fmmm m 'lill |l|jiiii|l|!i|;i!iijiji|ij!!fc!(iiiiliiiil'!l[ii V ■ifiiiiiite ppi;: ■" '""lii: ■ill.,, WjlliamsAliLawR nnk Co. 7fi97 COPTBIGHT, 1909, BY THE BANKS LAW PUBLISHING COMPANY IN GRATEFUL APPRECIATION OF THE KINDNESS OF THE LATE HON. ELLIOTT P. SHEPARD, LL.D. TO WHOM I OWE MY START IN NEW YORK CITY AND IN MEMORY OF THE KINDLY COUNSEL AND ENCOURAGEMENT OF THE LATE NOAH DAVIS WITH WHOM I STUDIED AND PRACTISED LAW THIS WORK IS INSCRIBED PREFACE TO THIRD EDITION Although resolved in December, 1902, to abjure further bookmaking, the desire to improve the book in the light of the experience and study of the ten years since the first edition was published, and to increase its usefulness overcame my reluctance, and I have given considerable time and labor to the threefold task of bringing it up to date, con- densing it into one volume form and perfecting the analytical index. A great part of the work has been rewritten, such as the chapter on disposi- tion of decedent's realty to pay debts and those on the transfer tax and on distribution. Parts have been consolidated from various chapters, as the discussion of claims against decedents' estates. I have personally examined the hundreds of decisions made since the Edition of 1902 went to press and some 1,200 new citations have been made; and have also revised the citation of the Consolidated statutes as reported to the legislature of 1908 by the Board of Statutory Consolidation. I have also adopted a system of continuous section numbering through- out the work, and have inserted an analytical table of contents summariz- ing such sections; while the analytical index at the end is believed to be complete, noting every proposition in the text, under such numerous catch-headings as to make the work available to every practitioner. The change back to one volume I believe will add to the working help- fulness of the contents by bringing index and text within the two covers. I beg to acknowledge not only the many testimonies to the practical helpfulness of the former editions, but also kindly criticisms and sug- gestions as to points in which it might be made more helpful. Henry W. Jessup. June 1, 1909, 31 Nassau Street, New York City. PREFACE TO SECOND EDITION The work of revising the first edition of this book has been in continu- ous progress since May, 1899, when the original manuscript went to press. Originally undertaken merely in order to keep the author's copy up to date, the numerous decisions and the many important changes in the Code by our Legislature and the demand upon the publishers for the work have necessitated the preparation and publication of a second edition. The work has been so thoroughly revised as to require its being entirely repaged and printed from new plates. The greatest change is in the chapter upon the Transfer Tax Law in which branch of the law the Legislature has dis- played its greatest industry. In the preparation of this chapter I have had the benefit of the experience and services of Mr. Samuel T. Carter, Jr., who has had peculiar opportunities of familiarizing himself with the law and its development and changes as well as in constant practice in cases involving questions under the act. I have no apology to make for pre- senting in this edition the changes made by him in my original work, which I have adopted almost without alteration. I also desire to express my indebtedness to Mr. Joseph T. Brown, Jr., for assistance upon the index and for his careful and remarkably clear summary of the law relating to the construction of wills, which will be found at the close of chapter 8 of Part III, which summary I have also adopted as it stands. With the exception of this assistance, I have personally examined every case decided since the issuance of the first edition and have endeavored to give to the profession in the very language of the decisions, the law as declared by the courts applicable to proceedings in the Surrogates' Courts in the State of New York. The plan of the work has been unchanged; the Code sections are still differentiated in type so that the work can still be kept up to date by the code amendment pasters. The index has been, it might be observed, a labor of love, and the au- thor has diligently endeavored to prepare that which shall make available, without too much effort, the contents of the book. It is an analytical in- dex and contains every possible heading under which the particular sub- jects have been thought likely to be looked for by the practitioner. The author begs to suggest that the usefulness of the book may be increased to those who have it by a careful use of the table of Code sections. In this table the pages upon which the section is actually quoted are printed in italics as distinguished from the pages upon which it is merely referred to or discussed. So far as has been possible, the cases under any par- vii Viii PREFACE TO SECOND EDITION ticular section are grouped in that part of the book in which it is actually quoted. At the request of many of those using the work, a table of cases has been prepared. If it were appropriate, I should have liked to set forth here some reasons why, in my judgment, the jurisdiction of the Surrogate should be enlarged. It seems strange that he should be deemed equal to construing a bequest, and not a devise, though the latter be given in the same will and the same language. The Supreme Court by its appellate divisions would safeguard the interests affected by such additional power, if conferred upon men, who by daily study and experience, grow peculiarly capable of dealing with all problems of testamentary law. I am sensible of the fact that a work of this character is not an addi- tion to literature, but if the work shall make easier the task of the practi- tioner under our Code in ascertaining what the courts have held to be the intent of the Legislature in framing and reframing the Code, the eight years during which I have been occupied in it will not have been wasted. Henry W. Jessup. December 1, 1902, 30 Broad Street, New York City. PREFATOEY NOTE TO THE LAW AND PRACTICE IN SURROGATES COURTS IN THE STATE OF NEW YORK I have read with great care the proofs of the work entitled " Law and Practice of Surrogates' Courts in the State of New York,"- by my former partner, Henry Wynans Jessup, of the New York Bar, with much pleasure and instruction. He has succeeded in collating and compiling the statutes and decisions of the courts relating to the subject-matter of his work with marked clear- ness and fullness. The work has been done in such a way as to be ex- tremely helpful to practitioners in those courts as well as to the courts themselves, and the mode of doing so, and particularly of citing authori- ties and of arranging them with such clearness that they speak for them- selves, renders the book peculiarly valuable. I have no hesitation in recommending the work not only to all the members of the legal profession who practice in Surrogates' Courts, but by reason of its clearness of statement to executors, administrators, trustees and guardians and others who are interested in the administration and distribution of estates. I am sure this book will be greatly serviceable to them all because of such simplicity and clearness of its arrangement of the authorities and of the law on all subjects involved. I hope the work will have the wide circulation it deserves. Noah Davis. March, 1899, 46 West 56th Street, New York City. ix AUTHOR'S PREFACE TO FIRST EDITION This work was begun four years ago, at the request of Mr. David Banks. It is practically a commentary on Chapter XVIII of the Code of Civil Pro- cedure, which defines the practice in the Surrogates' Courts in the State of New York. So far as practicable the text has been worded in the language of the decisions. Earnest effort has been made to make discriminating citations to the various propositions in the text, both of the leading, and of the most recent adjudications. The wholesale citing of a large number of cases to a point clearly decided in one authoritative case has, in the author's professional experience, proved a hindrance rather than a help, and has, therefore, been avoided here. The text is differentiated by appropriate type from the Code sections commentated. The table of Code sections will indicate where any given section is quoted. Should amendments be enacted by the Legislature to any sections in Chapter XVIII, the new section can be put in, in the form of adhesive slips, and the work thus kept constantly up to date. The forms, inserted as precedents throughout the text, have been care- fully prepared or adapted from those in use in the various Surrogates' offices in the State. They are inserted in the text, as in that way the discussion of the procedure is illustrated and made clearer. Nearly every Surrogate has official forms in his ofiice, which as a general rule it is advis- able to use, in order to expedition of business. Precedents in a text-book should never be blindly followed. They can only be useful as skeletons, or guides in framing the successive proceedings. The precedents given in this work are somewhat fully annotated. Here and there the discussion had been compacted into the form of analytical tables, which, it is hoped, will prove of service. Such, e. g., are the tables under the Transfer Tax Law. No apology is thought necessary for the size of this commentary, which was necessarily caused by the plan of the work as well as the distressing lack of harmony between the decisions on many detail points by different Surrogates, as well as by the various Appellate Courts. I am indebted for valuable aid and suggestions, to Hon. Theodore H. Silkman, Surrogate of Westchester County; to Mr. Emmett R. Olcott, of the