 382); and see ante, p. 322. f In that case the testator gave all his property to his daughter E. for life, and directed that at her death if there should be any failure or deficiency in a legacy contained in the ■will of E., in favor of his adopted daughter C, a sufficient amount to make up the sum should be paid out of his estate to C, her executors, adminis- trators, and assigns ; and C. died before E. It was held that the legacy, imder the testator's will, became due on the death of C, and was transmissible to her legal representatives. In Anthony v. Browwer (31 Sow. Pr. 128), a fund was bequeathed to a brother of testator, subject to an annuity to be paid to a sister during her life. The brother died during the lifetime of the testator. It was held that the legacy lapsed ; and the fund, after the discharge of the annuity charged upon it, would be distributable as in case of intestacy. In Adams v. Beekman (1 Paige, 631) there was LEGACIES. 335 Legacies Charged on Land. — Effect of Lapse. Legacies charged on lo.nd.'] — Legacies charged on land lapse, if the legatee die before the time of payment, unless the payment is deferred to accommodate the estate, and not out of regard to the condition or circumstances of the legatee {Marsh v. Wheeler, 2 Mw. 168 ; Harris v. Fly, 7 JPaige, 429 ; Birdsall v. Hewlett,* 1 Id. 32 ; Sweet v. Chase, 2 N. Y. 72). Effect of laj)se.] — Where a legacy lapses, it falls into the re- siduum. If there be no residuary bequest, it will go to the next of kin as estate undisposed of under the will {Armstrong y. JHoran, 1 . Bradf. 314). But if a devise of real property fails, whether be- cause it was originally void, or because no one of the devisees named is competent to take under it, the property does not go to residuary devisees, but (under 2 B,. S. 57, § 4) to the heirs of the testator {Downing v. Marshall, 23 N. Y. 366 ; see Leslie v. Mar- sJmII, 31 Barb. 560). ARTICLE EIGHTH. TRUSTS. EESTEAINTS UPON ALIENATIOH AND ACCUMULATIONS. The provisions of the Eevised Statutes relative to uses and trusts, and to accumulations, and to restraints upon the power of alienation, were so carefully framed by the revisors, that the legislature has had no occasion to alter them since their adoption in 1830, and the courts have found little difficulty in determining their proper construction. The cases involving the application of these provisions to particular, and often complicated, testamentary dispositions have been very numerous, and furnish many curious examples 'of the ingenuity of testators in their attempts'to contra- a bequest in remainder after the determination of a particular estate, with an execu- tory limitation over in case of the death of the legatee. It was held that such dying was to be applied to the time when the remainder takes effect in possession, and not to the time of the testator's death ; that the legatee took but a contingent interest, which was divested by his death during the continuance of the particular estate, and the limitation over took effect. * In Birdsall v. Hewlett (1 Paige, 32), Chancellor Walworth said he was not aware that the rule stated had ever been extended to a case where the estate was devised to a stranger upon the express condition that he paid the legacy charged thereon. 336 LEGACIES. Express Trusts. vene tlie restraints upon alienation of estates, as well as tlie acute- ness and persistence of Judges in detecting and frustrating sucli intention. A statement of the statutory rules on the subject, with a bare reference to the cases which • have arisen under them, will be all that the scope and purpose of this volume wiU permit. Express trusts.] — The statute provides (1 _Ji. S. 728, § 55) that express trusts may be created (1) to seU lands for the benefit of creditors ; (2) to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon ; (3) to receive rents and profits of lands, and to apply them to the use of any person, during Hf e, or for any shorter term, subject to the rules and limitation prescribed by the statute ; (4) to receive the rents and profits of lands, and to accumulate the same for the pur- poses and within the limits prescribed by the statute.* By the act of 18i0 (Z. 1840, 267, c. 318), real and personal estate may be granted and conveyed to any incorporated college or other literary incorporated institution in this state to be held in trust, (1) to establish and maintain an observatory ; (2) to found and maintain professorships afld scholarships ; (3) to provide and keep in repair a burial place for the dead ; (4) for any other spe- cific purpose contemplated in the general objects authorized by their respective charters. Eeal and personal estate may also be granted to the corporation of any. city or village of this state in trust for any purpose of education or the diffusion of knowledge, or for the relief of distress, or for parks, gardens or other orna- mental grounds, or grounds for the purposes of military parades and exercise, or health and recreation, within or near such city or village. And property may also be granted to superintendents of common schools of any town, and to trustees of school districts, in • * For the construction of subdivision (1) see Rogers v. Tilley (20 Barb. 641); Darling v. Rogers (22 Wend. 483) ; Van Nest v. Yoe (1 Sandf. Oh. 4) ; Flanck v. Schermerhorn (3 Barh, Ch. 644). The Tvord legatees in subdivision (2) will include emmiitants (see Lang v. Bopke, 6 Sandf. 363 ; ff BrienY. Mooney, 6 Duer, 61 ; Qriffen v. Ford, 1 Bosw. 123 ; Hawley v. James, 16 Wend. 61, reVg 6 Paige, 318 ; Mason v. Jones, 21 Barb. 229, affi'g 2 Sandf. Oh. 432; Hunter v. Hunter, 11 Barb. 25, 90; compare Mnmom v. Cairns, 3 Barb, 243 ; 2 Sandf. Ch. 369). For the construction of the subdivision (3) see Leggett v. Perkim (2 If. Y. 297, 306, 309) ; Leggett v. Hwn- ter (19 Id. 464); Nayes v. Blakemap (6 Id. 581); Oilman v. Reddington (24 Id. 13; 1 Hilt. 492); Rogers v. J^l/ey (20 Barb. 639); Downing v. Marshall (23 N. Y. S11); Coster V. LorilUrd{\i Wend. 818); Hawley v. James (16 Id. 174, 265). LEGACIES. 337 Suspension of Power of Alienation. trust for the benefit of the common schools of the town, or of the schools of the district. By the statute of 1860 (Z. 1860, c. 360), to which we referred on a previous page {ante, p. 315), devises and bequests by a person having a husband, wife, child or parent, to any benevolent, charitable, literary, scientific, religious, or mission- ary society, &c., in trust, of more than one-half of his or her estate, after payment of debts, were declared void, except to the extent of one-half of such estate. Suspension of power of alienation.] — The rules and limita- tions as to the creation of future estates in lands, referred to in the third and f om-th subdivisions (§ 55), wiU be found- in article one of title two, part two, of the Eevised Statutes (1 B. S. 722). The principal of these rules and limitations are those in reference to the suspension of the power of alienation of lands, and of the absolute ownership of personal property. It is declared that every future estate in lands * shall be void in its creation which shall suspend the absolute power of alienation by any limitation or con- dition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, ex- cept that a contingent remainder in fee f may be created on a' prior remainder in fee to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such person may be determined before they attain their full age (1 B. S. 723, §§ 14-16). The cases are uniform in hold- ing that a possibility, at the creation of the limitation, that the event upon which it depends may exceed in point of time the authorized period is fatal to it. The lives must be designated either by naming the persons in particular, or by limiting the estate on the two first lives that shall fall in a class of several in- dividuals. 'So absolute term, however short, can be maintained, * The statute is not restricted to future estates, but applies also to present estates (Coster V. LorilXard, 14 Wend. 265, rev'g 5 Paige, 1'72; Thompson v. Clendimm/, 1 Sand/. Oh. 381; Yates v. Yates, 9 Barh. 324; Amory t. Lord, 9 N. Y. 403). f The exception in favor of contingent remainders does not permit the creation of a contingent remainder to take effect upon the death of the one who takes, under the prior contingency, from the person to whom the first remainder is limited {Temple v. Hawley, 1 Sandf. Oh. 153 ; and see CJiild v. Child, \ N. Y. Leg. Obs. 182; Bviler v. Butler, 3 Barh. Ch. 304). 33 338 LEGACIES. Effect of Illegal Suspension. — Suspension of Ownership of Personal Property. even though it is mentioned in the alternative [Phelps v. Phelps, 28 Barh. 121, and cases in note). It is also well settled that though a devise in trust to sell, with also a discretionary power to receive the rents and profits for a term which might by possibility continue for more than two lives, is void, yet it will be applied as a power in trust to seU, which may be regarded as imperative. In such case, the legal estate descends to the heir, subject to the right of the legatees to have the same converted immediately into per- sonal estate mider the power in trust to sell * ( Van Yechten y.. Van Veghten, 8 Paige, 104). Effect of illegal suspension.] — The statute (1 B. 8. T26, § 4:'0) gives to the persons presumptively entitled to the next eventual estate, income accruing during a suspension of the absolute owner- ship, and of which no disposition or valid accumulation is directed. It is doubtful if this provision applies to the case of income from personal estate ; but if it does, it is only where such income is de- rived from some specific fund, or is distinguishable from that of aU other property {Dodge v. Pond, 23 W. Y. Y9). Suspension of ownership of personal property.] — As to per- sonal property, it is declared that the absolute ownership of per- * The leading case on the construction of the statute is Hawley v. James {\6Wend. 61, reVg 5 Paige, 318). The following oases furnish illustrations of the application of the statute to particular testamentary provisions : HoneY. VanSchaulc{W Wend. 564, affi'g 1 Paige, 221); Oott r. Cook {Id. 521) ; Thompson v. Glendining (1 Sandf. Gh. SSI); McSorleyY. Wilson {i Id. 515); Fields. Field {Id. 528); Tucker v. Tucker (5 N. Y. 408) ; Jennings v. Jennings {1 N. Y. 54^, affi'g 5 Sandf. Hi) ; Amory v. Lord{^ N. Y. 403); Boynton v. Hoyt (1 Dm. 53); Vail v. Vail {1 Sarb. 226); De Barante v. Qott (6 Id. 492) ; Yates v. Yates (9 Id. 324) ; Tayloe v. Gould (10 Id. 388) ; King v. Bundle (15 Id. 139) ; Morgan v. Masterton (4 Sandf. 442) ; Persons v. Snook (40 Barb. 144); Fveritt v. Fveritt (29 Jf. Y. 39, rev'g 29 Barb. 112) Scott y. Monell ; (6 N. Y. Surr. [1 Itedf.'\ 431); Harrison v. Harrison (42 Barb. 162); Eelh v. lynch (8 Bosw. 466); Beekman v. Bonsor (23 N. Y. 298); Cromwell v. Cromwell (2 Edw. 495); Craig v. Hone (2 Id. 554); ITiorn y. Coles (3 Id. 330); Van Vechteny. Van Veghten (8 Paige, 104); Parks r. Parks (9 Id. 107); Wood y. Wood (5 Id. 696); Maurice v. Graham (8 Id. 483); Griffen y. Ford (1 Bosw. 123); Williams y. Williams (8 N. Y. 525) ; Belmont y. QBrim (12 Id. 394) ; Bulkley y. De Feyster (26 Wend. 21, affi'g 8 Paige, 295); Emmons y. Cairns (2 Sandf. Gh. 369) ; Mason y. Mason (2 Id. 432, affi'd 2 Barb. 229); Savage y. Burnham {11 N. Y. 561); Tlvampson v. Thompson (28 Barb. 432); Mortmh v. Morton (8 Id. 18); Arnold y. Gilbert (5 Id. 109, rev'g 3 Sandf. Gh. 5S1); Haxiuny, Corse {2 Barb. Gh. 506); McGowany. McGowan {2 Duer, 67) ; De Kay y. Irving (6 Den. 646, affl'g 9 Paige, 521). LEGACIES. 339 Suspension of Ownership of Personal Property. sonal property shall not be suspended longer tlian during the con- tinuance, and until the termination, of not more than two lives in being at the date of the instrument containing the limitation, or if by will, for not more than two lives in being at the death of the testator. In all other respects, limitations of future or contingent interest in personal property, are subject to the rules prescribed in relation to future estates in lands (1 B. 8. 113, §§ 1, 2). The phrase " suspense of absolute ownership," as used in this statute in relation to personaLproperty, is said to mean the same thing as *" suspense of the power of alienation," as applied to real property •{Emmons Y. Cairns, 3 Barh. '2i^Z ; Mortons. Morton, 8 Id. 18),* and the construction of the two provisions have been to the same effect as to each. Words in a will which amount to a suspension of the power ■ of alienation of lands, wiU be held as suffieient to effect a suspen- sion of the absolute ownership of personal property, and vice versa. That period must be measured by existing lives, or by some more proximate event which may happen during life, and the persons whose lives are to furnish the measure of the suspension must be designated or referred to, so as to be capable of ascertainment in the instrument by which the disposition is made {Everitt v. Everitt, 28 W. T. 39, rev'g 29 Barb. 112). The period of suspension to which it is the purpose of the statute to limit dispositions of property, is the same as to real and personal property, to wit, two lives in beiag ; but there is this marked difference, that in the case of a devise of real property, the lives must be in being at the date of the will, wliUe in the case of a bequest of personal prop- erty, they may be lives in being at the death of the testator. But a bequest of the interest or income of personal estate, to acerae and be received after the death of the testator, is, like a disposition of the rents and profits of land to accrue and be received, subse- quent to the execution of the instrument creating such disposition, a limitation of a future interest or estate, and subject, therefore, to the provisions of the statute in relation to future estates in lands {Hone V. Van Schaiok, 1 Paige, 221 ; Goti v. Cooh, Jd. 621 ; 24 Wend. 641 ; Clute v. Bool, 8 Id. 83).t • * In Converse y. KeUogg (7 Barb. 590), a different yiew is taken. f For illustrations of the application of the statute to particular cases, see Bur- rill y. Shea {2 Barb. 457); WesterfieldY. Westerfield (1 Bradf. 137); Banks v. Phelan (4 Barh. 80); Haxtun y. Corse (2 Bi,rb. Ch. 806); Meld v. Field {i Sandf. Ch. 628); 340 LEGACIES. Accumulations of Income. Accumulations of income.'] — Directions for the accumulation, of rents and profits of real estate, except for the period dnring- whieh the power of alienation of the estate itself can be limited,, are void (1 S. & T25, § 36). Except as specified in the statute, ac- cumulations of income of personal property are placed on the same general footing and are governed by the same rules as aecumulationa of rents and profits of real estate (see Mason v. Jones, 2 JSa/ri. 229 ; Savage v. Burnham, 17 N. Y. 561). The statute provides (1 R. S. Y74, §§ 3, 4), that the accumulation of the income of personal property may be directed as follows : (1) If the accumulation is directed to commence from the date of the instrument or from the death of the person executing the same, it must be for the benefit of one or more minors (see Boynton v. Hayt, 1 Den. 53, 58 ; Haw- ley V. James, 16 Wend. 61) then in being {Oilman v. Beddington, 24 N. Y. 19 ; KiVpatricTc v. Johnson, 15 Id. 322), and terminate at the expiration of their minority ; or (2) if the accumulation is dii'ected to commence at anytime subsequent to the above, it must commence within the time allowed for the suspension of the ab- solute ownership of personal property and during the minority of the beneficiaries, and terminate at the expiration of such minority^ If in either of these cases, the direction for an accumulation is for , a longer term than during the minority of the beneficiaries, the direction, whether separable or not from other provisions of the instrument (see Williams v. Williams, 8 N: Y. 525 ; Kiljpairich V. Johnson, 15 Id. 322 ; King v. Bundle, 16 Barb. 139) is void only as respects the time beyond such minority.* In other words^ a direction for an illegal accumulation does not render a legacy whoUy void, but the direction may be stricken out and the legacy and the general purposes for which it was given may remain ( Williams v. Williams, 8 N. Y. 525 ; see, also. Bodge v. Pond, 23 Id. 67 ; Manice v. Manice, 43 Id. 303 ; Bdbinson v. Bobinson, 1 Bans. 117). Implied directions to accumulate are as much within the prohibition of the statute as those expressly given. If, upon comparing the provisions of the will with the condition of the &ot( T. Cook (1 Paige, 521, aff'd 24 Wend. 641); Sone v. Van Schaick (20 Wend. 221); Converse v. Kellogg (1 Barh. 590); Dodge v. Pond (23 N. Y. 69). * This statute does not apply to or affect property given in perpetuity to religious corporations incorporated under the general statute ( WiUiams v. Williams, 8 N. Y. 625 ; and see Trustees of Theological-Seminary v. Kellogg, 16 Id. 83). LEGACIES. 341 Payment and Investment of Legacies to Minors. •estate, it is apparent that the testator intended an unauthorized ac- CTumilation, this intention can not be carried into effect, and any provision of the will which is dependent upon it is void. This, however, is never permitted to affect any portion of the will not necessarily connected with the illegal accumulation, and which can be readily executed independently of it {Dodge v. Pond, 23 N. Y. T9). ARTICLE NINTH. PAYMENT OF LEGACIES AKD INTEREST. The jurisdiction of surrogates' courts to compel the payment of legacies is mainly, if not exclusively, derived from the statute. It clearly does not extend to the enforcement of legacies charged on the real estate of the testator. "We have reserved for the next suc- ceeding chapter the consideration of the payment of legacies and distributive shares in advance of the final accounting, and we shall have farther occasion to speak of the matter in the chapter on Accounting. Questions in regard to the order of payment of lega- cies, naturally come under the head of abatement, to the considera- tion of which we gave attention in the seventh article of this chapter. It is proposed to speak in this place of a few matters in respect to the payment of legacies, not elsewhere touched on. And first, of the person to whom the legac/ is to be paid. Payment and investment of legacies to minors.] — At common law, the father, as guardian by nature merely, was not permitted to receive legacies bequeathed to his minor children, nor their dis- tributive shares in the surplus of an intestate's estate {Genet v. Tallmadge,, 1 Johns. Ch. 3), a rule which has not been changed by -the Eevised Statutes of this state (2 B. S. 91, § 46), with the ex- ception in favor of legacies under the value of fifty dollars, which the father may receive for the use of the infant legatee. It is open to question where, in case the father is not liviag, the mother would be entitled under the statute, as natural guardian, to receive such a legacy. If the legacy is of the value of fifty doUars or more, the same can be paid, under the direction of the suiTOgate, ±0 a general guardian only, upon his giving security to the minor. 342 LEGACIES. Payment and Inyestment of Legacies to Minors. to be approved by the surrogate, for the faithful application of ani accounting for such legacy {Id. % 4T). This security is in addition to that given by the guardian on his appointment. Until recent statutes (Z. 18Y0, c. 341 ; L. 1871, c. 708), the siirrogate's court had not, as it now has, the power to appoint a guardian of a minor whose father is living. A foreign guardian is not entitled to re- ceive the legacy {MoLoskey v. Reid, 4 Bradf. 334 ; Morrell v> Dickey, 1 Johns. Ch. 153). The surrogate has a discretion as to directing the payment of the legacy to the general guardian, and he is required by the statute, in case he does not direct payment to the general guardian, as well as where no general guardian has been appointed, to direct the investment of the legacy, in permanent securities in the name and for the benefit of the minor, upon annual interest, the interest to be applied, under his direction, to the sup- port and education of the minor * {Id. § 48). The surrogate may order the investment in the mode proposed, or otherwise, as he. may deem best.f Such investment may be directed by the surro- gate on his own motion, on denying an application for payment to the general guardian, or it may be done on the petition of the exec- utor asking an order directing an investment. Such a petition should set forth the facts of the legacy, the minority of the legatee, the non-appointment of a general guardian, or, if there is such guard- ian, his incapacity — {e. g. that he is absent from the comitry, his sureties insolvent, or the like), and the nature of the proposed invest- ment (see Chap. XXI), The general guardian may likewise peti- tion for the payment of the legacy to himself, setting forth the facts and offering the security to be given, and praying a direction ' for payment. The order directing payment of the legacy to the general guardian must be entered upon the surrogate's minutes. In default of such an order, the executor, in making payment, is * It is provided by sections 49, 60, and 51, that where there is no general guard- ian, the surrogate must keep the securities so taken, and collect and apply the in- terest, and when necessary, collect and reinyest tlie principal, and reinvest unex- pended interest ; and he and his sureties are liable to account for the same to the minor on his coming of age, or to his executors or administrators, if the minor dies: before coming of age. f See as to power of courts to appoint the N. Y. Life Insurance & Trust Co. the' guardian of minors, and the duties of that company as guardians, in investing; the minor's estate, L. 1830, c. 75; X. 1834, u. 250; 2 R. 8. 222, § 1, subd. 5. LEGACIES. 343 Legacies to Married Women. — Interest on General Legacies. liable to the minor for the value of the legacy in case of its misap- plication by the euardian. * Legacies to married women.] — The common law rule that a legacy bequeathed to a married woman must be paid to her hus- band (see Howard v. Moffatt, 2 Johns. Ch. 206), has been abro- gated in this state, and married women are expressly authorized to take by inheritance, or by devise or bequest, with like effect as if unmarried. Increase of specijiG legacies.] — A bequest of a specific legacy ■ will carry any accessions by way of increase or interest which shall accrue after the decease of the testator. Interest wiU not be allowed upon a specific legacy as such (see Isenhart v. Brown, 2 Edw. 341) ; but where stocks are specifically bequeathed, the lega- tee is entitled to the dividends accrued since the testator's death {Cogswell v.. Cogswell, 2 Edw. 231), ordinary, as well as extraor- dinary \ClarJcson v. Clarkson, 18 Barl. 646). It is otherwise as to dividends on stock bequeathed by general legacy {Itfft v. Por- • ter, 8 W. Y. 516). Of course," under this rule, a specific legacy of mares, cows, or ewes, wUl carry their progeny. Interest on general legacies.] — Where the testator fixes no time for the payment of a legacy, as he may do, it becomes due and payable at the end of a year from the date of the letters tes- tamentary, and accordingly interest begins to run from that time, for it is a general rule that legacies draw interest from the time they are payable,t whether that time is fixed by the testator in his ■will or by the statute (see Hepburn v. Hepburn, 2 Bradf. Y4 ; Bradner v. Faulkner, 12 N. T. 4Y4 ; Birdsall v. Hewlett, 1 Paige, 33 ; Glen v. Fisher, 6 Johns. Ch. 33 ; Campbell v. Cowdry, 31 How. Pr. 1Y2) ; and notwithstanding the legatee was not at that time in a condition to receive it, or omitted to demand it {Marsh V. Hague, 1 Edw. 1Y4). It is held, however, that a legacy to an executor for executing the oflBce does not in general draw in- terest {Morris v. Kent, 2 Edw. 175). •* As to action by guardian of infant legatee to recover legacy, after expiration of one year, see 2 E. 8. 116, § 12, and^osf, p. 351. f If a legacy is paid before it ia due, it must be upon a rebate of interest (Mc- LosTcey v. Eeid, i Bradf. 334}. 344 LEGACIES. Interest on General Legacies. The first exception tq the general rule is the case of a legacy given by a parent to a child, where no provision is made for its maintenance other than the income derived from the legacies be- queathed. In that case, interest will be computed from the date of the testator's death {King v. Talbot, 40 iT. Z! T6 ; Lupton v. Lupton, 2 Johns. Ch. 614 ; But^tis v. Dodge, 1 Barb. Ch. 77). Other exceptions are the cases of a bequest of a life estate to a child, or to a widow in lieu of dower, in which case the legatees take interest from the testator's decease {Hepburn v. Hepburn, 2 Bradf. 14c ; Parldnson v. Parhinson, Id. 77 ; Seymour v. Butler, 3 Id. 193 ; Williamson v. Williamson, 6 Paige, 298) ; and this, although the legacy is conditional, and not vested {Pinney v. Fancher, 3 Bradf. 198). This exception does not include a legacy to a grandchild ( Van Bramer v. Hoffman, 2 Johns. Gas. 200) ; bnt does include a legacy to an adopted daughter, the testator standing in loco parentis, and there being no other provision for her maintenance [Matter of Williams, 12 N. Y. leg. Obs. 179). A further exception is the case of an annuity bequeathed gen- erally. "Wlere a sum of money is bequeathed to executors, to be . put out at interest and to pay over the income, the legatee is enti- tled to interest from the death of the testator, provided a sufficient amount remains after deducting debts and other legacies {Cooke v. Meeher, 42 Barb. 533 ; Craig v. Craig, 3 Barb. Ch. 76 ; Pierce v. Chamberlain, 41 How. Pr. 501 ; Fish's Estate, 19 Abb. Pr. 209 ; and compare Pa/rsons v. Lyman, 28 Barb. 564, rev'g 4 Bradf. 268).* A direction in the will that the legacy be paid with interest, but no time being specified from which interest is to be computed, does not change the rule that interest commences from the expira- tion of the year {Lawrence v. Embree, 3 Bradf. 364 ; see Booth v. Amerman, 4 Id. 129). "Where there is no direction as to interest, but the legacy is made payable at a future day, it does not carry interest until after it is payable, unless it is to a child for whom * The will provided for the payment of an annuity to the testator's widow, in equal quarterly payments, naming the quarter days, to commence immediately after the testator's decease ; — Held, that though the testator died intermediate two quarter days, there should be no apportionment, but a full quarterly payment became due on the quarter day immediately succeeding his death {Griswold r. Gi-iswoU, 4 Bradf . 216). LEGACIES. 345 Income before Time of Payment. — Legacies Chai-ged on Land. the parent has made no other provision by- his will* {Lupton v. Zupton, 2 Johns. Oh. 614 ; Miller v. Philip, 5 Paige, 573). And ■where some action is made necessary on the part of the legatee by the terms of the will — e. g., proceedings for the sale of property to have a legacy paid — the legatee can not claim interest during Ms delay to institute such proceedings [Crocheron v. Jaques, 3 Edw. 207). A remainder-man is entitled to interest only from the termination of the life estate {Podge v. Manning, 1 iV. Y. 298). Income 'before time of payment.'] — ^Where a legacy is given to be paid at a future day, the amount should be raised from the personal estate, and. invested until it becomes payable ; and the in- terest in the mean time, if not otherwise disposed of,, belongs to the widow and next of kin {Hone v. Van Sohaich, Y Paige, 221, affi'd 20 Wend. 564). The executor may take one year to make the investment, in analogy to the time allowed by law for paying legacies {Cogswell v. Cogswell, 2 Edw. 231). Unless under special circumstances, interest is not allowed upon arrears of an annuity {Isenhart v. .Brown, 2 Edw. 341 ; compare Lawrence v. Emhree, 3Bradf364:). Legacies charged on land.] — -A devisee of lands chargeable with a legacy is liable to pay interest on the legacy from the time it was payable, whether payment was demanded or not {Glen v. Fisher, 6 Johns. Ch. 33 ; Birdsall v. Hewlett, 1 Paige, 32 ; Tole V. Hardy, 6 Cow. 333). In such a case the legacy is an equitable charge upon the land, although the devisee is also the executor or residuary legatee, unless the will indicates a contrary .intention ' {Harris v. Fly, 1 Paige, 421 ; Dodge v. Manning, 11 Id. 334 ; JenJcins v. Freyer, 4 Id. 47 ; Li/oingston v. Freeland, 3 Barb. Ch. 510). If he accept the devise, he is personally liable for the legacy in eguity, without, an express promise {Id. ; Kelsey v. "Western, 2 N. Y. 500) ; f and, at la/w, upon an express promise made after the * As to interest on a legacy to a posthumous child, see Lawrence v. Lawrence (1 Edw. 557). ■j- In that case, the devisee gave the legatee a bond to pay whatever was due from the estate, and the legatee, by writing under seal, acknowledged that she had received the bond in fall of all demands against the devisee, who was also the executor ; — 346 LEGACIES. Legacies Charged on Land. executors had assented to the legacy, and in consideration of his hav- ing become seized under the devise {Beedker v. Seecher, Y Johns. 99) ; but an action at law will not lie upon a mere implied assump- sit arising from the devise {Livingston v. Livingston, 3 Johns. 189 ; compare Lockwood v. Stockholm, 11 Paige, 87). Whether a leg- acy is a charge upon the real estate of the testator depends upon the intention of the testator, either clearly expressed by the will, or with equal clearness inferred from the language and dispositions of the instrument. Where there is not a clear and manifest in-' tention on the part of the testator to charge a legacy upon lands, and the personal estate is not in terms exonerated, and is not specifically given away by the wiU, it will be deemed the primary fund for the payment of legacies, notwithstanding such legacies, by the terms of the will, are expressly charged upon devisees {Hoes V. Van Roesen, 1 W. T. 120, affi'g 1 Barb. Ch. 379 ; see Dodge V. Manning, 1 iT. Y. 298 ; Kelsey v. Western, 2 Id. 500 ; Clason V. Lawrence, 3 LSdw. 48). The usual clause devising aU the rest of the testator's real and personal estate not before devised, is not sufficient to show an intention to charge the real estate ; nor is the mere direction that all debts and legacies are to be psild {Lupton v. Lupton, 2 Johns. Ch. 614). But where the testator directs his debts to be first paid, and then devises real estate, or where he devises the residue of his estate, real and personal, after payment of debts and legacies, and there is a deficiency of assets to pay the debts or legacies, an intention to charge the real property will be inferred {Rafferty v. Clark, 1 Bradf. 473 ; Fh/nn v. Croniken, 7 How. Pr. 214 ; and see Reynolds v. Reynolds, 16 N. Y. 257 ; Tracy y. Tracy, 15 Barh. 503). Held, no extinguishment of the charge upon the land, but only a collateral agreement. It was also held that if the devisee sells the land charged with a legacy.for which he is also personally liable, the purchaser can insist that both the remedy against the personal estate and that against the personal liability of the devisee be exhausted before coming upon the land. CHAPTER XIX. PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES IN ADVANCE OF FINAL ACCOUNTING AND DISTRIBUTION. Payment within the year.} — The final distribution of the sur- plus of the estate, after the payment of debts, can not, of course, be made until the executor or administrator has turned the assets into money, and, so far as necessary, has given full opportunity for pres- entation of all the debts, and has had his last account finally settled by the smTOgate. In order to give adequate time to creditors to present their claims, this settlement must be postponed for at least a year after the issue of letters. But it is often necessary and proper that legatees should be paid before the lapse of that time, or that a part of the shares or portions coming to the widow and next of kui should be advanced to them from the estate for their support mean- while. The statute, while it gives no absolute right to the legatees and next of. kin to insist on payment of what is coming to them from the estate until opportunity has been given to satisfy all cred- itors who present their claims, yet allows the executor or adminis- trator, at his own peril, to make such payments to legatees and next of kin in advance ; and moreover, affords means by which the leg- atees and next of kin may appeal to the discretion of the surrogate to direct a payment or part payment in advance of the final settle- ment of the estate, if the condition of the assets is such as to make it safe to allow so doing. Ordinary time of payment of legacy.] — By the common law, where no time of payment is fixed in the will in respect to a legacy, the legacy is not due until the lapse of a year from the death of the testator, or the granting of letters (Bradner v. Faulkner, 12 N. Y. 472 ; Lawrence v. Embree, 3 Bradf. 364 ; Cooh v. Meeker, 36 N. Y. 15). This rule, however, does not apply to annuities or legacies given for maintenance and support of a person who stands in the position of a child to the testator (see ante, p. 344). But otherwise the rule is one of general application, and it has been 348 PAYMENT OF LEGACIES, d. 630). The surro- gate, after hearing the parties, simply orders that admeasurement be made of such widow's dower, of all the lands of her husband, 438 ADMEASUREMENT OF DOWEE. Commissioners. — Mode of Admeasurement. or of part thereof, according as is specified in the application (2: E. S. 489, § 9). Commissioners.'] — For this purpose, the surrogate appoints three reputable and disinterested freeholders, commissioners ; and the order must specify the lands of which dower is to be admeas- ured, and require the commissioners to report at a specified time (2 a. S. 489, § 10). Before entering upon their duties, the com- missioners must take oath that they will faithfully, honestly and impartially discharge the duties, and execute the trust reposed in them by such appointment. If any of them dies, resigns, or neg- lects or refuses to serve, another may be appointed and take oath {Ih. § 12 ; White v. Story, 2 Hill, 543) ; and the court may, on the. application of the commissioners, or of either party, enlarge the time to report, and may compel a report, or discharge commis- sioners who neglect to report {Ih. § 14) ; and when a report is made, may set it aside for cause ; and in either case may appoint new commissioners {Ih. §§ 14, 16). Notice of meeting of commissioners ^^ — It is proper practice for the moving party to give notice of the meeting of the com- missioners, so that aU parties interested may have the opportunity of being heard in regard to the determination which is to be made ; and proceeding without notice would be deemed irregular ; but where it appears that all parties had actual knowledge of the times of meeting, and no unfairness or injustice appear to have been done,' the mere omission to give formal notice affords no ground for refusing to confirm the repoi;t {Smith v. Smith, 6 Lans. 313). Mode of admeasurement.^ — The commissioners may employ a surveyor and necessary assistants, and must admeasure and lay off, as speedily as possible, the one-third part of the lands embraced in t^e order, designating such part with posts, stones, or other per- manent monuments. In making such admeasurement, they must take into view any permanent improvements made on the lands embraced in the order, by any heir, guardian of minors, or other owners, since the death of the husband, or the alienation by him ; and if practicable, must award such improvements within that part of the lands not allotted to the widow ; and if this be not practicable, they must make a deduction from the lands allotted to. ADMEASUEEMENT OF DOWER. 439 Confirmation of Report. — Appeal. her, proportionate to the benefit she will derive from soph part of the improvements as are included in the portion assigned to her.* They must make a full and ample report of their proceedings, with the quantity, courses and distances of the land admeasured and allotted by them to the widow, with a description of the monu- ments thereof, and the items of their charges (2 H. S. 490, § 13). Confirmation of report.'] — The surrogate, if he does not set aside the report, must, by order, confirm it, and must file it, and enter it in his records (2 B. S. 490, §§ 15, 16) ; and, at the expira- ' tion of 30 days from date of confirmation, the admeasurement, if not appealed from, becomes binding and conclusive as to the locar tion and extent of the right of dower, on the parties who apply for it, and all to whom notice has been given pursuant to the stat- ute. Thereupon the widow may bring an action to recover pos- session, if her right to dower is controverted {Ih. §§ 17, 18). A notice of motion to confirm is not necessary, if the order appoint- ing the admeasurers specifies the time of their reporting, and if, in case of delay, regular adjournments have been had ( White v. Story, 2 Bill, 543). Effect of the report.'] — Although, as has been stated, the ad- measurement does not conclude the right and title, it is binding and conclusive as to the location and extent of the dower ; and, after confirmation of the report, the widow has no right of dower in the part not assigned to her {Graham v. Linden, 50 N. Y. 54T). Appeal?^ — The widow, or any heir or owner of lands affected by the proceedings, or his guardian if a minor, may appeal from the order of confirmation, within thirty days, to the general term of the supreme court (2 R. /S*491, § 19 ; Id. 611, § 118), and by writ of error, to the court' of appeals {Code of Pro. § 471). The appeal must be filed with the surrogate (2 B,. 8. 491, § 20), and the appellant must execute and file with the surrogate a bond with . * See alBO, as to improTements, Coates v. Cheever (1 Cow. 460) ; as to increase in value. Walker T. Schuyler (10 TFend 480, and cases cited); Van Gelder r. J'ost(2 Edw. 611) ; Farlcs v. Hardey (4 Bradf. 15) ; Haie v. James (6 JoTim. Oh. 258) ; Dolf V. Bassett (15 Johns. 21); Marble v. Zeiois (53 Barb. 432); as to crops, Caine v. Fisher (6 N. Y. 597) ; as to mines, Coates v. Cheever (above cited) ; as to assigning part of a single lot or building. White v. Story (2 Hill, 543) ; Parks v. Hardey (above cited) ; Stewart v. Smith (4 Abb. Ct. App. Dec. 306). 440 ADMEASUREMENT OF DOWER. Forms. security to. be approved by him in the penal sum of $100, condi- tioned for the diligent prosecution of the appeal and for the pay- ment of the costs of appeal. No other notice or proceeding is necessary to perfect the appeal {Id.) On the filing of the appeal and bond, the surrogate, as on ordinary appeals, makes up his re- turn, including the petition, affidavits, notices, orders, reports, and all other proceediags on the application {Id. § 21). The appellate court wiU review all the proceedings, and " do therein what shall be just " {Id. § 22) ; but only the regularity and fairness of the proceedings will be examined into {Hyde v. Hyde, 4 Wend. 630) ; and to this end, it may direct a further return by the surrogate, when necessary. Notices of hearing of the appeal, and other nec- essary notices in the appellate court may be made upon non-resident parties by leaving the same with the surrogate. In case of the affirmance of the order of confirmation, the appellate court may • award costs against the appellant ; * and the original order of con- firmation, and the admeasurement confirmed thereby, are declared to be binding and conclusive, and to authorize an action of eject- ment to recover possession of the admeasured lands (2 B. S. 492, § 25). In case of the reversal of the order of confirmation, on the same being certified to the surrogate, he may proceed to ap- point new commissioners, or make a new admeasurement, as the supreme court may direct, or the latter court may proceed to make admeasurement in the same manner as upon an original application to that court {Id. § 23 ; see L. 1873, c. 239 ; Coates v. Cheever,^ 1 Cow. 460, 480). Forms.'] — For forms of petition, order, report, &c., see Forms in Appendix, post. * As to rate of costs and manner of taxation, see Western v. Romaine (1 Bradf. 37); White V. Story (2 Hill, 543); Buchway t. Jemett (16 Barb. 590); Smith t. Smiih (6 Lam. 313). CHAPTEE XXVI. FEES AND COSTS. Costs.] — In cases of contest in the surrogate's court, the surro- gate may award costs to the party in his judgment entitled thereto, to be paid personally by the unsuccessful party, or out of the es- tate which is the subject of controversy (2 S. S. 223, § 10; Holmes v. Cock, 2 Barb. Ch. 426 ; and see ante, p. 18). Accord- ing to the opinion of the surrogate in Western v. liomaine (1 Bradf. 37),. and of the supreme court in Willcox v. Smith (26 Barb. 316), the allowances of costs (except in' the county of ISTew York), are still to be regulated according to the rates prescribed for costs in the old county courts of common pleas, by the fee bill of 1830 (Z. 1837, c. 460, § 70; 2 i?. *y. 1st ed. 636, § 27; same Stat. 2 B. 8. 2d ed. 628 [marg. 636]) ; and this opinion is adopted by the statute revision commission {Bev. Stat, as reported by the Com. Pt. Ill, c. 18, § 2860, note). The rates prescribed by the common pleas fee bill are as f oUows : Fees of attorneys in courts of common pleas and mayor's courts.] — For a retaining fee, two dollars and fifty cents ; but no such fee shall be allowed to the plaintiffs attorney in any suit upon a bond taken on the arrest of a defendant ; nor to the de- fendant's attorney, for confessing judgment, where no suit shall have been actually brought : For every necessary ordinary motion, twenty-five cents : Arguing every special motion, one doUar : Drawing a declaration, one dollar and fifty cents ; copy thereof, seventy-five cents : Drawing a plea, twenty-five cents ; copy thereof, twelve and a haK cents : Drawing a writ of inquiry, and copy, one dollar and twelve and a haK cents : Drawing and copy of every brief, seventy-five cents : Every notice of trial, copy and service, twenty-five cents : 442 FEES AJSTD COSTS. Payment of Costs and Expenses on Probate. Note of issue for the clerk, and serving, twelve and a half cents : Every other notice in any cause or proceeding, copy and serv- ice, nineteen cents : Drawing aU other pleadings, suggestions, entries, special ver- dicts, biQs of exception, demurrers to evidence, cases and process, which shall be necessary, and all other necessary entries and pro- ceedings in a cause, according to the practice of the court, and for which no special provision is herein made, eighteen cents for each folio : For engrossing or copying the same, including all records, writs, returns, pleadings, instruments, and all other writings nec- essarily inserted, nine cents for each folio : But where any fee is prescribed for any process by name, either for the attorney or clerk issuing the same, no charge shall be made for the draft or copy of such process : Fee on trial, or reference, for arguing a demurrer, special ver- dict, bill of exceptions, demurrer to evidence, or any case or mo- tion for a new trial ; or attending prepared for such trial, reference or argument, in pursuance of notice, two dollars : For attending the execution of a writ of inquiry, or the assess- ment of damages by the clerk, one dollar : Attendance before a judge, on examining a witness, showing cause of action, motion to mitigate bail, on the taxation of costs, or other special matters; or upon motion for any necessary order which shall be granted ; twenty-five cents : Drawing and copy of a bill of costs, twenty-five cents ; and for each copy actually delivered to any party in the cause, at his re- quest, twelve and a half cents : Drawing and copy of a record of judgment, two dollars and twenty-five cents. Payment of costs and expenses on jprobateP^ — The surrogate's fees and expenses on an application to revoke probate, must be paid by the party contesting the validity of the will, or the probate thereof, in case the will or probate is confirmed ; and in case the probate is revoked, the party resisting such revocation may be re- quired, by the surrogate, to pay the costs and expenses of the pro- ceedings, either personally, or out of the estate. In all eases, such FEES AND COSTS. 