New York bar, for assistance in preparing the transfer tax precedents; to Mr. Edward W. Bonynge, Deputy Chief Clerk of the New York Surro- gates' office, for valuable suggestions as to the practice on accountings; to Mr. Jacob Washburn, Probate Clerk in the same office, for hints as to the xi XU AUTHOR S PREFACE TO FIRST EDITION practice on probate proceedings; to Mr. Arthur D. Wing, for assistance in classifying the cases examined; to Mr. T. F. C. Demarest for expert aid in the preparation of the index; also to the Surrogates in the various- counties and to the Public Administrator's. Counsel in New York City, by whose courtesy I was furnished with full sets of their official forms. I am also indebted to Hon. Noah Davis, with whom I was associated when I undertook this work, for kindly encouragement and suggestion in regard thereto Henrt Wynans Jessup. April 19, 1899, 30 Broad Street, New York City. TABLE OF CONTENTS Note. The Table of Cases is at pp. li et seq. and the references are to pages. The Analytical Index is at pp. 1203 et seq. and the references are to page numbers. The Index to Code Sections is at pp. xxxvii et seq. and shows, by refer- ence to pages, where a given section is cited, or by italics, where it is quoted, in full or in part. The Index to Precedents is at pp. 1191 etseq. The references here are to pages. PART I Introductory Definitions under § 2514, pp. 1-2. CHAPTER I SXTRROGATES AND THEIR COURTS SECTION PAGE SECTION PAGE 1. Definition 3 11. Special Surrogates . 13 2. Development of court . 3 12. Acting Surrogates . 13 3. A court of record . 4 13. Id. Proof of authority 4. Special and limited juris- with forms . 15 diction 4 14. Id. Termination of au- Table of powers 5-7 thority 19 a. Before revised 15. Transfer from Supreme statutes. Court 20 b. Under revised 16. Temporary Surrogates . 21 statutes. 17. Compensation of acting c. Under the Code. and temporary Surro- Illustrative cases of pow- gates 22 ers ... . 7-10 Record of their acts 23 5. A Constitutional court . 10 19. What constitutes disqual- 6. Terms of office 10 ification 23 7. Enumeration of courts . 11 20. Terms of court 24 8. Five kinds of Surrogates . 12 21. When Surrogate not to 9. Surrogates proper 12 practice 25 10. County judges as Surro- gates 12 CHAPTER II JURISDICTION OP surrogates' COURTS 22. Code provisions . . 27 Incidental powers . 28 23. Constitutional provisions 29 24. 25. Powers specially con- ferred by statute . 29 Nature of jurisdiction . 30 Xlll XIV TABLE OF CONTENTS 0. Exclusive of other 38. Nonresidence, six cases courts. assumed 39 b. Exclusive of other 39. Same, continued 40 Surrogates. 40. Averring jurisdictional c. Concurrent. facts .... 41 26. Exclusive jurisdiction; 41. Locus of debt an element probate and letters 30 of jurisdiction 43 27. Conditioned by mode of 42. Concurrent jurisdiction . 43 execution of a will 31 43. With Federal court 43 28. Same .... 32 44. With other state courts 44 29. Conditioned by place of Over lost wills 44 execution . 33 Administration 45 30. And by residence of tes- Accountings 45 tator 34 Construction of 31. Or locus of property wills 46 willed 34 Preventing pro- 31o Other subjects of exclu- bate 47 sive jurisdiction 34 Guardians 47 32. Jurisdiction exclusive of 45. With other Surrogates . 47 other Surrogates 34 46. Effect of change in 33. Over wills of residents 36 county lines 48 34. County residence the test 36 47. Presumption of jurisdic- 35. Same .... 37 tion .... 49 36. What constitutes resi- 48. Effect of adoption of dence .... 38 Code .... 50 37. Indians on reservation . 39 CHAPT ER III CLERKS 4.ND STENOGRAPHERS 49. The clerk of the court 51 52. Disabilities 54 Appointment and 53. Additional clerks . 56 powers 54. Stenographers 56 50. Clerks, assistants . 53 55. Their duties and rights 57 51. Security or bond . 54 56. Stipulation for fees 58 PAR r II Proceedings in Surrogates' Courts ; Parties; Hearings and Trials; Appeals; Costs CHAPTER I PROCEEDINGS IN SURROGATES' COURTS 57. No actions ... 59 58. Proceedings, how begun . 59 59. The petition . . 61 60. Its formal requisites . 61 61. The citation ... 63 62. When names are un- known ... 63 63. Its general formalities . 64 64. 64a, 65. 66. 67. Illustrative forms of peti- tion, order and citation 65 Affidavit of mailing . 67 Where person is unknown 67 Practice as to return day; times of service . 68 Rules for service . . 69 Within the State . . 70 TABLE OF CONTENTS XV B£CTIO> I page: SECTION PAGE 68. Without the State or by 74. Time of service 75 publication 71 75. Proof of service 76 69. Serving when name or 76. Appearance . 76 residence unknown 71 77. By nonresident 77 70. Form of order of publica- 78. By foreigners; consuls 77 tion .... 72 79. Special appearance 77 Short form 73 80. Waiver . 78 71. How to serve by publica- 81. Formalities of publica tion .... 73 tion . 78 72. What mode of service de- 82. Papers in which to pub pends on . 74 lish . ._ . 79 73. Who may serve citation . 75 83. Time of publication 80 CHAPTER II PARTIES 84. Infants .... 82 95. Children . 94 85. Who to apply for ap- 96. Status determined by pointment of special Surrogate . 95 guardian 83 97. Next of kin, heirs . 96 86. When to apply 84 98. Persons interested . 98 87. FormaUties of appoint- 99. Creditors 99 ment .... 86 100. Devisees and legatees 101 88. Special rules New York 101. Assignees 101 County 87 102. Particular not class in- 89. QuaUfying of guardian . 89 terests ; husband or His consent. wife . 102 His affidavit. 103. Executors or adminis- Affidavit of parent. trators 104 90. The order of appoint- 104. Intervening . 104 ment .... 90 105. Mode of intervention 105 91. The quahfications of the 106. Practice thereon . 106 guardian 91 Petition. 92. His position . 92 Order. 93. Adu t parties . 93 107. Order not necessary 108 Necessary. 108. Effect of death of party 108 Proper. 109. Same 109 94. Classes of parties, heirs . 94 CHAPT ER II I HEARINGS J IND TRIALS 110. Practice as in all courts 118. Surrogate's duty as to of record . 111 findings of fact 117 111. Same .... 112 119. Specific exception to find- 112. Attorneys 112 ings . . . . 118 113. Their lien for services . 113 120. Procedure defined . 119 114. Protection of lien . 114 121. Witnesses 119 115. Miscellaneous provisions Bequest not to dis- as to trials . 115 quahfy 120 Exceptions. 122. When witness can take 116. Practice as to exceptions 116 under will . 121 117. When Code § 998 is ap- 123. Taking the evidence. 122 plicable 116 124. Commissions 122 XVI TABLE OF CONTENTS SECTION PAGE 125. The order for a commis- sion .... 124 Same .... 125 Precedents; application 125 Order . . . 126 Aged, sick, infirm wit- nesses .... 127 In another county . . 127 Analysis of Code sec- tions .... 128 Precedents; affidavit . 129 Order . . .129 Notice of hearing . 130 Record . . .130 Certificate . . 131 The testimony how au- thenticated . . . 131 References . . . 131 Development of power of Surrogate to refer . 132 126. 127. 128. 129. 130. 131. 132. 133. 134. SECTION 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. Practice on the reference 133 Referee's powers 134 Requests to find . 135 The report; filing . 135 Confirming or modifying the report . 136 The Surrogate's duty 136 Time within which he must act 137 Filing new objections be- fore referee . 138 Referee's compensation . 138 Compared to stenogra- phers .... 139 How to collect fees 139 Trial by jury . 141 Precedents as to such trials . 144 Order therefor 144 In New York County 144 CHAPTER IV DECREES AND OHDERS 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. Surrogate's decrees Their effect _ . How determined . Collateral conclusiveness The statutory provisions Conclusiveness specially As to personalty. As to realty. Same; limited by Code Same, but in that respect good against all . Same; effect as evidence . Same; different effect As to personalty and realty. Preservation of decrees . Preservation of books of record Docketing decrees . Enforcement of decrees By execution. By contempt pro- ceedings. Code sections analyzed . Enforcing by execution . Disobeying the decree . Enforcing by contempt . What judgment so en- forced .... Limits of Surrogate's power .... Costs so covered Refusal to pay debt and refusal to pay over es- tate money compared The practice . 146 146 148 148 149 151 152 153 155 155 156 157 158 159 160 160 161 162 163 163 163 164 165 169. The Order to show cause Affidavit . Form of order to show cause Order of commit- ment . Without notice. Same on return of order . The attachment Order for interroga- tories . Interrogatories Answer to interroga- tion Order of commit ment . 170. Relief from undue pun- ishment 171. Enforcement of Surro gate's orders 172. Power to open decree 173. Time to apply . 174. Same; rules applicable 175. Same 176. Power an original one 177. Same 178. Same; "other sufficient cause " 179. Cases where power was upheld 180. Same; when power de nied . 181. Decrees or orders pro tunc nunc 166 167 168 168 169 171 172 172 173 173 174 175 175 177 197 197 197 180 180 181 182 184 TABLE OF CONTENTS CHAPTER V xvii APPEALS FROM DECREES AND ORDERS SECTION 182. General provisions appli- PAGE SECTION 208. In contempt appeals; spe- PAGE cable to these courts . 185 cial undertaking 205 183. Who may appeal . 185 209. Where several parties; ef- 184. Only "party aggrieved" 186 fect of stay as to one . 206 185. When one not a party 210. Certain appeals work no may do so . 187 stay .... 206 186. Who must be made par- 211. Limited effect in probate ties .... 188 appeals 208 187. Same; guardian ad litem 189 212. Same; executor's power 188. Appellate Division the pending appeal . 209 first Appellate Court . 190 213. Formalities of undertak- 189. Review of intermediate ing ... . 210 order 191 214. Same; Surrogate to fix 190. Limit to this right 191 amount of second un- 191. Time to appeal 192 dertaking 211 192. Making and settling case 193 215. Requisites of undertak- 193. Same; stipulating record 194 ing ... . 211 194. Contents of case on ap- 216. Effect of perfecting ap- peal .... 194 peal on jurisdiction 211 195. Appeal on facts and on 217. Justification by sureties 212 law .... 195 218. Appeal from verdict after 196. Extent of power of Appel- jury trial in probate late Division 196 cases 213 Power to re-examine 219. Appeal from verdict in the facts sale of decedent's realty 215 Remittitur 197 220. Award of jury trial after Surrogate's order reversal 216 thereon 197 221. When necessary 217 197. How to take appeal 197 222. The new trial . 217 198. Form of notice 198 223. Practice upon appeal 219 199. What is brought up 199 224. The judgment or order to 200. Reversal 199 be entered 219 201. How limited by Code 200 225. Partial reversal or affirm- 202. Was error prejudicial 200 ance 220 203. Same; exclusion of evi- 226. Appeals to Court of Ap- dence 201 peals .... 220 204. Perfecting the appeal 201 227. What are "final" orders 220 The undertaking 202 228. Practice on such appeals 221 205. How stay effected . 203 229. Findings of lower court 222 206. Necessity of second un- 230. The appeal is directly dertaking . 204 from Appellate Division 223 207. Two undertakings essen- 231. Remittitur from Court of tial to secure stay 204 Appeals 223 C HAPl ^ER VI COSTS AND ALLOWANCES 232. Costs in Surrogate's 236. Against representative Courts 224 personally . 227 233. Collecting costs 224 237. When costs awarded as 234. Analysis of discussion . 225 of right 227 235. Costs, how made pay- 238. Same ; costs of appeal Um- able .... 225 its on Surrogate 228 XVIU TABLE OF CONTENTS 239. When costs discretionary 231 240. Amount of costs . . 232 241. Same; Code provision . 232 242. Costs to special guardian 234 243. Allowances .- . . 235 244. Same; limitations . . 236 245. Counsel fees . 237 246. Taxable disbursements . 241 246a. Are counsel fees "dis- bursements" 242 247. Form of bill of costs . . 243 PART III Probate Proceedings; Preliminaries to Probate; Revocation of Wills; Procedure on Probate; Contested Probates; Admitting the Will; Revo- cation of Probate; Probate of Heirship; The Construction of Wills; Establishing Will by Action. CHAPTER I PROBATE PBOCEEDINGS — PR 248. Deposit of wills 245 252. 249. Producing and filing the 253. will .... 246 254. 250. Duplicate wills 248 255. 251. Photographing or testing will .... 248 ( DHAP^ PER II REVOCATIOl ST OF WI 256. Revoked will not prov- 265. able 251 How revoked 251 266. 257. By express words . 252 267. 258. Revoking clause in latter will .... 253 268. 259. Reviving prior will 254 269. 260. Codicil to earlier will 255 270. 261. Parol declarations . 256 262. Equal solemnity of re- 271. voking act 256 272. 263. Effect of duplicate wills 257 273. 264. Mutual wills . C 258 IHAPl PROCI 274. ER TIT .DURE 275. The petition Who to make. 271 276. Its contents. 277. Form of . 272 278. PRELIMINARIES Who may propound will Persons interested Will must be propounded Prehminary inquiries By obliterating or can- - celing Material alterations Effect of woman's mar- riage .... Illicit cohabitation Birth of child Effect of agreement to convey " Irrevocable " wills Antenuptial agreements Effect of agreement to will .... Enforcing agreement To be written and veri- fied . What Surrogate to act . Conflict of jurisdiction . 248 249 249 250 258 261 262 265 266 267 267 268 268 269 274 274 275 TABLE OF CONTENTS XIX SECTION 279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. As to nonresidents' wills Waiver of citation Who entitled to citation Code §2615 This section mandatory Intervention of interested parties The petition must be filed Persons interested under a different will . The return day The hearing . The special guardian Rule in New York County. Only citation need be served Examining the witnesses At least two must be Incompetency, how shown .... 275 275 277 278 279 281 282 283 283 284 285 285 286 287 293. Practice on examination 294. Who are competent 295. Same ; effect of interest . 296. Dispensing with testi- mony of a subscribing witness 297. Not if a resident . 298. If nonresident, how may be examined 299. Death or forgetfulness of witness 300. Proof of uncontested will Its genuineness. 301. Proof of lost or destroyed will .... 302. Existence when testator died .... 303. Its due execution . 304. Proof of a codicil thereto 305. Nuncupative wills 306. The probate decree PAGE 287 287 288 289 289 290 290 292 293 295 295 296 297 299 CHAPTER IV CONTESTED PROBATES 307. Beginning a contest 300 324. 308. Fixing time of hearing . 302 309. Surrogate's control 303 325. Writ of prohibition. 326. 310. The hearing; examining 327. the witnesses 304 328. 311. The issues 305 329. 312. Order to produce wit- 330. nesses . 305 331. Petition therefor 306 Notice of application for the order 307 332. The order 307 313. Who may contest . 308 333. 314. After-born child 309 334. 315. Other persons interested 310 316. Same .... 310 335. 317. What wills may be proved 311 336. 318. Order of discussion of this 337. subject 313 Due execution. 338. Testamentary capac- 339. ity. . Undue influence. 340. 319. Due execution; the stat- ute .... 313 320. "Substantial" com- pliance required . 314 341. 321. Subscription by testator 314 322. Same 317 342. 323. Reference to "annexed" 343. paper 319 344. Place of signature on will signed in another State Four ways of signing By testator personally Burden of proof By another person . Guiding his hand . By "mark" . Must sign in presence of witnesses or acknowl edge it to them . Must sign before the wit nesses sign Publishing the will "At the time of" execu- tion Assent, but no express words of testator Republication . . Same; by later instru- ment Insufficient publication . Witnesses of the will, two necessary . Need not sign in presence of each other May sign by mark per alium . Must be requested to sign by testator . Attestation clause . Same; effect of Same 322 323 323 323 324 325 325 327 329 330 332 333 334 334 336 337 337 339 340 343 344 345 XX TABLE OF CONTENTS SECTION 345. What is "due proof" of execution . 346. Testamentary capacity preliminary presump- tion ... 347. What is "capacity" 348. Same; standard of 349. Analysis of discussion 350. Rule of evidence . 351. Illness; bodily infirmities 352. Same; paresis; heredity 353. Same; debility; paralysis 354. Same ; total breakdown 355. Same ; nature of will 356. Forgetfulness and mis take . 357. Eccentricities 358. Capacity for business 359. Use of liquor, opium, etc, 360. Idiocy, lunacy, insane de- lusions 361. The test of insanity 362. Insane delusions 363. Same ; spiritualism, etc 364. Same v. mistaken beliefs 365. Erroneous belief resulting in disinheritance 366. Insane delusion must be '; effectual" 367. Opinion and expert evi dence PAGE SECTION 368. 347 369. 370. 348 371. 348 351 372. 352 373. 362 352 374. 353 353 375. 355 376. 355 377. 355 378. 356 379. 358 359 380. 381. 360 382. 362 362 383. 363 384. 365 385. 365 386. 368 387. 369 388. CHAn DER V Undue influence; defini tion Burden of proof Mutual wills Character of evidence requisite How presumption arises Confidential or fiduciary relationship Same; abuse of relation- ship Same; attorney Same; influence must be coercive Relatives Opportunity to influence Same; proof of "knowl- edge of contents " Weakness of testator Same; physician Same combined with character of will Summary Change of testator's in- tent Knowledge of contents Proof of such knowl- edge . Undue influence to de- stroy a wiU Effect of mistake in will 371 372 373 373 373 374 377 378 380 381 382 382 383 384 385 386 386 387 388 388 388 ADMITTING THE WILL TO PROBATE 389. When ' ' sufficiently proved" 391 Must be probated . 391 This precedes power 392. to construe . 392 Effect by way of con- 393. clusiveness redis- cussed . 392 394. Presumptive evi- dence on certain points . 390 395. Decision against suf- ficiency of proof . 394 396. Eilect of decree re- fusing probate 394 397. Expediting probate 398. by consent . 395 390. Procedure where no con- test 396 399. Forms. 391. Admitting will after con- test . 398 Form of decree . 398 Form of decree re- fusing probate . 399 Certificate of probate . 400 Form of. Decree on lost or de- stroyed will . .401 Prompt entry of decree desirable . . 402 Reasons stated . 402 Provisions as to record of wills . . . 403 Record, how far evi- dence .... 403 Same as to real property 403 Returning will after pro- bate, one year after record . . . 404 Record of wills proved in other States, or abroad 404 Record equivalent to pro- bate ... , 405 TABLE OP CONTENTS CHAPTER VI XXI REVOCATION OF PROBATE AND DETERMINING VALIDITY OP A WILL SECTION 400. Who may apply . PAGE 407 SECTIGN 411. 401. Grounds for application . 407 402. Same ; when other remedy 412. to open decree . 409 403. Object of application 410 413. 405. Time when to apply 410 405. The petition and citation 412 414. 406. Effect of pendency of 415. such a proceeding 414 416. 407. The hearing . 415 408. The decree 416 409. No power to construe 417. will . . . 417 418. 410. Notice of revocation to be 419. published . 417 Precedent for decree 418 Determining validity of a will under § 2653a . What remedy afforded by this section . Effect of overlapping amendments in 1897 . Same .... Proceedings . . ■ . Futility of appeal from probate decree in face of this remedy . Burden of proof . Form of verdict Costs and allowance Extra allowance may be given. 419 420 423 423 425 426 427 427 428 CHAPTER VII PROBATE OP HEIRSHIP 420, Described 429 Form of decree 432 421. The application . 429 425. Effect of decree . 433 422. The petition . 430 426. Vacating or modifying 423. The citation . 