448 On CompeUing Return of Inventory. — Official Fees. payment may be enforced by process of attachment (2 R. 8. 63, § 39). On compelling return of inventory.] — ^Whenever any executor, administrator or guardian has been compelled by summons, order or citation, issued by a surrogate, to render and file an inventory and appraisal, or an account of the property and estate in his hands, the costs of such compulsory proceeding may, in the discretion of the surrogate, be charged upon such executor, administrator or guardian, personally (Z. 1867, c. Y82, § 8). On accounting.] — A creditor calling an executor or adminis- trator to account can not recover costs unless he obtains a dividend ; nor can the executor or administrator be charged with costs unless he has been in fault {Griffith v. Beecher, 10 Barh. 432). And counsel, not being parties to proceedings before a surrogate on a final accounting, can not have costs awarded to them. The statute (2 B. S. 223, § 10) only authorizes the surrogate to award costs to parties ( Willcox v. Smith, 26 Barh. 316). But the statute which regulates the commissions of executors and administrators, provides that there shall be allowed on each settlement, such sum for coun- sel fee on the final settlement of an account, and for preparing therefor, as to the surrogate seems reasonable, not exceeding ten dollars for each day engaged therein (2 E. 8. 93, § 58 ; am'd L. 1849, c. 160, § 11, and by Z. 1863, c. 362, § 8). On admeasurement.] — Costs of proceedings for admeasurement of dower are taxable by the surrogate, and, if no appeal be taken, payable one-half by the widow and one-half by the adverse par- ties. If an appeal is taken from the order confirming the report, the costs of the proceedings for admeasurement must be paid by the party who applied for the admeasurement (2 B. 8. 492, §§ 25, 26). Official fees.] — The surrogate is not allowed to charge or re- ceive any fee or compensation for any official services performed by him, except for copies of records or papers (Z. 1867, c. 782, § 16, as am'd by Z. 1869, c. 246, § 1, and Z. 1870, c. 359, § 14),* * By act of April 25tli, 186*? (Z. 1867, c. 782), .it was provided that, after the passage of that act, no surrogate should charge or receive any fee or compensation for 44A FEES AND COSTS. Appraisers. — Guardians ad litem. and for these he is allowed to receive the same fees as he was al- lowed before the passage of the act of 1867 (lb.) The fees which he was allowed before 1867 were regulated in detail by Z. 1844, c. 300, § 2. Ey that act he is allowed for copies and exemplifica- tions of any record, proceeding, or order had or made before himj or of any papers filed in his office transmitted on an appeal, or , furnished to any party on his request, six cents for every folio. * Appraisers.} — Where appraisers are appointed on the applica- tion of an executor or administrator, such appraisers are entitled to receive a reasonable compensation for their services, to be al- lowed by the surrogate (Z. 1873, c. 225). The surrogate can not aUow, however, more than five dollars per day to each appraiser, for each day actiially employed for making the appraisement or inventory, in addition to the actual expenses necessarily incurred (Z5.) The number of days' services rendered, and the amount of the expenses must be verified by the affidavit of the appraiser per- forming the service ; and this affidavit must be made and delivered to the executor or administrator before payment of the fees, and must be adjusted by the surrogate {li.) Auditors.] — The statute (2 H. S. 94, § 64) which authorizes the surrogate to appoint auditors to examine the accounts of exec- utors and administrators, empowers him to make a reasonable allowance to such auditors, not exceeding two dollars per day, to be paid out of the estate. Guardians ad litem.] — As to the compensation of special guardians, there is no statutory provision respecting it ; but the authority to appoint implies an authority to compensate such a guardian, and the practice is to make an allowance payable out of any official services performed by him. By act of April 19tli, 1&69, the act of 1867 was amended by alloTring him to charge for copies of records and papers, and -exempting the city and county of New York from the operation of the act. By Z. ISM, 0. 359, § 14, the city and county of New York was again brought within the act. * The surrogate is allowed for searching the records of his office for any one year, twelve and one-half cents ; and for every additional year, six cents ; but not more than twenty-five cents can be charged or received for any one search (i. 1844, ■c. 300, § 2). FEES AND COSTS. 445 Bounty and Prize Money. — Sale of Lands. the general estate, proportioned to the character and importance of the interests involved and the' services rendered. Bounty and prize money. '\ — In all cases of the appointment of guardians, where it appears that the application is made for the purpose of enabling the minor or minors to receive bounty, arrears of pay, or prize money or pension due, or other dues or gratuity from the federal or state government, for the services of the parent or brother of such miaor or minors in the military or naval service of the United States, no surrogate's fees shall be charged or re- ceived (Z. 1863, c. 362, § 7, as am'd by L. 1864, c. 420, § 1 ; Z. 1866, c. 784, § 1). Estates less than one thousand dollars.'] — If the inventory of the personal property of a deceased, filed in the office of the sur- rogate, does not exceed $1,000, no* fees for any service done or per- formed by the surrogate can be charged to or received from the executor or administrator. And if the petition for letters alleges that, in the belief of the petitioner, the inventory will not exceed $1,000, no fees can be received until it appears from the inventory, when filed, that the personal property does exceed that sum (Z. 1863, c. 362, § Y, as am'd by Z. 1864, c. 420, § 1, and Z. 1866, c. 784, § 1). Witnesses' fees.} — ^Witnesses to prove a wiU are allowed the like fees for their attendance as are allowed for similar services in personal actions, to be paid by the person applying to have the wiU proved (2 E. 8. 59, § 19). Sale of lands.] — For the fees and costs allowed by the surrogate upon a sale, mortgage, or lease of land under his order, see antey p. 275. CHAPTER XXVII. APPEALS FROM SURROGATES. Art. 1. — In general. 2. — When an appeal will lie. 3. — Who may appeal. 4. — Parties, notice, security and stay of proceedings. B. — ^The petition, answer and surrogate's return. 6. — The hearing. '7. — The decree and costs. 8. — Enforcement of demee. ARTICLE FIRST. IN GENERAL. Appellate jurisdiction.] — ^By the judicial system of this state * an appeal lies to the supreme court from a surrogate's decis- ion upon all questions of law, and even to some extent upon matters of judicial discretion. Under the Kevised Statutes, and before the adoption of the Constitution of 1846, the decisions of surrogates were reviewed on appeal in the court of chancery ; and the cases in which appeals would lie from the decisions of the sur- rogate, and the mode of taking such appeals, were regulated in great detail by the provisions of the Revised Statutes. When the court of chancery was abolished by the Constitution of 1846, and the present judicial system organized, under which the supreme court possesses a general jurisdiction in law and in equity, it was provided that appeals might be brought to the supreme court from the decisions, decrees or orders of the surrogate in all cases where appeals might previously have been brought from surrogates to * In this respect the New York practice ia in accordance with that of most of the American states, which generally allow appeals from surrogates' courts to the high- eat judicial tribunal of the state. APPEALS FROM SURROGATES. 447 Two Classes of Appeals. 'the chancellor or circuit judge.* And the laws respecting appeals in such cases, the time, manner and effect of bringiag them, and the security to be giyen, and the staying of proceedings therein, were declared to apply in such cases so far as they were applicable and consistent with the Constitution and the judiciary act (Z. 1847, c. 280, p. 324, § 17). When the Code of Procedure was adopted, by which the procedure in civil actions generally, as well as in some special proceedings, was regulated, it was provided that, un- til the legislature should otherwise authorize and direct, the new provisions applicable to appeals in actions should not affect appeals from surrogates' courts (Code of Pro. % 471). And under these changes in the law, it has been held that the provisions of the statute regulating the course of proceedings on appeal from the decree of a surrogate, and the practice in respect thereto, have not been changed by the joining of the legal and equitable jurisdiction in the same supreme court {Johnson v. Hicks, 1 Lans. 150). The whole proceeding is still under the Revised Statutes, except so far as the rules of court, as will be hereafter explained, have modi- fied the procedure ; and the provisions of the Code have, there- fore, no application to these appeals {S^oUs v. Bumesnil, 47 N. Y. 677 ; 12 All. Fr. IT. 8. 117 ; Rowland v. Taylor, 53 iV^. Y. 627 ; Brockwanj v. Jewett, 16 Barl. 590 ; Sherman v. Youngs^ 6 How. Pr. 318). The appeal is in form to the supreme court. Like other appeals, in that court, it is heard at a general term ( Watts v. Aikin, 4 How. Pr. 439 ; Wever v. Marvin, 14 Barl. 376 ; Marvvn v. Ma/rvin, 3 All. Ct. App. Dec. 192, 197) ; and after the appeal is perfected, motions made in the matter — e. g., a motion to compel the surrogate's return, or to dismiss an appeal for irregular- ity — are to be made at special term, as if the cause originated in the supreme court {Gardner v. Brown, 5 How. Pr. 351 ; Spotts V. Dvmesnil, 12 All. Pr. If. S. 117). Two classes of appeals.} — It wUl be observed on a more full explanation in regard to appeals in particular cases, that there are two classes of appeals from decisions of surrogates which are, treated differently, and determined upon different priaciples. In * By act of April 5tli, 1848 (i. 1848, c. 185), provision was made for the hearing, by the supreme court, of appeals taken to the then late circuit judges from decisions of surrogates in matters relating to the probate of wills. 448 APPEALS FROM SUBROGATES. Two Classes of Appeals. general, the supreme court, in examining such appeals, is at libertj to examine the whole case as well upon the facts as upon the law, so far as questions of either kind are presented. And in Id. ^^1).* Infants.] — ^Where an infant is interested, his guardian should be a party, or if there be no guardian, one should be appointed for the purposes of the appeal {Kellinger v. Soe, 1 Paige, 362). If the surrogate denies the application for the appointment of a guardian, the infant himself may be made a respondent. The relatives of the infant who opposed the appointment are not nec- essary or proper parties {Ih. ; Chaffee v. Baptist Missionary Con. 10 Paige, 85 ; Underhill v. Dennis, 9 Id. 202). Decree of distribution.] — On appeal from a surrogate's decree of distribution, all persons to whom sums are awarded, and who are, therefore, interested in maintaining his decree, should be made parties in the petition of appeal, although they were not parties to the proceedings before the surrogate {Willcox v. Smith, 26 Barb. 316 ; Gilchrist v. Pea, 9 Paige, 66. Compare Jauney v. Rutherford, Id. 273 ; and see Matter of Thompson, 11 Id. 453). NoUce of appeal.] — ~Eo formal notice of appeal is required to be given to the adverse party. The filing of the petition of ap- peal in the oflBce of the surrogate and giving the requisite bond, is made by the statute (2 P. S. 611, § IIT), suflEicient notice to the adverse party, without any other notice. Security on appeal?^ — In order to render the appeal from a decree in probate proceedings valid and effectual, the appellant * Where there is any defect of parties, the appeal may not only be dismissed on motion, but though no motion on that ground ia made, yet the appellate court will not reverse the decree appealed from, however erroneous it may deem it to be iBrown. t. EvanSf 34 Barb. 594). 454 APPEALS FROM SUBROGATES. Secnrity on Appeal. must, at the time of filing his petition of appeal, executs and. file * with the surrogate a bond, in the penalty of one hundred dollars to the j?eqpZe of the state, with such security as the surro- gate may approve, conditioned for the diligent prosecution of the appeal, and for the payment of such costs as may be taxed against him if he fail to obtain a reversal of the decision so appealed from (2 R. S. ^lo^ §§ 56, 56). In aU other appeals not specially otherwise provided for, the appellant is required to file a bond with the surrogate, with two sufficient sureties to be approved f by him, in the penalty at least of one hundred dollars to the ad- verse pa/rty, conditioned substantially that the appellant will prose- cute his appeal, and wiU pay all costs that shaU be adjudged against him by the supreme court % (2 B. S. 610, § 108). The bond should be to the respondent alone, and not in the alternative to the people of the state or to the respondent (Ma/rvin v. Marvin,. 11 Abb. Pr. W. S. 97). It is not necessary that the bond should conform in all respects to the form prescribed by statute. It is enough (under 2 M. S. 556, § 33) if it is sufficient in substance, so as to protect and secure to the party for whose benefit it is given all his rights {Foster v. Foster, 1 Paige, 48). The condition to prosecute the appeal to effect means to prosecute it to a reversal^ and the sureties will be liable for the damages as well as the .costs which may be awarded on an affirmance (JSlcidmore v. Dalies, 10 Paige, 316). Where an appeal from several orders is in the nature of two distinct appsals, either two bonds, or one bond with a penalty and condition broad enough to cover the damages and costs on both appeals, should be given (/5.) The provision requiring the security to be given is imperative,, and the appeal is not effectual for any purpose if the security is not given. The 'court can not cure the defect by allowing the bond to be filed nunepo'o tunc {Spotts v. Dumesnil, 12 Abb. Pr. * Where a surrogate retained the appeal and bond, and put them in a drawer in his office, marked as left by the attorney on a certain day, — Held, a sufficient filing to comply "with the statute {Cullen v. Miller, 9 N. Y. Leg. Obs. 62). f If the bond is not approved by the surrogate within the thne aBowed by law for appealing, the appeal is irregular, and must be dismissed ( Van Slyke v. iSchmeck, 10 Paige, 301). j: This requirement is not repealed as to the county of New York by the act of 1810 {Z. 1870, c. 359, §12), which see, /os<, p. 455 {SpomY. Dvmemil, MAbh.Pr.N. 8. 117). • APPEALS FROM SURROGATES. 455 Order Allowing Execution to Issue. — Orders for Deposit or Payment of Money. N. 8. IIY). But where a defect in the bond is amendable, as, for instance, where it is drawn to run both to the people and to the respondent, instead of simply to the people, it may be cured by allowing the parties to stipulate for its amendment {Marvin v. Marvin, 11 Ahb. Pr. N. S. 91) ; and this may be done on the hearing of the respondent's motion to dismiss the appeal on the ground of such defect {lb.) Order allowing execution to issue.l — "Where a creditor, after having obtained a judgment after a trial at law upon the merits, obtains an order allowing execution to issue, an appeal from such an order can not be made, unless the person making it execute to the plaintiff in such execution a bond, with sufficient sureties, to be approved of by the surrogate, conditioned for the payment of the first amount so directed to be levied, with interest thereon, and the costs of defending the appeal, in case the order appealed from shall be affirmed (2 E. S. 116, § 21). And where the bond given is for costs of appeal only, instead of for the amount which the order directs to be levied, with interest and costs, this is fatal to the appeal {Th. ; Mount v. Mitchell, 31 N. Y. ^6 ; s. c. 19 Aib. Pr. 1, rev'g s. c. 17 Id. 265). But where the surrogate orders execution on a judgment not obtained upon a trial of the merits, the provisions of "the above statute have no application, and the case falls under the general rule of 2 P. S. 610, § 108 {Davies v. Skidmore, 5 Hill, 501). Admeasurement of dower.] — Appeals in dower cases are not effectual or valid for any purpose untU a bond to the adverse party has been executed by the appellant, and filed with the surro- gate, with security approved by him, evidenced by indorsement on the bond, and in the penal sum of one hundred dollars, conditioned for the diligent prosecution of the appeal, and for the payment of all costs that may be adjudged by the supreme coujt against the appeUant (2 P. S. 491, § 20). Orders for deposit or payment of money. \ — The act in relation to the surrogate of ISTew York provides that no appeal shall be taken from any decree or order of said surrogate directing or re- quiring the deposit of money in a trust company, or the payment or distribution of trust funds or moneys belonging to any estate, unless the appellant shall, if required by the surrogate, first de- 456 APPEALS FROM SUBROGATES. Stay of Proceedings. posit, under the direction of the surrogate, the .sum or amount directed or required to be paid or distributed by any decree or order appealed from, or unless such executor, trustee, adminis- trator, or general guardian shall, if required by the surrogate, execute a bond, with two sureties in double the amount decreed or ordered to be paid, approved by the surrogate, and conditioned to abide the result of such appeal, and to pay or deposit the funds so directed or ordered to be paid or deposited, in the event of the aflirmance of such decree or order, with such costs and allowances as may be awarded (Z. 1870, c. 359, § 12). The giving of the se- curity required by this statute does not dispense with the necessity of giving the security required by the general statute (see 8potts V. Dumesnil, 12 Abb. Pr. If. 8. IIT). Stay of proceedings.] — In general, an appeal from a surrogate stays proceedings until the appeal is determined, or the appellate court authorizes proceedings to be had. Certain classes of cases, however, are excepted by the statute from the operation of the general rule : 1. Appeals from orders appointing coUeetors or special administrators (except as above stated) ; from orders direct- ing sale of perishable property ; from orders appointing appraisers of personal property, and from orders for the service and publica- tion of notices, do not stay or affect any proceedings under the orders appealed from. 2. Appeals from orders for commitment, or award- ing process for the commitment, of any executor, administrator, or guardian, for not returning an inventory, rendering an account, or obeying any other order of a surrogate ; and from such orders for commitment of any person refusing to obey a subpoena, or to testify when duly required, do. not stay the execution of such orders or process, unless the party committed gives a bond at the time of filing the appeal, executed by the appellant and two suffi- cient sureties, approved by the surrogate, to the people of the state, in a sufficient penalty not exceeding $1,000, conditioned that if the order appealed from be affirmed, such person wiU, within twenty days after affirmance, surrender himself to the custody of the sheriff in obedience to the order or process (2 E. S. 610, §§ 110- 112).* 3. Appeals from an order suspending or removing an exec- * The statute also provides for the prosecution of the bond and the application of the recovery in case of breach (2 E. S. 611, §§ 113-115). APPEALS FROM SURROGATES. 457 Guardianship. — Order Removing Administrator. iitor, administrator, or guardian, do not affect the order until it be reversed {J.d. 116). Oucurdianship.] — An appeal in this class of cases, when duly perfected, stays proceedings on the order appealed from, until the appeal is determined, or the court to which the appeal is taken authorizes proceedings thereon (2 B. 8. 610, § 109) ; except that an appeal by a guardian from an order removing him does not in any wise affect the order until the order is reversed {Id. 153, § 19). Stay on decree for letters.] — The appeal taken in probate pro- ceedings, stays the recording and probate of the wiU in question until the determination of the appeal (2 H. S. 66, § 55), unless, in the opinion of the surrogate, the protection and preservation of the estate of the deceased require the issuing of letters testament- ary thereon, in which case the letters may be issued. But they do not confer power upon the executor to sell real estate, pay legacies, or distribute the effects of the decedent, until the final determination of the appeal (2 Z. 1871, c. 603, § 1). Order a^omtwig coUeofor.] — On an appeal from an order appointing a special administrator or collector, the party appeal- ing, in order to stay the proceedings, must file, with the surrogate making the order, a bond in the penalty of double the amount of the personal estate of the deceased, with two sufficient sureties, to be approved by a justice of the supreme court, conditioned to pay all damages which may be sustained by the estate of the deceased by reason of such appeal (Z. 1864, c. 71, § 8). Deeree declaring'will void.] — An appeal from a surrogate's decree declaring a wiU null and void, stays all proceedings on let- ters of administration granted subsequent to the decree ; and no letters of collection can be issued while the letters of administra- tion continue in force. Hence it is proper to revoke the letters of administration in such a case, in order to enable letters of col- lection for the protection of the personal property pending the appeal {JVewhouse v. Gale, 5 JV. Y. Surr. [1 Hedf.] 217). Order removing administrator.'] — An appeal from an order removing an administrator does not prevent his proceeding with suits which he may have brought, until the decision of the appeal, 458 APPEALS FROM SURROGATES. Petition of Appeal. and any default taken while the appeal is pending will be regular, though the order removing him be subsequently affirmed {Thayer V. Mead, 2 Gode E. 18). ARTICLE FIFTH. THE PETITION, Petition of appeal.'] — The petition of appeal, which is in the nature of a complaint in an action, should be under oath, and should state, in general language, in what way the appellant con- siders himself aggrieved. The petition is entitled, not as in the proceedings in the surrogate's court, but is entitled in the supreme court in the name of the appellant against the respondent * {Gardner v. Gardner, 5 Paige, 170; Foster v. Foster, 7 Id. 48 ; Hawiey v. Donnelly, 8 Id. 415). The petition is addressed to the supreme court {Rule 51), and the petition should name the petitioner (the appellant), and also aU the other parties in interest (the respondents), and should pray that they answer the petition {Kel- lett V. Raihhun, 4 Paige, 102) ; and if it does not name the per- sons who are intended to be designated as the respondents, it is in- formal (/5.) No person is considered respondent who is not named in the petition, and called upon by it to answer {Gardner V. Gardner, 5 Paige, 170 ; and see Hawiey v. Donnelly, 8 Id. 415). The petition may be amended, on motion, in the appellate court, so as to bring in additional parties {Gilnian v. Gilman, 35 Bari. 591) ; or one who is otaitted may apply by petition for leave to be made a party to the appeal {Foster v. Foster, 7 Paige, 48 ; see Gardner v. Gardner, 5 Id. 170). The petition is required (by Pule 51) f briefly to state the general nature of the proceedings, and of the sentence, order or decree appealed from, and must specify the part or parts thereof complained of as eironeous, except that where the whole sentence, order or decree is alleged to be erroneous, it is sufficient to allege that the order, and every part thereof, is er- * This was the practice before the Code In all cases. ■|- For the requisites of petition of appeal to circuit judge, and proper mode of proceeding before him, see Chaffee^. Baptist Missionary Convention {\Q Paige, 8B) ; and see Mason v. Jones (2 Bradf. 325). APPEALS FROM SUREOGATES. 45& Order to Answer. — Service of Order and Petition. roneous. And where the appeal is from a sentence or decree on the settlement of the accoxmts of an executor, administrator or guardian, if the appellant wishes to review the decision as to the allowance or rejection of any particular items of the account, he must specify the items in his petition, or the allowance or disallow- ance of any such items wiU not be considered sufficient ground for reversing or modifying the sentence or decree appealed from *■ {Itule 51). The proper form of doing this is to state the objec- tions in the form of specific allegations, and point out the proof to support it {Bainbridge v. McCullougJi, 1 Hun, 488). The peti- tion must be filed vdth the county clerk, and unless this is doner within fifteen days after the appeal is entered with the sur- rogate, the appeal is considered waived, and any party interested may move, ex parte, to dismiss it with costs {Ih.) The court will, however, in a proper case and on such terms as may be just, extend the time to file the petition {Suffern v. La/wrence, 4 How. Pr. 129). Order to answer.'] — The petition having been filed, the appel- lant may have an order that the respondents answer the petition within twenty days after the service of a copy of the petition and notice of the order to answer, or in default of an answer, that the appellant may be h.Q&v^ ex parte {Rule 51). "Where the respondent is a min'or, and has appeared by his guardian ad litem in the ap- pellate court, the appellant, in a similar way, may have an order that the guardian ad litem answer the petition of appeal within twfinty days after service of a copy thereof and notice of the order, or that an attachment issue against the guardian {Ih.) The order* to answer is of course and ex parte, and must be applied for at special term of the supreme court. Service of order and petition.] — The order to answer, together with a copy of the petition, should be served upon the respondents. If a respondent has appeared by attorney either in the court below or in the appellate court, service may be made upon his attorney. * A petition of appeal from an order of .the surrogate assuming to settle accounts of a guardian upon a petition presented by him in his character of administrator, being from an accounting over which the surrogate had no jurisdiction, need not specify the items (Banks v. TayXoti 10 Ahh. Pr. 199). -460 APPEALS FROM SUBROGATES. Effect of Failure to Answer. — The Surrogate's Return. If he has not appeared by an attorney, service may be made upon the surrogate {Rule 51). Effect of failure to answer. '\ — If the respondent is an adult, and fails to answer the petition within twenty days after service, the appellant is entitled to an order of course that the appeal be heard ex parte as to such respondent {Eule 51). Where the re- spondent is a minor, and does not procure the appointment of a guardian ad litem upon the appeal within twenty days after the filing of the petition, the appellant may apply to a justice of the supreme court, ex parte, for the appointment of such guardian. On such appointment being made, the guardian may be compelled to answer, in the same manner as other parties to the appeal. Compellvng service of petition.'] — If after the petition has been filed, the appellant fails to serve it on the adverse parties, a respond- ent is entitled to an order of course that the appellant deliver a copy of the petition to the attorney or the guardian ad litem of the respondent within ten days after the service of such order, or in default that the appeal be dismissed. If the petition is not de- livered within the time limited by such order, the respondent may, upon due notice to the adverse party, apply at special term for an order dismissing the appeal, with costs {Rule 51). Answer to the petition.] — The answer to the petition performs the same office as an answer in an ordinary action, and its object is to limit and define the issue between the parties, and present to the appellate court in a clear manner the exact nature of the alleged irregularity or error. The respondent may also set forth groimds •of objection to the decree appealed from, and ask affirmative relief. Thus, on an appeal from a decree on the settlement of the accounts of an executor, administrator or guardian, the respondent, in his answer, may specify any items in the account which he considers erroneous as against himself, and upon the hearing of the appeal, the decree may be modified as to any such items, in the same man- ner as if the respondent had brought a cross appeal {Rule 61). The surrogate's return^ — ^When the pleadings have been made up, so that the issues between the parties can be ascertained, the next step to be considered is the procurement of the evidence upon -which these issues are to be determined. This is furnished by the APPEALS FROM SURROGATES. 461 Amended Return. — Compelling Return. return made by the surrogate. "WTaere the appeal is from a de- cision in probate proceedings, the surrogate is required, upon pay- ment of his fees, to transmit to the supreme court a copy of the appeal, and copies of the will, and of all papers, documents, and testimony produced before him in relation to the subject of the appeal, duly certified under his seal of ofiBce, together with a statement of the decision made by him, and the reasons of such decision, if required (2 E. 8. 608, § 91). The return should state who propounded the wUl, who were next of kin of the de- cedent, and which of them were infants, or were cited, or in fact appeared before him {Chaffee v. Baptist Missionary ConvenUoUy 10 Paige, 85). In other cases, the surrogate returns copies of all the petitions, affidavits, orders, &c., on file in his court, and also all the testimony. Amended return.] — If the surrogate's return states facts with- out stating the evidence, the court will presume, upon the hearing, that the facts were duly proven. A party dissatisfied with such" a retuni ought to move for a further return, showing the evidence {Ki/rhy v. Carpenter, T Barb. 373). This is the proper remedy in aU cases where the return is defective or erroneous {Halsey v. Vamr Amringe, 6 Paige, 12). CompeWmg retv/rn.] — If the surrogate imreasonably neglects, after payment or tender of his fees, to make his return, the su- preme court may enforce such return by attachment, in the same manner and with the like effect as in case of a witness refusing to obey a subpoena (2 E. 8. 608, § 92 ; see Oardner v. Brown, 5 How. Pr. 351). It is the duty of the appellant to procure the return, yet where it has not been in his power to do so, the court wUl not dismiss the appeal, but will extend the time to procure the return upon such terms as may be just {Oilmam v. Oihnam,, 35 Ba/rl. 591). 462 APPEALS FROM SURROGATES. Notice of Hearing. — Questiona Raised on Hearing. AETICLE SIXTH. THE HEAEING. Notice of hearing.^ — The siurogate's return having been filed, the further proceedings are goTemed according to the prac- tice of the supreme court in ordinary appeals.* The return, in- cluding the petition, answers, and proceedings below, &c., should be printed and copies served, as required by Rules 50, 61, and the appeal noticed for hearing. Appeals from final orders and decrees of surrogates are enumerated motions {Rule 4T), and should therefore be noticed for the first day of the term {Rule 49). Appeals from other orders and decrees being non-enumerated mo- tions, should be noticed for hearing in accordance with Rule 54. Certain classes of appeals from the surrogates' courts have a pref- erence on the calendar,, and may be moved out of their order (see Z. 1860, c. 167, § 2, as am'd by Z. 1865, c. 218, § 1, and Z. 1871, c. 603 ; and also Z. 1869, c. 433, as to admeasurement of dower). Questions raised on hearing.] — Iii general, the same rules ap- ply as in other proceedings, as to what questions will be considered on the appeal. Thus, the court will not determine, for the first time, a question of fact which was not examined and determined below, but was assumed for the purpose of the decision of other points; but if such question is material to the other questions raised on the appeal, the court may examine it, for the purpose of seeing what probability there is of the appellant's sustaining the * There still remain on the statute boolc certain provisions in regard to the hear- ing of appeals from surrogates to circuit judges, which must now he regarded as obsolete. Thus, it is provided, in regard to such appeals, that upon the surrogate's return being received, a day and place for the hearing of the parties shall be ap- pointed, such time to be at least twenty days and not more than three months from the time of appointing the Same (2 B. S. 608, § 94). It is also provided that fourteen days' notice of the time and place so appointed shall be given by the appellant to the parties who appeared before the surrogate in opposition to such appellant, by serving such notice on them personally, if they can be found ; and if they can not be found, by leaving the same at their places of residence respectively, with some proper person (2 B. S. 608, § 94). APPEALS FROM SURROGATES. 463 Further Proof; Jury Trial. point on a retrial {Christy v. Clarke, 45 Barb. 529). So on an appeal from a decree made on a final accounting, the court will not entertain the objection that no proof of the existence of cer- tain legatees was given below, if such objection was not taken be- low {Lee V. Lee, 39 Barl. 1Y2 ; 16 All. Pr. 127), and where an order denying a motion declares on its face that the motion was denied " on the ground that the surrogate has no power to grant the said motion, nor any part of the relief asked for," the court on review will assume that the motion was denied soleVy on that ground ; and if the surrogate had power to grant, it will reverse the order without regard to whether the motion should or might have succeeded on its merits (Dollce v. McClaram; 41 Barl. 491). But it is not necessary that the point should have been taken be- low in any particular form, and the statute of limitations, if dis- tinctly interposed below, is available although it does not appear from the return whether it was raised by pleading, in writing, or by verbal objection. If stated verbally, and taken ddwn by the surrogate, it would be sufficiently pleaded {Smith v. Bemington, 4:2 Barl. Y5). Although as a general rule, a decree will not be reversed for an error not stated as a ground of appeal {Moore v. Moore, 21 LTow. Br. 211), yet the court may and not unfrequently does so reverse (see Devin v. Paichin, 26 N. Y. 441 ; 25 How. Pr. 5, rev'g 37 Barl. 430). Further 'proof ; jury irial.'] — The hearing is not a retrial of the case, and the determination must be made upon the proof be- fore the surrogate. The court can not receive further evidence {Bevin V. Patchin, supra).* This rule as to further proof on ap- peal, has been applied in the case of an appeal from the surrogate's refusal to admit a wiU to probate {Alley v. Christy, 49 Barl. 276), to an appeal from an order confirming an admeasurement of * This case overrules CaujolUs Appeal (9 Ahh. Pr. 393). Prior to the Revised Statutes, the court of chancery proceeded on appeals from the decrees of surrogates, according to the course of the civil law, and might hear new testimony and call to its aid the verdict of a jury upon disputed questions of fact ( Van Derheyden v. Reid, 1 Hopk. Ch. 408 ; Van Wyck v. Alley, Id. 662; Scribnerr. Williams, 1 Paige, 550), and the same rule seems to have been in force under the Revised Statutes, and until the reoiganization of the courts under the constitution of 1846, and the adoption of the Code of Procedure ( Williamson r. Williamson, 6 Paige, 298 ; Case v. Towle, 8 Id 479). 464 APPEALS FEOM SURROGATES. Further Proof; Jury Trial. dower ( White v. Story, 2 Sill, 543), and to an appeal from a de- cree on an application for administration {Devin v. Patohm, supra), and therefore applies to those cases where the appeal was formerly to the circuit judge as well as where it was formerly to the court of chancery. Except in prohate cases, for which special provision is made by 2 B. 8. 66, § 67 {see post, p. 465), the appel- late court can not on reversal award an issue of fact to be tried by a. jury {Dmin v. Patehin, supra). On this point, the distinction be- fore referred to between the class of cases in which the appeal for- merly lay to the circuit judge, and in those in which it lay to the chancellor, must be borne in mind. The statute in regard to the powers of the circuit judge in such cases (2 R. S. 608, § 95), pro- vides that the circuit judge shall proceed to hear the allegations of the parties, upon the proofs submitted to him, and shall affirm or reverse the decision of the surrogaite, as shall be just. In the class of cases, therefore, where the circuit judge formerly had jurisdic- tion (cases of probate, 2 R. S. 608, § 90), the supreme court can only affirm or reverse the surrogate's decision. The circuit judge had the power to reverse the decree where his conclusion either on the facts or on a question of law, differed from that of the surro- gate {Ma/rmn v. Ma/rvin, 3 Abb. Ct. App. Dec. 192-; s. o. 4 Keyes,. 9 ; Robinson v. Raynor, 28 If. Y. 494). If he reversed the decree upon a question of fact, he was required by the statute (2 R. S. QQ, § 57), to direct feigned issues to be made up to try the ques- tion in controversy. The same rule now prevails in the supreme court, and the award of such an issue to be tried by a jury, is a matter of right ; and the court, in reversing on the facts, a decree, admitting or refusing probate, can not, at its discretion, direct the surrogate to enter a final decree in accordance with the terms of the order of reversal {Johnson v. Hicks, 1 Lans. 150 ; * Tyler v. Gardiner, 35 N. Y. 559, 596). The same principle governs the action of the court of appeals in the disposition of the case on a reversal of the surrogate's decree. That court will, in probate cases, review questions of fact, and where the court is not con- vinced — e. g., as to the execution of the paper propounded — it will reverse the decree admitting it to probate, and wiU send the case to a jury for investigation {Howland v. Taylor, 53 N. Y. 627). * To the contrary is Filling r. Pilling (46 Barb. 86). APPEALS FROM SURROGATES. 465 Reversal u{)oii Matter of Fact. In cases, however, wliere formerly the appeal lay to the court of chancery, that coTirt might, and the present appellate court may, affirm or reverse the judgment appealed from merely, and leave the parties to commence anew in the court below ; or, may retain the case for the purpose of making such further order and decree as that court may deem proper, or may remit it to the surrogate for that purpose {Mason v. Jones, 2 Bradf. 181). Reversal upon matter of fact?[ — Such being the power and authority of the supreme court in reviewing surrogate's orders and decrees, the court examines the whole case, and all the evidence, so far as disclosed by the papers on appeal, and determines whether the decision below was fair and just ; and, as was said before, may reverse the decree, if, on the whole, it comes to a different conclusion on the facts from that reached by the surro- gate. They will not, however, usually disturb the surrogate's de- cision as to the facts, where the evidence is evenly balanced and directly contradictory, and the question is merely one of credibility {RoMnson v. Smith, 13 Ahh. Pr. 359).* N'o particular rule can be laid down as to how great a preponderance of evidence on the part of the appellant is necessary to secure a reversal on a question of fact, but it is said that the court will more readily reverse the decree of a surrogate on conflicting evidence, than it will set aside the verdict of a jury {Lake v. Ramney, 33 Barb. 49). In a case of doubt as to the facts, the appellate court may remit the matter to the surrogate, with direction to take further testimony on the point in doubt {Matter of Formom, 1 Tuck. 205). ARTICLE SEVENTH. THE DECEEE KSH COSTS. Reversal^ — The hearing having been had, and the appeal de- cided in the manner and upon the principles stated in the last article, a decree is entered in conformity with the decision. In * In that case, the supreme conrt refused to reverse a surrogate's decree on pro- bate, merely because, there being a conflict of evidence between the subscribing witnesses and another person as to what took place at the signing of the will, the surrogate had relied upon the testimony of the latter. 30 466 APPEALS FROM SURROGATES. Appeal to Court of* Appeals. cases of probate, as there stated, if there is a reversal founded, upon a question of fact, a jury trial must be awarded (2 S. S. 66, § 57). The statute provides that in such cases the court " shall direct a feigned issue to be made up, to try the questions arising upon the application to prove such wiU, and shaU direct the same to be tried at the next circuit court to be held in the county where the surrogate's decision was made " (2 R. S. 66, § 67 ; * see How- land y. Taylor, 53 W. Y. 627). "Where such an issue is made up and tried before a jury, the final determination of such issue is conclusive in regard to the facts therein controverted, in respect to wills of personal estate only, upon the parties to the proceeding (2' S. 8. 67, § 59). A new trial of such issue may be granted by the supreme court, in the same manner as if it had been formed in a suit originally commenced in such court (2 H. 8. 67, § 58).t The motion for such a new trial must, it seems, be made at general term {Marvin v. Marvin, 3 Aih. Ct. Apj>. Dec. 192 ; s. c. 4 Keyes, 9 ; but see Bule 40 of the 8ujoreme Ct.) Appeal to court of appeals.] — ^Wbere an order or decree of a surrogate admitting a wiQ to probate is reversed by the supreme court upon a question of fact, and an issue is awarded to be tried, at the circuit, no appeal will lie to the court of appeals, for the reason that the order of the supreme court is not final. The matter is still pending in that court, and may be again brought before the general term, upon exceptions taken at the trial, or after motion to set aside the verdict {Talbot v. Talbot, 23 N. Y. 17 ; Marvin v. Marvin, 3 Abb. Ct. App. Dec. 192 ; 4 Keyes, 9). But the rule is otherwise where the supreme court reverses the order for error in law, and remits the proceedings back to the sur- rogate. The order of reversal in such a case is a final determina- tion of the proceedings in the supreme court. Nothing remains to be done in that conrt ; and if a new appeal is brought from a second decree of the surrogate; it is a proceeding de novo, and * Feigned issues being now abolished by the Code of Procedure (§ 72), the pro- ceeding introduced by the Code in the place thereof should be adopted (Code of Pro- cedure, § 72, and Rule 40 of the Supreme Ct.) f Tlie Terdict of the jury in such a case will not be set aside unless there were errors of law committed on the trial, or the Ter(flot was clearly against the evidence or without evidence {Marvin v. Marvin, 8 Ahh. Ct. App. Dec. 192 ; s. c. 4 Keyes, 9). APPEALS FROM SURROGATES. 467 Costs. — Damages in Addition to Costs. not a continuance of the first appeal. Hence, after sucb order of reversal, there in an appeal to the court of appeals (/S.) * Costs.'] — Siace the amendment of the Code ia 1862,t the costs on appeal from surrogates' courts, have been regulated by § 318 of the Code of Procedure, which provides that such an appeal shall, for all purposes of costs, be deemed an action at issue on a ques- tion of law, from the time the same shall be brought int^ the supreme court, and that costs thereon shall be awarded and col- lected in such manner as the court shall direct, according to the nature of the case. But, where costs are awarded under this sec- tion, the successful party is not entitled to full costs, as on entering judgment in a civil action, at the rates fixed by section 307 of the Code of Procedure, but only the costs of trial of an issue of law {Morgam, v. Morgan, 39 Barb. 20 ; 1 AU. Pr. N. 8. 