431 the decree . 434 424. Extent of the inquiry 432 CHAPTER VIII THE CONSTRUCTION OF WILLS 427. The Surrogate's power . 428. His incidental power 429. His power limited . 430. Exercise of the power limited to personalty . 431. Same ; no effect on realty 432. Further limitation . 433. Extent of power . 434. Summary 435. Exercise of implied power to construe , 436. Same; in any proceeding 437. Same ; in order to distrib- ute estate . 438. When power denied 439. Rules of construction 440. Multiplicity of cases 435 441. 435 436 442. 437 439 443. 440 440 444. 441 445. 446. 442 443 447. 445 448. 445 446 449. 446 450. Testator's intention the primary guide . . 447 Canons of construction . 447 Fifteen rules illus- trated. Words and phrases; nine rules illustrated . . 449 Same 450 Extrinsic evidence . . 451 Evidence of "inten- tion" . . .451 Unattested writings and memoranda . . . 452 What may be shown by extrinsic evidence . 452 Explication . . . 453 Application . . . 453 xxu TABLE OF CONTENTS CHAPTER IX ESTABLISHING WILL BY ACTION 451. 452. 453. 454. 455. 456. 457. 458. How to prove will outside Surrogate's Court . Three classes of wills. By civil action, under Code § 1861 Subdivision 1 discussed . Wills retained in another jurisdiction . Lost or destroyed will . Procedure Nature of proof . Two witnesses to con- tents, not to factum . 455 456 456 457 458 459 459 460 459. 460. 461. 462. 463. 464. Who may sue . " Fraudulent " distinction The complaint Skeleton outUne un- der each subdi- vision. Judgment; contents and record thereof Action to construe a will of realty . Who may bring such ac- tion .... 462 462 462 464 464 465 PART IV Letters and Bonds CHAPTER I LETTEBS TESTAMENTARY 465. Executors 467 483. 466. Powers of executors 467 Prior to letters. 484. 467. Executor acting . 470 Before letters. 485. Cannot set aside his act unless inequi- 486. table. 487. 468. Letters testamentary . 470 469. Effect of appeal from pro- 488. bate decree . 471 470. Who entitled to letters . 471 489. 471. Same subject . 472 490. 472. Same subject . 472 491. 473. The word executor not es- sential. 473 474. Oath of executor . 474 492. 475. Renunciation . 476 476. Renunciation not a resig- 493. nation. 476 477. Resignation contrasted with renunciation 478 478. Executor not to be named 494. in the will . 479 495. 479. Objections 480 480. Same subject . 483 496. 481. Same .... 484 482. Same; where executor is 497. also trustee . 485 Obviating objection by security . . . 485 Effect of testator's dis- pensing with security . 486 What is adequate se- curity? . . .486 Details of the bond . . 486 Excepting to the sure- ties .... 487 Failure of executor to qualify or renounce . 487 Qualifying . . .488 Requisites of letters . 489 Letters testamentary, how far conclusive evi- dence .... 489 Priority among several letters . . .490 Disability to receive let- ters in some cases may be removed ; supple- mentary letters . 491 Revocation of letters . 491 Surrogate's control of the executor . , . 492 Same subject; control of executors disagreeing . 493 Same subject . . . 494 TABLE or CONTENTS XXUl CHAPTER II LETTEES OF ADMINISTRATION WITH THE "WILL ANNEXED 498. 499. 500. 501. 502. 503. 504. 505. 506. What is an administrator with the will annexed . 497 When the appointment of such an administrator c. t. a., is proper . . 498 Administrator with the will annexed not proper in certain cases of trust ; power to sell . . 499 Who may apply for ap- pointment . . .501 What confers jurisdic- tion on the Surrogate . 502 Same subject . . . 502 Practice upon appUca- tion .... 503 Same subject . . . 505 Priority of claim to letters 506 507. 508. 509. 510. 511. 512. 513. Representative of one en- titled to letters is en- titled where decedent so entitled was sole legatee . . . 507 Priority among persons of the same class . . 508 Miscellaneous cases . . 509 Joining third party in ad- ministration . . 511 Removal of administra- tor with the will an- nexed .... 512 Power and duties of ad- ministrators c. t. a. . 512 Right to compel account- ing ... . 513 CHAPTER III TEMPORARY ADMINISTRATION 514. Definition . . . 515 515. Power to appoint, dis- cretionary . . . 516 516. Cases where appointment is proper . . . 517 517. Not every delay a war- rant for appointment of temporary administra- tor ... . 518 518. Appointment in case of supposed death . . 519 519. Effect of " for any cause " 519 520. Practice on appoint- ment . . .520 621. Bond of temporary ad- ministrator . . .521 522. Powers and duties of a temporary administra- tor ... . 522 523. Same subject . . . 523 524. Must deposit all moneys . 524 525. Proceedings when he neglects to deposit . 524 526. Money deposited; how withdrawn . . . 524 | 527. 528. 529. 530. 531. 532. 533. 534. 535. 536. 537. 538. 539. Accountabihty of tempo- rary administrator . 525 Same subject . . . 526 Same subject . . . 526 Same subject; counsel fees .... 527 Actions against tempo- rary administrators . 527 Power of temporary ad- ministrator in regard to debts . . .528 The temporary adminis- trator and the transfer tax . . . . 529 Temporary administrator and the real property of the estate . . 529 Providing for family of absentee . . . 531 How long temporary ad- ministrator may act . 531 Accounting . . . 632 The procedure upon ap- pointment . , . 533 Serving notices . . 537 CHAPTER IV LETTERS OP ADMINISTRATION 540. What is an intestate . 538 541. Prerequisites to jurisdic- tion .... 538 642. Presumption of death . 539 543. Proof of intestacy . . 542 644. Existence of property and jurisdiction of Sur- rogate .... 643 XXIV TABLE OF CONTENTS SECTIOI J PAGE SECTION 545. The property basis of ju- 561. risdiction 644 562. 546. Chose in action a basis; negligent kiUing of de- 663. cedent 644 547. Lost, destroyed or re- 564. voked will 545 548. Settlement without ad- 665. ministration 646 649. Who entitled to letters 566. of administration 546 550. Statutory priority must 567. control 548 568. 551. Priority among persons in same class 553 669. 552. Renunciation 554 553. Exercise of discretion by 570. Surrogates 555 571. •554. What is incompetency . 665 672. 555. Same subject 566 573. 556. Infamous crime 558 557. Nonresidents 668 558. Foreign consul's right to 574. administer 658 576. 559. Practice in applying for letters 561 576. 560. Who may make the ap- pUcation 661 PAGE Contents of the petition 562 Who must and who may be cited . . . 566 Necessary and proper parties . . .. 665 When no citation is nec- essary . . . 565 Same subject; satisfying the Surrogate . . 566 Proof of the jurisdic- tional facts . . 567 Same subject . . 668 What will prevent the is- suance of letters . 668 The bond of an adminis- trator . . .669 The letters . . .570 The form of the letters . 670 Limited letters . . 571 Same subject; action for causing intestate's death . . . .671 Kinds of limited letters 572 Joining persons, not en- titled, in letters . . 573 Revocation of letters . 574 CHAPTER V ADMINISTRATION DE BONIS NGN 577. Definition . . . 575 578. The estate must be un- administered . . 576 579. Right to administer de bonis non . . . 5i'77 580. Powers and duties 681. Same subject 682. Petition for letters of ad- ministration de bonis 577 578 579 CHAPTER VI ANCILLARY ADMINISTRATION 583. Enforcing foreign wills and letters 681 684. Definitions 681 585. Laws governing the es- tate affected 681 586. Same subject 582 587. Difference between an- cillary and principal administration . 583 588. Administration in this State under a foreign probate 584 689. Ancillary executors, pow- ers; title 686 590. Prerequisites to ancillary letters upon foreign probate . . . 585 591 . What is sufficient proof of the foreign probate . 587 592. Minuteness of exemplifi- cation . . . 588 593. When administration in this State need not be ancillary . . . 589 694. Section 2695 further dis- cussed . . .590 596. Ancillary letters upon foreign grant of admin- istration . . , 590 TABLE OF CONTENTS XXV SECTION PAGE SECTION PAGB 596. Same subject 592 608. Ancillary representative 597. Granting letters to one has no trustee powers 604 holding a power of at- 609. Surrogate's duty to trans- torney 592 mit .... 604 598. To whom ancillary let- 610. When ancillary letters de- ters may be granted 593 termine 604 599. Same subject 594 611. How far ancillary admin- 600. Procedure 594 istrator bound by judg- 601. Petition for ancillary let- ment of domiciliary ters testamentary (oi courts 605 of administration) 595 612. Effect of §2702 . 606 602. The decree 696 613. Foreign executors and 603. Same 597 administrators . 606 604. Same subject 598 614. Same .... 607 605. Same subject 600 615. Same subject 608 606. Relation of ancillary ad- 616. The ancillary administra- ministrator to admin tion and the transfer tax 610 istrator in chief . . 601 617. Letters on estates of 607. Same subject . 602 American citizens dy- ing in foreign countries 611 CHAPTER VII EXECUTORS AND ADMINISTRATORS OP DECEASED EXECUTORS AND ADMIN- ISTRATORS 618. Executor or administra- 622. Same subject 619 tor of a deceased execu- 623. The right to the account- tor or administrator . 613 ing ... . 619 619. Presumption of conti- 624. The right to compulsory nuity of possession 615 accounting may be 620. Same subject 617 lost .... 620 621. Limitations on the Sur- rogate's power . 618 625. General liability 620 CHAPTER VIII PUBLIC ADMINISTRATION 626. 627. 628. 629. 630. 631. 632. 633. Definitions The county treasurer as public administrator . Same subject; the public administrator a conser- vator of the estate The inventory; practice Same subject ; he is a tem- porary administrator . Same subject; when his administration becomes permanent Superseding public ad- ministrator The right of the public adminfetrator to ap- pointment . 622 623 624 624 625 625 625 626 634. 635. 636. 637. 638. 639. 640. Proceedings by public ad- ministrator pending the issuance of letters Statute must be strictly followed, particularly as to notice Same subject Status of the public ad- ministrator after let- ters have issued . Same subject Same subject Disposition of funds when appointment of public administrator was ir- regular 627 627 628 629 629 630 630 XXVI TABLE OF CONTENTS 641. The public administrator in litigation . . 631 642. Public administrator of Kings County . . 632 643. 644. The public administrator as temporary adminis- trator . . .633 The public administrator of New York County . 634 CHAPTER IX EBVOCATION OF LETTERS AND REMOVAL OF EXECUTORS AND ADMINISTRATORS 645. Source of power to re- voke letters . . 659 646. Revoking letters when their continuance is unnecessary . . 659 647. Exclusive jurisdiction of the Surrogate . . 660 648. Direct proceedings for revocation of letters . 660 649. Section 2685 . . 661 650. Revocation of letters dis- tinct from revocation of probate . . 664 651. Subdivision 1 of § 2685 . 664 652. Subdivision 2 . . 665 653. Same subject . . 667 654. Same subject . . 667 665. Subdivision 3 . . 673 656. Subdivision 4 . . 674 657. Subdivision 5 . . 677 658. Subdivision 6 . . 678 659. Subdivision 7 . . 679 660. Subdivision 8 . . 679 661. Procedure . . . 679 662. Same subject; continued 681 663. 664. 665. 666. 667. 668. 669. 670. 671. 672. The petition . . 681 The citation . . 683 The decree . . . 683 Revocation of letters does not affect testamentary trust . . . .684 Effect and contents of decree revoking let- ters . . . .685 Application by executor or administrator for revocation of letters . 686 Sufficient reason to be shown . . .686 One who has qualified and seeks discharge must proceed under §§2689, 2690 . . . .688 Revocation of letters as of course, without pe- tition of citation . 688 Effect of revoking letters of one of two or more executors or adminis- trators . . . 689 CHAPTER X BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 673. Representative's bond . 674. Bond of executor . 675. Same subject . 676. When bond required be- fore letters . 677. Reducing penalty of bond 678. The procedure; prece- dents .... 679. Form of bond. 680. Effect of bond 681. Compelling executor to give bond . 682. Right of executor to identify his sureties . 683. Bonds of administra- tors .... 684. Same subject . 690 690 691 691 692 693 695 696 700 701 702 685. 687. 688. 689. 690. 691. 692. 693. 694. 695. Temporary administrator Bond of administrator with will annexed Bond of administrator de bonis non . Bond of ancillary admin- istrator Bond of testamentary trustee Same subject . Section 2816 . . ] Bond by guardian . Same subject . Guardian of the person of the infant Bond of testamentary guardian 702 702 704 704 704 706 706 706 707 708 709 TABLE OF CONTENTS XXVU 696. 697. 698. 699. 700. 701. 702. 703. General regulations re- specting bonds and un- takings . . .710 Amount of justification of sureties . . . 712 The Surrogate's custody of the bond . . 713 When new bond or new surety may be re- quired . . . .713 Application for new sure- ties may be made by the former sureties . 717 When bond may be prose- cuted . . . .719 Death of delinquent . 720 Successor may prosecute official bond . . 720 SECTION 704. 705. 706. 707. 708. 709. 710. 711. 712. 713. 714. 715. Action on official bond when no successor is appointed . Remedy on official bond Prosecuting the bond Action by a person in whose favor the decree was made . Action by successor Action by person ag- grieved where no suc- cessor is appointed . Liability of the sureties . Action against sureties . Date of devastavit, when important . Other defense by surety . Rights of sureties . Time limit in bond . 721 721 722 722 725 726 727 729 729 729 731 732 PARTY Adoption CHAPTER I JURISDICTION OF THE SUBROGATE 716. Jurisdiction of the Surro 728. Residence of foster par- gate . 734 ents .... 717. History of law 734 729. Abrogation of voluntary 718. Definition. 737 adoption 719. Consents 737 730. Application in behalf of 720. Proceedings before the child for the abroga- Surrogate . 737 tion of an adoption 721. Petition 738 from a charitable insti- 722. The order 738 tution .... 723. Contents of the order 739 731. Application by foster 724. Adoption a statutory pro- parent for the abroga- ceeding 742 tion of such an adop- 725. Effect of adoption . 742 tion .... 726. Transfer tax . 744 732. Indenture of child as ap- 727. Adoption from charitable institutions 745 prentice PART VI Administration by Executor and Administrator 745 747 747 748 749 CHAP' ASCERTAINING FEE I THE ESTATE 733. How the estate to be ad- 735. How to proceed to dis- ministered is ascer- cover .... 751 tained . . . 750 736. Intent of the Code . 752 734. Proceedings to discover 737. Discussion of § 2707. 752 property withheld . 751 738. The petition . 753 XXVlll TABLE OF CONTENTS SECTION PAGE SECTION PAGE 739. Object of proceeding to 757. The duty of the ap- be kept in view . 754 praisers 776 740. The citation . 755 758. Power of appraisers as to 741. Mode of service to be oaths .... 778 strictly observed . 757 759. Return of inventory 778 742. The hearing . 757 760. Debts of the representa- 743. Discussion of amended tive to the decedent . 779 section 758 761. Compulsory filing of in- 744. Return day; hearing 759 ventory 780 745. The answer 759 762. By whom return can be 746. The decree 760 compelled . 781 747. Ascertaining the estate; 763. The procedure 782 inventory and ap- 764. Conclusiveness of inven- praisal . . 762 tory .... 786 748. Precedents suggested 763 765. The Surrogate's power . 787 749. The inventory 764 766. Attachment of the repre- 750. What shall be deemed sentative 788 assets 768 767. Dealing with decedent's 751. What has been deemed debtors ; prudent settle- assets 769 ments 788 752. What has been deemed 768. Power to compromise and not assets . 770- compound debts . 788 753. Exemption for widow and 769. Asking leave of Surro- children 771 gate to compromise . 790 754. Pecuniary equivalent of 770. Precedents 791 nonexisting articles 773 771. Apportionment of rents. 755. Summary statement 774 annuities and divi- 756. Widow's quarantine 775 dends 792 772. Same subject . 793 CHAP! ?ER I] ASCERTAININ 3 THE DEBTS 773. Duty of the executor or 782. Reference of disputed administrator 795 claims 807 774. Ascertaining the debts . 795 783. Same subject 808 775. A new, additional remedy 796 784. The procedure 810 776. The notice for claims 797 785. The hearing . 811 777. Presentation of claims on 786. Costs .... 812 or before the day 787. The right to disburse- named in the published ment .... 814 notice 799 788. Action by creditor on re- 778. Failure to present dan- jected claim 815 gerous, not fatal 801 789. Form of claim and of re- 779. Action by the executor or jection 816 administrator upon the 790. The judgment 818 claim 802 791. Proceeding technical ; fur- 780. Forcing creditors to sue ther discussion . 819 or submit to Surrogate 804 792. The procedure in taking 781. Claims by the executor an appeal . 820 against the estate 804 C] HAPT ER III PAYMENT OP DEBTS 793. Executor's duty . . 822 794. Order of priority of debts .... 822 795. Priority of funeral ex- penses, by the Code . 823 796. 797. gen- Funeral expenses; eral subject . ° . 824 Funeral bill practically a Hen on proceeds of ac- tion under § 1903 . 827 TABLE OF CONTENTS XXIX SECTIO^ 798. Mourning for decedent's PAGE SECTION 809. family ; wakes 828 799. Compromising debts 829 800. Arbitrating claims 830 810. 801. Diligent payment of debt 831 802. Priority of debts dis- 811. cussed in detail 832 803. Same; taxes . 832 804. Same subject 834 812. 805. Priority of judgments 835 813. 806. Executors bound to ob- serve this priority 837 807. What judgments not en- 814. titled to priority 837 SOS. Fourth class of preferred debts 838 815. CHAPTER IV Preference of landlord of deceased, over debts of the fourth class Sale of personal property to pay debts Payment of decedent's debts out of personal estate Same subject Debts contracted ■ by the executor or administra- tor ... . Leave to issue execution to a judgment cred- itor .... Same subject 839 840 842 843 845 847 848 PROCEEDINGS TO COMPEL PAYMENT OF DEBTS 816. How payment of debts may be compelled 817. The petition 818. Effect of answer by exec- utor or administrator 819. Right to payment 820. The decree 821. Docketing the decree 858 849 822. The accounting 859 850 823. Enforcing the decree 860 824. How payment should be 851 made 860 854 825. Effect of equitable con- 856 CHAP^ PER V version 860 THE TRANSFER TAX PROCEDURE 826. 827. 828. 829. 830. 831. 832. 833. 834. 835. 836. 837. 838. 839. 840. Jurisdiction conferred on Surrogate . Nature of the tax . Conditions of taxation . The law in the courts Taxable transfers Exceptions and limita- tions Exceptions summarized Figuring for an exemp- tion . . . . The exception, as con- ditioned by the nature of the successor, or his relationship Mutually acknowledged relation of parent \ Child; stepchild; adopted child Exemption of certain cor- porations . What institutions ex- empt Charter exemptions Tax on every devolution 862 862 863 864 864 867 868 871 871 872 873 874 841. 842. 843. 844. 845. 846. 847. 848. 849. 850. 851. 852. 853. Gifts inter vivos and caiisa mortis . . . 874 Effect of foreign law and of decedent's contracts 878 When antenuptial agree- ment may obviate tax 879 Powers . . .879 Failure to exercise power 881 The pecuniary bound- aries of taxability . 881 From what fund tax is paid .... 881 The procedure; jurisdic- tion of the Surrogate . 882 The Surrogate's jurisdic- tion conditioned by the remedial provisions of the statute; notice of persons interested . 884 Double nature of Surro- gate's function . . 885 Appointment of apprais- ers ... . 