40). Damages in addition to costs.\ — It is also provided by 2 B. 8. 618, § 35, that upon appeals from surrogates' courts, to the court of chancery, the court may, in its discretion, upon afSrming any decree, or upon the appeal being discontinued or quashed, award damages for the delay and vexation caused by such appeal ; ajid under this statute it has been held that where a surrogate's final decree for the payment of money is affirmed, the proper measure of damages is the interest on the amount (Stagg v. Jackson, 1 N. T. 206, affi'g 2 Barl. Ch. 66). * An appeal from a judgment reversing an order of the surrogate, witli costs, be- fore the costs are taxed or settled and the judgment roll is filed, is premature, and must be dismissed {McMahon v. Sarrison,-5 Mow. Pr. 360). f For the rules in regard to costs before 1862, see Brockmay y. Jewett (16 Barb. 590); Shermans. Youngs (6 How.Pr. 318); WillcoxY. Smith (26 Barb. 316); Wkitbeck V. Patterson (22 Id. 83) ; Van Pelt v. Van Pelt (16 Sow. Pr. 299). Upon appeals to the court of chancery, the Revised Statutes provide that costs shall be paid by the appellant or respondent, as the court may direct (2 B. S. 618, § 35), while upon ap- peals to the circuit judge it is provided that if the decision be affirmed, the circuit judge shall award the costs to be paid by the party appealing, either personally or out of the estate of the deceased, as he shall direct. If the decision be reversed, upon a question of law, costs shall in like manner be awarded against the party maintain- ing the decision of the surrogate, either personally or out of the estate of the de- ceased (2 B. S. 608, § 96). 468 APPEALS FROM SURROGATES. Probate and other Cases. ARTICLE EIGHTH. ENFOECEMENT OF DBCEEE. Probate cases^ — In cases of probate where the decree is affirmed or reversed on a question of law, the statute provides that such affirmance or reversal shall be certified to the surrogate whose decision was appealed from, and the copies of papers be returned to the surrogate (2 R. S. 609, § 97), and the surrogate thereupon proceeds to direct the administration of the estate according to the will, if the court affirm his decree admitting it to probate, or if otherwise, he annuls and revokes the probate. If his decree re- fusing probate is affirmed, no further proceedings can be taken be- fore him, but if it is reversed, he proceeds to take proof of the will. In case the decree is reversed on a question of fact, and a jury trial had, as before mentioned (art. Y, anti), the final adminis- tration thereon must be certified to the surrogate whose decision is appealed from (2 R. S. 609, § 98), and if such determination be in favor of the validity of the wiU, or of the sufficiency of the proof thereof, the surrogate must record the will, or admit it to probate, as the case may be (2 JR. S. 67, § 59). If the determination be against the validity of such wUl, or against the competency of the proof thereof, the surrogate must annul and revoke the record or probate thereof, if any has been made {Id. § 60). Admeasurement of dower.'] — The proceedings to enforce a de- cree made on appeal in proceedings for admeasurement of dower, are in general method the same, and are regulated in detail by 2 R. S. 492, §§ 23-26 (see ante, p. 440). Other cases.] — In other cases, the supreme court may, upon a reversal or modification of the decree appealed from, remit the proceedings to the surrogate, with instructions to him to enter a decree upon the principles settled by the decision on the appeal, or to take such further proceedings as may be necessary {Gardner v. Gardner, 1 PoAge, 112 ; Halsey v. Van Amringe, 6 Id. 12 ; Mat- ter of Forman, 1 Tiick. 305). • APPEALS FROM SURROGATES. 4:69 Partial Reversal, Partial reve.rsal.'] — If a portion of a decree be appealed from and reversed, tlie remainder stands, except so far as necessarily affected by the reyersal. In such case, upon final accounting, the whole accounting is not opened, but the accounts, as settled by the surrogate, will be altered onlj pro ta/iiio, to the extent necessary to carry out the decree of the surrogate, as modified by the decree above {Morgan v. Andariese, 1 Bradf. 133). Where, however, the appellate court proceed, as they have power, beyond an aflBrm- ance or reversal, and adjudicate the cause, remitting it with direc- tions to proceed in an accounting, upon the basis of facts estab- lished by that adjudication, the surrogate should deem the adjudication final and conclusive as to those facts, even against a party who was not made a party to the appeal {Clayton v. Wa/rdell, Bradf. 1). F O EM 8 FORMS. Wo, 1. CITATION OR SUMMONS.' The People of the State of ]N"ew Yoek, By the Grace of God, Free and Independent : To John Doe and James Jackson send greeting : You and each of you are hereby [cited] * and required person- ally to be and appear before our surrogate of the coimty of West- chester, at his office in the town of "White Plains, on the 3d day of May, 1875, at nine o'clock in the forenoon of that day, then and there [here state 'briefly the object f&r which the person is cited or summoned, e.g. — to show cause why the letters of administra- tion granted to you on the 2d day of February, 18Y5, as adminis- trators of the estate of Richard Roe, deceased, should not be revoked.] In testimony whereof, we have caused the seal of office of the said surrogate to be hereunto affixed. Witness, Owen T. Coffin, sun-ogate of said county, at the r 1 town of White Plains, the 25th day of April, in the year L ■ ■-! of our Lord, one thousand eight hundred and seventy- five. OWEN T. COFFm, Surrogate. Petee Stiles, Cleric to the Surrogated Court? ' For the form of a citation to attend the probate of a will, see Form No. 13. ' In case of a summons the word in the brackets is " summoned." There is no other difference in the forms. The summons is used only in proceedings to compel an executor to appear and qualify under 2 R. S. 70, and to compel the return of an inventory under 2 iJ. S. 85 (see ante, p. 33). ' By L. 1863, c. 362, § 9 (see anU, p. 7), the suiTogate may designate a clerk to certify under the official seal copies of orders, Ac., and to sign as clerk of his court all citations and other writs and process. 474 FORMS. Subpoena. — Certificate of Letters Testamentary or of AdminiBtration. No. 2. SUBPCENA.' State of !N"e-w Toek, ) OEAifGE County, j **' ' The People of the State of New Yorh to John Doe aind Eichaed Roe, greeting : We command you, that all business and excuses being laid aside, you and eacb of you appear personally before the surrogate of the county of Orange, at his office in Goshen, in said county, on the 12th day of March, 1875, at ten o'clock in the forenoon of said day, to testify and give evidence in the matter of proving the instrument propounded as the last wUl and testament of James Taylor, deceased, now pending before the said surrogate.^ And for a failure to attend, you wifi be deemed guilty of a contempt of <30urt, and liable to pay all loss and damage sustained thereby to the party aggrieved, and forfeit fifty dollars in addition thereto. In testimony whereof, [etc., as in Form 1]. No. 3. Certificate of Letters Testamentary or of Administration.' The People of the State of New Yoek, To all to whom these presents shall come, or may concern, send greeting : Know ye, that at the town of White Plains, in the county of Westchester, on the 20th day of March, in the year of our Lord one thousand eight hundred and seventy-five, [letters testamentary of the last will and testament of James Taylor, late of the town of Greenburg, deceased], or [letters of administration of aU and singu- lar, the goods, chattels, and credits of James Taylor, late of the town of Greenburg, deceased, intestate], were duly granted and issued by the surrogate of the county of Westchester to William Allen, and that the same are stiU valid, and in fuU force. In testimiony whereof, [etc., as in Form, 1]. ' For power of the surrogate to issue subpoenas, see anU, p. 17, and 2 if. B. 221, § 6, subd. 1. The subpoena may be served in any part of the state, and is required to be in form similar to that used by courts of record in lite cases (76.) " In a case where it is desired to have the witness bring with him and produce any books or papers in his possession, insert here the usual clause for a subpoena duces tecmm. By 2 R. 8. 68, § 10, the surrogate may, by a clause added to the sub- poena, command any person having the custody of, or power over, any will to pro- duce it before him for the purpose of being proved. ' For the effect of the certificate, see ante, p. 7. FORMS. 475 Certificate to be Attached to Original Will. No. 4. CERTIFICATE TO BE ATTACHED TO ORIGINAL WILL.' County of Oeange, Sueeo&ate's Court, Be it remembered, that on the day of the date hereof the last will and testament of James Taylor, late of the town of Groshen,' in the county of Orange, deceased (being the annexed written in- strument), was duly proved before the surrogate of said county, as and for the last will and testament of the real and personal estate of said deceased; which said last will and testament, and the proofs and examinations taken thereon, are recorded in this office. In testimony whereof,^ [etc., as in Form 1] . No. 5. CERTIFICATE OF APPOINTMENT OF GUARDIAN. The People of the State of New York, To all unto whom these ^presents shall corne or may con- cern, send greeting : Know ye, that at the town of White Plains, in the county of "Westchester, on the fourteenth day of March, in the year of our Lord one thousand eight hundred and seventy-five, letters of guardianship of the person and estate of A. B., a minor, residing m the town of Peekskill, in said county, were duly granted by the surrogate of the county of "Westchester to S. H., and that the same are still valid and in full force. In testimony whereof, [etc., as in Form 1]. No. 6. Certificate of Decree for Payment of Money, to be Docketed with County Clerk.' County of New York, \ Sueeogate's Couet. \. I, Eobert C. Hutchings, surrogate of the county of New York, do hereby certify, that on the tenth day of April, in the year one " By 2 S. S. 58, § IS.Tvills of real estate proYcd .before a surrogate were (in cer- tain cases) required to have a certificate of such proof indorsed thereon, signed by the surrogate and attested by his seal of office, and might then be read in evidence, ■without further proof. By L. 1837, c. 460, § 18, this provision was made applicable to wills of personalty also (see ante, p. 121). " See ante, pp. 18, SOY, for the mode and efi'eots of .docketing such a certificate. 476 FORMS. Form of Will. thousand eight hundred and seventy-five, by a decree made by the surrogate of the said coimty of New York, in the matter entitled " In the matter of the goods, chattels, and credits of C. H., de- ceased," then pending before the said surrogate, it was in and by the said decree ordered and decreed, that L. D., residing at 149 Greene street, in the city of New York, whose busiaess or occupa- tion is that of dealer in wooden ware, pay to S. H., residing at 35 West 49th street, in New York city, whose business or occupation is that of grain dealer, the sum of four hundred dollars and seventy- five cents. In testimony whereof, {etc., as in Form 1]. Wo. 7. FORM OF WILL." I, James Taylor, merchant, of the town of Peekskill, in the county of Westchester and State of New York, do hereby declare this to be my last wiU and testament. [Here insert the disjposing clauses of the will a/nd continue,] ■ In witness whereof, I have hereunto subscribed my name this fourteenth day of January, in the year of our Lord one thousand eight hundred and seventy-four. JAMES TAYLOK. The foregoing instrument was on this fourteenth day of Janu- ary, A. D. ISH [subscribed by James Taylor, the testator above named, in the presence of each of us], or, [acknowledged by James Taylor, the testator above named, to each of us to have been sub- scribed by him] ; an4, at the same time, he declared to each of us that the said instrument was his last will and testament, and re- quested each of us to sign our names thereto as subscribing wit- nesses, which we hereby do. Geoege Bakee, residing at Tarrytown, New York. Peect L. Ttjenee, residing at 137 Fourth street, Brooklyn, New York. Codicil. I, James Taylor, merchant, of the town of Peekskill, in the county of Westchester and state of New York, having made' my " For the formalities required by the statute for the due execution of a ■will, see 2 R. S. 63, § 40, and ante, p. 15 ; and as to the advantage of having a full and com- plete attestation clause, properly signed, see Orser r. Orser (24 7f. Y. 51), and ante, p, 108. FORMS. 4Y7 Petition for Proof of Will where no Citation is necessary. last will and testament bearing date the fourteenth day of Janu- ary, A. D. 18Y4, do hereby declare this to be a codicil to such will, and direct that it shall be taken as a part of the same. [Here insert disposing clauses and continue,\ In witness whereof, [etc., as in Form of WilT\ . No. 8. Petition for Proof of Will where no Citation is necessary.' To Owen T. Coffin, Surrogate of the County of Westchester. The petition of C. D., of the town of Peekskill, in the county of Westchester, respectfully shows : I. That A. B., late of the town of PeekskiU, in the county of Westchester, departed this life on the second day of May, in the year one thousand eight hundred and seventy-four, having pre- viously, as your petitioner is informed and believes, duly made and executed his last will and testament. II. That the said deceased was a citizen of the United States, and was, at or immediately previous to his death, an inhabitant of the coimty of Westchester \or in case the jurisdiction of the sur- rogate depends on other facts than the inhahita/ncy of the testator in the county, state them, as, that the deceased was not an inhab- itant of the state of New York, but died in the county of West- chester, and left assets therein, &c.] III. That his said last will and testament relates to [real estate only], or [personal estate only], or [both real and personal estate],^ and that the value of the personal property belonging to the die- ceased at the time of his death does not exceed five thousand dol- lars.' ly. That your petitioner is the sole executor named in the said wiU. [ *] V. That the said deceased left surviving no widow, nor any heirs at law or next of kin except your petitioner who is the only child of the said deceased. ' See ante, p. 6Y. " The reason for stating the nature of the property to which the will relates, is to inform the surrogate as to what class of persons should be cited to attend the pro- Ijate. For the facts which the surrogate must ascertain, see L. 1837, c. 460, § 6 ; and ante, p. 66. ' The value of the personalty should' be stated in order to enable the surrogate to fix the amount of the bond in case one should be necessary (ante, p. 142). 478 FORMS. Petition for Proof of Will where Citation ia necessary. Tour petitioner therefore prays that the said last will and testament may be proved, and letters testamentary granted there- on, according to law. {Signed,) C. D. CiTT Ksn County op New Toek, ss. : I, C. D., the petitioner named in the foregoing petition, being duly sworn, do depose and say, that I have read the foregoing pe- tition, to which I have subscribed my name, and know the contents thereof, and that the matters of fact therein stated are true, and that the matters therein stated of my information and belief, I believe to be true. C. D. Sworn, before me, this first day ) of August, A. D. 1875. j C. H. B., Notwry Puhlic. No. 9. Petition for Proof of Will where Citation is necessary.' \_As in Form 8 to the (*), and then continue,'] Y. Tour petitioner further shows that the — [If the will relates exdusiml/y to real estate, here set forth the names and places of residence of the heirs of the testator, or if vpon diligent inquiry they can not he ascertained, state that fact. If the will relates exclusimely to personal estate, state the same facts in regard to the wido^o and next of kin of ths testator. If the will relates ioth to real and personal estate, state the same facts in regard to tlie heirs, widow, amd next of hin of the testator.'] YI. That aU the persons above named, as the [widow, heirs at law, a/nd next of Tcin, stating them as the case may he] of the said deceased, are ol full age and sound mind, except I. W., who is a minor, and whose generaT guardian is S. H. W., residing at Peeks- kill, Westchester county and state of New Tork ; and E. W., who has by a court of competent jurisdiction been declared to be nan compos mentis, and S. W., residing at Tarrytown, Westchester county, New Tork, appointed guardian of his estate and person. Tour petitioner therefore prays that a citation may issue to the said [naming the classes of persons] of the deceased, re- ' See ante, pp. 66-68. FORMS. 479 Petition for Proof of Nuncupative Wili. — ^For Proof of Lost or Destroyed Will. quiring them to appear before the surrogate of the county of W estchester, on such day as the said surrogate shall direct, to at- tend the probate of said last will and testament. [Bated-I {Signed,) C. D. [ Verification as in ForTn 8.] No. 10. PETITION FOE PROOF OF NUNCUPATIVE WILL.' \A.s m Form 8 through paragraphs I. and II., and continue^ III. That on the 30th day of April, 1874, the said deceased was a mariner in actual service, and was captain of the brig. Osprey, engaged in making the voyage from ISTew York to Liverpool, said vessel then being in mid-ocean. That on the said day the de- ceased was seized with a sudden and violent sickness, to wit, with the disease of cholera, and being then in immediate danger of death, and having no opportunity to make a written will, he called to him your petitioner vrho vs^as the mate of the said vessel, and, in the presence of J. K. and L. M., sailors belonging to said vessel, addressed him in the following words : " Upon my death I desire that you act as my executor, and take possession of all my personal estate, and divide it one-half to my wife and the rest to my daughter." That thereafter the said deceased continued to fail in strength, and died two days thereafter, on the 2d day of May, 1874, before the vessel arrived in port. \The remainder of the petition should he as m Forms 8 and 9, except that, as a nuncupative will cam. extend only to personalty, i,t is never necessary to cite the heirs at la/w.~\ Wo. 11. PETITION FOR PROOF OF LOST OR DESTROYED WILL.' \_The same as Fortri, 9, except that after paragraph VI, as there given, insert,'} yll. That the said will was made by the said testator, on, or about the day of , and [a copy of said will is hereunto annexed, marked Exhibit A], or [the witnesses to said will were J. K., of 16 Wall street, New York, and L. M., of 176 ' For cases in which nuncupatiTe wills can be made, see ante, p. 116. ' Ante, p. 114. The petition should, it would seem, be drawn definitely enough to advise all parties ^interested of what is claimed to be the contents of the alleged lost or destroyed will, and who are the witnesses who attest its execution. 480 FORMS. Order for Citation. Fulton street, Brooklyn, and tlie provisions of tlie said wUl were substantially as follows, viz., etc.] VIII. [That the aforesaid will of the said testator was in ex- istence at and for some time subsequent to his death, and.since his death has been lost or destroyed by accident or design] ; or, \ That the said wiU was, in the lifetime of the said testator, fraudulently destroyed in the following manner : stating facts malcmg out a prima facie ease of fraudulent destruction in the lifetime of the testator.] Tour petitioner therefore prays that a citation may issue, [etc., as in Form 9, and continue'], and [that the instrument of which a copy is hereunto annexed, marked Exhibit A, may be established as the last wiU and testament of the said A. B., deceased] ; or, [that the pro'visions of the last wiU and testament of the said A. B., deceased, may be established and declared to be as set forth in the foregoing petition]. [Signature.] [ VerificaUon.] No. 12. ORDER FOR CITATION. At a surrogate's court, held in and for the county of New York, at the surrogate's office, in the city of New York, on the first day of April, in the year one thousand eight hundred and seventy- five. Present, Eobeet C. Hutohings, Esq., Surrogate. In the matter of proving the instru- ment propounded as the last will and testament of A. B., deceased. A petition duly verified by 0. D., the petitioner therein, hav- ing been filed in the office of the surrogate of the county of New York, on the day of j 187 , propounding for probate the last will and testament of A. B., late of the city of New York, deceased, as a will of real and personal estate, and the said petition showing, to my satisfaction, who are the widow, heirs and next of kin of the said A. B., deceased, and their respective FORMS. 481 Order for Citation. residences, now, on motion of W. M., counsel for the said peti- tioner. Ordered : That a citation issue to the persons designated in the said petition as the widow, heirs and next of kin of the said deceased, requiring them to appear in this court on the 30th day of April, 1875, at 11 o'clock in the forenoon of that day, to at- tend the probate of said will. EGBERT C. HUTOHIlSrGS, Surrogate. [In case any of the parties are riot duly served iefore the re- turn day, enter, on that day, an order reoiting the issuing of the first citation, and the filing of proof s of service as to those served, and the appeara/nces on the return day, if any, and that one M. iV. has not been served, and continue,'} On motion of W. M., counsel for the petitioner, Ordered : That this matter stand adjourned to the day of , instant, at 11 o'clock in the forenoon of that day, and that a further citation issue therein, to be directed to the said M. N., requiring him to appear in this court, on the said day of , instant, at 11 o'clock in the forenoon, and attend the probate of the said will. \As stated {ante, pp. 32 and 69), a formal order for the issu- ing of the citation is not usually entered, hut in the surrogates Wiinutes (see ante, p. 6) an entry is made in the following form ;] At a surrogate's court \_etc., as above.} [Title.] On reading and filing the petition and examination of 0. D., under oath, the sole executor of the last will and testament of A. B., late of the town of Goshen, in the county of Orange, deceased, propounding the last wHl and testament of the said A. B., de- ceased, for probate as a will of real and personal estate : It is ordered : That a citation issue to the proper persons, pur- suant to the prayer of said petition, requiring them to appear in this court, at this place, on the 30th day of April, 1875, and at- tend the probate of the said will as a will of real and personal HENEY A. WADSWOETH, Surj'ogate. 81 482 FORMS. Citation to Attend Probate. — ^Proof of Service on Adult. — ^Proof of Service on Minor. No. 13, CITATION TO ATTEND PROBATE.' The People of the State of I^ew Yoek, To A. B., 0. D., and E. F., the widow, heirs, cmd next of Tcvn o/" G. H., deceased, send greeting : Whereas, H. "W., of the city of New Tork, has lately applied to our surrogate of the county of New Tork, to have a certain in- strument, in writing, relating to both real and personal estate, duly proved as the last will and testament of G. H., late of the city of New York, deceased, therefore, you, and each of you are cited to appear before our said surrogate, at his office, in the city of New York, on the 30th day of April, 1875, at eleven o'clock in the forenoon of that day, then and there to attend to the probate of the said last wiU and testament. In testimony whereof \_6tc., as in Form 1]. No. 14. PROOF OF SEBTICE ON ADULT.' [ Venue.] Patrick Bums, being duly sworn, deposes and says that, on the first day of April, 1875, at No. 14 Wall street, in the city of Jfew York, he served the annexed citation on Walter Brown, one of the persons named in said citation, [by delivering to and leaving with him, personally, a true copy thereof] or [by leaving a copy thereof for him, at the said 14 Wall street, his residence, with a female of suitable age and discretion belonging to his family, who stated that he was absent, but that she expected him at home in a short time, and would deliver the said copy to him]. [Jurat.] [Signatv/re.] No. 15. PROOF OF SERYICE ON MINOR.' [ Under the age of fourteen^ [ Venue.] A. B., being duly sworn, says that, at 120 Greenwich street, in the city of New York, on the 10th day of March, 1875, he served ■ For the statutory requirements aa to the contents of this citation, see L. 1837, c. 460, § 7, as am'd by L. 1863, p. 606, t. 362, § 2, and anU, p. 69. " For the method of service of a citation to attend probate, see ante, p. 69, and for general rule as to service of citations, see arde, p. 33. ' See ante, p. 34, for general rules, and pp. 69, 70, for special rules as to citation to attend probate. FORMS. 483 Proof of Service on Lunatic. — Proof of Service by Publication. « ~ — ' — ■ the annexed citation on C. D., a minor under tlie age of fourteen, by deKvering a copy of the same to the said minor personally, and hy also delivering a copy thereof to E. F., the father of the said minor, personally, and leaving the same with them. [Jurat.'] [Signature.] No. 16. PROOF OF SERVICE ON LUNATIC { Venue.] A. B., being duly sworn, says that at 315 Bowery, ia the city of New York, on the 10th day of May, 1874, he served the annexed citation on 0. D. (who has been judicially declared to be of unsound mind, and E. F. appointed the committee of his per- son and estate) by delivering to said 0. D., personally, a copy of the annexed citation, and by also delivering a copy of the same to the said E. F., personally, and leaving such copies with them. [Jurat.] [Signature.] . No. 17. PROOF OF SERVICE BY PUBLICATION." [Title and venue.] M. N"., being duly sworn, says that he is [the printer] or [the foreman of the printer] or [the principal clerk of the printer] or [the only clerk of the printer] of the , a newspaper published in , and that the citation herein, a copy of which is hereto annexed, was published in said paper once in each week for six weeks, the first publication being on Monday, the day of , 187 , and the last upon Monday, the day of , 187 . [Jurat.] [Signature.] " See ante, p. 34, and i. 1872, c. 693, § 1. " It is provided by X. 1874, p. 657, c. 437, ante, p. 35, that "all notioea and cita- tions issued by surrogates, except in the counties of Ifew York and Kings, and now required by law to be published in the state paper, shall hereafter be published in a newspaper printed in the county in which the surrogate issuing such notices or cita- tions shall reside, instead of the state paper, in case there is a newspaper printed therein, and if not, then in the state paper ; and such publication shall be for the same time and with the same effect a» if published in the state paper ; provided, that in all eases where any of the parties interested reside out of the county, such notice or citation, if the property of the deceased exceed two thousand dollars in value, shall also be published in the state paper; but that, if the property of the de- ceased shall not exceed two thousand dollars in value, the publication in the state paper shall be at the discretion of the surrogate, and free of expense and without charge for such publication." 484 FORMS. Proof of Service by Admission of Service and Proof of Handwriting. \Proof of maiUng to accompa/iiy proof of jpublicationJ] {Title and venue.] A. B., being duly sworn, says that lie is a clerk in the oflSce of CD., the attorney for E. F., the proponent of the wiU. herein, and that on the day of , 18Y , he deposited a copy of 'the annexed citation in the post office at ,, directed to G. H., one of the persons named therein, at ,, his place of residence, and prepaid the postage thereon. [Jurat.] [Signature.] No. 18. Proof of SerTice by Admission of Service and Proof of Handwriting.' [Indorse on the hack of the citation :] Due and personal service of the within citation is hereby ad-, mitted, this 29th day of March, 18^75, at Goshen, in Orange county. [Signed,] C. S. [Attach to the citation an affida/uit as follows :] ^ J. M., of the town of Goshen, in the county of Orange, being, duly sworn, deposes and says that he is well acquainted with C. S., of the said town of Goshen, and with his manner and style of handwriting, having frequently seen him write; and deponent verily believes that the signature purporting to be the signature of the said C. S., signed to the admission of service of the an- nexed citation, is the true and genuine signature of the said C. S. [Signed,] J. M. [Jurat^ No. 19. APPEARANCE BY ATTOBNET.' [Title.] Take notice that I am retained by and appear for A. B., one of the next of kin and heirs at law of the said C. D., deceased, and ' See ante, p. 35. ' The proof of tl ', deed. ' See ante, p. 35. ' The proof of the handwriting may also be by acknowledgment, as in the case of a deed. FORMS. 485 Consent to be Appointed Special Guardian. demand that all notices and papers herein be served on me at my -office, No. Ill Broadway, in Isew York city. [Signattire.] [Dated.'] To Hon. Eobert C. Hutchinffs, Surrogate, and E. F., Attorney for 0. D., proponent of the will. No. 20. CONSENT TO BE APPOINTED SPECIAL GUARDIAN.' [Title.] I, See ante, p. 125 ; 2 i?. ,S. 61, §§ 29-39. All that is strictly necessary is that these allegations in writing should he filed, hut as there must also he some evidence before the surrogate, to enable him to deterroine who are the necessary persons to be cited, it is convenient and allowable to put the allegations in the shape of a verified peti- tion, which shall show the right of the party to file the allegations, and also show who are the necessary pai-ties to be cited. FORMS. 499 Allegations to Contest Probate within One Year. IV. That the attesting witnesses to said alleged will did not, nor did either of them sign his name as a witness at the end of said alleged will, at the request of the said J. M. Y. That the said paper writing, purporting to be such last will and testament, was obtained, and. the execution thereof by said J. M. procured, by fraud and circumvention, and undue influence practiced against and upon the said J. M. by R. J., M. J., I. J., and G. J., or some or one of them, or some other person or persons unknown to the subscriber. VI. That the said paper writing was not freely and voluntarily executed or made as his last will and testament, by said J. M., de- ceased, but that the subscription thereto and pubhcation thereof by him, the said J. M., were procured by fraud and coercion exer- cised upon him, the said J. M., deceased, by the said R., M., I., and Gr., or some one of them, or some other person or persons to the subscriber unknown. VII. That the said paper writing was not duly and sufficiently proved before the said JT C, as such surrogate, when so admitted to probate as aforesaid, and that the proofs taken at the said surro- gate's court, on such admission thereof to probate, did not and do . not show or establish that the said J. M., deceased, was of sound mind or memory when the said alleged will was made, or that he was free from restraint when he made the same, or that the same alleged will was subscribed by the said J. M., or declared by him to be his last will and testament, in the manner required by the statute in that behalf, or that the same was duly attested as re- quired by said statute. VIII. Your petitioner further alleges that [the said G. J. and G. H., named as executors in said will, have taken upon them- selves the execution thereof, and letters testamentary have been duly issued to them in accordance therewith], or [G. B. and W. M. have been duly appointed administrators with the will annexed of the said J. M., and letters of administration issued to them], and such letters are now in full force and effect. IX. That the only legatees named in the said will are [E. F. and L. M., both of whom are now alive and of full age, and re- siding at New York city, in this state], or [E. F., who is a minor, and resides at 137 Hoyt street, in Brooklyn, Kings county, and state of 'New York, with B. F., who is his general guardian, and L. M., who has died since the said will was admitted to probate, and of whose estate J. K., residing at Yonkers, in "Westchester county, in this state, has been duly appointed executor by the sur- rogate of said county, by letters bearing date the day of , 1874, which letters are now in fuU force and effect.] 500 FORMS. Order for Citation on Allegations. X. Your petitioner further alleges, that he is the son of the said J. M., deceased, and one of his next of kin. Your petitioner therefore prays that a citation may issue di- rected to the said G. J. and G. H., the executors having undertaken the execution of the said will, or [to G. B. and W. M., the admin- istrators with the will annexed of the said J. M.], and to [the said E. F. and L. M., the legatees named therein, residing in this state], or [the said B. F., the guardian of the said E. F., and to the said J. K., the personal representative of the said L. M.], requiring them to appear before the surrogate of the county of l^ew York, • at a time and place to be therein specified, to show cause why the probate of such will should not be revoked. [i>afo.] \_8ignature.'\ [ Yerification.\ No. 34. ORDER FOR CITATION ON ALLEGATIONS. At a surrogate's court [efc., as in Form 12] . [TitU.] The will of the above-named J. M., having been didy admitted to probate as a will of personal property, by the surrogate of the county of New York, on the 21st day of October, 1874, and alle- gations in writing against the validity of such will, and against the competency of the proof thereof, having been on the 1st day of March, 1875, duly filed in the office of the surrogate of said county, by H. M., one of the next of Mn of the said J. M., and it appearing by the verified petition of the said H. M., containing such allegations duly filed as aforesaid, that [G. J. and G. H. are the executors who have taken upon themselves the execution of the said will, and that letters testamentary have been duly issued to them] or [G. B. and W. M. have been duly appointed adminis- trators with the wiU annexed of the said J. M.], and that such letters are now in full force and effect ; and that [E. F. and L. M., the only legatees named in the said will, reside at New York city, in this state] 07- [E. F., one of the legatees named in said will is a minor, and B. F. is his general guardian, both of whom are resi- dent in this state; and that L. M., the only other legatee named therein has died since the said wiU was admitted to probate, and that J. K., residing in this state, is his sole executor] : Now on mo- tion of C. D., attorney for H. M., the said contestant, Ordered, That a citation issue to the [said G. J. and G. H., executors as aforesaid] or [said G. B. and W. M., administrators as FORMS. 501 Order Revoking or Confirming Probate. aforesaid], and to tlie said [E. F. and L. M., legatees as aforesaid] or [B. F., guardian of said E. F., and J. K., executor of said L. M.t, requiring them to appear before the surrogate of the county of ISTew York, at his office in the city of New York, on the * day of , 1875, to show cause why the probate of such will should not be revoked. No. 35. ORDER REVOKING OR CONFIRMINO PROBATE. At a surrogate's court \etc., as in Form 12]. [Title.] This matter having come on to be heard on the allegations of H. T., one of the next of kin to J. T., late of the city of New York, deceased, against the validity of the last will and testament of the said J. T., deceased, and against the competency of the proof thereof, and on the return of the citation heretofore issued therein, requiring P. T., the executor who has taken upon himself the execution of the said last will and testament, and 0. T., "W". T. and G. T., legatees named in the said last will and testament, re- siding in the state of New York, to appear in this court on the day of , last past, to show cause why the probate of the said last will and testament of J. T., deceased, should not be revoked, aijd due proof of the personal service of the said citation on all the persons and parties named therein havingbeen produced and filed, and the said H. T., having appeared by jR. P., Esq., his counsel, in support of the said allegations, and the said P. T., the executor of said will, having appeared by C. C, Esq., his counsel, in opposition thereto, and I. H., the special guardian of C. T., one of the said legatees, a minor, having duly appeared in behalf of the said minor, and no other person or party having appeared in the said matter, and the said matter having been heard on several days, and duly adjourned to this day, and upon hearing the proofs of the parties aforesaid, and counsel for them respect- ively, and due deliberation being thereupon had, and it appearing to the said surrogate that [the said J. T. at the time he executed the instrument, bearing date the eighth day of January, in the year 1860, purporting to be his last mil and testament, was not of sound mind, nor competent to execute a will, and that the said in- strument was not duly executed as and for the last will and testa- ment of the said J. T., deceased ; and that the said instrument in ' The time for showing cause must be not . less than thirty nor more than sixty days from the date of the citation (2 R. 8. 62, § 32 ; ante, p. 126). 602 FORMS. Notice of Revocation. writing is utterly null and void as or for tlie said last wiU and tes- tament of the said J. T., deceased : Ordered, [That the probate of the said last will and testament heretofore granted and issued by and under the seal of the surro- gate of the county of New York, and bearing date on the day of , in the year 1874, be, and the same is hereby revoked, and that the costs of all the parties to this proceeding, and the fees and expenses thereof, be paid out of the estate of the said de- ceased. It is further ordered, that notice of such revocation be imme- diately served on P. T., the executor of said wiU above named, and that such notice be pubHshed for three weeks successively in the New York Tribune, a newspaper printed in the city of New York, in the county of New York.] ^ Or after reciting facts found iy surrogate [^Ordered : That the said last will and testament of J. T., deceased, and the probate thereof be, and the same hereby are confirmed, and that the said allegations of the said H. T. be dis- missed ; and that the said H. T. pay the surrogate's fees and ex- penses on these proceedings, or, in default thereof, that an attach- ment issue against him]. Xo. 36. NOTICE OP REVOCATION. To P. T., eosecutor of the will of J. T., deceased, and all wJiom it may concern : Take notice that, by an order made by the Hon. K. C. H., surrogate of the county of New York, on the . day of 18Y5i the probate of the will of J. T., deceased, granted by the surrogate of the county of New York, on the day of 1874:, was revoked and annulled, and that your powers as executor of such will, are thereby determined. Yours, &c., H. W. Contestant of will. C. D., Attorney for H. "W". ' See aide, p. 127, and 2 R. S. 62, § SI. FORMS. 503 Petition for Letters on Foreign Probate. No. 37. PETITION FOR LETTERS ON FOREIGN PROBATE. Stjreogatb's Cotjet, County of New Toek .1 In the matter of the application for letters testamentary on the estate of A. B., deceased. To E. 0. H., Esq., Surrogate of the county of New York. The petition of C. D. respectfully shows : I. That on the day of , 1875, the wiU of A. B., deceased, was duly admitted to probate by the Hon. B. F., judge of the connty court of Cook county, in the state of Illinois, a court of competent jurisdiction for that purpose, and said will was duly recorded in the office of the said county court, on the day of , 1875. II. That on the day of , 1875, letters testamentary npon the estate of the said A. B., deceased, a duly exemplified copy of which is hereunto annexed, marked " Exhibit A," were duly issued to your petitioner, as the sole executor named in said will, and by virtue thereof your deponent, under the laws of the state of Illinois, became and is solely entitled to the possession of the personal estate of the said A. B., situated in the state of Illinois. III. Your petitioner further shows that on the day of , 1875, the said will of A. B., deceased, was duly admitted to probate by Hon. R. C. H., surrogate of the county of New To5k, npon production to him of a duly authenticated copy thereof, from under the seal of the county court of Cook county, in the state of Illinois, in which the same was proved. IV. .Tour petitioner further shows that he has made diligent search to discover who are the creditors of the said A. B., resid- ing in the state of New York, to wit : \nere state the efforts made to ascertain the creditors, as that he has advertised, dec. State, also, the business or occupation of the deceased, and where, in the state, he had resided or did business, d&c], and that, according to the best information and belief of your petitioner, the only cred- 504 FORMS. Order for Citation and Publication. iters of the said A. B., wlio reside in the state of New York, and the only persons so resident who make any claim against the estate of the said A. B., are J. K. and L. M., both of New York city.^ Your petitioner, therefore, prays that letters testamentary upon the estate of the said A. B., may be issued to him, and to that end that a citation may issue to the said J. K. and L. M., according to law. [J)aU.'\ {Signature A H. A., \. y i Attorney for C. D. [ Verification.'] No. 38. ORDER FOR CITATION AND PUBLICATION. At a surrogate's court [etc., as in Form 12]. iTitle.} On reading and filing the verified petition of C. D., asking that letters testamentary on the estate of A. B. may be issued to him, Ordered: That a citation issue directed to the said J. K. and L. M., mentioned in said petition, requiring them to appear in this court on the day of , 1875, at 11 o'clock in the fore- noon, to show cause why such letters should not be granted. It is further ordered : That notice of such application for let- ters, and of the time of the hearing of the same, be published once in each week for six months in the [state paper"], and in the [^paper puUish-ed in county], such publication to commence on the day of ,18Y5. ^ ' This application is made under L. 1863, c. 403 {ante, p. 137), whioh requires the. surrogate to examine, on oath, the party ap lying for letters, or his agent, as to the resident creditors of the deceased. A statement on this point in a verified petition, would probably be held sufiScient. FORMS. 305 Staying Grant of Letters. No. 39. STATING GEANT OF LETTERS. I. Affidavit of intention to file dbjeoUons against grant of letters testamentary. Sueeogate's Coukt, ) County of xTew York, j In the matter of the estate of A. B., deceased. [ Yenue.'] J. B., of the city of New York, being didy sworn, says : I. That she is the widow of A. B., late of the city of New York, deceased, whose last will and testament was, on the day of , 187 , duly admitted to probate by the surrogate of the county of New York, and of which said will C. D. is named one of the executors. II. That she is a legatee under the said last will, and intends to file objections against the granting of letters testamentary thereon to the said C. D., and that she is advised and believes that there are just and substantial objections to the granting of such letters to the said 0. D. J. B. [Jurat.l II. Ohjeotions against the granting of letters testam.entary. [Title.] To E. 0. H., Surrogate of the county of New Yorh : The objections of J. B., of the city of New York, widow, a legatee under the last will and testament of A. B., late of the city of New York, deceased, against the granting of letters testament- ary of the said last wiU and testament to C. D., one of the execu- tors therein named. First objection. That the said 0. D. is incompetent to execute the duties of his trust as executor of the said last will and testa- ment, by reason of improvidence. Second objection. That the circumstanpes of the said 0. D. are 506 FOKMS. Staying Grant of Letters. STici. as not to afford adequate security to the creditors, legatees and relatives of the said deceased for the due administration of the estate ; that he has recently failed in his business as a merchant in the city of New York, and become insolvent; and. that the debts owing by the said C. D. greatly exceed the amount of property belonging to him. J. B. [Dated.