885 The petition . . 886 Designation of appraisers 887 XXX TABLE OP CONTENTS SECTIOI I PAGE SECTION 854. When to appoint the ap- 876. praiser 887 855. The appraiser, his duty 877. and power 888 856. Special guardian 890 857. Fair market value of property; how and 878. when ascertained 891 858. Same subject 893 879. 859. The appraiser's report . 893 860. Deducting the debts, 880. taxes, etc. . 894 861. Same; taxes . 897 881. 862. Appraiser's duty when in doubt 897 882. 863. Are mortgage incum- brances to be deducted 897 883. 864. Debts of nonresident 898 884. 865. Appraisal by Surrogate . 899 866. Report of the appraiser 900 885. 867. Proceedings on the com- 886. ing in of the report 900 868. Computations by State Superintendent 900 887. 869. Appeal from Surrogate's decision 902 888. 870. Reopening or vacating . 902 889. 871. Same subject 902 872. Same subject 903 873. Same subject . 904 890. 874. The first appeal 904 891. 875. Reappraisal at the in- 892. stance of the State 893. Comptroller 907 Appraisals "whenever oc- casion may require " . 90& Correction of tax erro- neously assessed; time limit . . . 908. The liability of the exec- utor, administrator or trustee . . . 909 When tax due and pay- able .... 909 Discount for prompt pay- ment ; penalty for delay 910' Reducing tax on nonresi- dent's estates . . 913 Compounding payment on future estates . 913 Collection of the tax . 914 Collection by district at- torney . . . 916 Refunding tax . . 916 Surrogate's power to tax amount of debts erro- neously deducted . 918 Postponement of pay- ment .... 918. Reaching the property . 918 Form of affidavit by ex- ecutor as to amount of decedent's estate . 919 The receipt . . .921 Expectant interests . 922 Same ; full value taxed . 922 Inequality of the law; the burden of the tax 924 CHAPTER VI PAYMENT OF LEGACIES 894. 895. 896. 897. 899. 900. 901. 902. 903. 904. 905. 906. 907. 908. 909. Carrying out the will Payment of legacies What is a legacy . The legatee Specific and general leg- acies Importance of distinction Specific and demonstra- tive legacies Legacy based on consid- eration Legacy by implication Legacy to a class . Legacies; how paid Petition for payments Legatee's remedies Same; proceedings under § 2722 Form of the petition Who may petition 926 926 926 926 927 928 928 930 930 930 931 932 932 934 934 935 910. 911. 912. 913. 914. 915. 916. 917. 918. 919. 920. The executor's answer . 935 The order or decree . 937 Payment of legacy while proceedings are pend- ing to revoke probate 937 Payment of legacies by temporary administra- tor ... . 938 Payment on account of legacy for support of indigent legatee . 938 ^me subject; estimating the estate . . . 939 Support or education of the petitioner . . 939 The form of petition . 940 The bond unde* § 2723 . 941 Interest on legacies . . 942 Interest on legacies in lieu of dower . . 943 TABLE OF CONTENTS XXXI Ecrioi f PAGE SECTION 921. Interest on income or an- 928. nuity 944 929. 922. Testator's intention 944 930. 923. Payment of legacy can- not be enforced under 931. § 2606 of the Code . 946 924. Ademption 947 932. 925. Refusal to pay legacy on 933. account of condition 934. against contest . 948 926. Legacy to subscribing 935. witness 949 927. Legacy for life 949 Abatement of legacy . 950 Refunding the legacies . 952 The procedure to secure refunding of legacy . 953 Offsets, legacies to debt- ors .... 955 Legacy to creditor . . 957 Lapsed legacies . . 957 Effect of void or lapsed legacies . . . 95S Status and rights of an- nuitants . . . 959 CHAPTER VII DISPOSITION OF THE DECEDENT's REAL PROPERTY FOR THE PAYMENT OF DEBTS AND FUNERAL EXPENSES 936. 937. 938. 939. 940. 941. 942. 943. 944. 945. 946. 947. 948. 949. 950. 951. 952. 953. 954. 955. 956. 957. 958. 959. When decedent's real es- tate may be resorted to by creditors This remedy available un- less will provides one as effectual For what debts or ex- penses property may be sold The petition Who may petition . When petition must be presented . The statute of limitations and the three years' limitation . Same subject The form of the petition Same ; form of petition Same subject, and the citation The citation further con- sidered Effect of §§ 1837-1849 Technicality of the pro- ceeding Rights of infant parties Hearing and determina- tion . Judgment debts What proof necessary for a decree The decree discussed Same subject . Same subject; directions Same subject . Execution of decree The representative in re- lation to the decree 960 962 963 964 965 966 960. 961. 962. 963. 964. 965. 966. 967. 968. 966 968 969 969. 970 970. 972 971. 973 972. 973 973. 974 976 974. 977 980 981 975. 982 976. 984 985 986 977. 987 978. Preventing the sale by bond .... Purchaser's title not af- fected by certain irreg- ularities The sale .... Who may not be pur- chasers upon the sale . Vacating sale; resale Confirming the sale Compelling purchaser to complete purchase Sale of decedent's in- terests under contracts Decedent's contract to purchase lands; how enforced Infants' interests . Disposition of the pro- ceeds of the sale . Miscellaneous provisions of title The dower interests The effect of foreclosure proceedings on lands being disposed of to pay decedent's debts . Paying of surplus on ju- dicial sales in other courts, in to the Surro- gate .... Distribution of surplus . Restitution, for assets subsequently discov- ered .... Infant's interest Conveyance by represent- ative pursuant to dece- dent's contract . 990 990 990 991 992 993 995 997 997 998 998 998 999 1000 1002 1004 1005 1005 1005 xxxu TABLE OF CONTENTS PART VII Testamentary Trustees and Guardians CHAPTER I TESTAMENTARY TRUSTEES 979. 980. 981. 982. 983. 984. 985. 987. 988. 989. What is a testamentary- trustee? Surrogate's jurisdiction over testamentary trus- tees .... Same subject . The estate of a testa- mentary trustee . Compelling testamentary trustee to carry out provisions of a will Same; proceedings upon return of citation Bringing all parties, likely to be affected by the decree prayed for, be- fore the court Resignation of trust The procedure Petition for security from testamentary trustee . Removal of testamentary trustee PAGE SECTION 990. 1007 991. 992. 1011 993. 1012 994. 995. 1012 1013 1015 1016 1017 1018 1021 1021 996. 997. 998. 999. 1000. Same subject . Investments by trustee . Same subject; directions given by will Erecting separate trusts . Sinking fund . Successor, trustees; ap- pointment by Surro- gate .... Proceedings where testa- mentary trustee is also executor or administra- tor .... Right to commission where testamentary trustee is also executor or administrator . Application of this title . General observations as to administration of the trust . The trustee's bookkeep- ing ... . 1023 1023 1025 1026 1027 1028 1031 1031 1032 1032 1032 CHAPTER II GUARDIANS 1001. Definitions . 1002. The parent's rights of guardianship 1003. Guardians in socage 1004. General guardians . 1005. Guardians appointed by Surrogate's Court 1006. Parent's appointment, when binding 1007. Appointment by Surro- gate .... 1008. Same; provisions of the general rules of prac- tice .... 1009. Same; the petition . 1010. Same subject . 1011. Same ; the inquiry . 1012. The Surrogate's duty . 1013. Who should be appointed 1014. When infant is under fourteen 1035 1035 1036 1036 1037 1037 1038 1039 1040 1042 1042 1042 1043 1044 1015. 1016. 1017. 1018. 1019. 1020. 1021. 1022. 1023. 1024. 1025. 1026. Inquiry into the facts as to the minor's prop- erty .... The appointment . Qualification by a gen- eral guardian Payment of legacy or dis- tributive share to a general guardian . Parental right not a sub- stitute for letters . Ancillary guardianship . Same subject; the pro- cedure Effect of ancillary letters Revocation of letter of guardianship Grounds for removal The decree Voluntary proceedings for revocation of letters , 1045 1045 1047 1048 1049 1049 1051 1053 1054 1055 1057 1058 TABLE OF CONTENTS XXXlll SECriOK PAGE 1027. Appointment of succes- sor ... . 1059 1028. Supervision and control of a general guardian . 1060 1029. Annual inventory; ac- count .... 1060 1030. Filing the inventory and account . . . 1061 1031. Surrogates may direct as to infant 's maintenance 1062 1032. Disbursements before ap- pointment . . . 1063 1033. General maintenance of ward . . . 1064 SECTIO^ I PAGE 1034. Limitations on the gen- 1035. eral guardian Personal relation to ward 1066 1068 1036. Guardians appointed by will or deed 1069 1037. 1038. 1039. The appointment . Qualifying Control of the guardian . 1069 1070 1071 1040. Removal of a guardian appointed by will or deed .... 1072 1041. 1042. Resignation . The decree revoking let- 1072 ters .... 1073 PART VIII Accountings and Distribution CHAPTER I ACCOUNTING FOR THE ESTATE 1043. The obligation to account 1074 B. Executor or administra- 1044. What is an accounting . 1074 tor of deceased execu- 1045. Kinds of accounts . 1075 tor, etc. 1089 1046. The Surrogate's jurisdic- C. General guardians . 1091 tion .... 1075 - D. Guardian by will or deed 1092 1047. Intermediate voluntary E. Testamentary trustees . 1093 accountings 1078 F. Persons whose letters A. A representative . 1078 have been revoked 1093 B. Testamentary trustee 1079 G. Persons holding ancillary 1048. Intermediate compulsory letters 1094 account 1080 1054. Compulsory accountings; 1049. Same subject ; cases when who may be required proper 1081 to account 1094 A. As to representatives 1081 1055. Compulsory account by 1050. Same; objections to in- guardian 1094 termediate accounts . 1083 1056. Accounting at the ward's 1051. Same . . 1084 instance, after major- B. As to general guardians . 1084 ity ... . 1095 C. As to guardians by will or 1057. The surety's right 1096 deed .... 1084 1058. The guardian of the per- D. As to testamentary trus- son 1096 tees .... 