} W. M., atby.foT objector. III. Order that executor appear to attend inquiry. At a surrogate's court [etc., as in Form 12]. \Title.\ On reading and filing the objections of J. B., the widow of A. B., late of the city of JTew York, deceased, and a legatee under his last will and testament, against the granting of letters testa- mentary of the said last will and testament to C. D., one of the executors therein named : Ordered: That the said C. D. appear before the surrogate of the county of Ifew York, at his office in the city of New York, on the 10th day of July instant, at 11 o'clock in the forenoon of that day, and attend the inquiry into the said objections. E. C. H., Surrogate. W. M., atty.for objector. lY. Order that objector proceed with inquiry. At a surrogate's court [etc., as in Form 12]. [Title.] J. B., the widow of A. B., late of the city of New York, de- ceased, and a legatee- under his last will and testament, having filed objections against the grantiug of letters testamentary of the said last will and testament to 0. D., one of the executors therein named : On motion of J. K., Esq., of counsel for the said 0. D., Ordered: That the said J. B. appear before the surrogate of the county of New York, at his office in the city of New York, on the tenth day of July, instant, at 11 o'clock in the forenoon of that day, and proceed with the inquiry into the said objections. E. C. H., Surrogate. G. A., atty.for executor. FORMS. 507 ProceediDgs to Compel Executor to Qualify. Y. Decree on objections. At a surrogate's court [efc., as in Form 12]. \Title.\ J. B., the widow of A. B., late of the city of ]!Tew Tork, de- ceased, and a legatee under his last will and testament, having duly filed her objections against the granting of letters testamentary of the said last will and testament to 0. D., one of the executors named therein, and the. surrogate having inquired into the said objections, and due proof having been taken, and after hearing counsel for the respective parties, and it appearing to the said sur- rogate that [the said C. D. is incompetent, by reason- of improvi- dence, to execute the duties of his trust as such executor. Ordered : That letters testamentary of the said last will and testament be refused to the said C. D.] Or [the circumstances of the said CD. are such as not to afford adequate security to the creditors, legatees and relatives of the said deceased, for the due administration of the said estate. Ordered: That such letters testamentary aforesaid be refused to the said 0. D. until he shall give the like bond as is required by law of administrators in cases of intestacy.] Or [the said 0. D. is, in all respects, competent to execute the duties of his trust as such executor, and that he is not disqualified therefrom by reason of improvidence, and that the circumstances of the said 0. D. are not such as to afford inadequate security for the due administration of said estate. Ordered: That the objections filed by the said J. B. against the issuing of letters testamentary to the said C. D. be dismissed, and that such letters testamentary issue to the said CD. It is further ordered: That the said J. B. pay the costs of the said C D. on this proceeding, and the fees and expenses thereof to be taxed.] No. 40, PROCEEDINGS TO COMPEL EXECUTOR TO (JUALIFY.' I. Petition to obtain summons. ITitle.] To K. 0. H., Esq., Surrogate of the county of New York. The petition of A. B. repectfully shows ; I. That your petitioner is [one of the legatees named in the will], or [a creditor stating the amount of the debt, and how it arose'] ai C D., deceased. ' Ante, p. 141, and 2 R. S. 10, §§ 9-12. 508 FORMS. Order that Executor be Deemed to have Renounced. II. That the will of the said 0. D. was, on the day of , 1 87 , duly admitted to probate by the surrogate of the county of New York. III. That one J. K., residing at No. , street, in the city of New York, is named as an executor in said will, and has not renounced, and has not yet appeared to qualify and take upon himseK the execution of the said will, notwithstanding more than thirty days have elapsed since said wiU was admitted to probate as aforesaid. Wherefore jovx petitioner prays that a summons may be issued to the said J. K., requiring him, according to law, to appear and qualify as such executor, within a certain time therein to be lim- ited, and notifying him that, in default thereof, he will be deemed to have renounced the said appointment. A. B. [Z>(zfe.J [ Y6rifiGaUon.'\ II. Summons to appear and qualify. The People of the State of New Yoek. To A. B., nam.ed and appointed one of the executors of the last will and testamient of O. I)., late of the city of New Ymic, deceased: You are hereby summoned and required to appear before the surrogate of the county of New York, at his office in the city of New York, before or on the eighth day of August next, at 11 o'clock in the forenoon of that day, and qualify as one of the ex- ecutors of the last will and testament aforesaid, or, in default there- of, you will be deemed to have renounced the said appointment. In testimorvy whereof, [etc., as in F&rm 1]. No. 41. ORDER THAT EXECUTOR BE DEEMED TO HAVE RENOUNCED.' At a surrogate's court [etc., as in Form 12]. [Title:] On filing the summons heretofore issued in this matter, upon the petition of 0. D., returnable on the day of , 187 , requiring A. B., the executor named iu the will of M. N., ' Ante, p. 142, and 2 R S. 11, § 12. FORMS. 509 Eenunciation of Executor. — Executor's Oath. deceased, to appear before the surrogate of the countv of New York, and qualify as such executor, and notifying him that, in de- fault thereof,' he would be deemed to have renounced the said ap- pointment, and upon due proof of the due service thereof, on the said A. B., and the said A. B., having neglected to appear and qualify as required in said summons, on the>said day of J 187, , and an order having on that day been en- tered, allowing him until this day to appear and qualify, and he having failed to appear and qualify within said time, and no fur- ther order extending the time having been granted, Ordered : That the said A. B., by reason of such neglect, has, and is to be deemed to have renounced the appointment as exec- utor as aforesaid. No. 42. RENUNCIATION OF EXECUTOR. ITitle.'] I, C. D., of the city of New Tork, one of the executors named and appointed in and by the last will and testament of A. B., late of the city of New Tork, deceased, do hereby renounce the said appointment, and all right and claim to letters testamentary of the said last will and testament, or to act as executor thereof. C. D. IDate.l Signed in the presence of J. S. H. S. . [^The signing may he proved hy an affidavit of one of the wit- nesses, or iy acknowledgment as in the case of deeds.'] No. 43. EXECUTOR'S OATH. [ Venue.] I, 0. D., one of the e:^cutors named in the last wiU and testa^ ment of A. B., late of the city of New York, deceased, do depose and say, that I am a resident of New York city, in the state of New Y ork, and over twenty-one years of age, and that I will faith- fully and honestly discharge the duties of executor of the said last will and testament. [Signat/ure.] {Jurat.] 510 FORMS. Bond of Executor or Administrator. No, 44. BOND OF EXECUTOR OR ADMINISTRATOR. Know All Men bt these Peesents, That we, A. B., of 120 Broadway, in the city of 'New York, and C. D., of 260 Fulton street, in the city of Brooklyn, and E. F., of White Plains, in the county of Westchester, are held and firmly bound unto the people of the state of JSTew York, in the sum of one thousand doUars, lawful money of the United States of America, to be paid to the said people ; to which payment well and traly 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 12th day of January, one thousand eight hundred and seventy-five. The condition of this obligation is such : That, if the above bounden A. B. shall faithfully execute the trust reposed in him as [executor] or [administrator] of all and singular the goods, chat- tels, and credits of G. H., late of the city of New York, deceased, and obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to him, then this obligation to be void, else to remain in full force and virtue. {^Signature and seals.] [^Sealed and delivered in presence of] \Add acJcnowledgment or proof of execution as in cnse of deed (see L. 1851, c. 175, § 3, and ante, p. 143).] \It is usual, also, to append on affidavit or justification of each surety as to his sufficiency. In the surrogate's office in the county of New York, this affidavit is in the following form, .•] [ Venue.] 0. D., of No. 260 Fulton street, Brooklyn, the surety named in the annexed recognizance, being duly sworn, deposes and says that he owns in his own right real estate in the state of New York, consisting of the house and lot No. 260 Fulton street, Brooklyn, and that the same is of the value of not less than five thousand dollars, and is subject to no incumbranced except a mortgage of two thousand dollars, held by the Mutual Life Insurance Company, of New York city, and that he owns personal estate in the said city of Brooklyn, and that its value is not less than three thousand dol- lars, that it consists of the fixtures and stock of goods in the gro- cery store No. 260 Fulton street, Brooklyn, and that it is subject to no incumbrance, and that there are no unsatisfied judgments or executions against him, and that he is under no recognizance, and FORMS. 511 Letters Testamentary. that he is worth in good property not less than two thousand dol- lars over and above all debts, liabilities, and lawful claims against him, and aU Hens, incumbrances, and lawful claims upon his prop- erty. C. D., 8uretyy [Jurat.'] No. 45. LETTERS TESTAMENTARY. The People or the State of New York, By the Grace of Ood, Free and Independent: To all whom these presents shall come or may concern, send greeting : Know ye, that at the county of New York, on the third day of May, in the year of our Lord one thousand eight hundred and seventy-five, before Kobert C. Hutchings, Esq., surrogate of our said county, the last will and testament of A. B., deceased,^ was proved, and is now approved and allowed by us ; and the said A. B. having been at or immediately previous to his death an inhabitant of the county of New York, 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 testator, and also the auditing, allowing, and final discharging the account there- of, doth belong unto us, the administration of aU and singular the goods, chattels, and credits of the said deceased, and any way con- cerning his will, is granted unto C. D., one of the executors in the said will named, he being first duly sworn faithfully and honestly to discharge the duties of such executor. In testimony whereof, [etc., as in Form 1]. [A certificate of the record is sometimes indorsed on the letters, thus ,•] New Yoek Ooitntt, ) Stobeogate's Office, j " Kecorded the within letters testamentary, in liber 340 of Let- ters Testamentary, page 97, the 3d day of May, 1875. EOBEET C. HUTCHINGS, Surrogate. ' In other counties, however, a simple affidavit by each surety that he is worth double the amount of the penalty of the bond over all his debts and liabilities, aad property exempt from execution, is all that is required. '■' Immediately after this word " deceased " was inserted, in the old forms, the words " (a copy whereof is hereunto annexed,) " and the letters were attached to a copy of the will, and, together with the will, formed the probate. 612 FORMS. Proceedings for Removal of Executor. Xo. 46. PROCEEDINGS FOR EEMOTAL OF EXECUTOR.' I. Petition alleging precarious circumstanoes. ITitle.] To E. C. H., Surrogate of the county of New York : The petition of H. T., of the city of New Tork, respectfully shows : * I. That he is one of ,the legatees under the last will and testa- ment of J. T., late of the city of New York, deceased, and is in- terested in the estate of the said deceased. II. That the said last wUl was admitted to probate by the surrogate of the county of New York, on the day of , in the year one thousand eight hundred and sixty- , and recorded by him in liber , page , of the records of wills in his ofBce, and that letters testamentary thereof were on the same day issued, and granted by the said surrogate to P. T., sole executor in the said will named. III. Your petitioner complains that the circumstances of the said P. T. are so precarious as not to afford adequate security for his due administration 'of the estate of the said testator ; and that the grounds of your petitioner's complaint are that [here state the particulars as to the situation and value of the estate, and the pecuniary situation of the executor, as, e. g., that the assets of the said testator which came into the hands of the said P. T., as such executor, as appears by the inventory filed by him, exceed ten thousand dollars ; that the said P. T. has failed in his business, and become insolvent, owing large sums of money]. Your petitioner therefore prays that a citation may issue pur- suant to the statute in such case made and provided, requiring the said P. T., executor as aforesaid, to show cause why he should not be superseded, and that the said P. T. may : be enjoined from further acting in the premises, until the matter in controversy shall be disposed of. [Date.] H. T. [ Verifoation.] II. Petition alleging that executor has become incompetent.^ [As inform above dovm to paragraph III.] III. Your petitioner complains that [here state the facts show- ing how the executor has become incompetent since his appoint^ ' See ante, p. 144, and 2 B. 8. 12, §§ 18-21. ' For causes rendering an executor incompetent, see anle, p. 138, and 2 S. S. 69 § 3, as am'dby Z. 1830, c. 230, § 17; i. 18'?3, c. 79. FORMS. 513 Order Requiring Secuiity. ment, as, e. g., the said P. T., at the time of the issue of letters testamentary to him as aboTe stated, was an alien (not being a citi- zen of the United States, but being a citizen of the kingdom of Great Britain), resident at New York city, in the state of New York, and that since such appointment he has ceased to be a resi- dent of the state of New York, and did, on or about the day of , 187 , remove from the city of New York, and take up his residence at Jersey City, in the state of New Jersey, and he is now a resident of that state]. ■ \_Contmue as in form .alove.] III. Order enjomi/ng executor} ' At a surrogate's court [eto., as in JForm 12]. {_TiUe.] H. T., of the city of New York, a legatee under the will of, and interested in the estate of J. T., late of said city, deceased, having, on the day of , 18Y , filed in the office of the surrogate of the county of New York a petition, duly sub- scribed and verified, by which complaint is made [that the circum- stances of P. T., the executor of the said will, are so precarious as not to afford adequate security for his due administration of the estate of the said deceased] ; or [that P. T., the executor of the said will, has become by law incompetent to serve as such] ; and it ap- pearing to the said surrogate, by the facts stated in such verified petition, that there are good grounds for such complaint, and the said surrogate having thereupon issued a citation to the said P. T., requiring him to appear before the said surrogate, at a day and place therein specified, to show canse why he should not be super- seded as such executor, Ordered : That the said P. T. be, and he hereby is enjoined from further acting in the premises until the matter in controversy shall be disposed of. No. 47. OKDER EEQUIKINGt SECLKITY." At a surrogate's court [etc., as in Form 12]. \Title.'\ On reading and filing due proof, by affidavit, of the due and personal service on P. T., the executor of the last wiU and testa- ment of J. T., late of the city of New York, deceased, of the cita- tion heretofore issued in this matter, in due form of law, requiring him to appear in this court on this day to show cause why he See ante, p. 146 ; L. 1837, c. 460, § 61. * See ante, p. 145. 514 FORMS. Order Allowing Deposit of Securities. should not be superseded as sueli executor ; and tlie said P. T. having appeared, and H. T., the complainant herein, having also appeared, and after hearing the proofs and allegations of the par- ties, and it appearing that the circumstances of the said P. T., executor as aforesaid, are so precarious as not to afford adequate security for his due administration of the estate, Ordered: That the said P. T. give bond, with sureties like those required by law of administrators, within four days from this day, or, in default thereof, that his letters testamentary be superseded. No. 48. OKDEB ALLOWING DEPOSIT OF SECURITIES.' At a surrogate's court [efc., as in Form 12]. \Title.\ Upon the petition of the above named M. IS.,, a citation having issued to C. D., executor of A. B , deceased, requiring him to show cause why he should not be superseded as such executor, and the said citation having been duly served upon the said C. D., and the said 0. D. having duly appeared on the return day named in said citation ;• and it appearing to the surrogate, by affidavit, that the estate of the said deceased is in the course of. liquidation, and that further time will be required to enable the said executor to render an account of his proceedings, and that, in the mean time, the injunction granted by said order to^ show cause, bearing date the 25th day of March, 18Y3, should be suspended, Now, on motion of J. M., proctor for the said executor, the proctors for the said petitioner consenting hereto. It is ordered: 1. That the further hearing in this matter be, and the same is hereby, adjourned to the day of 1873, and that, in the mean time, the said injunction be suspended. 2. That the said executor cause to be deposited with the United States Trust Company, of the city of New York, interest-bearing negotiable securities of the par value of fifty thousand dollars, to the credit of the above entitled matter, as security for the payment of the annuities to M. N., bequeathed by the will of said deceased. 3. That the said securities shall not be withdrawn, nor .any part thereof, from the possession and control of the said trust com- pany, except upon an order made by the surrogate in the above entitled matter. * See ante, p. 146. FORMS. 515 Order Superseding Executor. No. 49. ORDER SUPERSEDING EXECUTOR." At a surrogate's court, [etc., as in Forin 12]. \Title:\ Letters testamentary of the will of A. B., late of the city of New York, deceased, having heretofore been granted and issued by the surrogate of the county of New York to C. D., sole execu- tor in the said will named ; and M. IST., of the city of New York, a legatee under said will, and interested in the estate of the said deceased, having made his complaint to the said surrogate [that the circumstances of the said C. D. are so precarious as not to afEord adequate security for his due administration of the said estate] ; or, [that, since the said letters were granted to him, the said 0. 'D. has become by law incompetent to serve as such execu- tor] ; and the surrogate having thereupon issued a citation in due form of law to the said C. D., executor as aforesaid, requiring him to show cause on the day of now past, why he should not be superseded as such executor ; and due proof of the service of the said citation having been filed with the said surro- gate, and the said C. D., and the said M. N., having appeared on the said day, and after hearing the proofs and allegations of the parties, and it having appeared [that the circumstances of the said 0. D., executor as aforesaid, are precarious as aforesaid, and the surrogate having thereupon, pursuant to the statute in such case made and provided, ordered and required the said C. D. to give bond, with sureties like those required by law of administrators, within four days from the said day, and the said C. D. having neglected to give such bond so required] ; or, [that the said C. D. is legally incompetent to serve as such executor] : Ordered : That the letters testamentary of the last will and testament of A. B., late of the city of New York, deceased, here- tofore granted and issued by the said surrogate to C. D., sole exec- utor in the said will named, and bearing date on the day of , in the year one thousand eight hundred and seventy-five, be, and the same hereby are, superseded; and all authority and rights of the said C. D., as such executor aforesaid, are hereupon to cease. ' See ante, p. 146. 516 FOEMS. Petition for Supplementary Letters. No. 50. PETITION FOE SUPPLEMENTARY LETTERS. In the matter of the application of CD., for supplementa/ry letters testament- a/ry to he issued to him on the estate of A. B,, deceased. To K. 0. H., Esq., Surrogate of the county of New YorJc. The petition of C. D., of 320 Greenwich street, of the city of New York, respectfully shows : I. That the will of A. B., deceased, late of 160 Bond street, in the city of New York, was on the day of , 187 , duly admitted to probate by the surrogate of the county of New York, and recorded by him in Liber , page , of the rec- ords of wills in his office, and on the day of , 187 , letters testamentary were issued thereupon, by the said surrogate, to M. N., one of the executors named therein. II. That your petitioner is one of the executors named in said will, but at the time of the admission of the said will to probate, and the issue of letters thereon, he was a minor under the age of twenty-one years, by reason whereof letters testamentary could not issue to him. III. That your petitioner, since the said wiE was admitted to probate, to wit, on the day of , 187 , arrived at the age of twenty-one years. IV. That the execution of said wiU is not yet completed, but [state what remains to he done to complete the wiU\. Wherefore your petitioner prays that supplementary letters testamentary may be issued to him in the same manner as the original letters, and that he may be authorized to join in the ex- ecution of such will with the person already appointed. [Signature.'] [Date.-] ■ [ Verification.'] " See ante, p. 147. FORMS. 517 Petition for Administration with the "Will Annexed. No. 51. Petition for Administration with tlie Will Annexed.' Sueeogate's Couet, New Toek Cotintt. In the m.aUer of administration, with the will annexed, of the goods, chattels, and credits left unadministered of A. B., deceased. To EoBEET 0. HuTCHiNGS, Surrogate of the county of New York ; The petition of CD., of 120 Hudson street, in E"ew York city, respectfully shows : I. That A. B., late of 320 Greenwich street, in the city of JSTew York, deceased, died of consumption at said 320 Greenwich street, in New York city, on the 10th day of January, 1875, leaving a last will and testament, by which he appointed one M. N. the sole exec- utor thereof. II. That the said last will and testament was duly admitted to probate by the surrogate of the county of New York, on the 12th day of February, 1875, and letters testamentary thereon duly issued to the said M. N. III. That the said M. N., the executor named in said will, has departed this life, leaving certain property and assets of the said testator still unadministered. lY. That your petitioner has, to the best of his ability, esti- mated and ascertained the value of the personal estate of which the said testator died possessed, and that the same will not exceed in value the sum of one thousand dollars, according to the best of your petitioner's information and belief. Y. That the said testator, at or immediately previous to his death, was an inhabitant of New York city, in the county of New York. YI. That your petitioner has been informed and believes that the said deceased left surviving him no widow, and that your peti- tioner, who is the nephew of said deceased, and the sole residuary . legatee named in said wiU, and one J. K., who is a niece of said ' See ante, p. 151. 618 FORMS. Letters of Adminiatratioa with the Will Annexed. deceased, and resides at ISTo. 320 Greenwich street, in New Tork city, are his only next of kin. Tour petitioner therefore prays that letters of administration, with the will annexed, of the goods, chattels, and credits of the said A. B., deceased, so left nnadministered ,as aforesaid, may be granted to your petitioner. [Siffned.'] C. D. , [Dated.'] [ Verijioaiion.] No. 52. Letters of Administration Tvith the Will Annexed.' The People of the State of New Yoek To C. D. send greeting : Wliereas A. B. lately departed this life, having previously duly made and executed his last will and testament ; and whereas said will was, on the 12th day of February, in the year one thousand eight hundred and seventy-five, duly admitted to probate by Eobert C. Hutchings, Esquire, surrogate of the county of New York, the said decedent having been at the time, of his death an inhabitant of the county of New Tork, by means whereof ihe proving and registering of said will, and the ordering and granting administra^ tion of all and singular the goods, chattels, and credits whereof the said testator died possessed in the state of New Tork, and also the auditing, allowing, and final discharging the account thereof, doth appertain unto us, and we being desirous that said will should be observed and performed, and that the goods, chattels, and credits of said testator should be well and faithfully administered, applied, and disposed of, do grant unto you the said C. D. full power and authority, by these presents, to administer and faith- fully to dispose of all and singular the said goods, chattels, and credits, and to ask, demand, recover, and receive the debts which unto the said testator, whilst living and at the time of his death, did belong, and to pay the debts which the said testator did owe, as far as such goods, chattels, and credits will thereto extend and the law require, Hereby requiring you to observe and perform the said last will and testament, and to observe and 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 C. D., administrator with the will annexed of all and singular the goods, chattels, and credits which were of said A. B., deceased. In, testimony whereof, [etc., as in Fmrm 1]. ' See ante, p. 163. FORMS. 519 'Petition for Grant of Administration. No. 53. PEflTION FOE GRANT OF ADMINISTRATION.' Sueeogate's Court, ComiTTY of New Toek. In the matter of the application for letters of administration on the goods, chattels, and credits of A. B., deceased. To KoBBET C. HtrrcHiNGs, Esquire, Surrogate of the county of New York : The petition of 0. D. respectfully shows : I. That your petitioner is a resident of ISTo. 160 Hudson street, in the city of New York, and is the grandson of the said A. B., deceased, and is of full age. II. That said deceased died of pneumonia, 'at No. 160 Hudson street, in New York city, on the first day of May, 1875, without leaving any last will and testament, to the best of your petitioner's knowledge, information, or belief ; that your petitioner has made diligent search and inquiry for a wUl of said deceased, and has not found any, or obtained any information that he left any. III. That said deceased died possessed of certain personal property in the county and state of New York ; and that the value of all the personal property, wherever situated, of which the de- ceased died possessed, does not exceed the sum of one thousand dollars. IV. That your petitioner has been informed, and verily believes that said deceased left surviving him his widow, J. B., residing at Poughkeepsie, Dutchess county, in this state, and a son, W. B., residing at 260 Fulton street, Brooklyn, Kings county, in this state ; and that he left him surviving no other child, nor . any father, mother, brothers, or sisters, nor any grandchild, except your petitioner, who, with the said "W. B., constitute his only next of kin. Y. That said, deceased, a retailer of hardware, and was at or immediately previous to his death an inhabitant of the county of New York. ■ Ante, p. 163. 520 FORMS. Petition for Grant of Administration. Toiir petitioner therefore prays that letters of administration of the goods, chattels, and credits of the said deceased, may he granted to him by the said surrogate of the county of ISTew York, [and that a citation may issue directed to the above named J. B. and W. B., requiring them to show cause, at a day to be therein specified, why the prayer of your petitioner should not be granted.] [Signed.] CD. [ Verification.] \_Jn case the person applying has the prior right to letters, the clause in hraohets is omitted, and so is it where those ha/ovng the prior right home renounced. The fact of their renunciqfion sliould appea/r hy the petition, as well as iy the surrogate's record. In case the petitioner desires another person joined with him in the adminisl/ralAon, the prayer of the petition should he in the following form :] Tour petitioner therefore pr ays that letters of administration may be granted to him, and to J. W ., residing in the city of New York, merchant, to be joined with him in the administration, pur- suant to the statute in such ease made and provided; and he hereby consents to* have the said J. W. so joined in such adminis- tration. \The form, of the renunciation to he filed under 2 R. S. 76, § 35, is as follows ;] [T*&.J I, J. B., of Poughkeepsie, Dutchess county, widow of A. B., late of the city of JN ew York, deceased, do hereby renounce all right to letters of administration on the estate of said A. B. [Signed?^ J. B. {Date.] Signed in the presence of K. S. \Add acknowledgment or proof iy subscribing witness, as in case of a deed.] [The coTisent to have another person Joined in the administra- tion, where it is not contained in the petition, ma/y be in the fol- lowing form :] [Title.] I, E. K., of the city of JS'ew York, the widow of J. K., late of the city of E"ew York, gentleman, deceased, intestate, and eutitled FORMS. 521 Letters of Administration. . to the administration of tlie goods, chattels, and credits of the said intestate, do hereby consent that such administration be granted to J. W., of the city of New. York, merchant, to be joined with me therein. ISigned.'] E. K. IDate.'] \_Add pfoof of execution, as in form above.] No. 54. LETTERS OF ADMINISTKATION." The People of the State of New York To A. B. and C. D., send greeting ; Whereas E. F. lately departed this life intestate, being at or immediately previous to his death an inhabitant of the county of New York, by means whereof the ordering and granting adminis- tration of all and singdlar the goods, chattels, and credits whereof the said intestate died possessed, in the state of New York, and also the auditing, allowing, and final discharging the account thereof, doth appertain unto us ; and we being desirous that the • goods, chattels, and the credits of the said intestate may be well and faithfully administered, applied, and disposed of, do grant unto you, the said A. B. and C. D., fuU power, by these presents, to ad- minister and faithfully dispose of all and singular the said goods, chattels, and credits; to ask, demand, recover, and receive the debts which unto the said intestate, whilst living and at the time of his death, did belong ; and to pay the debts which the said in- testate did owe, as far as such goods, chattels, and credits will thereunto extend and the law require ; hereby requiring you to make, or eaufee to be made, a true and perfect inventory of all and singular the goods, chattels, and credits of the said intestate, with- in a reasonable time, and return a diiplicate thereof to our surro- fate of the county of New York, within three months from the ate 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 possession or knowledge, to make or cause to be made, in like manner, a true and perfect inventory thereof, and return the same within two months after the discovery thereof, and also to render a just and true account of administra- tion, when thereunto required ; and we do, by these presents, de^ pute, constitute, and appoint you, the said A. B. and C. D., adndin- istrators of all and singular the- goods, chattels, and credits of the said E. F., deceased. In testimony whereof [etc., as in Form 1]. ' Ante, p. 168. 522 FORMS. Proceedings to have Administrator give further Sureties. No. 55. Proceedings to haye Administrator give further Sureties.' 7. Petition ly person interested. \Tiile.\ The petition of M. IS'., of the city of New York,' respectfully shows : I. That your petitioner is one of the children and next of Mn of S. IST., late of the city of N'ew York, deceased, intestate, and has not yet received the share of the estate of the said S. N. to which by law he is entitled. II. That letters of administration on the estate of the said S. K^., deceased, were issued by the surrogate of the county of New York to 0. D., of the city of New York, on the day of , 18Y5. III. Your petitioner further shows that C. E. [lately a resident of the city of New York, is one of the sureties of the said C. D. in his bond given by him on the granting of the said letters, and that the said 0. E. has removed out of the state of New York, as your petitioner is informed and believes, and has gone to Boston, in the state of Massachusetts, or other facts showing insufficiency of sureties^ lY. That E. N., of . the city_ of New York, is- the only other sui-ety of the said administrator in his said bond. Your petitioner therefore prays that the said C. D. may be cited to appear before the surrogate of the county of New York, and show cause why he should not give fiarther sureties, or be superseded. \SignatAire.\ [ Verification.] II. Order for further sureties. At a surrogate's court [etc., as in Form 12] . ■ iTifle.} The citation issued to C. D., administrator of the estate of . A. B., deceased, on the day of , 18Y , requiring him to show cause why he should not give further sureties as such administrator, or be suspended in his administration, having been returned with due proof of service on the said C. D., and the said 0. D. having appeared by W. M., Esq., his attorney, and it satis- ' See ante, p. Itl ; see also Forms 46-49. FORMS. 523 Order Reroliing Letters. factorily appearing that C. E., one of Ms sureties, has [removed from this state, or stating other facta fallowing insufficiency^ Ordered: That said C. D. give further sureties, in the usual form, as such administrator as aforesaid, within five days from this date ; or, in default thereof, that his letters of administration he revoked. K. C. H., Surrogate. No. 56. ORDER REVOKING LETTERS.' At a surrogate's court {etc., as in Form 12]. lTitle.\ Letters of administration on the estate of A. B., late of the city of New York, deceased, having heretofore been issued by the surrogate of the county of New York to C. D., of the city of New York, and G. M., one of the next of kin of the said A. B., de- ceased, having represented to the surrogate that C. H., one of the sureties of the said C. D., in his bond given by him on the grant- ing of the said letters, has removed out of the state of New York, and the surrogate having received satisfactory evidence that the matter required investigation, and having thereupon issued a cita- tion in due form of law to the said 0. JJ., administrator as afore- said,- requiring him to show cause, on the day of , now past, why he should not give further securities as such adminis- trator, or be superseded in his administration ; and the said C. D. and the said Gr. M., having appeared on the return of the said eita- tion, and it satisfactorily appearing that the sureties of the said C. D., as such administrator aforesaid, are insufficient, and that C. E., one of the said sureties, has removed out of this state, and the surrogate having thereupon made an order requiring the said C. D. to give further sureties in the' usual form as such adminis- trator aforesaid, within five days from the said day, and the said 0. D. having neglected to give further sureties to the satisfaction of the surrogate within the time so prescribed, Ordered: That the letters of administration on the estate of A. B., late of the city of New York, deceased, heretofore issued by the said surrogate, bearing date on the day of , in the year one thousand eight hundred and seventy- , be',' and the same are hereby revoked. And all authority and rights of the said C. D;, as such administrator aforesaid, are hereupon to cease. ' Ante, p. 172. 624 FORMS. Petition for AdminiBtratiou De Bonis Won. No. 57. PETITION FOfi ADMINISTRATION DE BONIS NON." Sueeogate's Cotjet, New Yoek County. In the matter of the amplication for letters of administration on the goods, chattels, and credits left unadministered of A. B., deceased. To EoBEET C. HuTCHiNGS, Esquire, ' Surrogate of the county of New York. The petition of 0. D. respectfully shows : ■ I. That your petitioner is a resident of No. 120 Bond street, in the city of New York, and is the grandson of the said A. B., deceased, and is of full age. II. That said deceased died of pneumonia, at 120 Bond street, in New York city, on the day of , 187 . ill. That letters of administration upon the goods, chattels, and credits of the said A. B., deceased, were duly granted by the surrogate of the county of New York, on the day of , 187 , unto J. B., the widow of said A, B., deceased. IV. That said J. B., the administratrix of the estate of said A. B., deceased, has since departed this life, on the day of , 187 , leaving certain property and assets of the said A. B. still unadministered. V. That your petitioner, has, to the best of his ability, ascer- tained and estimated the personal estate of which the said A. B. died possessed, and the value of the same does not exceed the sxun of one thousand dollars. VI. And your petitioner has been informed, and believes, that said deceased left him surviving \state names and residences of next of liin, as in Form, 53], his only next of kin. VII. That said deceased was a retailer of hardware, at No. street, in New York city, and was at, or immediately previous to his death, an inhabitant of the county of New York. ' Ante, p. 172 ; 2 iJ. ,S. 78, g 46. FOEMS. 525 Letters of Administration De Bonis Non. Your petitioner therefore prays tliat letters of administration de honis non of the goods, chattels and credits of the said de- ceased so left unadministered as aforesaid, may be granted by the surrogate of the county of New York to your petitioner. [Signahire.'] [ Verification.'] No. 58. LETTERS OF ADMINISTRATION DE BONIS NON.' The People of the State oe New Yoek, By the grace of God free and inde-pendent. To C. D., one of the next of kin of A. B., deceased, late of the county of New York, send greeting. Whereas, The said A. B., at the time of his death, was an in- habitant of the said county, and, as is alleged, lately died intestate, having whilst living, and at the time of his death, goods, chattels, or credits within this State, by means whereof the ordering and granting administration of all and singular the said goods, chattels, and credits, and also the auditing, allowing, and final discharging the account thereof doth appertain nnto us ; and we being desirous that the goods, chattels, and credits of the said deceased which are still imadministered may be well and faithfully administered, ap- plied and disposed of, do grant unto you, the said C. D., full power by these presents, to administer and faithfully dispose of all and singular the said goods, chattels and credits, which are still unad- ministered; to ask, demand, recover, and receive the debts which Tinto the said deceased, whilst living, and at the time of his death did belong ; and to pay the debts which the said deceased did owe, as far as such goods, chattels, 'and credits will thereto extend, and the law require ; hereby requiring you to make, or cause to be made, a true and perfect inventory of all and singular, the goods, chattels and credits of the said deceased, which shall, or have come, to your hands, possession or knowledge ; and the same so made to exhibit, or cause to be exhibited, into the office of the surrogate of the said county, at or before the expiration of three months from the date hereof; and also to render a just and true account of ad- ministration, when thereunto required. And we do by these pres- ents depute, constitute, and appoint you, the said 0. 1)., adminis- trator of all and singular, the goods, chattels, and credits still nn- administered, which were of the said A. B., deceased. In testimony whereof [etc., as in Form 1]. ' Ante, p. 173. 52G FORMS. Affidavit to Obtain Order to Sell Perisbable Property. No. 59. AffldaTit to obtain Order to sell Perishable Property." Sueeogate's Cottet, New Toek County. In the matter of the goods, c&c, of A. B., deceased. [ Venue.] M. JST., being duly sworn, says, that lie is a clerk in the office of S. E., Esq., the public administrator of the county of Ifew York; that on th« day of , 1870, A. B., of No. , street, in the city of New York, died intestate at said city, leaving certain goods, chattels and effects in the city and county of New York ; that no notice has been received by the said public administrator that any one entitled to a distributive share in the estate of said A. B. is a resident of the city of New York, and that the said public administrator, by virtue of his of- fice as such, did, on the day of , 18T0, take pos- session of," and now holds, the said goods, chattels and effects of the said A. B., deceased, which were in the city and county of New York at the time of his decease, or which have since come therein ; that the said deceased was in his lifetime a dealer in country produce, at No. , street, in the city of New York, and that the stock of goods in the said store, which has been taken possession of . by the said public administrator, consists of the butter, eggs, vegetables, and dressed poultry shown by the an- nexed inventory,. marked Exhibit A, and that the whole thereof is now in a perishing condition. [Signature^ [Jurat.'] No. 60. ORDER FOR SALE OF PERISHABLE PROPERTY. At a surrogate's court Teto., as in Form 12'1. [Title.-] On reading and filing the affidavit of M. N., hereto annexed, by which it appears that S. E., Esq., the public administrator of the city of New York, has in his charge, by virtue of his office, < ' Ante, p. 1Y6. FORMS. .')27 Proceedings by Public Administrator for an Order to Seize Personal Property. certain property (which is described in an inventory attached to, and made part of, said aflSdavit), and that such property is in a perishing condition ; Ordered: That the said S. K., Esq., public administrator of the city of I^ew York, sell at public auction the property described in the said affidavit and iaventory, and that such sale take place on the day of , 187 , or on such adjourned days as the said public administrator shall designate. No. 61. Proceedings by Public Administrator for an Order to seize Personal Property to prevent Waste.' I. Petition for order. ITitle.] To the surrogate of ths county of New Yorh : The petition of S. R., public administrator in the city of New York, respectfully shows, upon his information and belief, that A. B., late of Chicago, Illinois, died in the city of l^ew York, on the day of , 187 , intestate, leaving certain goods, chattels and effects in the city and county of New York, and that the said property is in danger of waste and embezzlement. He further shows, upon his information and belief, that the said A. B. left him surviving, M. B., his widow, of full age, and W. B. and S. B., both minors under the age of twenty-one years, his only children, and only next of kin, all, at the time of the death of the said intestate, and still, residents of the city of New York, and for proof of the all^ations herein contained the public administrator refers to the affidavit of W. S., a creditor of the said intestate, hereto annexed. The public administrator, pursuant to the statute in such case made and provided, applies to the surrogate for an order authoriz- ing him to take charge of, seize, and secure the goods and property of the said A. B., deceased, intestate. S. E., [^Dated.l Public administrator. [ Verification.^ II. The affidavit to accompajiy petition. [Title.] [ Venue.] W. S., of the city of New York, being duly sworn, says, that he is a creditor of A. B., late of Chicago, Illinois, the person ' Ante, p. 180. 528 FORMS. Order Authorizing Seizure. referred to in the annexed petition. That the said A. B. died in the city of New York, on the day of , 187 . That he left him surviving, M. 'B., of full age, his widow, and W. B. and S. B., minors, his only children, and only next of kin, and that the said widow and next of kin of the said intestate resided at the time of his death, and stUl reside, in the city of New York. That the said A. B. died possessed of a stock of dry goods of the value of upwards of ten thousand dollars, in his late store, No. , street, in the city of New York. That the said store, and the stock of goods therein. contained, have been, since the death of the said A. B., in the possession of the clerks formerly employed in the said store. That no responsible person has been in charge thereof, and that portions of the said goods, to the amount of upwards of one thousand dollars, have been disposed of and carried away, apparently under the direction of the clerks in the said store. And this deponent further says, that the said goods are in danger of waste or embezzlement, and that, as this deponent believes, it will be for the benefit of the estate of the said deceased to have the said goods seized and secured. W. S. [Jurat.'] No. 62. ORDER. AUTHORIZING SEIZURE.' At a surrogate's court [etc., as in Form 12]. \Title^^ On reading and filing the ap^cation of S. E.., the public ad- ministrator in the city of New York, and the affidavit of W. S., a creditor of the said A. B., deceased, by which it appears that the widow and next of kin of the said intestate, entitled to a distributive share in his estate, resided in the city of New York at the time of the death of the said intestate, and stUl reside in the said city; and that the stock of dry goods of the said de- ceased in his late store, No. , street, in the city of New York, are in danger of waste and embezzlement; and that it would be for the benefit of the estate of the said intestate to have the said stock of goods seized and secured. Ordered : That the said S. K., public administrator in the city of New York, be, and he hereby is, authorized to take charge of, seize and secure the stock of my goods, property and efEects of the said A. B., deceased, in the store lately occupied by the said deceased, at No. , street, in the city of- New York. ' ArUe, p. 180. FORMS. 529 Notice of Application for Administration. No. 63. NOTICE OF APPLICATION FOR ADMINISTRATION.' Public Adminibteatok's Office. Notice is hereby given to tie relatives and next of kin of A. B., deceased, and wlio is alleged to have died intestate, that I shall apply to the surrogate of the county of New York, for letters of administration upon the estate of the said intestate, on the day of next, at ten o'clock in the forenoon. S. B. E., Puhlio Adni'r. [Bate.'] No. 64. Notice that Pnblic Administrator will take Administration.* Public Administeatoe's Office, \ CouET House, Beookltit, IST. T. f Notice is hereby given to the relatives and next of kin of A. B., late of the city of Brooklyn, deceased, and who is alleged to have died intestate, that the effects of the said intestate in the hands of the public administrator will be administered and dis- posed of by him according to law, unless the same be claimed by some lawful executor or administrator of the deceased, by the day of next. HENET J. CULLEN, Je., PubUo Ad/n^r. [_Date.] No. 65. Sueeogate's Couet, County of Kings. In the matter of the admmistra- Uon of the goods^ chattels and credits of A. B., deceased. City of Brooklyn, Cowrdy of Kings, ss. : H. J. C, Jr., the public administrator in the county of Kings, being duly sworn, says that he is informed and believes that me ' See ante, p. 181. ' See ante, p. 182. 34 530 FOEMS. Petition for Letters of CoUection. said A. B., late of Brooklyn, Kings county, deceased, departed this life at Brooklyn, on the day of last, leaving prop- erty and effects o± which this deponent is authorized by law to take charge, the value of which is about the sum of seventy-five dollars. That deponent has caused the service and publication of the notice required by law, as appears by affidavit annexed hereto ; that no claim has been made according to law, and that deponent has taken upon himself the administration of the estate of the'de- ceased. H. J. C, Je., PubUa AdrrCr. [Jurat.'] \_Annex to this an affida/oit showmg due service a/nd publication of the notice in Form 64.] ]f 0. 66. PETITION FOR LETTERS OF .COLLECTION.' {Title.] To R. C. H., Surrogate of the Cownty of New York : The petition of A. B., of 16 Wall street, in the city of 'New York, respectfully showeth : I. That your petitioner is the sole executor named in the in- strument in writing purporting to be the will of C. D., late' of the city of New York, deceased. II. That the said instrument was on the day of , 1875, prcroounded for probate before the surrogate of the county of New York, and the probate thereof is contested, whereby a de- lay is necessarily produced in granting letters testamentary or of administration, and it is uncertain when such contest will be terminated. III. That the property of said deceased consists, in part, of [state the nature of the assets, e. g., a stock of goods of a grocery store], and that it is necessary that immediate steps should be taken for the preservation or disposal thereof. IV. That your petitioner has, to the best of his ability, esti- 'mated and ascertained the value of the personal property of which the deceased died possessed, and that the same does not exceed in value the sum of two thousand dollars. y . Your petitioner further shows, that the said deceased, at or immediately previous to his death, was an inhabitant of the county of New York, and that he is informed and believes that the surro- ' See ante, p. 193. FOEMS. 531 Letters of Collector and Receiver. gate of the county of 'New York has power in his discretion to issue special letters of admiaistration, authorizing the preservation and collection of the goods of the deceased. Tour petitioner, therefore, prays that that such letters may be issued to him pursuant to the statute in such case made and pro- vided. [Date.] [Signature.] [ Verification.] No. 67. LETTERS OF COLLECTOR AND RECEITER.' T. Letters of Collector. The People of the State of New Yoek, To A. B., send greeting : Whereas, a paper has Tseen propounded for probate before the surrogate of the county of New York, as the last wUl and testar ment of 0. D., late of the city of New York, deceased, and a contest exists relative such probate, and a delay is thereby neces- sarily produced in granting letters testamentary or of administra- tion upon the estate of said deceased ; Know ye, that we, being desirous that the goods, chattels and credits of said deceased may be collected and preserved, do grant unto you, the said A. B., full power by these presents, to collect, recover and receive the said goods, clmttels and credits of the said deceased ; and to secure the same at such reasonable expense as the surrogate of the county of New York shall allow, and to sell such of the said goods as are perishable, under the direction of the said surrogate, after the same shall have been appraised, hereby requiring you to make, immediately, a true and perfect inventory of all and singular the goods, chattels or credits of said deceased, and return the same to our said surrogate, within three months from the date of these presents ; and also to render a just and true account of your administration, as such collector, whenever re- quired by our said surrogate, and faithfully to deliver up the goods, diattels and credits of said deceased, to any person or persons who shall be appointed executors or administrators of the said CD., deceased, or to such other person as shall be authorized to receive the same by said surrogate. In testimony whereof [etc., as in Form 1]. ' See ante, p. 194. 532 FORMS. Application for Subpcena to Discover Concealed Property. II. Letters of Recewer} The People of the State of !N"ew Yoke To A. B., send greeting : Whereas, a paper has been propounded for probate before the surrogate of the county of ISTew York, as the last will and testa- ment of C. D., deceased, and a contest exists relative to such pro- bate ; and a delay is thereby necessarily produced in granting let- ters testamentary or of administration upon the estate of said deceased : Know ye, that we, being desirous that the rents of real estate of said deceased may be collected and preserved, do grant unto you, the said A. B., full power, by these presents, to collect, recover and receive the rents of real estate of the said deceased ; and to secure the same, at such reasonable expense as the surrogate of the county of If ew York shall allow ; and also to render a just and true account of your receivership as such receiver, whenever required by our said surrogate, and faithfully to deliver up the rents of the real estate of said deceased, to any person or persons who shall be appointed executors or administrators of the said C. D., deceased, or to such other person as shall be authorized to receive the same by said surrogate. And your authority as such receiver is subject to the restrictions, requirements, and provisions of the order of the surrogate, entered on the day of , 18Y , in the matter of said appointment. In testimony whereof {etc., as in Form, 1]. No. 68. Application for Subpcena to Discover Concealed Property." \Titu:\ [ Venue.] A. B., of the town of 'M., in said county, being duly sworn. I. That he is [the executor of the last will and testament of J. D., late of said town, deceased], or [the administrator of the goods, chattels and credits of J. D., deceased], and that [letters testamentary], or [of administration], were issued to deponent by this court on the 12th day of May last past. ' By Z. ISW.'c. 359, § 18, the surrogate of the county of New York is authorized to appoint a receiver in certain casea (see ante, p. 191). » See ante, p. 200 FORMS. 533 Order for Subpcena. II. That deponent lias made search and inquiry for the goods, chattels and credits of said deceased, and from such inquiry de- ponent helieves that some of such chattels, to wit : [descrioe the property], [which were in possession of the said deceased at the time of his death], or [which were in the possession -of the de- ceased within two years prior to his decease], are [withheld], or [concealed] by J. K. and L. M., [who were about the person of the deceased, prior to his decease], or [in whose hands the said effects of the deceased have fallen]. III. That deponent has demanded such articles from the said A. B. and 0. D., who have refused to deliver the same to the de- ponent. , rV. Deponent further says, that the reasons aud grounds for deponent's belief that such property belongs to the estate of the deceased are [his personal knowledge that the said deceased owned them], or [information derived from K. S. and T. TJ., whose affi- davits are hereunto annexed], and deponent prays the aid of this courts for the recovery and discovery of such property, and that a subpoena issue out of this court to [nmning the persons], requiring them to appear at a time and place therein to be specified, for the purpose of being examined touching the estate and effects of the said deceased. [Signature.] [Jurat.'] No. 69. ORUER FOR SUBP(ENA.' At a surrogate's court [etc., as in Form 12]. [Title.] On reading and filiag the affidavits of A. B., E. T. and T. U., by which it satisfactoijly appears that there are reasonable grounds for suspecting that certaia effects which were the property of the above-named deceased, are concealed or withheld, and 0. D., the executor of the will of said deceased, asking for a subpoena requir- ing J. K., L. M. and K. S., to appear and be examined in relation thereto ; Ordered, That a subpoena issue under the seal of this court, to the said J. K., L. M. and E. S., requiring them to appear before our surrogate of the county of New York, on the day of , 1874, at the surrogate's office, in the city of New York, at eleven o'clock in the forenoon of that day, to be examined touching the estate and effects of the said deceased. ' See anU, p. 200. 534 FORMS. Order for Bond or "Warrant. — Order Appointing Appraisers. No. 70. ORDER FOR BOND OR WARRANT.' At a surrogate's court [etc., as in Form 12]. \Title?^ It appearing from the testimony in this matter, that certain effects of the above-named deceased, to wit : \desafe.] Yours, &c., A. B., To M. N. Executor. II. Proof of clwim. [Title and venue.'] A. B., of the city of New York, being duly sworn, says, that the estate of said C. D., deceased, is justly indebted unto de- ponent in the sum of sixty-four dollars and ten cents, as specified in the annexed accoimt, and interest thereon from March 14th, 1874. That the said sum of sixty-four dollars and ten cents, and interest as aforesaid, is now justly due and owing to deponent, and that no payment has been made thereon, and that there are no offsets thereto, and the same is not secured by judgment or mort- gage upon, or expressly charged on the real estate of said deceased, or any part thereof. [lurat.'] [Signature.] No. 77. ENTRT OP DEMANDS ADJUDGED TALID. At a surrogate's court [etc., as in Form 12]. [Title.] On the hearing at the time and place appointed in the order to show cause, entered in this matter on the 10th day of May, 1875, and at the time and places to which such hearing was adjourned, the said surrogate adjudged the demands of the following persons to be valid and subsisting demands against the said deceased, that is to say : NAME. AMOUNT CLAIMED. TIME DUE. AMOUNT PAID. WHEN PAID. 550 • FORMS. Bond on Mortgage or Sale. No. 78. BOND ON MORTGAGE OR SALE. Kijow All Men by these Peesents : That we, A. B., of the town of "White Plains, in the coimty of "Westchester and state of New York, the executor of C. D., late of the town of Yonkers, in said cotmty, deceased, and E. F. and G. H., both of the town of Yonkers, in said county, are held and firmly bound unto the people of the state of New York in the sum of ten thousand 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 biud ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated, this 10th day of May, one thousand eight hyndred and seventy-five. "Whereas, the above bounden A. B., executor of the estate of C. D., deceased, as aforesaid, has lately made application to the surrogate of the county of "Westchester for authority to mortgage, lease, or sell, so much of the real estate pf the said deceased as shall be necessary to pay his debts. [And whereas, such proceedings, in due form of law, have been thereupon had, that the said surrogate is about to order a mortgag- ing of so much of the real estate, whereof the said deceased died seized, as shall be sufficient to pay the debts of the said deceased, which the surrogate has entered in his books as valid and subsist- ing, pursuant to the statute in such case made and provided. Now, the condition of this obligation is such, that if the said A. B., ex- ecutor as aforesaid, shall faithfully apply all the moneys arising from such mortgage, to be ordered as aforesaid, after deducting the expenses thereof j to the payment of the debts of said deceased, established before said surrogate, and shaU faithfully account for such moneys whenever required by said surrogate, or by any court of competent authority, then this obligation to be void, otherwise to remain in full force and virtue.] Sealed and delivered in presence of A. B. [l. s.] E. F. [l. s.] G. H. [l. B.J [Justification and acknowledgment as on iond of executor or admvnisirator, see ante, Form No. 44.] \In case of sale, in place of the clause in Irrackets, insert^ [And whereas, such proceedings, in due form of law, have been thereupon had, that the said surrogate is about to order a sale FORMS. 551 Order for Mortgage or. Sale. of SO mucli of the real estate, whereof the said deceased died seized, as shall be sufficient to pay the debts of the said deceased, which the surrogate has entered in his books as valid and subsisting, pur- suant to the statute in such case made and provided. I!f ow, the condition of this obligation is such, that if the said A. B., executor as aforesaid, shall pay all the moneys arising from such sale, to be ordered as aforesaid, after deducting the expenses thereof, and shall deliver all securities taken by him on such sale, to the said surro- gate, within twenty days after the same shall have been received by him, then this obligation to be void, otherwise to remain in full force and virtue.] No. 79. OKDEE FOB MORTGAGE OK SALE. /. On executor's applioation. At a sun'ogate's court \eto., as in Form 12]. [Title.'] A. B., of the city of New York, the sole executor of the will of C. D., late of the town of Tonkers, deceased, having heretofore present- ed to the surrogate of the county of "Westchester his application for authority to mortgage, lease or sell so much of the real estate of the said deceased as shall be necessary to pay his debts ; and the said surrogate; upon such application, having made an order directing all persons interested in the estate of the said C. D., deceased, to appear before him at the surrogate's office, in the town of "White Plains, on the 15th day of March, 18Y5, at ten o'clock in the fore- noon, to show cause why such authority should not be given to the said A. B. ; and on reading an4 filing satisfactory proof, by affi- davit, of the due publication of the order, and of the due service thereof on every person in the occupation of the premises of which a sale is desired, and on the widow and heirs of the said deceased, and the devisees named in the will ; and the said A. B., having this day appeared in person, and by "W. M., Esq., his attorney, and M. I^., one of the heirs at law of the said deceased, having also ap- peared in person, and the proper proceedings, in due form of law, having been thereupon had, and the surrogate, upon due examina- tion, being satisfied that the said A. B. has fully complied with the requisite provisions of the statute concerning the powers and duties of executors and administrators in relation to the sale and disposi- tion of the real estate of theii* testator or intestate, that the debts, for the purpose of satisfying which the said application" is made, are justly due and owing, and that they are not secured by judg- ment or mortgage upon, or expressly charged upon the real estate of the said deceased, and that the same amount to three thousand 552 FORMS. Order for Mortgage or Sale. dollars and thirty cents, exclusive of interest, and that the personal estate is insufficient for the payment of such debts ; and having satisfactory evidence that the said A. B. has proceeded with reason- able diligence in converting the personal property of the said de- ceased into money, and applying the same to the payment of debts ; and having inquired and ascertained whether sufficient moneys for the payment of such debts aforesaid can be raised by mortgaging or leasing the real property of the said deceased, or any part there- of, [*] aiid it appearing that such moneys can be raised advantage- ously to the interests of the estate of the said deceased by mort- gage of the following described real estate of the said deceased, and the said A. B., executor of the will of C. D., as aforesaid, having executed a bond to the people of this state, with sufficient sureties, approved by the surrogate, in the penalty and with the condition prescribed by the statute in such case made and pro- vided, which said bond is filed with the said surrogate : It is thereupon ordered, and the surrogate aforesaid, pursuant to the statutes aforesaid, for the purpose of raising the sum of three thousand doUars and thirty cents, sufficient moneys for the payment of the debts aforesaid of the said deceased, doth order and direct a mortgage to be made by the said A. B., executor of the will of C. D., deceased, as aforesaid, of the following described real estate of the said C. D., deceased, that is to say : [.Description of the property.] [In cm order to sell, proceed as above as far as the *, and continue^ And it appearing that the moneys required can not be raised advantageously to the interests of the estate of the said deceased by mortgage or lease, and the said A. B., executor of the wiU of C. D., as aforesaid, having executM 'a bond to the people of this state, with sufficient sureties, approved by the surrogate, in the penalty and with the condition prescribed by the statute in such case made and provided, which said bond is filed with the said surrogate : It is thereupon ordered, and the surrogate aforesaid, pursuant to the statutes aforesaid, doth order that the said A. B., executor as aforesaid, sell the following described real estate, whereof the said deceased died seized, to enable him to pay such debts, due as aforesaid, of the said deceased, that is to say : [Description of the property^ II. On application of creditor to compel administrator to sell. At a surrogate's court \etc., as in Form 121. {TiUe.] An order having heretofore been duly made by the siirrogate FORMS. 553 Order for Mortgage or Sale. of the county of New York, on the application of M. 1^., of the city of New York, merchant, a creditor of C. D., late of the said ' city, deceased, intestate, requiring A. B., the administrator of the said intestate, to appear before the surrogate of the county of New York, on the day of last past, to show cause why he should not be required to mortgage, lease or sell the real estate of the said A..B., deceased, for the payment of his debts, and the said administrator having appeared, and having shown no cause to the contrary ; and, thereupon, the said surrogate having made a further order, directing all persons interested in the estate of the said A. B., deceased, to appear before him, at the surrogate's office in the city of New York, on this day, at ten o'clock in the fore- noon, to show cause why authority should not be given to the said administrator to mortgage, lease or sell so much of the real estate of the said A. B., deceased, as shall be necessary to pay his debts ; and on reading and filing satisfactory proof, by affidavit, of the due publication of the said order, and of the due service thereof on every person in the occupation of the premises of which a sale is desired, and on the widow and" heirs of the said deceased, and the said administrator having this day appeared in person and by D. W., his proctor ; and L. S., one of the heirs of the real estate in question, and the said M. N. having also appeared ; and the proper proceedings in due form of law having been thereupon had, and the surrogate, upon due examination, being satisfied that the said administrator has fully complied with the requisite provisions of the statutes concemrag the powers and duties of executors and administrators in relation to the sale and disposition of the real estate of their testator or intestate, that the debt of the said M. N., and other debts presented and proved before the said surrogate, and which the said surrogate has duly adjudged valid and subsist- ing against the estate of the said deceased, and for the purpose of satisfying which, application for the mortgage, lease or sale of the real estate of the said deceased is made, are justly due and owing, and that they are not secured by judgment or mortgage upon or expressly charged on the .real estate of the said deceased, and that the same amount to dollars and cents, ex- clusive of interest, and that the personal estate of the said de- ceased is insufficient for the payment of such debts ; and having satisfactory evidence that the said administrator has proceeded with reasonable diligence in converting the personal property of the said deceased into money, and applying the same to the pay- ment of debts ; and having inquired and ascertained whether suf- ficient moneys for the payment of such debts' aforesaid can be raised by mortgaging or leasing the property of the said deceased, or any part thereof [as in form above from the *, and continue^ 534 F0KM8. Order Appointing Freeholder to Sell. And it is further ordered tliat tlie said administrator do make return, according to law, of all sales made by virtue of this order. [ When the sale is to he made on credit, insert a clause as follows ;] And it is further ordered and directed that the said adminis- trator may give to the pm-chaser at such sale, of any of the said real estate, a credit not exceeding two years, for hot more than one-half of the purchase money of such real estate purchased by him, to be secured by a bond of the said purchaser, and by a mort- gage of the premises to him sold at the said sale. No. 80. ORDER APPOINTING FREEHOLDER TO SELL. At a surrogate's court [etc., as in Form 12]. ITitle.'l A petition having been filed in the office of the surrogate of "Westchester county, on the day of , 187 , by A. B., the executor of 0. D., deceased, praying for authority, pur- suant to the statute, to mortgage, lease or sell so much of the real estate of the said deceased as should be necessary for the payment of his debts, and such proceedings, in due form of law, having been had thereon, that on the day of , 18Y , authority was given to the said A. B., the executor aforesaid, to sell the real estate mentioned in the said petition, upon his execut- ing a bond in a penalty of dollars, with sureties, and conditioned as required by the statute, and the said A. B. having neglected to execute such bond within a reasonable time, to wit, since the day of , 187 , and it appearing, by the annexed affidavits of J. K. and L. M., that E. S. is a disinterested freeholder of the town of Tonkers,'and that he is nominated by [naming thewi], creditors of the said C. D., deceased. Ordered : That the said E. S. be, and he hereby is, appointed in place of the said A. B. to make such sale, upon his executing a bond in the penalty of dollars, with sureties, and con- ditioned as required by the statute. FORMS. 556 Report of Sale. — Oath as to Fairness of Sale. No. 81. REPORT OF SALE. • Stibeogate's Ootiet, Oohntt of Westchbstek. In the matter df the sale of the real estate of A. B., deceased, for the payment of his debts, c&o. To Owen T. CoEFm, Surrogate of the County of Westchester : The return of C. D., the executor of A. B., late of the town of Tonkers, deceased, of his proceedings under the order of sale of the real estate of the said deceased, granted by the surrogate of Westchester county, and bearing date on the day of in the year one thousand eight hundred and seventy-five. The said C. D. does report and return, that he caused a notice that the said real estate would be sold at public vendue, at the in the town of Tonkers, on the day of , at 12 o'clock, noon, of that day, to be posted for six weeks previous to the day appointed. for the said sale, at three of the most public places in the of the town of Tonkers, in which all the said real estate is situated, and the same notice to be published for six weeks successively, previous to the day appointed for the said sale, in the newspaper entitled the , printed in the, town of Tonkers, a copy of which said notice, with the proof of such post- ing and publication thereof, is hereunto annexed. And the said C. D. does further report and return, that on the said , day of , between the hour of nine in the morning and the settingof the sun of the same day, at the , in the town of Yonkers, and within the county of West- chester, wherein the premises ordered to be sold are situated, he sold at public vendue, the whole of the real estate mentioned and described in said order of sale, as follows, and which real estate is mentioned and described in said order of sale as follows : \_Descrip- tioh of pro;perty.~\ No. 82. OATH AS TO FAIRNESS OF SALE. [Title and venue.'] On this 10th day of May, 1874, personally appeared before me, J. K., of the town of Tonkers, in said county, who, being by 556 FORMS. Order Confirming Sale. me duly sworn, said : That he attended and was present at the sale of the real estate of C. D., deceased ; that the sale of said real estate was commenced at 12 o'clock, noon, on the premises, in said town of Yonkers, on the 9th day of May, 1874 ; that the sale -s^as legally made and fairly conducted, to the best of his knowledge and belief, and that the said real estate was sold to E. F., for the sum of four thousand dollars, that being the highest sum bid for the same, and he being the highest bidder therefor. {JuratJ] [^Signature.} No. 83. ORDER CONFIRMING SALE. At a surrogate's court \etc., as in Form 12]. In the matter of the sale of the real estate of ' 0. D., deceased, for the payment of his debts. An order having been duly made by the surrogate of the county of Westchester, on the da;^ of , 187 , authorizing A. B., the executor of the- last will and testament of 0. D., de- ceased, late of the town of Yonkers, in the said county of West- chester, deceased, to sell the real estate whereof the said C. D. died seized, mentioned and described in the said order, to enable him to pay the debts of the said C. D. therein mentioned. And the said A. B., having this day made his return of his proceedings upon said order, by which said return it appears, that under the said order the said A. B., after having posted and published due notice of the time and place of holding the said sale according to law, did, on the 9th day of May, 1874, at twelve o'clock at noon, the time mentioned in said notice, and between the hour of iiine in the morning and the setting of the sun of the same day, at the , m the town of Yonkers, the place mentioned in the said notice, sell at public vendue, the whole of the premises men- tioned and described in said order ; and .that he did on the said sale sell the premises described in the said order, as follows : Instate to whom each pa/rticular piece of property was sold, and for how much.l FORMS. 657 Administrator's Deed. And the said A. B., having this day ajppeared before the surro- gate in his own proper person, and by W. M., Esq., his counsel, • and having moved for an order confirming the said sale, and M. N., one of the devisees of the said C. D., having also appeared in his own proper person, and -by H. B., Esq., his counsel, and made opposition to the confirmation of the said sale, and the surrogate having examined the proceedings upon the aforesaid order of sale, and having examined the said A. B., executor, &c., and also J. K. and L. M., residents of the said town of Yonkers, on oath, re- specting the same, and it appearing to the surrogate that the said sale was legally made and fairly conducted, and that the siim bid for the several lots or parcels of the real estate so sold, were not disproportionate to their value respectively, it is ordered and de- creed, and the surrogate, pursuant to the provisions of the statutes concerning the powers and duties of executors and administrators in relation to the sale and disposition of the real estate of their testator or intestate, doth order and decree, that the said sale of the said real estate so as aforesaid made by the said A. B., be, and the same hereby is confirmed. And the said surrogate, pursuant to the provisions of the stat- ute aforesaid, doth further order and direct the said A. B., execu- tor of the last will and testament of C. D., deceased, as aforesaid, to execute conveyances of the said several lots and parcels of the said real estate so sold by him as aforesaid, to the purchasers thereof respectively at the said sale. No. 84. ABMINISTEATOB'S DEED. This indenture, made the day of , one thousand eight himdred and sixty- , between A. L., administrator of air and singular the goods, chattels and credits of B. M., late of the city of New York, deceased, of the first part, and G. E. B., of the city of New York, gentleman, of the second part, witnesseth : Whereas E. C. "W"., Esquire, surrogate of the county of New York, heretofore made an order, which said order is in the words Bind figures following, to wit : [Sere take in order for «aZe.] And wljereas, the whole of the premises described in the said order have accordingly been sold at public vendue, by the said party of the first part, on the day of , 186 , at the Merchant's Exchange, in the county of New York, that being the county where the said premises are situated, due notice of the time and place of holding such sale having been given according to law : And whereas, the said party of the first part did make return of 538 , FORMS. Administrator's Deed. his proceedings upon such order oif sale to the said surrogate, ia pursuance of the said order, and of the statute in such case made and jprovided : And whereas, afterwards, the said surrogate, after examiaing the said proceedings, did make an order in the words and figures following, to wit : [^H^ere take in the order for con- jvrmation^ And whereas, the said party of the first part did, at the said sale, sell to the said party of the second part, he being the highest bidder for the same, Now this Indentv/re further witnesseth : That the said party of the first part, in pursuance of the said sale, and of the said orders of the said surrogate, and in pursuance of the statutes of this state in such case made and provided, and also for and in con- sideration of the sum of dollars, lawful money of the United States of America, to him lq hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bar- gained, sold and conveyed, and by these presents doth bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, [Description of property. \ Together with the privileges and appurtenances thereunto be- longrag, or in any way appertaining, and all the estate, right and interest which the said B. M., deceased, at the time of his death, had of, in and to the same, free and discharged from all claims for dower of E.-. M., widow of the said B. M., deceased ; subject, how- ever, to all charges by judgment, mortgage or otherwise, upon the lands so sold, existing at the time of the death of the said B. M. .To have and to hold the above described and conveyed prem- ises, with the appurtenances, and aU the estate, right and interest which the said B. M., at the time of his death, had therein, unto the said party of the second part, his heirs and assigns forever, as fully and amply as the said party of the first part might, could or ought to seU and convey the same, by virtue of the orders above recited, and of the statutes of this state made and. provided, or ' otherwise. In witness whereof, the said party of the first part has hereunto set hand and seal, the day and year first above written. Sealed and delivered in presence of FORMS. 559 Notice to Widow as to Satisfaction of her Dower. Ko. 85. Notice to Widow as to Satisfaction of her Bower. Sueeogate's Ootjet, OouNTT OF New Toek. I In the matter of the distribution ef the proceeds of the' sale of the real estate of A. B., deceased. Take notice, that C. D., the executor of the last will and testa- ment of A. B., late of the city of ISTew York, deceased, has brought into the office of the surrogate of the county of New York, the moneys arising from the sale lately made by him of the real estate of the said intestate, pursuant to an order authorizing such sale heretofore granted by the said surrogate, and that the said surrogate wiU satisfy your claim of dower upon the lands so sold, by the payment to you of such sum in gross as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction for your said claim, if you shall consent before or on the day of , instant, at ten o'clock in the forenoon, to accept such sum in lieu of your said dower, by an instrument un- der seal duly acknowledged or proved in the same manner as deeds entitledto.be recorded; and that if such consent be 'not given within the time above mentioned, then the said surrogate wul set apart one-third of the purchase money of the said real estate to satisfy your said claim- of dower, and wiU cause the same to be in- vested according to law. lDate.'\ [Signature.^ To J. B., the widow of A. B., deceased, intestate. No. 86. CONSENT OF THE WIDOW TO ACCEPT A SUM IN GROSS. Whereas, A. B., the sole executor of the last will and testament ' of 0. C, late of the town of Yonkers, deceased, has recently sold the real estate whereof the said 0. D. died seized, upon an order of the surrogate of the county of "Westchester, authorizing him to seU the same for the payment- of the debts of the said deceased, 660 FORMS. Order for Publication of Notice of Distribution. and has brought the moneys arising from such sale into the office of the said surrogate for the purpose of distribution. Now these presents witness, that I, J. D., of the town of Ton- kers, widow of the said C. D., deceased, do hereby consent to ac- cept such sum in gross as shall be deemed upon the principles of law applicable to annuities, a reasonable satisfaction for my claim of dower upon the lands so sold as aforesaid in lieu of my dower therein. And these presents further witness, that I, the said J. D., widow as aforesaid, do hereby acknowledge that I have received from Owen T. ColEn, Esquire, surrogate of the county of West- chester, the sum of seven hundred and seventy-three dollars and fifty cents, pursuant to the foregoing consent, in full discharge and satisfaction of aU my right and claim of dower upon the lands so sold as aforesaid. In testimony whereof, I have hereunto set my hand and seal this 10th day of May., A. D., 1875. [^Signature.] [l.s.] Sealed and delivered in the presence of' [Acknowledgment or proof as of deed."] No. 87. Order for Publication of Notice of Distribution. I. On sale under surrogate's order. At a surrogate's court [etc., as in Form 12]. [Title^^ A. B., the sole executor of the last will and testament of C. D., deceased, late of Tonkers, in said county, deceased, having brought into the office of the surrogate the moneys arising from the sale of the real estate of the said C. D., lately made by him upon the order of the surrogate ; and the proceeds of the sale, after making the necessary deductions therefrom, being sufficient to pay all the debts of the said C- D., deceased. It is thereupon ordered: That such proceeds be divided among the creditors, according to law, at the surrogate's office, in the town of White Plains, on the day of next, eind that notice of the time and place of making such distribution be published for six weeks successively in the newspaper entitled the " " ' printed in the county of Westchester, and also, in the newspaper entitled the " " the said last named newspaper being deemed by the surrogate most likely to give notice to the creditors. FORMS. 561 Notice of Distribution. II. On foreclosure sale. At a surrogate's court \eio., as in Form 12]. In the matter of the distribution of the surplus moneys arising from the sale of certain real estate of CD., deceased. The surplus moneys arising from the sale of certain real estate of wMcli 0. D., late of the town of Tonkers, in the county of Westches- ter, deceased, died, seized, having been paid to the surrogate of the county of Westchester, in pursuance of chapter 658 of the laws of 1867, upon the order of the supreme court of the state of ITew York. It is thereupon ordered that such surplus moneys be dis- tributed to the party or parties entitled thereto according to law, at the surrogate s office, in the town of White Plains, on the day of 187 , and that notice of the time and place of mak- ing such distribution be published for six weeks successively, in the newspaper entitled the " " printed in the county of Westchester, and that a copy of said notice be served on the proper party or parties, as provided by chapter 170 of the laws of 1870. No. 88. NOTICE OF DISTRIBUTION. ITitle.] Notice is hereby given that the balance remaining of the pro- ceeds of the sale of the real estate of C. D., late of the town of Yon- kers, in the county of Westchester, deceas ed, lately made under the order of the surrogate of the county of Westchester by A. B., the executor of the wm of the said deceased, wiU be divided by the said surrogate among the creditors of the said deceased, in pro- portion to their respective debts, according to law, at the surro- . gate's office in the town of White Plains, on the day of 187 , at ten o'clock in the forenoon of that day. IDaU:] Surrogate. 562 FORMS. Entry of Demands Found Due. — Order of Distribution. No. 89. ENTRY OF DEMANDS FOUND DUE. At a surrogate's court [etc., as in Form 12]. \Title:\ On tlie hearing for distribution, in pursuance of notice, on the day of 187 , and at the times and places to which such hearing was adjourned, and on the hearing on the order of sale, the f oUowing demands of the following named persons, have been and were established as valid and subsisting demands against the said C. D., deceased, and are the only demands, established. That said persons' names are mentioned in the first column of the following list, and the amount due to eSch in the second column opposite each name, and the amount to which each is entitled on this distribution, this day ordered, in the third column, opposite each name, which is as follows, that is to say : NAMES. Amount Due. Amount Entitled. $ cts. % cts. No. 90.' ORDER OF DISTRIBUTION. At a surrogate's court \etc., as in Form 121. iTitle.] Ifotice that distribution of the proceeds of the sale of the real estate in this matter wotild be made on the day of 187 , having been duly published, and the whole amount of money paid into the oflBce of the said surrogate on the sale of the said real estate being from which is to be deducted the ex- penses of the proceeding in this matter, to wit, the sum of for the surrogate's costs and fees, and for advertising notice of distribution in this matter in the leaving in the hands of the said surrogate, undistributed, the sum of It is ordered : That the distribution be made of said sum as follows, that is to say, that the sum of be distributed among ' This order accompanies the one above, 'So. 89, and is drawn in reference to it. . FORMS. 