1084 1059. Deceased guardians 1096 E. As to ancillary executors 1060. Limitation 1096 or administrators 1086 1061. CompeUing judicial set- 1052. Voluntary final accounts 1086 tlement of account by 1053. Same subject; who can so testamentary trustee . 1096 account 1086 1062. Surrogate's powers upon A. Executors and adminis- settUng the account . 1098 trators 1087 1063. Effect of decree 1099 XXXIV TABLE OF CONTENTS CHAPTER II PREPARING THE ACCOUNT SECTION PAGE 1064. Form and contents of the account . . . 1102 1065. Same subject; skeleton outline . . . 1103 1066. Same; expenses of ad- ministration . . 1105 1067. What is to be accounted for ... . 1106 1068. Same; profit or loss . 1107 1069. Same; assets of the estate; savings bank accounts 1107 1070. The account must be ver- ified .... 1108 1071. Form of such afiidavit . 1109 1072. Vouchers . . . 1110 1073. Neglect to set apart ex- empt property . . 1112 1074. The schedules of the ac- count . . . 1114 CHAPTER III THE PROCEDURE ON ACCOUNTINGS 1075. 1076. 1077. 1078. 1079. 1080. 1081. 1082. 1083. 1084. Initiating the proceedings As to executors and administrators generally The petition Time when accounting may be had Parties Resisting the proceeding to account As to others than execu- tors and administrators Objections Examination of account Reference to try issues raised by objection What questions may be heard and determined upon an accounting 1116 1116 1117 1119 1120 1122 1123 1123 1125 1125 1126 1085. Claims or payments al- ready adjusted and contested upon ac- counting . . .1126 1086. Claims of unpaid credi- tors .... 1127 1087. Representative's claims against estate . .1129 1088. Claims of estate against representative . . 1032 1089. Claims of estate against debtor. . . .1133 1090. Other questions adjudi- cable .... 1134 1091. The amount the account is chargeable with . 1135 CHAPTER IV COMMISSIONS AND COMPENSATION 1092. 1093. 1094. 1095. 1096. 1097. 1098. 1099. Allowance for commis- sions and expenses in administering the es- tate .... The right to remuneration The basis of remuneration Same subject Same ; continuing busi- ness or stock venture . Extra compensation Compensation under the will .... Commissions where es- tate is $100,000, or over 1100. Mode of computation 1101. Apportioning the full commissions 1137 1102. Double commissions 1139 1103. When commissions are 1141 payable 1143 1104. Successive letters to same 1144 1105. person What fund chargeable 1145 with the commissions 1106. Expenses allowable 1146 1107. Premium paid on official bond 1147 1108. Surcharging . 1148 1149 1159 1152 1154 1154 1154 1156 1156 TABLE OF CONTENTS CHAPTER V XXXV MISCELLANEOUS PROVISIONS 1109. "Marked for decree" . 1158 1110. The reference . .1158 1111. Summary statement of account . . .1158 1112. Advancements 1113. Same subject; pot" . 'hotch- 1159 1161 CHAPTER VI DISTRIBUTION AND DESCENT 1114. Time of distribution 1163 1126. Distributing under the 1115. Law governing distribu- statute 1176 tion .... 1163 1127. The scheme of the stat- 1116. The statute of descent . 1165 ute 1177 1117. The form and provisions Subdivision 1 . 1177 of the decree 1168 1128. Adopted children . 1178 1118. Same subject 1170 1129. After-born children 1178 1119. The double character of 1130. Effect of annulling mar- the decree 1171 riage 1179 1120. Limits of discharge 1172 1131. Illegitimate children 1179 1121. Precedent for a decree . 1172 1132. Subdivisions 2 and 3 1180 1122. Representative deals only 1133. Subdivisions 4 and 5; no with personal property 1175 widow . 1180 1123. Estates of married women 1175 1134. Subdivision 6 1182 1124. Jure mariti 1176 1135. Subdivisions 7 and 8 1182 1125. Computing degree of kin- 1136. Subdivisions 9-15 1183 ship .... 1176 1137. Distribution under § 1903 1183 CHAPTER VII VARIOUS LIMITATIONS APPLICABLE IN MATTERS AFFECTING DECEDENTS' ESTATES 1138. 1139. 1140. 1141. 1142. 1143. Twenty-five years Twenty years Ten years Six years Five years Four years 1184 1184 1184 1184 1185 1186 1144. Three years . . 1186 1145. Two years . 1187 1146. Eighteen months . . 1187 1147. One year . 1187 1148. Six months . . 1187 1149. Three months . 1188 TABLE OF SECTIONS IN CODE OF CIVIL PROCEDURE QUOTED AND CITED IN THIS BOOK The REFEEENCE8 ARE TO THE PAGES. WhERE THE SECTION IS QUOTED, IN PULL OB IN PART, THE REFERENCE IS ITALICIZED. N. B. The discussion op the section usually follows its quotation. N. B. It may be quoted in part in several connections. Refer to all. Sections of the Code Civil Procedure Quoted or cited on page : 2 4. 14 159, 225. 15 164. 17 113., 18 355, 1010, 1012. 46 23. 66 113, 114. 73 115. 74 115. 90 5A. 110 116. 190 197, 220. 236 226. 317 814, 815. 358 1185. 376 1184. 382 1184. 383 1185. 388 1184. 390 1188. 891 1187, 1188. 392 1185. 395 832. 396 411, 1188. 400 80, 100. 401 1188. 402 1188. 403 967, 1188. 406 967. 411 1187. 414 579. 415 1188. 416 59, 809. 424 77. 481 79. 482 79. 486 W. 487 70. 440 80. 441 80. XXXVll XXXVIU TABLE OF SECTIONS Sections of the Code Civi Procedure Quoted or cited on page: 444 76. 448 421. 451 68. 468 47, 85. 474 707. 475 707. 476 707. 477 47, 85. 523 274, 681. 524 61, 274, 6S1. 525 62, 274, 681. 526 62, 274, 681. 721 63. 722 63. 723 63, 809. 724 63. 725 63. 726 79.7 63. 728 729 730 755 757 763 765 766 768 779 785 787 796 797 798 799 800 801 802 803 804 805 806 807 808 809 811 812 813 814 815 816 829 834 841 870 871 872 873 874 875 876 877 878 879 63. 63. 63. 110. 224. 836. 108. no: 224. 224, 225. 108, 110. 80. 63, 818. 63, 818. 63, 818 63, 818 63. 818 63, 818 63, 818 63,248 63, 248 63, 248 63, 248 63, 248 63, 248 63,248 818. 818. 818. 818. 818. 818. 818 708, 710, 1047. 710, 713, 717. 701, 711, 712, 713. 71S. 71$. 712. 194, 201, 758, 761, 827, 979, 1127, 1131. 194, 353. 287, 296. 287, 288, 370. 519. 122, 127, 289. 122, 289. 122, 289. 122, 289. 122, 289. 122, 289. 122, 289. 122, 289. 122, 289. 122, 289. TABLE OF SECTIONS XXXIX Sections of the Code Civil Quoted or cited on page: Procedure 880 122, 289. 881 122, 289. 882 122, 289. 883 122, 289. 884 122, 289. 885 122, 289. 886 122, 289. 887 122, 289. 888 122, 123, 125, 289. 889 122, 289. 890 122, 289. 891 122, 123, 127, 289. 892 122, 127, 289. 893 122, 124, 289. 894 122, 124, 289. 895 122, 124, 289. 896 122, 125, 289. 897 122, 289. 898 122, 289. 899 122, 125, 289. 900 122, 289. 901 122, 289. 902 122, 289. 903 122, 289. 904 122, 289. 905 122, 289. 906 122, 289. 907 122, 289. 908 122, 289. 909 122, 289. 910 122, 289. 911 122, 289. 912 122, 289. 913 122, 289. 992 116. 998 116, 117. 999 218. 1002 820. 1003 218. 1011 809, 810. 1019 133, 134, 139, 140. 1022 Ill, 112. 1210 836. 1241 159, 225. 1269 176. 1282 177, 408. 1283 177, 181. 1284 903. 1285 903. 1286 903. 1287 903. 1288 903. 1289 903. 1290 177, 409. 1291 177. 1292 903. 1294 186. 1295 185. 1297 185. 1298 185. 1299 185. 1301 198. 1303 185, 193. 1305 185, 202. 1306 202. 1307 202. xl TABLE OF SECTIONS Sections of the Code Civil Procedure Quoted or cited on page: 1308 1309 1310 1319 1320 1326 1338 1361 1365 1369 1371 1377 1378 1380 1381 1384 1385 1386 1434 1435 1436 1538 1596 1597 1598 1599 1600 1601 1002 1604 1605 1606 1607 1608 1609 1610 1611 1612 1613 1614 1615 1616 1617 1618 1619 1620 1621 1622 1623 1624 1625 1749 1759 1760 1817 1818 1819 1822 1824 1825 1826 1827 1835 1836 1837 202, 212. 185, 202. 203, 206. 219. S20. 205, 206. 222. 222. 859. 859. 160. 160. 160. 852, 1185. 30, 852, 1082. 989. 989. 989. 989. 1005. 1184. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 1179. 103. 103. 104. 104. 932, 933, 1185. 84?; fzt: ^^*' *^^' ^^^' ^^^' "27, 1133, 1187. 30, 160, 847, 860, 933. 847, 848, 933, 1082. 933. 233, 802, 812, 813. 233, 802, 812, 813, 814, 1128. 952, 973, 984. TABLE OF SECTIONS Xli Sections of the Code Civil Quoted or cited on page: Procedure 1838 973, 984. 1839 973, 984. 1840 973, 984. 1841 952, 973, 984. 1842 973, 984. 1843 973, 974, 984, 1184. 1844 965, 973, 974, 984, 1184, 1188. 1845 973, 974, 984, 1184. 1846 973, 984, 1184. 1847 973, 984, 1184. 1848 973, 984, 1184. 1849 973, 984, 1184. 1850 973, 984, 1184. 1851 973, 984. 1852 973, 984. 1853 973, 984. 1854 973, 984. 1855 973, 984. 1856 973, 984. 1857 973, 984. 1858 973, 984. 1859 973. 984. 1860 973; 984. 1861 8, 30, 247, 291, 293, Jfi6, 457, 462, 463, 464. 18G2 m- 1863 31, 463, ^6^. 1864 31, 456, 464. 1865 45, 293, 294, 295, 296, 401, 444, 458, 459, 460, 465, 466. 1866 46, 154, 438. 1867 30, 466. 1868 309, 952. 1870 1183. 1872 1128. 1902 543, 545, 769, 1183, 1187. 1903 543, 769, 828, 1183. 1904 543, 1183. 1905 543, 1183. 1913 751. 2008 m. 2153 29, 492. 2266 165. 2267 166. 2268 166. 2269 166. 2273 166. 2276 166. 2286 165, 174, 780. 2292 165. 2348 708, 1065. 2360 708. 2361 708. 2472 5, 27, 29, 49, 435, 436, 443, 492, 659, 673, 1010, 1011, 1032, 1055, 1062, 1077, 1079. 2473 37, 49, 149. 2474 49, 274, 974. 2475 36, 48. 2476 S4, 36, 39, 40, S74, 275, 543, 544, 586, 883, 1078. 2477 35, 48, 275. 2478 40, 43, 544. 2479 48. 2480 49. 2481 4, 8, 27, 28, 60, 111, 154, 159, 175, 176, 177, 178, 180, 181, 182, 183, 225, 226, 246, 278, 287, 408, 409, 435, 438, 443, 492, 659, 673, 684, 903, 1079, 1134. 2482 SO, 438. 2483 , IS, IS, 16. xlii TABLE OF SECTIONS Sections of the Code Civil Procedure Quoted or cited on page : 2484 13, 15, 17, 19. 2485 U, 15, 16, 17. 2486 U, 17, 18, 19, 21, 412. 2487 15, 17, 19. 2488 15, 22. 2489 SO. 2490 SI. 2491 20. 2492 SS, 1097. 2493 15, n, 23, 1120. 2494 SS. 2495 se. 2496 17, Si. 2497 S5. 2498 157, 193. 2499 167, 193. 2500 167, 713. 2501 When fees not to be charged, report of fees, not quoted. 2502 Repealed L. 1884, c. 530, § 11. 2503 Papers to be transmitted to Secretary of State, not quoted. 2504 13, S6. 2505 SB. 2506 15. 2507 4,5. 2508 56. 2509 SI, 52, 53, 54, 55. 2510 5S, S85, 286. 2511 54. 2512 66. 2513 56. 