563 Petition for Order to Advertise for Claims. — Order to Advertise. the creditors of the deceased, whose debts have been estabhshed and above recorded, in the proportion as set opposite their respect- ive names in the left hand column above recorded, that is to say, each to receive the amount set opposite their respective names in said left hand column, as the share of each on this distribution. No. 91. PETITION FOK ORDER TO ADTERTISE FOR CLAIMS. To A. B., Esq., Surrogate of Kings County. The petition of 0. D. and E. F., administrators of G-. H,, late of Brooklyn, in the said county of Kings, deceased, shows : I. That six months and upwards have elapsed since letters of administration on the estate of the deceased were granted to your petitioners, and that they are desirous of publishing such notice to claimants against said deceased as is authorized by law. II. That said deceased, at the time of his death, resided in the city of Brooklyn, and county of Kings, aforesaid, and was engaged in business in ll^Tew York city, in the county of ITew York, as an importer of teas and coffees. III. That your petitioners know of no claims against said de- ceased due to any person other than such as reside in the county of Kings, or the city and county of JSTew York. Your petitioners, therefore, ask that an order may be made by the surrogate, directing in how many, and what particular news-, paper or papers such notice shall be pubhshed, requiring all per- sons having claims against said deceased to present the same, with the vouchers thereof, to C. D. and E. F., your petitioners, at the office of the said C. D., at 800 Fulton street, in the city of Brook- lyn, aforesaid, on or before the 10th day of May next. [jSignature of administrators.'] [Bate.] [ Verifoation.'] No. 92. ORDER TO ADVERTISE. At a surrogate's court, [etc., as in Form 12] . [Title:] On reading and filing the petition of 0. D. and E. F., admin- istrators of A. B., deceased, it is ordered that a notice be published 564 FORMS. Notice to Prove Claim. — ^Proof of Claim. once in each week, for six months successively, in the newspaper published in the city of Brooklyn, Kings county, called the Brook- lyn Eagle, and the newspaper published in the city of New York, in the county of New York, called the Journal of Commerce, requiring all persons having claims against said deceased to present the same, with the vouchers thereof, to 0. D. and ,E. F., the administrators of said deceased, at the oflSce of the said C. D., No. 800 Fulton street, in the city of Brooklyn, on or before the 10th day of May next. No. 93. NOTICE TO PKOVE CLAIM. _ Pursuant to an order of W. V., surrogate of the county of Kings, notice is hereby given, according to law, to all persons having claims against the estate of A. B., late of the town of Brooklyn, in said county, deceased, to present the same, with the vouchers thereof, to the undersigned, administrators of all and singular the foods, chattels and credits of the sa;id deceased, at the oflSce of C. )., No. 800 Fulton street, in the city of Brooklyn, in the county of Kings, aforesaid, on or before the 10th day of May, A. D., 1876. [Date.'] C. D. E. F. Administrators. No. 94. PKOOF OF CLAIM. \_Title and venue.] A. B., of Brooklyn, being duly sworn, says : I. That the estate of said C. D., deceased, is justly indebted unta deponent, in the sum of three hundred dollars and fifty cents, and interest thereon from April-. 7th, .1874, [as specified in the an- nexed account,] or, [specify the facts giving rise to the claim, as e. g., in payment for fifty barrels of flour, sold and delivered to the said C. D., at the city of Brooklyn, on April 7th, 1874, for the agreed price of $300 50J. That the said sum of $300 60 and interest is now justly due and owing to deponent, and' that no payment has been made thereon, and that there are iio offsets thereto, and the same is not secured by judgment or mortgage upon, or expressly charged on the real estate of said deceased, or any part thereof. l^Signature."] [Jurat.'] e. FORMS. 565 Proof of Debt Due Executor. No. 95. PROOF OF DEBT DUE EXBCUTOK.' /. Petition. « To A. B., Surrogate of the county of New Ywh : The petition of 0. D., of the city of New York, in said county, respectfully shows : I. That your petitioner is one of the executors named in the last will and testament of E. F., late of New York, in said county, deceased ; that said wiU was dulyproTed, and letters testamentary issued to your petitioner and G. H., on the 10th day of March last, and your petitioner has made and returned an inventory of the personal estate of the said deceased, by which it appears that said personal estate, applicable to the payment of debts, legacies and expenses, amounts to about $5,000. II. That at the time of the death of said E. F., he was in- debted to your petitioner in the sum of $500, arising out of the following facts: That. on the 5th day of May, 1869, the said E. F. made his promissory note in writing, dated on that day, whereby, for value received, he promised to pay your petitioner, or order, the sum of $500, on the 5th day of June, 1869, with interest ; and delivered the same to your petitioner in payment of the agreed price of five bales of cotton, theretofore sold and delivered to said E. F. by your petitioner, but that said note was not paid at ma- . turity, and still remains wholly unpaid, and there is due thereon, to your petitioner, the sum of $500, with interest from the 5th day of June, 1869. That no payment has been made on said note, nor are there any offsets against the same, or any other defense thereto. III. Your petitioner further sjiows, that he has advertised,- pursuant to law, for claims against said estate, and [none have been exhibited], or, [claims have been exhibited to the amount of about $1,000], and that the time limited by the statute for the ex- hibition of claims pursuant to the said notice, has now expired. That G. H., of Eew York, is co-executor with your petitioner, and T. J., is the widow, and H. T. and M. N. are the only next of kin, heirs at law and legatees of the said deceased, and aU reside in the city of New York. ^ Your petitioner, therefore, prays that the debt due to yourpe- titioner may be proved in this court, and that he may be permitted ' This petition is made under L. 1837, C 460, § Z1 {ante, p. 293), which provides that the proof of the debt or claim of any executor or administrator may be made on the service and return of a citation for that purpose, directed to the proper perao'uB. 566 FORMS. Notice that Claim is Disputed and Offer to Refer. to retain the amount thereof out of the assets in his hands, and he prays that a citation issue, pursuant to the statute, directed to the persons above named, requiring them to attend the proof of said debt, at a time and place therein to be stated. [I>ate.] [Signature.'] [ Verification. J [On the filing of such petition the surrogate will make an order for the issuing a citation to tkn proper persons, which will he as follows ;] JJ. Order for citation. At a surrogate's court [etc., as in Form 12]. In the matter of the proof of the claim of 0. D., executor, c&c, of E. F., against the said testator. On reading and filing the petition of C. D., one of the execu- tors of E. F., late of the city of New York, deceased, setting forth that he has a claim against the said testator, and desires to prove the same in this court, and have the same allowed, Ordered: That a citation issue to the proper persons, requiring them to_ appear in. this court on the day of next, at ten o'clock in the forenoon of that day, and attend the proof of the said claim of the said executor' And it is further ordered that the said citation be served on the persons to whom the same shall be directed, at least fifteen days before the return day thereof.^ No. 96. Notice that Claim is Disputed and offer to Eefer." To A. B., Esq. : You wiU please take notice that I doubt the justice and validity ' The statute (i. 1837, c. 460, § Zl) Is silent as to the manner and time within which the citation must be served, and therefore it is proper to provide in the order for such service. ' See arUe, p. 294. FOBMS. 567 Agreement to Refer Claim. — Order of Reference. of your claim of $300 60 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. Tours, &c., C. D., Admmistrator of E. F. No. 97. AGREEMENT TO EEFER CLAIM." "Whereas, A. B. has lately presented a claim to 0. D., the ex- ecutor of the last will and testament of E. F., late of the city of New Tork,_ deceased, for $300 50, a copy whereof is attached hereto, the justice of which claim is doubted by the said executor, it is hereby agreed that the matter in controversy be referred to M. N., counseUbr at law, of No. street, in the city of New York, as sole, referee, to hear and determine the same. {Date.] (Signed), A. B., C. D., Executor. [Indorsed.'] I hereby approve of the referee named in the foregoing agree- ment. [Date.] M. N., Surrogate. No. 98. ORDER OP REFERENCE StrPEEME COTIRT, ) Crrr and County of New Yoke:, j A.B., vs. 0. D., as eieecutor of J. K., deceased. - On reading and filing the annexed agreement to refer the claim of A. B., above named, against the estate of J. K., deceased, to ' See ante, p. 294. " See arUe, p. 296. 568 FORMS. Compromise of Claims. M. N., Esq., coimBellor at law of No. street, in the city of 'New York, as sole referee to hear and determine the same, and on motion of H. W., Esq., of counsel for the said C. D., as executor, &c., Ordered : That the said M. IST., Esq., be, and he is hereby ap- pointed referee to- hear and determine the matter in controversy mentioned in the said agreement. [Date.] WILLIAM WALSH, Clerk. No. 99. COMPROMISE OF CLAIMS.' /. PeUtion for leave to compromise claim. Sueeogate's Court, New Tobk Cothsttt. In the matter of the estate of A. B., deceased. To R. 0; H., Esq., Swrrogate of the county of New York : - The petition of C. D., respectfully shows : I. That the wiU of the above-named A. B., deceased, was duly admitted to probate by the surrogate of the county of New York, on the day of • , 187 , and on the same day letters tes- tamentary thereon were duly issued to your petitioner as the sole executor therein named. II. That among the assets of the estate of the said deceased, is a debt of $150 on a book account due from the firm of N. & Co., lately doing business at No. street, in the city of New York, which deponent has hitherto been unable to collect. That on the day of , 187 , the said firm suspended business and made a general assignment of aU their property to one L. M., for the benefit of their creditors. III. That the said firm have offered to pay their creditors fifty per cent, of the amount of their respective debts, in consideration of receiving a full discharge and release of aU liability thereon, and as appears by the affidavit of E. S., hereto annexed, that offer has been accepted by a majority, in number and value, of all their creditors, and your petitioner verily believes, after a careful exam- ■ See mte, p. 282. FORMS. 569 Enfoi'oemeat of Judgment against Executor. ination.of tlie affairs of said N. & Co., that the said iinn have acted honestly and in good faith,"and are not able to pay any larger percentage of their debts, and that it wiU be for the benefit and advantage of the estate of the said A. B., to compromise on the terms offered. Wherefore, your petitioner prays that he may be authorized to compromise the said claim by receiving fifty per cent, of the amount thereof as a full satisfaction. IDafe.l [^Signature.] [ Yerification.l II. Order allowing compromise. At a surrogate's court [eta.j as vn Form 12]. ITiiU.] On reading and filing the petition of 0. D., executor of A. E., deceased, and the affidavit of E. S., annexed thereto, and it appear- ing thereby that there is good and sufficient cause for allowing the said C. D. to compromise the debt therein referred to, and the terms of compromise therein named being approved of, ^ Ordered : That the said executor be, and he hereby is author- ized to accept fifty per cent, of the amount of the debt owifig from the firm of iN . & Co., late of No. street, in New York city, to the said deceased, as a full satisfaction and discharge ' of said debt. No. 100. ENFORCEMENT OF JUDGMENT AGAINST EXECUTOR. I. Application for lea/ue to issue execution.^ [Title.] To the Surrogate of the county of New YorTc : The petition of M. N., of the city of New York, respectfully shows : I. That he is a creditor of A. B., deceased, whose last wiU and testament was di^ admitted to probate by the surrogate of the county of New York, on the day of , 1870, and letters testamentary thereon duly issued tt) C. C, of No. street, in the city of New York, on the day of , 1870. 'Seeare<«,.p. 303. 570 FORMS. Order for Executor to Show Cause. II. That, on the day of , 1870, your petitioner commenced a suit against the said C. D. as executor of the said A. B., deceased, in the supreme court of this state ; that such suit was to establish the liability of the said A. B. as indorser of a cer- tain note made by one J. K. to your petitioner for $400 00, dated May 10th, 1869, and payable three months from date ; that the said 0. D. duly appeared in said suit, and put in an answer ad- mitting the indorsing of the said note by the said A. B., but deny- ing that the note had been duly presented for payment to the maker thereof, or notice of dishonor duly given to the said A. B. That the issues of facts thereby raised came on for trial at a circuit of the supreme court, held in the city and county of 'New York, on the day of , 187 , and the said C. D. then and there appeared and gave evidence in support of the allegations of his answer. That the issues were submitted to the jury upon the charge of the court, and a verdict rendered for your petitioner for $ , the amount due on said note, with interest. That, upon a special application to the court, costs were awarded to your petitioner, which were duly taxed at the sum of $ , and on the day of , 187 , judgment for $ was duly entered in favor of your petitioner, and against the said 0? D. as executor, &c. III. That the said judgment has not been paid, nor any part thereof, and the same is now in full force. Your petitioner therefore prays that the said C. D., the exec- utor of A. B. aforesaid, be required to show cause why an execu- tion on such judgment should not be issued. [Bate.] [Signainire.'] [ Verification.'] II. Order for executor to show cause.^ At a surrogate's court [etc., as m Form 12J. In the matter of the applioal/ion of M. K, for om order that .execution issue wpon a judgment obtained Jyy him agavti&t C: D., the executor of A. B., deceased. On reading and filing the verified petition of M. IS.., of the city of New York, by which it appears that the said M. E"., on ' See ante, p. 303, and 2 iS. S: 1 16, § 20. FORMS. 571 Order that Execution Issue. the day of , 187 , obtained a judgment against the said C. D. as executor of the said A. B., deceased, in the su- preme court of this state, after a trial at law upon the merits, and that such judgment was for $ , and that no part thereof has been paid, [*] Ordered : That the said 0. D., executor as aforesaid, per- sonally be and appear before the surrogate of the county of K ew York, at his office in the city of New York, on the day of next, at 11 o'clock in the forenoon of that day, and show cause why an execution on the said judgment should not be issued. l^T/ie surrogate, upon the filing of the petition, must cite the executor to account. The order for such citation will he as above down io the *, and continue^ Ordered: That a citation issue to the said C. D., executor as aforesaid, requiring him to appear in this court on the day of next \the return day -of the above order'], at 11 o'clock in the forenoon of that day, and account as such executor. • III. Order that execution issue.^ At a surrogate's court [etc., as in Form 12] . [Title.] On the application of M. N., a creditor of the said A. B., de- ceased, who obtained a judtaient at law upon the merits against the said C. D. as executor, &c., in the supreme court of this state, on the day of , 187 , for $ , no part of which has been paid, an order having been heretofore duly made against the said executor, and served upon him, to show cause why an execution on the said judgment should not be issued ; and a citation having also been issued and served upon the said executor, requiring him to appear in this court on the day of last past, and account as such executor ; and the said parties having duly appeared, and the said 0. D. having produced and filed his account as such executor aforesaid ; and the said matter having been heard on several days, and duly adjourned from day to day until this day ; and it appearing, from the said accoiAt, that there are in the hands of the said C. D., as such executor, assets of the estate of the said A. B., deceased, to the amount of dollars ; and that the debts and outstanding liabilities of the said deceased do not exceed the sum of dollars ;' and that there are as- sets in the hands of the said executor properly applicable to the ' See ante, p. 304, and 2 R. S. 116, § 21. 572 FORMS. Proceedings by Creditor of Deceased to Obtain Payment- of Debt. payment in full of the said Judgment, and no cause to the contrary being shown ; Ordered : That execution be issued in due form of law against the said C. D., executor as aforesaid, for the whole amount of the said judgment and interest. And it is further ordered, that the fees and expenses of this proceeding be paid out of the estate of the said deceased. No. 101. Proceedings by Creditor of Deceased to obtain Payment of Debt.' • I. Petition. To E. 0. H., Esq., Surrogate of the county of New York : The petition of M. !N"., of the city of New York, respectfully shows : I. That .the will of A. B., deceased, late of the city of New York, was duly admitted to prdbate by the surrogate of the county of New York, on the day of , 187 , and letters testamentary thereon were on the day of , 187 , duly issued by such surrogate to C. D., of No. , street, in the city of New York, the sole executor named in said wiU. II. That the said A. B., deceased, during his Hfe, to wit, on the day of , 187 , became indebted to your peti- tioner in the sum of dollars ; and that the facts on which said indebtedness arose are as follows SJiere state the facts creating the debt, e. g., on the said day of 187 , in pur- suance of a written contract theretofore made between your peti- tioner and the said A. B., a copy of which is hereunto annexed, marked " Exhibit A," your petitioner sold and delivered to the said A. B., at the city of Newx ork, one hundred cases of Bordeaux wine,, for which the said A. B. promised to pay the sum of five himdred dollars]. That no payments have been made on account of said debt, and that there are no offsets against the same to the knowledge of your petitioner. III. Thatj your petitioner duly exhibited the said claim to the said executor, under the notice published by him for the exhibition . J , ' See 2 R. 8. 116, § 18, for power of surrogate to make decree, and Z. 1837, li, 460, §§ 68, 64, as amended by Z. 1844, u. 104, for certificate of decree and issue of execution. See also Form No. 6 for form of certificate, and ante, pp. 306, 307, 426. The making of the decree is discretionary, and it wiU not be made except in a clear case of solvency. If, however, advertisement was made for claims, and no others have been presented within the time limited, and there are assets in the esecutor's hands, the order, it would seem, should be granted. FORMS. 573 Order for Citation, of claims, and that he assented to the justness and correctness of the . same ; and that your petitioner has demanded payment of the said claim from the said executor since the expiration of six- months from the granting of letters testamentary aforesaid, and that he has neglected to pay the same.^ lY. Tour petitioner further shows that he is informed and be- lieves that ample assets for the payment of aU claims against the said A. B., deceased, have come into the hands of the said 0. D., as such executor' aforesaid. Your petitioner, therefore, prays that the surrogate wiU decree the payment of the aforesaid debt due to your petitioner, or a proportional part thereof. [Signature.] [ Verijioation.] If. Order for citation. At a surrogate's court [etc., as in Form. 12]. In the matter of the claim of a creditor of A. B., On reading and filing the petition of M. N., of the city of New York, a creditor of A. B., late of the city of New York, deceased, by which it appears that he has a just claim against the said de- ceased, and more than six months ha"\«ng elapsed since the grant- ing of the letters testamentary of the last will and testament of the said deceased, Ordered: That a citation issue to 0. D., the executor of the last wiU and testament of the said A. B., deceased, requiring him to appear in this court, on the day of instant, at ten o'clock in the forenoon of that day, and show cause why the surrogate should not decree payment of the said debt or claim against him. And it is further ordered, that the said citation be served on the said 0. D., at least four days before the return day thereof.^ ' The petition should show a demand since the power of the surrogate to order payment arose. " Ifo provision is made by the statute (2 JJ. K 116, § 15) for the service of the citation, or for any citation at all, and the mode of proceedings should therefore be prescribed by the surrogate and included in the order. For a similar omission in the statute, see L. IBS'?, c. 460, § 37, and note to Form 95. The citation should 574 FORMS. Execution on Docketing Certificate. III. Decree for payment. [Title.'] M. N ., of the city of New York, haAong, on the day of , 187 , presented his petition to the surrogate of the county of New York, by which it appears that he has a valid claim against A. B., late of the city of New York, deceased, for dollars, with interest thereonjfroni the day of , 187 ; and the said petition also setting forth the facts on which the said indebtedness arose, and also showing that more than six months have elapsed since the granting of the let- ters testamentary of the last will and testament of the said de- ceased ; and praying a decree against C. D., the executor of the said A. B., deceased, for payment of the said claim ; and the sai4 executor having been duly cited to appear on the day of last past, and show cause why such, payment should not be decreed ; and the said C. D. having appeared, and having assented to the said claim of the said M. N., and having produced and filed an account as such executor ; and the said matter having Ijeen heard on several days, and duly adjourned untU this day ; and it appear- ing, f r^m the said account and from the proofs herein taken, that there are in the hands of the said C. D., as such executor afore- said, assets of the estate of the said A. B., deceased, to the amount of dollars, and that the debts and outstanding liabilities of the said deceased do not exceed the sum of doUars, It is ordered and decreed, pursuant to the statute in such case made and provided, that the said C. D., executor as aforesaid, pay to the said M. N. the full amount of his said claim and interest, amounting in the whole to the sum of dollars and cents. And it is further orderad, that the said C. D. personally pay the fees of this proceeding, and the costs of the said M. N. therein to be taxed. lY. Surrogate's certificate of decree. [See Form No. 6.] Y. Meecution on docketing certificate} To the sheriff of the county of Elngs, greeUng : Whereas, on the day of , 187 , Eobert C. Hutchings, surrogate of the. county of New York, duly made a decree,, directing the payment by C. D., residing in New York require the executor " to show cause why the said surrogate should not decree pay- ment by yon of the debt of M. TS,, of the city of New York, against the said A. B., deceased, for dollars due [staling consideration of the debt\" ' By L. IBS'?, c. 460, § 64, the execution was to issue from the supreme court, but by L. 1844, c. 104, §2, the execution was directed to issue from the court of common pleas (now county court) of the county where the certificate was docketed. See p. 429. FORMS. 575 Payment of Legacies within a Tear. city, in said county, by occupation a hardware mercliant, the sole executor of A. B., deceased, to M. N., of the city of New York, in said county, by occupation a dealer in grain, of the sum of doUars and cents for a debt due to the said M. IST., from the said deceased, and the sum of dollars and cents, for his costs and expenses in the proceeding before said surrogate, making in the whole the sum of dollars and cents ; and whereas, after such decree was made by said surrogate, to wit, on the day of , 187 , he made out a certificate stating the names of the parties against and in favor of whom the decree was made, and their respective occupations and places of residence, in which he stated the amount of such debt and costs directed to be paid by such decree ; and whereas, on said ' day of , such certificate was filed with the clerk of the county of Kings, and the same was, on said day of , 187 , entered and docketed in the book required by law to be kept for the docketing of judgments ; and whereas, there is now actually due on said decree the sum of dollars and cents, with interest thereon from the d.ay of 187 . Tou are, therefore, commanded and required to make said sum of dollars and cents, out of the goods, chattels and personal property of the said C. D., in your county, and if suffi- cient thereof cannot be found in your county, then out of the real property in your county of which the said 0. T>. was seized, and belonging to him on the said day of , 187 , the day on miich the said decree was docketed in your county, or at any time thereafter, in whose hands soever the same may be, and that you return this execution, with your proceedings thereon, to the clerk of the county court of Kings, in sixty days after the re- ceipt of the same. vVitness, Hon. Henry A. Moore, judge of said court, at Brook- lyn, the day of , one thousand eight hundred and seventy-five. W. D., Attorney for-M.. N. VI. Order assigning bond. [See Form No. 121.] No. 102. PAYMENT OF LEGACIES WITHIN A TEAK.' I. Petition for payment. To E. C. H., Esq., Surrogate of the county of New York : The petition of M. N., of the city of New York, respectfully shows : ' See ante, p. 348. 576 FORMS. Notice to Executor. That your petitioner is a legatee imder the last will and testa- ment of A. B., late of the city of New York, deceased ; that the said will was duly admitted to probate by the surrogate of the county of New Tork, and recorded in his office, on the day of in the year 18Y , and that letters testamentary thereof were on the same day duly granted and issued by the said surro- gate to Ci D., sole executor in the said will named. That, by the said will, the said A. B. did give and bequeath to your petitioner the sum of one thousand dollars. Your petitioner further shows that ample assets of the estate of the said testator for the payment of aU his debts, and for the dis- charge of all the specific and general legacies given by his said wiU, have come into the hands of the said C D., as such executor aforesaid, and that, as your petitioner is informed and believes, there is at least one-third more of assets of the estate of the said A. B., deceased, in the hands of the said C. D., as such executor aforesaid, than wiU be sufficient to pay all debts, legacies and claims against the said estate now known [here state facts evidencing the allegations above made in rega/rd to the amount of assets in the hands of the executor]. Your petitioner further shows that he is in indigent circum- stances \here gi/ve Jyrief statement of the jpetiUaner's circum- stances'] , and that an advance of a portion of the said legacy is necessary for his support. He therefore prays that he may be allowed, in pursuance of the statute in such case made and provided, to receive a portion of the said legacy to the amount of three hun- dred dollars, as necessary for his support, upon a satisfactory bond being executed for the return of such portion, with interest, when- ever required. [Signature.] . [Verifcation.] II. Notice to executor. [Serve a copy of the petition on the executor, with the following notice indorsed :] SiE, — Take notice, that the petition, of which the within is a copy, will be presented to the surrogate of the county of New York, at his office in the city of New York, on Monday, the day of instant, at ten o'clock in the forenoon of that day, and that the said surrogate will then and there be moved to grant the prayer thereof. And further, that J. K., residing at No. street, in the city of New York, and L. M., residing at No. street, in the same citjr, will be offered as sureties ia the bond men- tioned in the said petition, to be executed on the granting of the prayer thereof. Yours, &c., [Signature of petitions or his attorney.] [Date.] To C. D., Executor, <&c. of A. B., deceased. FORMS. 5T7 Bond to Refund. — Order Allowing Payment. III. Bond to refund. Know all men by these presents, that we, M. E"., of the city of New York, and J. K. and L. M., of the same city, are held and firmly bound nnto 0. D., the executor of the last wOl and testa- ment of A. B., late of the city of New York, deceased, in the sum of six hundred dollars, lawful money of the United States of America, to be paid to the said C. D., as such executor aforesaid, or to his certain attorney, successors or assigns ; 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 eight hundred and sixty. "Whereas the said A. B., in and by his said last will and testa- ment, did give and bequeath to the said M. N. the sum of one thousand dollars ; and whereas the said legatee has lately applied to, the surrogate of the county of New York, previous to the ex- piration of one year from the granting of the letters testamentary to the said executor, to be allowed to receive a portion of the said legacy, to the amount of three hundred dollars, as necessary for his support ; and reasonable notice of the said application having been given to the said executor, and the said surrogate being about to allow the said portion of the said legacy to be advanced to the said legatee, pursuant to the statute in such case made and provided, upon the execution and delivery of this obligation : Now,. the condition of this obligation is such, that if the said M. N. shall return the said portion of the said legacy, with interest, whenever required, then this obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered, &c. [Signatures and seals of olligors.} [Add acknowledgment and justification of sureties^ IV. Order allowing payment. At a surrogate's court [etc., as in Form 12] . In the matter of the legacy of M. N., j under the last will and testament of -" A.B., deceased. M. N., of the city of New York, a legatee under the last wiH .and testament of A. B., late of the city of New York, deceased, 37 578 FORMS. Bond to Refund Legacy Directed by the Will. haTing lately made application to the surrogate of the county of 'New York, previous to the expiration of one year from the grantingof the letters testamentary of the said last will and testament to C. I)., the executor thereof, to be allowed to receive a portion of the legacy of one thousand dollars, given and bequeathed to him in and by me said last will and testament, to the amount of three hundred dollars, as necessary for his support ; and reasonable notice of the said appli- cation having been given to the said executor, as appears by proof duly taken and filed herein ; and it appearing that there is at least one-third more of assets of the estate of the said A. B., deceased, in the hands of the said C. D., as such executor aforesaid, than will be sufficient to pay all debts, legacies and claims against the said estate now known, and that the said sum of three hundred dollars is nec- essary for the support of the said legatee, and a satisfactory bond having been executed for the return of the said portion, with in- terest, whenever required, and no objection being made ; Ordered : That the said CD., executor as aforesaid, advance and pay to the said M. JST. a portion of his said legacy, to the amount, of three hundred dollars. And it is further ordered that the said M. IST. pay the fees and expenses of this proceeding. No. 103. Bond to Refund Legacy Directed by the Will to be Paid Before the Expiration of the Tear.' Know all men by these presents, that we, M. E"., of the city of New York, and J. K. and L. M., of the same place, are held and firmly bound unto C. D., the executor of the last will and testament of A. B., late of the city of New York, deceased, in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said 0. D., as such executor aforesaid, or to his certain attorney, successor or assigns ; to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, ex- ecutors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of one thousand eight hundred and sixty. Whereas, the said A. B., in and by his said last will and testament, did give and bequeath to the said M. N. the sum of five hundred dollars, and directed the same to be paid to him in two months after the decease of the said A. B. : And whereas the said M. N. has demanded payment of the said legacy from the said executor ' See ante, p. 849. In cage demand is made for payment of a legacy after the ex- piration of a year and before a final aoeouuting, the bond to be given is conditioned in almost identical form. See ante, p. 350. FORMS. 579 Bond on Payment of Legacy to General Guardian. before the expiration of one year from the time of the granting of the letters testamentary of the said last will and testament to the said executor, and the said executor is about to pay the same, pur- suant to_the statute in such case made and provided, upon the exe- cution and delivery of this obligation. Now, the condition of this obligation is such, that if any debts against the said deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legaciies, or not sufficient, and the said M. N. shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees, as may be necessary for the payment of the said debts, and the proportional parts of such other legacies, and the costs and charges incurred by reason of the said payment to him ;' and if the probate of the said wiU shall be revoked, or the wiU declared void, and the said M. N. shall refund the whole of the said legacy, with interest, to the executor or administrator entitled thereto, then this obligation to be void ; otherwise to remain in full force and virtue. Sealed and delivered, &c. [^Signatures and seals of obligors.] No. 104. BOND ON PAYMENT Or LEGACY TO GENERAL GUARDIAN.' Know^ all men by these presents, that we, C. D., of the town of Peekskill, county of "Westchester, state of ISTew York, general guardian of the person and estate of A. B., a minor, and J. K., of the town of Yonkers, county of "Westchester, state of ISTew York, and L. M., of the town of White Plains, county of "Westchester, state of New York, are held and firmly bound unto the said A. B., the minor aforesaid, in the sum of dollars, lawful money of the United States, to be paid to the said A. B., his executors, administrators, or assigns ; to which payment, well and truly to be made, we laind ourselves, ouj 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 eight hundred and sixty-nine. "Whereas, the above-named A. B. is entitled to a legacy of dollars, given and bequeathed to him in and by the last will and testament of Gr. H., late of the town of Sing Sing, in West- chester county, deceased, which last will and testament has been duly admitted to probate and record by the surrogate of "West- chester county, and letters testamentary thereon duly granted and issued to W. M. and H. B., the executors in said wUl named ; ' See 2 R. S. 91, § i1, agd anU, pp. 341, 350-351. 580 FORMS. Proceedings to Compel Executor to Account. And whereas, the said A. B. is a minor, and the said C. D. has been duly appointed his general guardian ; And whereas, the said surrogate having ordered that the said executors pay to the general guardian of the said A. B. the said legacy of dollars : Now, therefore, the condition of this obligation is such, that if the above bonnden C. D. shall and will faithfully apply said legacy, and render a true and just account of the application thereof, in aU respects, to any court having cognizance thereof, when thereunto required, then this obligation to be void, else to remain in full force and virtue. Sealed and delivered in the presence of {Signatures mid seals of obligors.] [Add acknowledgment and justification of sureties, as in Form No. M.] [^Indorsed^ I approve of the within bond as to its form, manner of execu- tion and sufficiency of the sureties. {^Signature of surrogate.] No. 105. PROCEEDINGS TO COMPEL EXECUTOR TO ACCOUNT. I. Petition iy person having demand. To the Surrogate of the county of Wew York : The petition of M. If.,,of the city of New York, shows : That he is a legatee under the will of A. B., late of the city of New York, deceased [here state the naPure and amount of the legacy]. That on the day of in the year 187 , let- ters testamentary on the wiU of the deceased were granted by the surrogate of New York county to C. D., the sole executor therein named, and that more than eighteen months have elapsed since the time of such appointment. That the said C. D. has filed an inven- tory of the personal property of said deceased. That your appli- cant has appKed to said C. D. for the payment of said legacy, and and that the same has not been paid. In consideration of the premises and to the end that the said C. D., executor, &c. as aforesaid, may be required to pay the amount of said legacy, j^our applicant asks that an order may be granted requiring the said C. D., executor, &c. as aforesaid, at a certain day to be therein specified, personally to appear in this court and ren- der an account of his proceedings as such executor aforesaid, and FORMS. 581 Order to Account. that such other proceedings may be had as may he requisite to en- force the payment of the legacy of your applicant. [Daie.] [Signature.] [ Verification.] II. Order to account.^ At a surrogate's court [etc., as in. Form 12]. In the matter of the accounting of C. D., Executor of A. B., deceased. On reading and filing the verified petition of M. N., a legatee under the will of the said A. B., deceased : Ordered: That said C. D., executor of the last will and testa- ment of the said A. B., deceased, personally be and appear before the surrogate of the county of New York, at his office in the city of New York, on the lith day of June, at eleven o'clock in the forenoon of that day, and render an account of his proceedings as such executor, and show cause why he should not pay the legacy due to the said M. N. III. Order to show cause why attachment should not issue. At a surrogate's court [etc., as in Form 12].' In the matter of the accounting of CD., Executor of A. B., deceased. An order having been heretofore issued by the surrogate of the county of New York, requiring the above-named C. D., executor, &c., to appear before said surrogate, at his office, New York County Court House, in the city of New York, on the day of 187 , at eleven o'clock in the forenoon of that day, then and there ' In some counties a citation is used instead of an ord.er, and in that case the cita- tion contains an order to show cause why an attachment should not issue. The forms given above, however, are those used in the court of the surrogate o'f New York county. 682 FORMS. Proceedings to make Acoouating Final. to render an accotmt of his proceedings as such executor, and the said order having been served on the said C. T>. personally, at the city of New York, on the day of 187 , as appears by the affidavit annexed to said order, and the said C. D. having failed to appear as required by said order : Ji is now ordered : That the said CD. personally be and ap- pear before said surrogate, at his office. New York County Court House, iu the city of New York, on the day of 187 , at eleven o'clock in the forenoon of that day, then and there to show cause why an attachment should not issue against him. No. 106. PROCEEDINGS TO MAKE ACCOUNTING FINAL. . ' I. Executor's petition for citation. To the Surrogate of the county of New York : The petition of 0. D., of the city of New York, respectfully shows, that letters testamentary on the estate of A. B., late of the city of New York, deceased, were granted to your petitioner on the 10th day of August, 1872. That the persons interested in the estate of said deceased, as creditors, legatees, next of kin, or other- wise, and their places of residence, to the best of the knowledge, information and belief of your petitioner, are as follows, to wit : \give names and residences of persons interested in the estate^ All the above are of full age, and of soimd mind, except [Here state facts in regard to any who are minors, lunatics, <&c., as in petition for probate, JVo. 9.] That more than eighteen months have elapsed since said ap- pointment, and your petitioner is desirous of rendering a final account of aU his proceedings to the surrogate of the county of New York, by whom jour petitioner was appointed, and for that purpose prays that a citation issue to all persons interested in the estate of said deceased, to attend a final settlement of the account of the proceedings of ybftr petitioner. [Bate.'] [^Signature.] [ Verifcation.] FORMS. 583. Order of Citation to Attend Accounting. — Citation to Attend Accounting. II. Order for citation to attend acoouniing. At a surrogate's court [etc., as in Form 12]. In the matter of the final accounting of CD., as executor of ^ A. B., deceased. On reading and filing the petition of C. T>., duly verified, .showing among other things that eighteen months and upwards have elapsed since he duly qualified and was appointed the exiecutor of A. B., late of the town of Goshen, in the county of Orange, deceased, and that he is ready and desirous to render an account of his proceedings as such executor, before the said surrogate, and to have the same finally settled and allowed by him, Ordered: Pursuant to the prayer of said petition, that a cita- tion issue out of and under the seal of this court, to be directed to the persons named in said petition as being interested in the estate of said deceased, requiring them to appear in this court, at this place on the day of 18T , at ten o'clock in the fore- noon of that day, and attend the final acouhting of the said 0. D., executor, &c., oi said deceased. III. Citation to attend accounting. The People of the State of New Yoek To all persons interested in the estate of A. B., late of the city of New YmTc, deceased, as creditors, legatees, next of Tci/n, or otherwise, send greeting : You and each of you are hereby cited and required personally to be and appear before our surrogate of the county of New York, 3,t his ofiice, in the city of New York, on the day of at eleven o'clock in the forenoon of that day, then and there to attend the final settlement of the account of proceedings of C. D., as executor of the last wiU and testament of said deceased, and that if any of the persons interested be under the age of twenty-one years, they are required to appear by their guardian, if they have one, or if they have none, that they appear and apply for one to be appointed, or in the event of their neglect or failure to do so, a guardian wUl be appointed by the surrogate, to represent and act for them in the proceeding. In testimony whereof, [etc., as in Form 1] . 584 FORMS. Appointment of Special Guardian. No. 107. APPOINTMENT OF SPECIAL GUARDIAN. I. Consent to appointment. \Tiile.] I, H. B., of the city of New York, attorney at law, do hereby consent to be appointed by the surrogate of the county of ISTew York, the special guardian for J. K. and L. M., minors, two of the next of kin of A. B., deceased, for the sole purpose of taking care, of the interests of the said minors in the matter of the final settle- ment of the accounts of C. D., the executor, &c., of the said de- ceased, and I consent to serve as such special guardian. [Date.'] [Signature.'] II. Order appointing guardian. At a surrogate's court [etc., as in Form 12]. ITitle.] It appearing by the verified petition of C. D., the executor above named \or other evidence, stating what it is'], that J: K. and L. M., two of the next of kin of the said deceased, are minors, having no general guardian ; and on reading and filing the consent of H. B., of the city of New York, to be appointed and to serve as the special guardian for the said minors, for the sole purpose of taking care of their interests in this matter. It is ordered : That the said H. B. be, and he hereby is, ap- pointed the special guardian for the said J. K. and L. M., to take- care of their interests in this matter. FORMS. 585 Account of Proceedings. No. 108. ACCOUNT OF PROCEEDINGS. /. Statement of account. In the matter of the final ac- counting of C. D. and E. F., executors, c&c, of A. B., ^Account of Proceedings. deceased. To the Surrogate of the county of New Yorh. "We, C. D. and E. F., of the city of New York, do render the following aceoimt of our proceedings as executors, &c., of A. B., deceased : On the day of A. D., 187 , letters testa- mentary were issued to us. On the day of A. D., 187 , we caused an inventory of the personal estate of the deceased to be filed in this'oiBce, which personal estate therein set forth amounts, by appraisement by the appraisers duly appointed, to $ Schedule A, hereto anctiexed, contains a statement of all the property contained in said inventory, sold by us at public or pri- vate sale, with the prices and manner of sale ; which sales were fairly made by us, at the best prices that could then be had with due diligence, as we then believed ; it also contains a statement of all the debts due the said estate and mentioned in said inventory, which have been collected, and also of all interest for moneys received by us, for which we are legally accountable. Schedule B, hereto annexed, contains a statement of all debts in said inventory mentioned, not collected or collectible by us, to- gether 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 inventory unsold, and the reasons of the same being unsold, and their appraised value ; and also a state- ment of all property mentioned therein, lost by accident, without any wUlf ul default or negligence, the cause of its loss, and appraised value. No other assets than those in said inventory, or herein set forth, have come to our possession or knowledge, and all the in- crease or decrease in the value of any assets of said deceased is allowed or charged in said schedules A and B. 586 FORMS. Statement of Account. Schedule C, hereto annexed, contains a statement of all moneys paid by us for funeral and other necessary expenses for said estate, together with the reasons and object of such expenditure. On or about the day of in the year 18 , we caused a notice for claimants to present their claims against the said estate to us within the period fixed by law, and at a certain place therein specified, to be published in two newspapers, according to law, for six months, pursuant to an order of the surrogate of the county of 'New York, to which order, notice and due proof of publication herewith filed, we refer as part of this account. Schedule D, hereto annexed, contains a statement of all the claims of creditors presented to and allowed by us, or disputed by us, and for which a judgment or decree has been rendered against us, 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 us 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 aU persons entitled as widow, legatee, or next of kin of 'the deceased, to a share of his estate, with theii; places of residence, degree of rela- tionship, and a statement of which of them are minors, and whether they have any general guardian, and if so, their names and places of residence, to the best of our knowledge, information and belief. Schedule G, hereto annexed, contains a statement of all other facts affecting our administration of said estate, our rights, and those of others interested therein. We charge ourselves as follows : "With amount of inventory $ " Increase, as shown by Exhibit A We- credit ourselves as follows : With amount of loss on sales, as per Sched- ule B I With amount of debts not collected, as per Schedules With amount of Schedule 0. . . " Schedule D " " Schedule E Leaving a balance of | FORMS. 587 Oath to Accounts. to be distributed to those entitled thereto, subject to the deduc- tions of the amount of our commissions, and the expenses of this accounting. The said schedules, which are severally signed by us, are part of this account. {Signatures.] II. Oath to aocounts. In the matter of the final accounting of G. D., executor of A. B., deceased. [ Venue."] ■ I, C. T>., executor of A. B., being duly sworn, say, that the charges made in the foregoing account of proceedings and schedules annexed,' for moneys paid by me to creditors, legatees, and next of kin, and for necessary expenses, are correct: that I have been charged therein all the interest for moneys received by me and embraced in said account, for which I am legally accountable ; that the moneys stated in said account as collected, were all that were collectible, according to the best of my knowledge, information and belief, on the debts stated in such account at the time of this settlement thereof ; that the allowances in said account for the de- crease in the value of any assets, and the charges therein, for the increase in such value, are correctly made ; and that I do not know of any error in said account, or anything omitted therefrom, which may m. any wise prejudice the rights of any party interested in said estate. And deponent furmer says, that the sums under twenty dollars, charged in the said account, for which no vouchers or other evidences of payment are produced, or for which he may not be able to produce vouchers or other evidenees'of payment, have actually been paid and disbursed by him as charged. . [Signature.] [Jurat.'] 6S8 FORMS. Oath to Accounts. \_In cm ordinary case where the executor is called upon for an account of his proceedings^ a statement in the following form will he sufficient.'] The Estate of A, B.^ deceased^ intestate^ in account with C. i?., Administrator^ dec, De. Ce. 1869. Aug Oct. 14. To cash paid surrogate's fees, on granting administratioa and appointing appraisers.. 2. To cash paid for advertising notice of sale of stock, fix- tures, &c., at the factor}', in the Sun and Tribune. '* " To cash paid for printing and cu*cu)ating fifty handbills of the same sale " 16. To cash paid E. F., the owner of the factory kept by the intestate, balance of two quarters' rent, due at the time administration was granted, with interest. ... 1870. Feb. 15. To cash paid surrogate's fee on order to advertise " " To cash paid Evening Post and Times newspapers, for advertising notice to credit- ors to exhibit their claims. Sept. 2. To cash paid surrogate's iee for certificate " 20, To cash paid S. H. on account of bis claim 1871. Jan. 10. To cash paid Mrs. A. C., exe- cutrix, Ac, of F. C, de- ceased, on account of debt due by the intestate to the estate of the said F. C, de- ceased Feb. 8. To cash paid J. H., attorney, &c., for services, advice, costs, &c To balance to new account. . $11 12 1 50 275 08 375 CO 95 460 13 30 $1,256 38 1869. Oct. 3. By cash, net proceeds of sale of fixtures, stock, &c., at the factory . . $543 4T " 16. By cash received for sales from factory 31 96 " " By cash received from 0. P., his account in full 7 00 " " By cash, proceeds of sale of horse 55 00 Dec, 30. By cash received from H. B., his account in full, by the hands of J. H., attorney, &c. 18 88* 1870. Mar. 20 By cash received from P. D., judgment against him, with interest, by the hands of J.H 1871. Feb. 12. By cash left on deposit by intestate in the Greenwich Savings Bank $489 90 By interest on ditto to Ist January, 1869 . 10 97 By ditto to 1st July . . 11 25 By ditto to 1st Jan., 1871 11 55 126 40 473 6T $1,256 88 Feb. 15. Bybal. brought down, am't now on hand, subject to the pavment of expenses and administrator's commissions and to distribution 5;460 30 The following claims exist against the estate of the said in- testate : [Give a list, with the particulars of the. claims.] FORMS. 689 Order of Reference to Audit Account. No. 109. OBJECTIONS TO ACCOUNT. . [Title.] J. K. and L. M., [next of kin of the above named deceased] or [legatees named in the will of said deceased], contesting the ac- count filed by C. D., administrator of thfe estate of said de- ceased, allege that the said account is erroneous, in that it fails to to charge the executor with the following items : First. An item of dollars, a claim against the said execu- tor, for a debt owing to the deceased in his lifetime. Second. The proper sum received or chargeable against said executor for interest. That the said account is further erroneous in the following par- ticulars : First. That the item of doUars, for funeral expenses is extravagant, and not according to the station of the deceased. Second. That the item of paid to K. S. is erroneous, in that the pretended claim was not due, and was barred by the statute of limitations. \_And so continued^ [Date.] H. B., Attorney for J. K. and L. M. No. 110. ORDER OF REFERENCE TO AUDIT ACCOUNT.' At a surrogate's court [etc., as in Form 12]. In the matter of the final accounting of O. D., executor of A. B., deceased. The said C. D., executor aforesaid, having filed his account, and objections thereto having been also filed ; and the parties in interest appearing, ' See ante, p. 388. 690 FORMS. Aviditor's Report. Ordered-: That the said account be referred to J. K., Esq., counsellor at law, for examination, as auditor, and he is- hereby ap- pointed such auditor. And it is further ordered : That the hearing be had before said auditor, at such time and place, in the city of New York, as he shall appoint, and upon due notice to all parties who have ap- peared herein ; and the said auditor is to proceed with the hearing' and the auditing of -said account with aU diligence, and make re- port of his proceedings and determination to this court, at the sur- rogate's office, in the city of New Tork, with all convenient speed, and on the coming' in of said report, notice is to be given to the parties that have appeared, of motion to be made before the surro- gate on the question of confirming such report, or for such other or further order as may be deemed proper. No. HI. AUDITOR'S KEPORT.' [Title.] I, the subscriber, an auditor appointed by the surrogate of the county of New York to examine the accounts of C. D., administrator of the estate of A. B., deceased, and to make report thereon, do hereby respectfully report that I have examined the said accounts, and have been attended upon said examination by the said admin- istrator and by J. B., the widow of the said deceased, and by C. F., the guardian ad litem of the minor children of the said deceased, and by P. B., on the part of the executrix of F. C, deceased, a " creditor ; that the accounts of the said administrator, presented by him, are correct, with the following exceptions, that is to say : 1. That the claim made by A. 0., executrix, and J. L., executor of F. C, deceased, should have been allowed by the said adminis- trator at $696 29, instead of $701 48. 2. That from the bill of particulars of the item of $95 13,, charged in said administrator's account for cash paid J. H., attor- ney, &c. (which bill of particulars is annexed to the said adminis- trator's account and marked G), there should be deducted the sum of $5, the second item in said bill, which ought to be paid by the administrator personally, and not charged to the estate. I do also further report that, from the testimony taken before me, it appears that the said administrator has used due diligence in endeavoring to collect the debts due to the estate, and that he has collected all of the same that were collectible. I further report that the following are just claims against the ' Seeanip, p. 388. fOEMS. 591 Auditor's Report. said estate, with the exception that the administrator has paid, as stated in his account, to S. H., $23 50, and to Mrs. A. C, exec- utrix, &G., of F. C, deceased, $375, which amounts are to be sev- erally deducted from their respective distributive shares of said estate, that is to say : C. & A., 22d June, 1868 $100 00 P. A. K., 6th September, 1869 Y 36 C. E. Q., 27th November, 1869 50 15 I. P. S., 7th February, 1869 45 87 S. H. S., 31st July, 1870 53 75 H. C, executrix of F. C, deceased, January 8, 1870 . 696 29 • There is also a suit now pending in the superior court of the city of New Tok, brought by said administrator agamst H. L., a delator of said estate, who defends said suit on the ground that he paid the demand to the widow of the deceased before the appoint- ment of the said administrator. The charges in said account of the said administrator, for moneys paid for necessary expenses, not hereinbefore particu- larly referred to, are correct, and also that the fixtures, stock, &c., at the factory belonging to the said estate, were sold in the usual manner at public auction, and that the ordinary means, by advertising, &c., and due diligence and prudence were used in ob- taining a just price for the same. I do hereby further report that the whole amount of the assets which have come to the hands of the said administrator is $1,294 57 ; that the amount of the administrator's commissions is $57 36 ; that the amount which I have allowed as properly paid for necessary expenses is $404 08, leaving a balance applicable to the payment of debts and the expenses of this accounting,, and any other necessary expenses that may yet be inciu-red, of $833 13. And I further report that all the claims presented against the estate and allowed amount to $953 42, of which a portion has been paid, as above stated. AH which is respectfully submitted. [Signature.] [Bate.'] 592 FOKMS. Decree Settling Account and Ordering Distribution. No. 112. Deeree settling Account and ordering Distribution.' At a surrogate's court [etc., as in Form 12]. In the matter (ff the final accounting of CD., as executor of the last will and testor ment of A.£., deceased. C. D., the sole executor of the last will and testament of A. B., late of the city of New York, deceased, having heretofore made application to the surrogate of the county of New York for a final settlement of his accounts as such executor, and a citation having been thereupon issued, pursuant to statute, directed to all persons interested in the estate of said deceased, citing and requir- ing them and each of them personally to be and appear before the said surrogate, at his oflBce in the city of New York, on the day of , at eleven o'clock in the forenoon of that day, then and there to attend such final settlement ; and the said citation having been returned, with proof of the due service thereof, on \namvng the per^ions] aU the persons interested in the said estate ; and the said executor having appeared on the return day of said citation, in person, and by H. B., his attorney, and W. M. having been duly appointed special guardian for J. K. and L. M., minors, two of the next of kin of said deceased, and J. B., the widow of said deceased, having appeared by K. L., her at- torney, and the said executor having rendered his account, under oath, before the said surrogate ; and the said account having been filed, together with the vouchers in support thereof, and [no objection having been made to the said account], or [objections to the said accounts having been filed. by J. B., the widow of said deceased], [*] [and the said matter having been duly adjourned to this day, the said surrogate, after having examined the said account and vouchers], now here finds the state and condition of the said ac- count to be as stated and set forth in the following summary state- ment thereof, made by the said surrogate as finally settled and adjusted by him, to be recorded with and taken to be a part of the decJree in this matter, to wit : ' See ante, p. 402. FORMS. 593 Decree Settling Accouot and Ordering Distribution. A nummary statement of the account of 0. J)., executor of the last will and testament of -A. B., deceased, made by the surrogate as finally settled and allowed. The said executor is chargeable as f oUows : To amount of inventory " increase as shown by Sched- ule A The said executor is to be credited with : Loss on sales. Debts not collected Necessary expenses Debts paid . Legacies and distributive shares paid Balance And it appearing that the said executor has fully accounted for all the moneys and property of the estate of said deceased, which have come into his hands as such executor, and his account having been finally adjusted by the said surrogate, and a summary state- ment of the same having been made as above and herewith re- corded, it is hereby ordered, adjudged, and decreed that the said account be, and the same is hereby finally settled and allowed as filed and adjusted. And it is further ordered, adjudged, and decreed, that out of the balance so found, as above, remaining in the hands of the said executor, he retain the sum of ($, ), for the commission to which he is entitled on this accounting ; and that he pay into this court the sum of dollars and cents ($ ), for the expenses of this accounting. \_In case a distribution of the fund is also desired, continue as follows .•] ^ And it is further ordered that, out of said balance, the said executors invest and keep invested the sum of $30,000, in bonds secured by mortgages of real estate ia the city of ifew York, the income thereof to be paid to C. B., the widow of said testator, during her natural life, pursuant to the directions and provis- ' As every decree for distribution under a will must follow the instructions of the will, no general form can be given, but the above will indicate the general method of drawing such decrees. 38 594: FORMS. Decree Settling Account and Ordering Distribution. ions of the said will of the said testator ; and after the death of the said widow, that the said execntprs distribute the said prin- cipal sum in the manner directed in and by the said last will and testament. And it is further ordered that the said executors pay to K. B.,, a son of the said testator, the sum of $ , which, with the sum of $4,600 heretofore received by him, wiU be in fuU of his share of the residuary estate of the said testator, distributable upon this accounting. And it is further ordered that the said executors pay to M. B.,, a daughter of the said deceased, the sum of $ , which^ with me sum of $3,950, heretofore received by her, will be in fuU of her share of the residuary estate of the said testator, distributable upon this accounting. And it is further ordered that the said executors pay to T. B., a daughter of said deceased, the sum of $ , which, with the sum of $6,854 11 heretofore received by her, wiU be in full of her share of the residuary estate of the said testator, distributable on this accounting. And it appearing that S. M., a daughter of the said deceased,, and one of the residuary legatees under his will, is a minor, having- no general guardian appointed within this state, it is ordered that her share of the said residuaiy estate, distributable on this account- ing, amounting to the sum of $ , be paid into this court, and invested under the direction of the surrogate for her benefit, pursuant to the statute in such case made and provided. * And it further ordered that the executors pay the remainder of said balance, being the sum of $ , to J. K., the other residuary legatee named in said will. \_In case the account has ieen ref&rred to an auditor, in place of the clause in brackets above insert, commencing at the * ;] And the said account having been duly referred to J. K., Esq., counsellor at law, for examination as auditor, and the said auditor having, on the day of , 187 , duly made and filed his report, by which he finds [here state the substance of the reporf] ; and the said report having been, by an order made upon due notice to all parties having appeared herein, and entered on the day of , 187 , [in all things confirmed] or [modified by stating the modifications'], the surrogate F0EM3. • 595 Decree Settling Account and Ordering Distribution. [7'Ae entry made hy the sv.rrogate in his minutes in a case where there is no opposition to the aocounts may he in the follow- i/ng form ;] At a* surrogate's court [etc., as in Form 12]. In the matter of the final accounting of 6.T>., as, executor of A. B., deceased. The executor appears in person, and by B. M., Esq., his proctor. Citation, with proof of service on all parties in interest, filed. W. B., Esq., duly appointed special guardian of the minors mentioned in the petition. Consent of special guardian filed, and guardian personally present. The executor rendered his account, which was filed. No objection being made thereto, the said account is settled and allowed as filed. [In case the will gives the executor a specific com/pensation for his services as such, and he desires to renounce it ' and take his statutory comm.issions, he should file with the surrogate, hefore the entry of the decree, a renunciation in the followi'>^g form .•] To AIL WHOM IT MAY CONCERN : Whereas A. B., late of the city of ]S"ew York', deceased, in and by his last will and testament, did give and bequeath to 0. D., his executor therein named, the sum of two hundred and fifty dollars for specific compensation for his services as such executor : Now know ye, that I^ the said C. D., executor as aforesaid, divers good and sufficient causes me thereunto moving, do hereby renounce all right and claim to the said legacy. Witness my hand, this ■ day of , in the year one thousand eight hundred and sixty-nine. [Signature.'] [Add acknowledgment.'] [If the executor has a claim against his testator, he may have it allowed on the acceunting as well as in a special proceeding for that purpose (see Form No. 95). The proof of his claim may he as follows :'] 596- FORMS * Proceedings for Appointment of Guardian of Minor over Fourteen. [ Venue.] C. D., of the city of New York, being duly Bworn, doth depose ' and say that the annexed claim against A. B., late of the city of New York, deceased, is in all respects just and' true ; and that the sum of dollars and' cents is now justly due to this deponent thereon, after allowing all payments and all proper discounts and offsets against the same. C. D. •• [Jurat.'] [Annex a statement showing the particulars of the claim ; if it T)e on an account, the dates and items on hoth the debit and credit ■sides should ie given ; if it he on a note, or other security, a copy of the same, with any indorsements, may he given / or the. date, the 3um originally payable, the tei'ms of payment, and the jpa/yments which may have been made, may be set forth.] No. 113. Proceedings for Appointment of Griiardian of Minor over Fourteen." /. Petition hy infant. To the Surrogate of the county of New York. The petition of A. B., of the city of New York, and residing at No. street, in said city, respectfidly showeth : That your petitioner is a resident of the county of New York, and is a minor over fourteen years of age, and was sixteen years of age on the 10th day of April last past. That your petitioner is entitled to certain property and estate, and that to protect and preserve the legal rights of your petitioner, it is necessary that some proper person should be Avlj appointed the guardian of his person and estate during his minority. Your petitionee therefore prays that you will appoint C. D., fruit merchant, residing at No. street, in said city, such guardian. [Date:] [Signature.] [ Verification.] II. Consent of proposed guardian. I, p. D., above named, do hereby consent to be appointed the guardian of the person and estate of the above-named minor during his minority. [Signature.] ' See ante, p. 410. FORMS. 59T Proceedings for Appointment of Guardian of Minor under Fourteen . ■ ///. Affidavit as to amount of property. City and County of New Yoek, ss. : M. N., being duly sworn, doth depose and say, that he is ac- quainted with the property and estate of the above-named min^r, and that the same consists of real and personal estate ; and that the personal estate of said minor does not exceed the sum of one thou- sand dollars, or thereabouts ; and that the annual rents of the real estate of said minor do not exceed the sum of three hundred dollars, or thereabouts. [Jurat.'] [Signature.] No. 114. Proceedings for Appointment of Guardian of Minor under Fourteen^' J. Petition hy relative. To the Surrogate of the County of New York. The petition of Mary Kichards, residing at No. 170 Bond street, in the city of New York, respectfully shows : That she is the widow of William Richards, lately deceased,, who left surviving him Henry Richards and Ann Richards, the children of himself and your petitioner, who are now alive and- are minors under the age of fourteen years, and reside at lYO Bond street, in New York city, in the county of New York : that said Henry Richards was ten years of age on the 12th day of May last past, and said Ann Richards was eight years of age on the Tth day of March last past, and have no guardian appointed by their father by deed or by will ; that the only relatives of said minors residing in the county of New York, are Thomas Richards, their paternal grandfather, residing at 120 Greenwich street, in New York city, and Philip Richards, their uncle, residing at 316 •_ East 15th street, in said city ; that said minors are entitled to per- sonal property to the value of about two" thousand dollars, as yom* petitioner is informed and veriljr believes. That said minors are entitled to the income from certain real estate, amounting annually to the sum of five hundred dollars ; and that, to protect and pre- serve the legal right of said minors, it is necessary that some proper person should be duly appointed the guardian of their persons and estates. Your petitioner, therefore, prays that you appoint your petitioner the guardian of. the person and estate of said minors^ ' See ante, pp. 410, 411. 598 FORMS. Order Appointing Day for Hearing. — ^Notice of Hearing. until they severally arrive at fourteen years of age, an^ until an- other guardian shall be appointed. {SignatureJ] [ Verification.'] [Jurat.'] lOonsent of proposed guardian and affidavit as to properly, as i/nform above.'] II. Order appointing day for hearing. At a surrogate's court [etc., as in Form 12.] In the matter of the gua/rdianship of ' Henet Eichaeds and AlOT KlCHAEDS, minors under the age of fourteen Mary Richards, of the city of New York, the mother of the above-named minors, having applied to be appointed the guardian of their persons and estates until they shall arrive at the age of fourteen years, and until another guardian shall be appointed, and it appearing by the application that there are relatives of said minors residing in the county of New York, the surrogate assigns the 14:th day of June, at 11 o'clock in the forenoon, for the hear- ing of said application, and orders notice of such hearing to be fiven to the said relatives, at least six days before the day of said earing. III. 'Notice of hearing. [Title.] • Take notice, that Mary Eichards, of the city of New York, the mother of the above-named minors, residing in the county of New York, under the age of fourteen years, nas applied to the surrogate of the county of New York, to be the guardian of the person and estate of the said minors until they shall arrive at the age of' fourteen years, and until another guardian shall be ap- pointed, and that the said surrogate has assigned Mondav, the 14th day of June, 1875, at 11 o'clock in the forenoon, for the hearing FORMS. 599 Application for Lettera by Foreign Guardian. of the said application, before him, at the surrogate's office, in the county court house in the city of New York. IDate.-] • Yours, &c., E. H., Surrogate. To Thomas Kiohaeds and 1 Philip Eichakds. j No. 115. Application for Letters by Foi-eigrn Gnardian.' Sxteeogate's Coukt, Cotintt of New Yoek. In the mtftter of the guardian- ship of A. B., a mvnor. The petition of C. D., of the city of Chicago, respectfully shows : I. That she is the mother of the above-named A. B., who is a minor, and was sixteen years of age on the 10th day of May last past, and that the said A. B. and your petitioner both reside at No. street, in the city of Chicago, in. Cook county, Illinois, and have so resided for more than a year. II. That, on the 8th day of March, 18Y5, your petitioner was, by an order of the county coml; of Cook county, in Illinois (a court of competent jurisdiction for that purpose), appointed the general guardian of the person and estate of the said A. B., and gave a bond and security in double the value of all the property of the. said A. B., and a full and complete transcript, duly exemplified, from the records of the said court, showing such facts, is hereunto annexed, marked " Exhibit A." III. Your petitioner further shows that a portion of the property to which the said A. B. is entitled, consists of a legacy of five hundred dollars, given to her by the wiU of M. N., late of the city of New York, deceased, which was duly admitted to probate " See ante, p. 414. 600 FORMS. Guardian's Bond. by the surrogate of the county of New York, on the day of , 187 • , and is now recorded in Liber , page of the records of wills in his office. That letters testamentary on said wiU were duly issued to J. K., of No. street, in the city of New York, as sole executor thereof, and that such executor is- now ready and willing to pay the said legacy. IV. That such legacy is given to the said A. B. absolutely and in his own right, and a removal thereof will not conflict with the terms or limitation attending the right by which the said A. B. owns the same. y. Your petitioner further shows that there now exists in the state of Illinois, a law similar to chap. 59 of the laws of the state of New York, passed March 10th, 1870. That such an act was passed by the legislature of the state of Illinois, on April 10th,, 1872, and went into effiect on July 1st, 1872, and is now in fuU force. Your petitioner, therefore, asks that she may receive from the surrogate of the county of New York, letters of guardianship of the estate of the said A. B. in pursuance of the said chap. 59 of the laws of 1870. [Date.] [Signature.] [ Yerification.'] [Annex exemplijication of foreign record.] ' No. 116. GUARDIAN'S BOND.' Know All Men by these Peesents, That we, C.-D., of No. street, in the city of New York, and E. F.', of No. street, in said city, and G. H., of No. street, in said city, are held and firmly bound unto A. B., of the city of New York, a minor, {under] or, [over] fourteen years of age, in the sum of four thousand dollars, lawful money of the United States, to be paid to the said minor, his ex- pcutors, administrators or assigns; 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 25th day of M^y, one thousand eight hundred and seventy-five. The condition of the obligation is such, that if the above bounden C. D. shall and will faithfully, in all things, discharge the duty of a guardian to the said minor, according to law, and ' See ante. p. 412. FORMS. ' 601 Order Appointing Guardian and Directing Issue of Letters. render a. true and just account of all moneys and property re- ceived by him, and of the application thereof and of his guardian- ship in all respects, to any court having cognizance thereof, when thereunto required, then this obligation to be void, else to remain in full force and virtue. Sealed and delivered in the presence of M. K C. D. [l. 8.J E. F. [l. s.] G. H. [l. s.] \_Add aoknowledgment and justification of sureties, as m Form 44.] No. 117. Order Appointing Guardian and Directing Issue of Letters.' At a surrogate's court \etc., as in Form 12] . In the matter of the guardianship of Henet Eiohaeds and Ann E.ICHAEDS, minors under the age of fourteen years. On reading and filing the petition of Mary Kichards, duly veri- fied, showing, among other things, that she is the mother of Henry Richards and Ann Richards, minors, residing in the county of New York, under the age of fourteen years, to wit: Henry Richards, of the age of ten years, on the 12th day of May, 1875, and Ann Richards, of the age of eight years, on the 7th day of March, 1875 ; that said minors are entitled to certain property and estate, and that to protect and preserve the legal rights and interests of said minors, it is necessary that some proper person should be duly appointed the guardian of their persons and estates, and praying the appointment of the said Mary Richards, of the city of New York, in said county, as such guardian ; and on read- ing and filing her consent to sum appointment, and the bond ex- ecuted by her to both said minors, with sufiicient surety approved by said surrogate ; ' Seea.««e, p. 410-412. ■€02 FORMS. Letters of Guardianship. Ordered': That the said Mary Richards be, and she is hereby appointed the general guardian of the persons and estates of both ;said minors until they shall severally arrive at the age of fourteen years, and that letters. of guardianship issue accordingly. No. 118. LETTERS OF GUARDIANSHIP. The People of the State of New Yoek, To Maet Eichabds, send greeting . Whereas,. an application, in due form of law, has been made to our surrogate of the county of l^ew York, to have said Mary Eichards appointed the guardian of Henry Richards, a minor {under] or, [over] fourteen years of age ; And whereas, said Mary Richards has agreed and consented to become such guardian, and has duly executed and delivered a bond, pursuant to law, for the faithful discharge of her duty as such ^ardian, and we, being satisfied of the sufficiency of said bond, and that said Mary Richards is a good and reputable person, and is in every respect competent to have the custody of the person and estate of said minor, do by these presents allow, constitute and appoint you, the said Mary Richards, the general guardian of the person and estate of said minor [until he arrives at fourteen years of age, and until another guardian shall be appelated] or, [during his minority], hereby requiring you,, the said guardian, to safely keep the real and personal estate of said minor, which shall here- after come to your custody, and not suffer any waste, sale, or de- struction of the same, but to keep up and sustain "his lands, tene- ments, 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 to deliver the same to him when he be- comes of fuU age, or to such other guardian as may be hereafter appointed, in as good order and condition as you receive the same ; and also to render a just and true account of all moneys and prop- erty 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 {etc., as in- Form 1]. FORMS. 603 Guardian's Accounting. No. 119. GUARDIAN'S ACCOUNTING.' /. Account of proeeedmgs. ObANGE OoUNTT SmtEOGATE's OOUET. In the matter of the final accounting of ' 0. D., general gua/r&lam, qf the person and estate of A. £., late a minor, now of full age. To the Surrogate of the county of Orange : I, 0. D., of the town of Goshen, in the county of Orange, do render the following account of my proceedings as general guard- ian of the person and estate of A. B., late a minor. On the day of , A. D. 187 , letters of guard- ianship were issued to me. On the day of , 187 , said A. B. arrived at the full age of twenty-one years. Schedule A, hereto annexed, contains a statement of aU the property belonging to said A. B., which has come to my posses- sion or knowledge, or under my control. Schedule B, hereto annexed, contains a statement of all interest received or collected by me on any property or estate of said A. B., and also a statement of all rents, issues and profits of any real estate belonging to said A. B., which have been received or col- lected by me. ' No other assets than those mentioned in Schedules A and B, herein set forth, have come to my possession or knowledge ; and all the increase or decrease in the value of any of the assets of said ward is correctly set forth in said Schedules A and. B. Schedule C, hereto annexed, contains a statement of all moneys paid by me for the support and maintenance of said A. B., and for other necessary expenses connected with said estate, together with the reasons and object of such expenditure ; also, a statement of the amount of my personal expenses as such guardian, and the ex- penses of this, accounting. I charge myself as follows : ' See ante, p. 417. The proceedings to bring the proper parties into court and make the accounting final, are substantially the same as in the case of executors. 60i FORMS. Oath to Account. "Witli amount of Schedule A " " Increase, as shown by Sched. B, Total I credit myself as follows : "With amount paid to or for said ward, as per Schedule G. . . . $ With amount of commissions " " proctor's fees Leaving a balance of ... . $ To which said A. B. is entitled. The said schedules, which are severally signed by me, are part of this accoimt. IJ. Oath to account. In the matter of the final accounting of \ C. D., !_ general guardian of the person and estate of A. B., late a minor. CotTNTT OF ORAIirGB, SS. ! I, C. D., of the town of Goshen, in the county of Orange, being duly sworn, say, that I am the -general guardian of A. B. ; that in the charges made in the foregomg account of proceedings and schedules annexed, for moneys paid by me to or for said A. B., and for necessary expenses, are correct ; that I have been charged therein all the interest for moneys received by me and embraced in said account for which I am legally accountable ; that the moneys stated in said account as collected, were all that were collectible, according to the best of my knowledge, information and belief, at the time of this settlement thereof ; that the allow- ances in said account for the decrease in the value of any assets, and the charges therein for the increase in such value, are correctly made ; and that I do not know of any error in said account, or anything omitted therefrom, which may in any wise prejudice the rights ,01 said A. B. And deponent, further says, that the sums under twenty dollars, 'charged in the said account, for which no vouchers or other evidences of payment are produced, or for which FORMS. 605 Decree on Final Settlement of Guardian's Accounts. I may not be able to produce vouchers or other evidences of pay- ment, have actually been paid and disbursed by me as charged. J[Siffnature.'] {Jurats No. 120. DECREE ON FINAL SETTLEMENT OP GUARDIAN'S ACCOUNTS. At a surrogate's court [eto., as in Form 12]. In the matter of the finoii accounting of C. D., general guardiam, of A. B., late a minor, now of full age. C. D., the general guardian of the person and estate of A. B., now residing in the town of Goshen, in the county of Orange, having heretofore made apphcation to the surrogate of the county of Orange for a final settlement of his account as such guardian, and a citation having been thereupon issued; pursuant to statute, directed to said A. B., citing and requiring him personally to be and appear before the said surrogaite, at his office, in the of , in said county, on the day of 187 , at ten o'clock in the forenoon of that day, then and there to attend such final settlement ; and the citation having been returned, with proof of the due service thereof, on said A. B., and the said guard- ian havingappeared on the return day of said citation in person and by E. F., his attorney ; and the said A. B. having also appeared in person, and by J. K., his attorney ; and the said guardian hav- ing rendered his account under oath, before the said surrogate ; and the said account having been filed, together with the vouchers in support thereof, and no objections having been made thereto, and the said surrogate, after having examined the said account and vouchers, now here, finds the state and condition of the said ac- count to be as stated and set forth in the following summary state- ment thereof, made by the said surrogate, as finally settled and adjusted by him, to be recorded with, and taken to be a part of the decree in this matter, to wit : A summary statement oi the account of C. D., general guard- ' See ante, p. 420. 606 FORMS. Proceedings in Regard to Bonds o* Executor or AdminiBtrator. ian of the person and estate of A. B., made by the surrogate, as finally settled and allowed. The said guardian is chargeable as foIlo\ys : To amount of property received, as per Schedule A, " " " rents, profits, interest, &c., as per Schedule B. The said guardian is to be credited with : Amount of necessary expenses for ward, as per Schedule C. . . . Amount of commissions " " proctor's fees Leaving a balance of . . . And it appearing that the said guardian has fully accounted for all the moneys and property of the estate of said A. B., which have come into his hands as such guardian, and his account having been finally adjusted by the said surrogate, and a summary state- ment of the same having been made as above, and herewith recorded, It is hereby ordered, adjudged and decreed, that the said ac- count be, and the same is hereby finally settled and allowfed, as filed and adjusted. And it further appearing to the said surrogate, that there is now in the hands of the said C. D. the sum of $ , due to said A. B., It is ordered : That he pay the same to the said A. B. within ten days from date, or that, in default thereof, an attachment issue against him. No. 121. Proceedings in Regard to Bonds of Executor or Administrator.' I. Petition for assignment of hond. Stjueogate's Oouet, County of JSTew Toek. • Jn the matter of the estate of A. B., deceased. The»petition of M. E"., of the city of New York, respectfully shows: ' See anfe,-p. 426, and Z. 1831, c. 460, § ( FORMS. 60T Order Assigning Bond. That heretofore a decree was made in this court, on the day of 18Y , in favor of your petitioner ftgainst C. D., ad- ministrator of the goods, chattels and credits of A. B., late of the city of New York, deceased, requiring and directing the said 0. T>. to pay to your petitioner the sum of dollars, for the debt due from said deceased to your petitioner, and the further sum of dollars, for his costs of the proceedings ; and thereupon the surrogate duly made a certificate of said decree, as required by law, and the said certificate was duly filed in the office of the' clerk of the county of Kings, and was docketed in the book required by law to be kept for the docketing of judgments, on the day of 187 ; and thereupon an execution was duly issued upon , such decree certified as aforesaid to the sheriff of the county of Kings, where the said 0. D. then resided and still resides, which execution has been duly returned by,said sheriff, wholly unsatisfied, and the said amount decreed to be paid to your petitioner still re- mains wholly due and unpaid. Tour petitioner, therefore, prays that the bond given by the said C. D., upon the granting to him of letters of administration of the goods, chattels and credits of said A. B., deceased, may be as- signed by said surrogate to your petitioner, to the end that your petitioner's claims against the said A. B. may be enforced and col- lected. [Bate.] ' M. N. [ Verification.] II. Order assigning hond. At a surrogate's court [etc., as in Form 12]. ITitle.] On reading and filing the verified petition of M. IST., showing that heretofore a decree was made in his favor,on the day of 187 , in this court, directing C. D., administrator of the foods, chattels and credits of A. B., deceased, to pay to the said M. r. the sum of • dollars, and the further sum of dollars, costs of the proceedings; and that a certificate of said de- cree was, on the day of 187 , duly docketed in the office of the county clerk of the county of Kings, and that an exe- cution was duly issued thereon to the sheriff of the county of Kings, where said 0. D. then resided and still resides, which said execu- tion has been returned by said sheriff, wholly unsatisfied, and that the" amount decreed to be paid to the said M. N,, as aforesaid, is 608 FORMS. Order Keleasing Surety. still wholly due ^d unpaid, ISTow, on motion of W. B., Esq., of counsel for the petitioner. Ordered : That the bond, given by the said 0. D., as principal, with J. K. and L. M. as sureties, upon the appointment of the said C. D. as administrator of the goods, chattels and credits of A. B., deceased, dated and filed in the ofBce of the surrogate of this county, on the day of IST , be, and the same is hereby as- signed to the said M. N., petitioner. TIT. Application of surety to he released. Stieeogate's Cohet, Couutt of IsTew Toek. In the matter of ihe estate of A. B., Y deceased J To the Honorable Eobeet C. Htjtchings, Surrogate. The application of J. K., of the county of , respect- fully shows : That he is one of the sureties of C. D., as administrator of the goods chattels and credits of A. B., late of the city of New York, deceased, and that he desires to be released from responsibility on account of the future acts or defaults of the said administrator. He therefore applies to the surrogate for relief, pursuant to the statute in such case made and provided. • [^Date.l '[Signature.] IV. Order releasing surety. At a surrogate's court \ete., as in Form 12]. [Title.] J. K., of the city of New York, one of the sureties of C. D., as the administrator of aU and singular the goods, chattels and credits of A. B., late of the city of New York, deceased, having heretofore presented his application to the surrogate, setting forth that he de- sired to be released from responsibility on account of the future acts or defaults of the said administrator, and praying for relief, pursu- ant to the statute in such case made and provided ; and the surro- gate having thereupon issued a citation requiring the said C. D., administrator, as aforesaid, to appear before hmi and give new sureties, and the said C. D. having appeared in compliance with the said citation, and having given new sureties, to the satisfaction of the surrogate : FORMS. • 609 Proceedicgs to Enforce Payment by Attachment. Ordered, and the surrogate of tlie county of New York, pursu- ant to the statute aforesaid, doth order and declare that the said J. K. shall not be liable on the bond bearing date on the ■ day of , in the year one thousand eight hundred and , executed to the people of the state of Is ew York, by the said 0. D., as principal, and the said J. K. and one L. M., as sureties, on the ■ granting of the letters of administration of aU and singular the ?oods, chattels and credits of the said A. B., deceased, to the said !. D., by the- said surrogate, for any future act, default, or miscon- duct of the paid administrator. Y. Order revohvng letters for failure to give new sureties. At a surrogate's court [etc., as in Form 12]. [Title.] J. K., of the city of New York, one .of the sureties of 0. D., as the administrator of all and singular the goods, chattels and credits of, A. B., late of the city of New York, deceased, having heretofore presented his application to the surrogate, setting forth that he de- sired to be released from responsibility on account of the future acts or defaults of the said administrator,. and praying for relief, pursuant to the statute in such case made and provided ; and the surrogate having thereupon issued a citation requiring the said C. D., administrator, as aforesaid, to appear before him and give new sureties ; and the said citation having been duly and personally served on the said C. D., as appears by the affidavit of P. B., this day filed, and the said administrator"haviiig failed to give new sure- ties, to the satisfaction of the surrogate ; Ordered, and the surrogate of the county of New York, pursu- ant to the statute aforesaid, doth order and declare that the letters of administration heretofore granted on the day of , in the year one thousand eight hundred and seventy-five, to C. D., as administrator of the goods, chattels and credits of A. B., deceased, be and the same are hereby revoked, and aU authority and rights of C. D., as such administrator aforesaid, are hereupon to cease. No. 122. PROCEEDIXGS TO ENFOKCE PAYMENT BT ATTACHMENT.' /. Power of attorney to recei/oe payment. \To ie attached to certified copy of decree.] I hereby authorize and empower J. K., of the city of New York, clerk, to demand and receive of 0. D., named in the within ' See ante, pp. 17, 426. 39 610 FOKMS. Order for Attachment. decree, the sum of dollars, being the amount required by the said order to be paid by the said C. D., and his receipt shall be a full discharge to the said C. D. for the said amount. II. Affida/oit of demand of payT/ient and refusal to pay. [Title and venue.] J. K., of the city of jSTew York, being duly sworn, says that, on the day of instant, he served C. D. with a copy of the order and decree of the surrogate of -the county of !New York, made in this matter, dated the day of , which is hereunto annexed, and at the same time exhibited to the said C. D. a power of attorney duly executed, indorsed upon the copy of the said order hereto annexed, authorizing and empowering this deponent to demand and receive the sum of dollars, the amount ordered to be paid by said decree, which service was made by delivering the copy of the said order and exhibiting the said power of attornev to the said C. D. personally ; and this deponent further says that he thereupon demanded of the said C. D. payment of the said sum of dollars, and the said C. D. wholly refused to pay the same. [Jurat.] \_Add also affida/oit of the party in whose favor the decree is made that he has not received payment.] III. Order for attachment. At a surrogate's court [etc., as in Form 12]. ITitte.] On reading and filing the aflBdavit of J. K., with certain papers thereto annexed, proving the due and personal service on 0. 1), of a copy of the decree made in this matter, on the day of last past, ordering the said C. D. to pay to A. B. the sum of doUars, the amount found due by the said C. D. to the said A. B. on a final accounting of the said 0. D. as gener?,! guardian of the said A. B., had before the surrogate of the county of New York, or, in default thereof, that an attachment issue against him ; and prov- ing also a demand of payment of the sum of dollars, the amount by said decree ordered to be paid, and the refusal of the said 0. D. to pay the same ; Ordtred: ITiat an attachment issue out of and under the seal of this court, to be directed to the sheriff of the city and county of ]!^ew York, commanding him to arrest the said 0. D., and to bring him before the surrogate of the county of New York, at his office in the city of New York, on Monday, the day of FORMS. 611 Attachment. instant, to answer for his misconduct in not paying the said sum. And it is further ordered and directed that me penalty in -which the said 0. T>. shall give bond for his appearance to answer upon the said attachment be dollars. IV. Attachment. The People of the State op !N^ew York, To the sheriff of the city and county of New York, send greeting : Whereas, on the day of , in the year one thou- sand eight hundred and seventy-five, by a certain order and decree made in our court of our surrogate of the county of New York, by our surrogate of our said county of E"ew York, at the city of JS'ew York, in the matter of the final accounting of C. D., as general guardian of the person and estate of A. B., it was decreed by our said surrogate, in due form of law, that the said C. D. pay to the said A. B. the sum of doUars, the amount found due to the said A. B. on such final accounting, or, in default thereof, that an attachment issue against him. And whereas, we have been in- formed in our said court, before our said surrogate, that although such amount has been personally demanded of the said 0. D., yet the said 0. D. has hitherto refused, and stiU refuses to pay the same : Now, therefore, we command you to arrest the said C. D., and bring him before our said surrogate of our county of New York, at the surrogate's office in the city of ISTew York, on Monday, the day of • instant, to answer unto us for his miscon- duct in not paying the said fees and expenses. And you are to make and return to our said surrogate in our said court, on that day, a certificate under your hand of the manner in which you shall have executed this our writ, and have you then and there this our writ. In testimony whereof [as in Form 1] . \The following indorsement is to he made hy the surrogate on the attachment/] " Let the said C. D. give bond in the penalty of dollars for his appearance to answer upon the within attachment." 612 FORMS. Probate of Heirship. No. 123. PROBATE OF HEIRSHIP.' I. Affidavit. SmtEOGATE's COUET, NeW ToEK CoUNTY. In the matter of proving who are the heirs of A. B., deceased. [ Yenue.} J. B., being duly sworn, says : I. That A. B. died at the city of I^ew York on the day of isr . II. That, at the time of his death and for a long time previous thereto, the said A. B. resided at No! , street, in the city of New York. III. That the said A. B. left surviving him five children, of whom this deponent is one, and also three grandchildren, the children of M. B., a son of the said A. B., but who died before the said A. B. That the said persons are now aU alive, and constitute the only heirs of the said A. B., and that their names, ages, respective places of residence and relationship to the deceased are as f oUows : J. B., son of A. B., aged years, residing at No. street, in the city of New York. W.'B., grandson of A. B. (being the son of M. B., now de- ceased, who was the son of A. B.), aged years, residing at No. street, in the city of Brooklyn. \So continue as to all the hei/rs.] IV. That the said A. B. died seized of the following described real estate in the state of New York : [Insert description of real estate.] ' See ante, p. 432. It is advisable to append to the affidavit of the heir the affi- davit of some disinterested person — e. g., the family physician or clergvman — who may be presumed to be acquainted with the relation of the alleged npirs to the deceased. FORMS. 613 Petition for Dower by Widow. ■ Y. That the respective interests of the above-named heirs in the Teal estate of which the said A. B. died seized are as follows : J. B., one-sixth. W. B., one-eighteenth. \_And so on as to all the heirs.] {Jurat.'] ' J. B. II. Certificate ly surrogate. I, Kobert C. Hutchiags, surrogate of the county of N'ew Tork, hereby certify, pursuant to the statute in such ease made and pro- vided, that I have read the within affidavit, and am satisfied that the matters stated therein are true. In testimony whereof \_etG., as in Form 1] . No. 124. • PETITION FOB DOWER BJ WIDOW.' To the Surrogate of the county of New Yorh : The petition of J. B., of the city of New York, m the county ■of IS'ew York, respectfully shows : That she is the widow of A. B., late of said city, deceased ; that she was lawfully married to said A. B., in his lifetime, and lived with him as his wife until his death, on the day of , 1875, more than forty days ago ; that the said . A. B., at the time of his decease, was seized of an estate of inher- itance of and in the following lands and premises. [^Insert description of jproperty.] Your petitioner further shows : That M. B. and 0. B., children •and heirs of said A. B., deceased, claim to own said premises, and jour petitioner verUy believes that they are the owners thereof, .subiect to your petitioner's right of dower. Your petitioner therefore prays, that an order be made for the admeasurement of her dower in said lands and premises, and that three reputable freeholders may be appointed for the purpose of making such admeasurement. [And she shows that M. B., the said child and heir of said A. B., deceased, is a minor under the ' See ante, p. 435. 614 FORMS. Proceedings by Heirs or Owners for Admeasurement. age of twenty-one years and over fourteen years old, and having no general guardian].^ [Bate.'] J. B. E. S., attorney for petitioner. [ Yerification.] No. 125. Proceedings by Heirs or Owners for Admeasurement.' I. Notice to the widow. To J. B., widow of A. B., deceased : Forty days having elapsed since the death of A. B., your late husband, and no proceedings having been taken by yon for the admeasurement of your dower in the land hereinafter described subject to your dower, notice is hereby given to you by the under- signed, an owner of the said land, claiming a freehold estate there- in, that you are required to make demand of your -dower in the said land within ninety days after the service oi this notice upon you. The following is a description of the land above referred to : ■ \_Insert description of the land.'] [Date.] [Signatv/re.] II. Petition for admeasurement. To the Hon. E. C. H., Surrogate of the county of New York : The petition of "W. T., of the city of New York, respectfully shows that he is the owner of the following described land,, claim- ing a freehold interest therein, that is to say : [Insert description of property.] And your petitioner shows that the said land is subject to the dower of J. B., the widow of A. B., who died on the day of , 1875. Your petitioner further shows "that he has caused a notice to be served upon the said J. B., widow as aforesaid, pursuant to the statute in such case made and provided, requiring her to make de- mand of her dower within ninety days after the service upon her of the said notice, a copy of which said notice, together with the proof ' Where a special application for the appointment of guardians for minors ia made, this clause need not he inserted. It is more convenient, however, to state all the facts in the petition. " See ante, p. 437. FORMS. 615 Appointment of Guardian for Minors. of service thereof upon the said widow, is- hereto annexed, and that more than ninety days have elapsed since the service upon the said J. B. of the said notice, and that the said J. B. has not made demand of her dower in the said land. Your petitioner, being desirous of having the dower of the said J. B., in the land admeasured, respectfully prays for the admeas- urement of the said widow's dower of the said land. {^Date.} [Signature.] [ Yerification.] No. 126. APPOINTMENT OF GUARDIAN FOE MINOKS.' /. Petition for appointment. [Title.] To the Surr'ogate of the cov/nty of New YorTc : The petition of J. B., the widow of A. B., late of the city of New York, deceased, intestate, respectfully shows : That she is about presenting to the surrogate her respectful petition for an order for the admeasurement of her dower in the lands of her said late husband, and that W. B. and F. B., residing in the city of New York, two of the children and heirs of M. B., deceased, who was a son of the said A. B., deceased, and who are two of the heirs of the said A. B., deceased, are minors under the age of twenty-one years, and have not any general guardian. Wherefore your petitioner applies to the surrogate, for the ap- pointment of a discreet and substantial freeholder to be the guard- ian of the said infants, for the sole purpose of appearing for and taking care of their interests in the proceedings for the admeasure- ment of her said dower. [Date.] J. B. [ Verification.] [Consent of proposed gua/rdioM, as in Form 107.] II. Order appointing guardian. At a surrogate's court [etc., as in Form 12] . [Title.] On reading and filing the verified petition of J. B., the widow of A. B., deceased, settiag forth that VV. B. and F. B., two of the ' See ante, p. 436. 616 FORMS. Notice to Heirs or Owners. heirs of the said A. B.,- deceased, are minors tinder the age of twen- ty-one years, and have not any general guardian : Ordered : That J. K., Esquire, a discreet and substantial free- holder, be and he hereby is appointed the guardian of the said "W. B. and F. B., infants as aforesaid, for the sole purpose of ap- pearing for and taking care of their interests in the proceedings for the admeasurement of the dower of the said J. B., in the lands of the said A. B., deceased. No. 127. NOTICE TO HEIRS OK OWNERS.' To C. B. cmd IST. B., heirs at law of A. B., late of the city of New York, deceased, and to all others claiming a free- hold in the lands described in the annexed petition : Take notice, that a petition, of which the annexe'd is a copy, will be presented to E. 0. H., Esq., surrogate of the county of New York, at his office in the city of New York, on the day of , 1875, at 11 o'clock in the forenoon of that day, and that a motion will be then made that the prayer of' the petition be granted. [Bate.] J. B. E. S., attorney for petitioner. No. 128. Order directing Admeasurement and appointing Commissioners." At a surrogate's court {etc., as in Form 12]. ITitle.] On reading and filing^the petition of J. B., widow of A. B., late of the city of New Y ork, in the county of New York, de- ceased, dated the day of , A. D. 1875, and the notice accoim)an;^ng the same ; and also on reading and filing due proof , by affidavit, of- the due service of the said petition, and notice upon J. K., special guardian for W. B. and F. B., infants under the age of twenty-one years, and upon C. B., named in said petition as one of the heirs of A. B., and after hearing H. W.,. of ' This notice should be indorsed on the copy of the petition served, see ante p. 436. ' See ante, p. 438. FORMS. 617 Order enlarging Time for Commissioners to Bring in their Report. counsel for said petitioner, and J. K., the special guardian afore- said, in behalf of the infants, Ordered : That admeasurement be made of the dower of the said J. B. in the lands of her husband, the said A. B., deceased, specified in said petition, and which are therein described as fol- lows \insert the description contained in the petition.'] It is further ordered, that D. W., J. D., and D. IVT., of the city and county aforesaid, three reputable and disinterested freeholders, be, and they hereby are, appointed commissioners for the purpose of making such admeasurement. It is further ordered, that the said commissioners report their proceedings to this court on the day of ' next. No. 129. OATH OF COMMISSIONERS.' [_Title.] [ Venue.] We, D. W., J. D., and D. M., commissioners appointed by the surrogate of New York, in this matter, do severally swear that we will faithfully, honestly, and impartially discharge the duty and execute the trust reposed in us by the said appointment. ' \_Siginati'.res.} {Jurat.l No. 130. Order enlarging Time for Commissioners to bring in their Keport.' At a surrogate's court [etc., as in Form 12]. ITitle.] On reading and filing the afiidavit of M. IsT., by which it ap- pears that D. W., J.' D., and D. M., the commissioners appointed by the surrogate of the county of ISTew York, by an order made in this matter, require further time to complete the admeasure- ment of dower, and make' report of their proceedings ; and on application of J. B., the widow of A. B., deceased, the petitioner herein. Ordered: That said commissioners have further time in which to make such report till the day of next, at ten ' See ante, p. 438. • " See ante, p. 438. 618 FORMS. Notice of Meeting of Commissioners. — Report of Commissioners. o'clock in the forenoon, and that said commissioners make their report on the day and hour aforesaid. No. 131. NOTICE OF MEETING OF COMMISSIONERS. iTitle.] Take notice that D.' W., J. D., and D. M., commissioners ap- pointed in the above entitled matter, by an order entered on the • day of , 187 , to admeasure the dower of the above named J. B. in the lands of A. B., deceased, will meet at , on the day of 18T , for that pur- pose. H. W., IDate.] Attorney for J. B. To C. B. No. 132. REPOKT OF COMMISSIONERS." [_Title.-\ To, the Surrogate of the County of New York : The undersigned, D. "W., J. D., and D. M., commissioners ap- pointed by an order of the surrogate of the county of New York, dated the day of , in the. year , to make admeasurement of the dower of J. B., above-named^ widow of A. B., late of the city and county of New York, deceased, in the lands andpremises described in said order, and situated in the city of New York aforesaid, do respectfully report that, having first been duly and severally sworn, faithfully, honestly and impartially to discharge the duty and execute the trust reposed in us by the said appointment, we met on the premises hereinafter described, on the dajr of , in the year , to discharge the duty, and to exercise the trust aforesaid, and likewise "W. B. and Y. B., by their guardian J. K., and 0. B., by his attorney H. W., appeared at time and place aforesaid \or if they did not so wppear, state that fact, and also that they had heen dvly notified to ap- pear at the time and place aforesaid'] ; whereupon tiie under- signed, commissioners, as aforesaid, caused a survey of the said lands and premises to be made in the presence of the said parties, ' See ante, p. 438 FORMS. 61^ Notice of Motion for Confirmation of Report. a map of which survey is hereunto annexed, marked " Exhibit A." And we do further report that we have admeasured and allotted to the said J. B. for her dower in the said lands and premises the one-third part thereof, which part is bounded and described as fol- lows : ^here insert the description containing the quantity, courses and distances of the land admeasured and allotted to the widow, with a description of the posts, stones, and other permanent monu- ments'], being the part designated on the said map hereto annexed by the letter " O." [If the commissioners do not deem it prac- ticable, nor for the best interests of all the parties to admeasure and lay cff the one-third pa/rt of the la/nds or premises, and to designate it with posts, stones, or other permanent ,m,onuments, let the report contain, a statement of that fact, with the reasons which led their judgment to such a conclusion.'] ^ We do further report that the following are the items of the charges attending said admeasurement, including our fees as commissioners : Five days' services for each commissioner, at $2 per day for each $30 00 Cash paid P. W. for five days' services as surveyor, at $2 50 per day 12 50 Cash paid for two chain and flag bearers, five days each, at $1 per day for each 10 00 $52 50 In witness whereof, we have hereunto set our hands this day of , in the year 1875. [^Signature of commissioners.] No. 133. NOTICE OF MOTION FOR CONFIRMATION OF REPORT.' \_To he annexed to copy of report.] [Title.] Sir :' Take notice that I shall move the sujTogate of the county of New York, at a surrogate's court to be held by him at the court house in the city of New York, .on the day of nextj or as soon thereafter as counsel can be heard, for an order confirming the report of the commissioners appointed to make ad- measurement of the dower of J. B. in the premises mentioned in said report ; and for such other or further order in the premises. ' See 1 Z. 1869, c. 433, § 3. . " See ante, p. 439. capacity to make will, 82. may act as executor, or administrator, or guardian, 139, 166. who entitled to administer on estate of, 162. may take by devise or bequest, 343. may cite representative to account, 362. MARSHALING ASSETS, 288. MERGER of title of funds in hands of personal representatives, 224. MINOR, service of citation on, 34, 70. proceedings as to, when party to a proceeding, 55. special guardian of, on probate, 126, on sale of real estate, 261. INDEX. 655 MINOE — continued. special guardian on allegations to contest, 126. on distribution of surplus moneys, 279. on final accountings, 381. on admeasurement of dower, 436. on appeals, 435, 459. . share of, in surplus on sale of land, 277. payment of legacy to, 341. appointment of general guardian of, 410. See also Gitardian. MINUTES of proceedings must be recorded, 6. decision construing will to be entered in, 128. MISTAKE in will corrected, 85. executor or administrator, when liable for, 397. MORTGAGE of real estate to paj^debts, 253 ; and see Sale. when payable out of personalty, 286. NEGLIGENCE, damages for death by, action by executors for, 208. liability of executors, &c., for, 250. NEXT OF KIN, who are under the statute, 40, 46. right of, under statute of distributions, 50. when' cited on probate, 68. when liable for debts of deceased, 294. cited on final accounting, 6. NEW TRIAL, power of surrogate to grant, 24, 380'. on reversal of decree on probate, 464. NEW YORK COUNTY, objection' to decree of surrogate of, on juris- dictional grounds, how taken, 16. costs in surrogate's court in, ]9. power of surrogate in, to grant new trial, 28. to take proof of lost or destroyed wills, 28, 144. ^surrogate's court, appearance by attorney in, 35. surrogate of, may determine construction of will, 74, 128. decrees of surrogate of, when conclusive, 119. may accept resignation of executor, 143. public administrator in, office of, 178. powers of, 179. proceedings by, before grant of letters, 180. letters, how granted to, 181. effect of denial of letters, 182. superseding letters to, 183. powers on grant of letters, 184. commissions of, 185. 656 INDEX. NEW YORK COUNTY -continued. public administrator in, corporation liable for acts of, 186. personal liability of, 186. power of surrogate in, to appoint receiver, 191. collector in, exhibition of claims to, 196. process in, to discover concealed assets, 203. surrogate in, power of, to release general guardian from future responsibility, 412. NON-EESIDENT, proof of will of, 96. will of, how recorded with surrogate, 122. and alien disqualified as executor, 139. who entitled to administer on estate of, 163. NOTICE to executor of revocation on allegations, 127. of application for appointnjpnt of collector, 193. of sale by collector, 194. to exhibit claims by collector, 196. of sale of land for payment of debts, 270. of distribution of proceeds of land for payment of debts, 276. to present claims, 290. of hearing on application for guardian of minor under fourteen, 410. to next of kin on application by guardian to be allowed to re- sign, 422. to owners on admeasurement of dower, 436. to widow to make demand of her dower, 437. of appeal, 453. of hearing of appeal, 462. See also Forms. NUNCUPATIVE will, who may make, 116. proof of, 116. OATH of executor, 142. of administrator, 167. of collector, 193. of appraisers, 213, to claim against estate, 293. to accounts by representative, 378. of guardian to accounts on resignation, 423. OBJECTIONS to issue of letters, how made, 140. form of, 505. to accounts of executor, 388,589. ORDER, entry of, nunc pro tunc, 25. to show cause, when issued, 31. to show cause against sale of real estate, 26*0. INDEX. 657 ORDER — continued. for sale of land for payment 'of debts, 266. for publication of notice to present claims, 291. of reference of claims against deceased, 295. * allowing execution to issue after judgment on the merits, 303. for payment of claim, 307. to sho-w cause on accounting, 365. for accounting, 370. service of, 371; how enforced, 371. to answer petition of appeal, 459. For forms of orders, see Forms. PARTIES to proceedings in surrogate's courts, 55, 140. by int'ervention, 56. defendant in actions against executors, 143. to appeals, 453. PARTNERSHIP PROPERTY, how inventoried, 307. interest of deceased in settlement of, 373-. PAYMENT of debts by collector, 196. of legacies in due course of administration, 341. of legacies by surrogate's order within the year, 347. by executors &c., how proved on accounting, 393. ei^oneous, liability of executor or administrator for, 400. See Debts, and Legacies. PERISHABLE PROPERTY, sale of, by public administrator, 175 PERPETUATION of evidence in support of will, 27. PERSONAL PROPERTY, rights of executor in, 336. sales of, 236. PETITION, when required to be in writing, 31. how verified, 31. for probate need not be in writing, 66. how verified, 66. contents of, 67. supplementary, on probate, 68. for administration with will annexed, 151. for administration, 163. for administration de bonis non, 173. for appointment of collector, 193. for discovery of concealed effijcts, 300. for summons to return inventory, 216. for sale, &c., of real estate, 357. 43 658 INDEX. P'ETYriO'S— continued. to have executor or administrator account, 266. for appointment of general guardian, 411. for adifteasurement of dower, 435. of appeal, 458. /See also Forms. PEW in church regarded as real estate, 205. POSTHUMOUS CHILDEEN entitled to inherit, 46. to take under will, 48. POWER in trust, exercise of, 235. of sale, accounts of proceeds of sale under, 364. PRECEPT, used in process of attachment, 17. PREFERRED DEBTS due by deceased, 281. PRESENTMENT of claim against estate, 293. omission to make, effect of, 293. PRESUMPTIONS of fraud on probate, 111. of intestacy in favor of public administrator, 177. PRIVILEGED COMMUNICATIONS on probate, 101. PRIZE MONEY, minor entitled to, surrogate's fees on appointment of guardian for, 445. PROBATE, power of surrogate to revoke, 24. proceedings before application for, 58. duty to apply for, 59. rights and powers of executors before, 60. application for, to what surrogate' made, 62. facts conferring jurisdiction on surrogate to grant, 62. possession of will not necessary on application for, 65. who may apply for, 65. application for, how made, 66. • petition for, not in writing, 66. nor verified, 66. facts to be ascertained on, 66. contents of petition on, 67. when no citation necessary, 67. supplementary petition on, 68. who to be cited on, 68. form of citation on, 69. service of citation on, 69. proof of service of citation on, 71. second citation on, 71. appointment of special guardians on, 71. contested and uncontested, 72. ' ordinary form of, 72, INDEX. 659 PEOB ATE— continued. several applications for, consolidated, 73. examination of witnesses on, 97. order of evidence on, 105. burden of proof on, 106. presumption of fraud on. 111. ■what instruments admitted to, 113. of lost and destroyed wills, 116. decree granting or refusing, 117. form of decree on, 117. decree on, when conclusive, 118. revocation of decree on, 119. record of, 120. testimony on, how preserved, 122. * contesting will on allegations after, 125. foreign, letters on, 137. of heirship, 432. costs and expenses on, 442. appeal in proceedings for, 450. forms on, 477-498. PEOCEDURE in surrogate's court, 16. PROCESS, execution of by sheriffs and other officers, 18. from surrogate's court, in general, 31. PROOF OF CLAIM against estate, 293. due executor, 293. on sale of land, 263. See also Forms. PROOF OF SERVICE of citation, how made, 35. by affidavit, 35. by admission of party, 35. dispensed with by appearance, 35. PROOF OF WILL. See Probate. PUBLIC ADMINISTRATOR, when cited on probate, 68. in general, 174. how appointed, 174. nature and object of office, 174. powers and duties, 174. sale by, of perishable property, 175. process of, to discover concealed property, 175. extent of authority &c. for grant of letters, 176. authority, how superseded, 177. annual statement of, 177. in New York county, 178. 660 . IOT)EX. PUBLIC ADMlNISTRA.TOn—coniin'ued. in Kings county, 186. county treasurer, when acting as, 187. See also New York County. PUBLICATION, service of citation by, 35, 70. of will, how made, 77. of notice of revocation on allegationsL, 137. of summons to appear and qualify, 141. of order to show cause against sale of real estate, 260. of notice of sale of land, 270. of notice to present claims, 290, 291. of citation to guardian to show cause against removal, 421, QUAKANTINE of widow, 433. QUEENS COUNTY, books kept by surrogate of, 7. " * EEAL ESTATE, will of, how proved, 25. order of descent of, 41 . term defined in statute of descent, 47. jurisdiction of probate founded on, 65. record of wills of, 122. passes by what words in will, 130. right of executor in, 227. sales of, by executor, &c., 233, 236. how liable for debts of deceased, 253. legacies charged on, 335, 345. RECEIVER, when appointed by surrogate, 191. RECITAL of jurisdictional facts in decree, effect of, 15. RECORDS of surrogate's office, what must be kept' as, 6. of surrogate in charge of supervisors, 7. exemplification of, by surrogate, 19. of unfinished business, power of surrogate to sign, 19. of wills proved in supreme court, 26. of lost or destroyed wills, 28. of will on production of foreign probate, 66. of will and probate, 120. of supreme court decree with surrogate, 122. of wills of real estate, 122. of wills of personal estate, 122. of wills proved before Revised Statutes as evidence, 123, of revocation of probate on allegations, 127. of letters testamentary, 143. , i]!n>EX. 661 H'ECO'RDS— continued. of letters of administration, 168. of testimony on controversy regarding grant of administration, 168. EEFEEENCE of claim against estate, 294. to auditor, on accounting, 388. EENT, when inventoried, 206. when may be preferred debt, 282. of pew in church, when charged on estate, 286. EENUNCIATION of executor, 140, 142. of right to administer, 164. of specific compensation given by will, 595. of executor or administrator, 509, 520. EEPRESENTATION under statute of descent, 43. EESIGNATION of guardian, 422. EESULTING TEUST, extrinsic evidence to. rebut, 131. EETURN of surrogate on appeal, 460. EEVIVAL of actions, 246. EEVOCATION of will, how made, 89. by writing, 90. by destruction of will, 91. by implication, 92. of later will, 94. of probate on allegations, 125. of letters of administration in general, 169. when granted on false representation, 170. on subsequent proof of will, 170. for incompetency, 171. for insolvency or inadequacy of sureties, 171. eifect of, 172. of letters for failure to return inventory, 216. EOBBEEY, loss by, executor or administrator when liable for, 397. SALES by superseded executor, 146. of perishable property by public administrator, 175. by collector, 194. by executors and administrators, 233. of real estate to pay debts, in general, 253. petition for, 257. for what debts, 258. time within which land may be sold, 258. intermediate conveyances by heirs, 259. 662 INDEX. SALES — eondnued. of real estate, protection of bona fide purchasers, 260. order to show cause against, 260. publication of order, 260. guardians of minors, 261. service of order to show cause, 262. return of order, 262. trial by jury, 263. entry of demands adjudged valid, 263. prerequisites to mailing order for sale, 264. determining whether to mortgage, lease, or sell, 265- duration of lease, 266. effect of lease or mortgage, 266. both sale and mortgage, 266. what may be sold, 266. bond for application of proceeds, 268. order for sale, 269. death or disqualification of executor &c. after making" of order, 270. notice of sale, 270. place of sale, 270. executor &c. can not buy, 271. sale on credit, 271. vacating sale, 271. confirming sale, 272. execution of conveyances, 273. disposition of proceeds, 274. costs of proceedings, 274. record of proceedings, 279. SATISFACTION of legacies, 327. SERVICE of citation, 33. on lunatics and idiots, 33. on minors, 33. by publication, 35. on probate, 69. on allegations .to contest will, 126. to executor to show cause why he should not b& superseded, 145. on application for administration, 165. to administrator to give further sureties, 171 . to collector to make deposit, 195. • to collector to account, 196. INDEX. 663: SERVICE— cora tinued. of citation on final accounting, 381. to ward on final accounting of guardian, 417. to guardian to show cause against removal, 421. on ward on resignation of guardian, 422. of notice to owners on admeasurement of dower, 436. on next of kin on resignation of guardian, 422. of application for appointment of collector, 193. of order to show cause against sale of real estate, 262. to account, 371. of petition of appeal and order to answer, 459. of process in general, proof of, 35. of summons to appear and qualify, 141. to return inventory, 215.. SIGNATURE of testator, how made, 76. SPECIAL ADMINISTRATOR. See Collector. SPECIAL GUARDIANS'. See Guardian. SPECIAL SURROGATE, election of, 4. STAY of issue of letters testamentary, 140. STAY OF PROCEEDINGS on appeal, 457. STENOGRAPHER, notes of, transcribed, signed, and filed, 8. SUBPOENA, how issued by surrogate, 17. how served, 18. fees of witnesses on, 445. to discover concealed effects, 200. SUBSCRIBING WITNESSES to will, when orally examined, 72. legacy to, 331. See Witnesses. SUBSCRIPTION of will, how made, 75. SUMMONS, when used, 33. to executor to appear and qualify, 141. to return inventory, 215. SUPPLEMENTAL INVENTORY, 214. SUPPLEMENTAL PETITION, on application for probate, 68. SUPPLEMENTARY letters testamentary, 147. SUPREME COURT jurisdiction in regard to wills of real estate, 26. to foreign wills of personalty, 26. proof of will in, where witnesses all reside out of the state, 26. wher£ will is in custody of foreign court, 26. proof of lost or destroyed wills in, 28. jurisdiction to compel executor, &c., to account, 355. when exclusive of surrogate, 356. 664: INDEX. ^PEEME COHUT:— continued. , appointment of guardians by, 408. appeal from surrogates to, 446. SURETIES on administrator's bond, insolvency of, 171. on bond of executor and administrator, liability of, 428, 430. release cf, 608. SURPLUS MONEYS, when inventoried, 207. on sale of land for payment of debts, 276. on foreclosure, distribution of, 378. SURROGATE, election of, and tenure of office, 1. in new county, 2. official title of, 3. a local officer, 3. residence of, 3. personal disqualification for office, 3. empowered under commission from supreme court, 4. bond of, and remedy on, 4. must deliver office records to his successor, 5. must preserve all papers belonging to his court, 5. salary of, 5. must index books in his office, 6. must keep certain books and records, 6. must search records and give certificate, 6. fees oT, for official service, 8, 443. can not practice as attorney in certain cases, 9. general jurisdiction under Revised Statutes, 10. acts of, when void for want of jurisdiction, 11. jurisdiction of, not presumed, 13. decree of, when conclusive, 14. jurisdiction of, must be proved to support decree, 15. power in general, enumerated and defined, 23. to employ clerks, 7. to employ stenographer, 8, to issue citations, 16. to adjourn proceedings, 16. to issue commission, W. to issue subpoenas, 17. to punish witnesses for refusal to testify, 17. to commit witnesses testifying falsely, 17. to enforce orders by attachment, 17, 18, 36. to award costs and allowances, 18. 25. to issue process to counties other than his own, 118 INDEX. 665 SURROGATE— continued. power to complete unfinished business, 19. to exemplify records, 19. to enjoin executors, &o., 19. to punish for contempt, 20. to take acknowledgments and proof of deeds, 20. to pass upon disputed demand a^inst estate, 20, 391. _ to control executors in regard to suits in other courts, 21. to compel removed administrator to deliver assets to successor, 21. to open default, 24, 1 19. to allow amendment, 24. to grant new trials, 24. to appoint guardians ad litem, 24. to revoke probate, 24. to enter order nunc pro tunc, 25. to award costs; 25. exclusive and concurrent jurisdiction of, 25. jurisdiction in regard to wills of real estate, 25. to lost and destroyed wills, 25, 28, 114. exclusive jurisdiction in regard to probate, 29. over subsequent proceedings after proof of will, 29. when may admit to probate, 62. facts to be ascertained by, on application for probate, 66. can only decide due execution of will, 73, 128. of New York county may pass upon construction of will, 74, 128. may inquire as to custody, &c., of will, 88. duty to examine witness to will, 96. duty to record will and probate," 120. certificate of, on will, 121. duty to si'gn, certify and record examinations, 121. , to preserve testimony on probate, 122. to appoint guardians for minors on contest of will on al- legations, 126. to notify executor of revocation on allegations, 127. to enter in minutes decision construing will, 128. when may issue letters testamentary, 136. duty to record letters testamentary, 143. power to grant administration with the will annexed, 150. jurisdiction in cases of intestacy, 156. power to revoke letters of administration, 169. 666 IKDEX. BJJE'ROGATE—contm^d. power to appoint collector, 190. to allow compromise of debts, 232. to order sale, &c., of land, 256. See Sale op Land. may give preference to claim for rent, 282. to designate papers in which to advertise for claims, 291. approval by, of disintetested person to whom to refer claim, 294. may allow execution against executor, 302. See Judgment, and Execution. raay order executor to pay claim, 306. must give certificate of decree for payment of money, 307. must assign bond of executor or administrator, 307. may enforce decree by attachment, 307. power to order payment of legacies, 348. See Legacy. power to compel executor to account, 358. See Accounting. power to appoint general guardian, 409. See Guardian. power«to call guardian to account, 415. removal of guardian by, 420. may accept resignation of guardian, 422. power over testamentary trustees, 424. enforcement of decrees of, 426. may take probate of heirship, 432. may admeasure dower, 433. See Admeasurement of Dower. appeals from, 446. See Appeal. must make return to appellate court, 461. must enforce decree rendered on appeal, 468. See also Executors and Administrators, Surrogate's Courts, Appeal, Accounting, Probate, Will, Pro- cedure, Forms, &c. SUEEOGATES' COUETS, constitution and organization of, 1. time and place of holding, 5. seal of, 8. not courts of record, 16. costs in, 19. general method of procedure in, 24. process from, in general, 31. INDEX. 667 SURROGATES' COVRTS— continued. parties to proceedings in, 40. SURVIVORSHIP among co-executors, 229. TAX, when preferred debt, 283. on legacies, 318. on succession to real estate, 318. TECHNICAL wtords in will, how construed, 129. TESTAMENTARY guardian, not deemed general guardian, when, 70. appointment of, 408. TESTAMENTARY TRUSTEES, powers of, 220. may he compelled to account by surrogate, 361. how diflferent from executors, 424. jurisdiction of surrogate over, 424. compensation of, 425. accountings by, 425. TESTIMONY, on probate, how preserved, 122. TORTS, survival of action for, 242, 246. TRANSCRIPTS of records of probate as evidence, 120. TRIAL BY JURY on sale of real estate, 263. TRUSTEE, duty in regard to investments, 250. joint liability of, 252. commissions of, 384. TRUSTS under Revised Statutes, 335. UNDUE INFLUENCE in avoidance of will, 84. UNFINISHED BUSINESS, power of surrogate to complete, 19. UNITED STATES debts entitled to preference under laws of, 283. VOUCHERS on accounting, 379. WARRANT to search for concealed effects, 201. WIDOW, right of, under statute of distributions, 50. to be cited on probate, 68. articles set apart for, 209. admeasurement of dower of, 433. WILLS, surrogate must keep book for record of, 6. lost and destroyed, how proved, 25. when surro'gate may take proof of, 25. due execution, of, where determined, 25. construction of, where determined, 25. of real property, where proved before 1830, 25. in custody of foreign court, how proved, 26. ^68 INDEX. WILLS — continued. how proved where witnesses all reside out of the state, 26. of personalty by .non-resident, how proved and recorded, 26. of real estate, validity of, determined in action in supreme court, 26. proved under commis^on from supreme court, how evidenced, 27. executed out of the state, formalities requisite for, 28. lost or destroyed, proof of, 28. deposit and custody of, 30. possession of, not necessary on application for probate, 65. who may apply for probate of, 65. probate of, application miade by petition, 66. nee^ not be in writing, 66. nor under oath, 66. when citation not necessary, 66. * parties cited in, 68. form of citation in, 69. service of citation in, 69. due execution only determined on, 73. formalities of execution of, 75. subscription of, 75. seal not necessary, 77. how witnessed, 77. how published, 77. how attested, 79. execution oT, agency of third person, 80. sequence of acts of execution, 81 . witnesses to, affixing residences of, 82. requisite capacity as to age, 82. as to mental soundness, 83. i when void for fraud, 84. ^ J undue influence, 84. mistake in, corrected, 85. custody of, inquiry as to, 88. when conditional, 88. revocation of, how made, 89. execution of, governed by what law, 95. of non-resident, 96. witness to, duty of surrogate to examine, 96. proof and examinations on probate of, 97. proof of, by other than subscribing witness, 98. INDEX. 66& WILLS— continued. coritradicting subsoriljing witness to, 98. ■witness to, when incompetent, 100. proof of, by production of foreign probate, 105. codicil to, 112. instruments referred to in, 1 13. lost or destroyed, proof of by surrogate, 114. nuncupative, who may make, 116. proof of, 116. decree on probate of, 118. when conclusive, 118. revocation of decree on, 119. record of, 120. certificate to be indorsed on, 121. of real estate, record of, 122. proved before Revised Statutes, evidence of, 123. contesting on allegations after probate, 125. \ construction and interpretation of, 128. validity of, impeached by extrinsic evidence, 137. speaks from time of death of testator, 133. issue of letters testamentary on, 137. what estates pass by, 313. child born after, if unprovided for by, share of, 353. appeal from decision on construction of, 451. WITNESSES, oaths administered to, by furrogate, 17. punishment for refusal to testify, 17. commitment for testifying falsely, 17. power to compel appearance of, 17. to win, when orally examined, 72. number of, 77. attestation by, 79. affixing residences of, 82. to be examined before surrogate, 96. examination of, when aged, sick, or infirm, 97. when dead, absent, or insane, 97. contradicting, 98. when incompetent by reason of interest, 99, 315. to prove mental capacity, 102. foreign, commission to take testimony, 105. on accounting, powers to compel attendance of, 387. fees of, 445.