2514 93, 98, 99, 100, 102, 278, 407, 409, 498, 538, 552, 553, 662, 663, 686, 705, 787, 853, 963, 965, 973, 1007, lOTS, 1081, 1083, 1084, 1085, 1096, 1100, 1123. 2515 53, 65. 2516 59, 60. 2517 60, 61, 283, 411. 2518 63, 68, 283. 2519 63, 411. 2520 68, 70, 75, 283, 411, 757. 2521 70, 723. 2522 60, 71, 72, 78, 273, 283, 411. 2523 68, 71, 72, 78. 2524 67, 7S, 76, 79, 80. 2525 76; 283. 2526 75. 2527 76, 82. 2528 77, 78, 282, 804. _ 2529 Who not to practice before Surrogate, not quoted. 2530 47, 75, 8S, 83, 87, 89, 91, 284, 706, 890. 2531 47, 83, 84, 85, 890, 976. 2532 76: 2533 61, 301, 1124. 2534 6S, 274, 681. 2535 79. 2536 2537 Relating to " newspaper published at Albany," 1295. 30, 1171, 1174. ^ ^ ^ "J'' 2538 63, 122, 123, 289, 818. 2539 1S7, 128, 129, 130, 290. 2540 1S8, 129, 130, 131, 290. 2541 67. 2542 131. 2543 131. 2544 ISO, 121, 135, 288. 2545 Ill, 112, 115, 116, 117, 118, 194, 195, 198, 199, SOO, 201. 2546 Ill, 112, 117, 13S, 133, 134, 136, 137, 286, 303, 1081, 1125, 1128, 1158. ..... TABLE OF SECTIONS xliii Sections of the Code Civil Procedure Quoted or cited on page: 2547 141, 142, 144, $13, 214, 215, 216, 218, 977. 2548 143, $16, 217, 218. 2549 me. 2550 146, 224. 2551 11S8. 2552 847, 855, 858. 2553 158, 159, 161, 167, 511, 722, 858, 859. 2554 159, 160, 161, 162, 167, 722, 859, 860. 2555 146, 159, 160, 162, 164, 225, 860. 2556 175, 224, 225. 2557 SS5, 234. 2558 57, 226, S^, 229, 230, 231, 234. 2559 228, SS9, $31, 232, 234, 241. 2560 228, SS9, 230, $3$, 233, 234, 511. 2561 230, 232, S33, 234, 237, 238, 241, 243, 511, 512, 1013, 1103, 1154 2562 235, 236, 237, 238, 241, 1083, 1102, 1103, 1138, 1154. 2563 236, 989. 2564 236, 244, 989. 2565 Fees of appraiser, not quoted. 2566 138. 2567 194. 2568 185, 186, 190. 2569 105, 181, 188, 189, 190. 2570 190, 907. 2571 191, 192, 198. 2572 19$. 2573 92, 105, 188, 189, 212. 2574 195, 197. 2575 116, 185, 202, 212. 2576 116, 117,193,194,195. 2577 $02, 203, 204, 207, 210, 211. 2578 162, 203, $04, 207, 210. 2579 203, 205, 206, 207, 210. 2580 $10, 211, 212. 2581 210, $11. 2582 206, 208, 209, 210, 212, 415, 471, 531, 532, 573. 2583 203, $06, 207, 569, 674. 2584 $03, 207, 211. 2585 218, $19. . 2586 119, 143, 195, 196, 197, 198, 199, 218. 2587 218, 219. 2588 216, 217, 218, 223, 229, 426. 2589 229. 2590 489. 2591 489, 490. 2592 491. 2593 491. 2594 474, 1071. 2595 573, 692, 693, 694, 703, 706, 714. 2596 697, 708. 2597 212, 677, 697, 713, 714, 716, 717. 2598 677, 713, 714, 716. 2599 677, 702, 713, 714, 716, 717. 2600 717. 2601 717, 718. 2602 163, Jfi3, 495, 496, 1032. 2603 616, 617, 618, 674, 685, 727, 732, 946, 1057, 1073, 1100. 2604 616, 686. 2605 577, 678, 579, 616, 727, 1058, 1077, 1086, 1100, 1101. 2606 110, 514, 579, 613, 615, 616, 617, 618, 619, 720, 732, 858, 946, 1029, 1030, 1076, 1077, 1089, 1091, 1096, 1100, 1143, 1184, 1185. 2607 719, 7$0, 722, 732. 2608 719, 720, 722, 725, 726. xliv TABLE OF SECTIONS Sections of the Code Civil Procedure Quoted or cited on page: 2609 2610 2611 2612 2613 2614 2615 2616 2617 2618 2619 2620 2621 2622 2623 2624 2625 2626 2627 2629 2630 2631 2632 2633 2634 2635 2637 2638 2640 2641 2642 2643 2644 2645 2646 2647 2648 2649 2650 2651 2652 2653 2653a 2654 2655 2656 2657 2658 2659 2660 2661 2662 2663 2664 2665 2666 719", 721, 722. 719, 721. S3, 275, 311, 392, 441, 455, 456, 589, 611. 471, 472, 476, 482, 484, 607, 655, 665, 667, 671. 468, 469, 476, 491, BOO, 512. 93, 248, 271, 274. 93, 102, 277, 278, 281. 279. 101, 104, 249, 280, 281, 282, 299, 300, 302, 308, 310, 664. 121, 247, 250, 283, 285, 286, 287, 288, 300, 304, 305, 306, 307, 416. 121, 247, 287, 288, 289, 290, 305. 247, 289, 290, 292, 305, 343, 344, 346, 347, 456. 247, 293, 310, 401, 466, 458. 286, 292, 306, 438. 299 305 391 393 438 46, '47, 308, 391, 392, '399, 413, 436, 437, 438, 439, 441, 442, 443. 154, 394, 400. 44, IBl, 271, 281, 392, 394. 162, 155, 271, 281, 392, 438. 396, 402, use. 156, 400, 438. 40s. 404. 404, 1187. 470, 471, 474, 480, 481, 482, 498, 679, 690. 480, 482, 483, 484, 498. 480, 482, 483, 486, 486, 488, 691, 1021. 476, 478, 488, 499, 655. 480. 480, 498. 479, 488, 499. 152, 497, 600, 504, 605, 506, 608, 609, 610, 511, 647, 552, 579. 504, 505, 608, 627. 487, 488, 503, 684, 691, 700, 702, 703. Effect of decree antedating Code — not quoted. .407, 408, 409, 410, 411, 412, 413, 414, 416, 422, 423. 407, 408, 411, 422, 423. 412. 414, 937. 415, 416. 416, 418, 622. 417, 419. 99, 356, 392, 407, 419, 420, 421, 422, 423, 425, 426, 427, 660,1187. '•,,,,•' 429, 430. 429, 431. 429, 432. 429, 43s. 429, 434, 1184. 429, 434. 498, 506, 607, 608, 621, 538, 647, 548, 549, 560, 561, 552, 553, 654, 558, 661, 562, 563, 565, 566, 573, 622, 623, 472, 507, 556, 558, 565, 625, 666, 671. 543, 548, 661, 566, 567, 670, 629. 661, 553, 555, 661, 564, 665, 566, 567, 670 487, 603, 617, 669, 571, 672, 684, 691, 701, 702, 703. 622, 623, 626, 627. ' ' ' ' '"^' '"«> '"^• 624, 626, 627. TABLE OF SECTIONS xlv Sections of the Code Civil Procedure Quoted or cited on page: 2667 266S 2669 2670 2671 2672 2673 2674 2675 2676 2677 2678 2679 2680 2681 2682 2683 2684 2686 2687 2688 2689 2690 2691 2692 2693 2694 2695 2696 2697 2698 2699 2700 2701 2702 2703 2704 2705 2706 2707 2708 2709 2710 2711 2712 2713 2714 2715 2716 2717 2718 2718a 2719 2720 2721 2722 2723 2724 2725 600, 626, 703. 214, 629, 630, 631. 521, 552, 553, 623, 632, 633. 515, 517, 518, 519, 520, 521, 532, 533, 534, 535, 536, 634, 702. 521. 522, 523, 526, 527, 636, 937, 938. 523, 628, 531, 1188. 528, 529, 1187. 527, 530, 532. 530. 531. 524, 525, 693. 524, 689. 625. 637. 515, 623, 679. 669, 660. 485, 4S2, 565, 661, 664, 667, 671, 673, 675, 677, 678, 679, 680, 681, 683, 684, 690, 700, 705, 1022. 486, 680, 681, 683, 705. 486, 678, 679, 680, 683, 691, 705. 685, 690. 478, 686, 688. 478, 687, 688. 688. 503, 575, 576, 689, 1090. 503, 507, 508, 676, 577, 578, 689, 703, 704. 581, 582, 583, 605, 942, 1163. 684, 587, 590. 591, 592. 591, 693. 594, 600, 601. 594, 697, 599, 600, 686, 704. 597, 601, 602, 603, 606, 1077, 1094. 597, 601, 602, 605, 606, 1077, 1094. 502, 585, 602, 606, 1077, 1078, 1086, 1094. Relating to recording wills proved in other States, 404, 405, 589. 405, 587, 612. 31, 246, 275. 761, 1101. 52, 688, 761, 752, 753, 754, 756, 757, 1101. 752, 766, 757, 758. 752, 754, 756, 767. 760, 761. 764, 776, 783. 755, 767, 768, 778. 766, 768, 771, 773, 774, 775, 776, 868, 1113. 698, 764, 768, 778, 779, 781, 966, 1132, 1133, 1134. 688, 764, 778, 780, 785. 673, 779, 781, 782, 783, 784, 785, 788. 840, 841, 842, 1010, 1013. 124, 662, 796, 797, 798, 799, 800, 804, 807, 808, 809, 810, 812, 813, 815, 817, 818, 820, 1015, 1126, 1133, 1188. 795, 796, 804, 809, 816, 1126, 1188. 30, 789, 792, 805, 822, 823, 825, 829, 830, 831, 832, 834, 835, 836, 837, 838, 845, 856, 938, 939, 1063, 1130, 1131. 792, 793, 1015. 926 927 937 941 942 445! 827,' 849, 860, 851,' 853, 854, 855, 857, 858, 860, 932, 934, 935, 936, 1013, 1014, 1017, 1082, 1128, 1188. 523, 938, 939, 941. 30, 1113, 1119. 935, 1077, 1078, 1081, 1086, 1119, 1187. xlvi TABLE OF SECTIONS Sections of the Code Civil Procedure Quoted or cited on page : 2726 2727 2728 2729 2730 2731 2732 2733 2734 2735 2736 2737 2738 2739 2740 2741 2742 2743 2744 2745 2746 2747 2748 2749 2750 2751 2752 2753 2754 2755 2756 2757 2758 2759 2760 2761 2762 2763 2764 2765 2766 2767 2768 2769 2770 2771 2772 2773 2774 2775 2776 2777 2778 2779 2780 2781 2782 2783 2784 532, 688, 802, 989, 1077, 1087, 1100, 1101, 1117, 1118, 856, 1077, 1087, 1096, 1097, 1098, 1100, 1101, 1116, 1117, 1118 1120 1129 101, 277, 1077, 1083, 1087, 1088, 1093, 1094, 1096, 1097, 1098, 1100, 1101, 1117, 1119, 1120, 1121. 810, 8^3, 824, 828, 850, 989, 1076, 1083, 1092, 1093, 1107, 1108, 1109, 1110, 1187. 8, 989, 1031, 1092, 1093, 1137, 1138, 1140, 1141, 1146, 1147, 1148, 1154. 101, 805, 850, 1063, 1093, 1130, 1132. 96, 277, 550, 941, 1163. 338, 1092, 1093, 1109, 11S9, 1162. 549, 1092, 1093, 1109, 1138, 1175. 1092, 1093, 1109, 1138. 1092, 1093, 1138. 1092, 1093, 1138. 1138. 807, 1093, 1130, 1138. 1093, 1130, 1138. 1092, 1093, 1109, 1138. 148, 444, 1171. 100, 102, 436, 443, 444, 445, 731, 814, 817, 1087, 1093, 1126, 1127, 1129, 1133, 1134, 1135, 1169. 1013, 1092, 1093, 1169. 1168, 1174. 1005, 1048, 1049, 1053, 1065, 1093, 1169, 1174. 630, 1170, 1174. 630, 1170, 1174, 1187. 35, 531, 827, 828, 96b, 961, 963, 966, 982. 35, 631, 845, 964, 965, 966, 967, 968, 969, 978, 981, 982, 983, 1003, 1120, 1186. 35, 968, 969, 1003, 1186, 1187. 35, 968, 969, 973, 983. 35, 97S, 1172. 35, 97^, 973, 975. 35, 973, 977, 978, 979, 980. 35, 980, 981, 982, 983, 984. 35, 980, 981, 986. 35, 985, 987, 988, 994. 35, 843, 982, 983, 984, 987, 988. 35, 110, 986, 987, 988. 35, 985, 986, 989. 35, 986. 35, 986, 987, 990. 35, 989, 990. 35, 990. 35, 985. 35. 35. 35. 35. 35, 991, 1186. 35, 989. 35, 100, 989. 35, 989, 992, 993, 1086. 35, 989, 992, 994. 35, 989, 992, 993, 995. 35, 997. 35. 35. 35. 35. 35, 997. 35, 997. 35, 976, 977. TABLE OF SECTIONS xlvii Sections of the Code Civil Procedure Quoted or cited on page : 2785 35, 998, 1184. 2786 35, 998. 2787 35, 998. 2788 35, 998. 2789 35, 998. 2790 35, 998. 2791 35, 998. 2792 35, 998. 2793 30, 35, 96, 974, 998. 2794 35, 998, 999. 2795 35, 998, 999. 2796 35, 998, 1005. 2797 35, 998, 1000, 1001, 1002, 1003. 2798 30, 35, 998, 999, 1000, lOOB, 1003. 2799 35, 989, 999, 1000, IOO4, 1005. 2800 35, 999. 2801 35, lOOS. 2801a 1006. 2802 1011, 1012, 1031, 1077, 1078, 1079, 1138, 1139, 1153. 2803 1012, 1077, IO84. 2804 1010, 1011, 1013, 1014, 1015. 2805 1010, 1011, 1013, 1014, 1016, 1016, 1085. 2806 1011, 1017. 2807 1011, 1012, 1014, 1077, 1097, 1101, 1187. 2808 1011, 1077, 1097, 1101. 2809 1011, 1014, 1077, 1097, 1101. 2810 1011, 1077, 109S, 1097, 1187. 2811 1011, 1031, 109S, 1097, 1138. 2812 1011, 1079, 1096, 1097, 1098. 2813 10, 11, 1078, 1097, 1099, 1172. 2814 687, 1011, 1017, 1018, 1020, 1097 2815 705, 706, 1011, lOSl. 2816 705, 706, 1011, 1021. 2817 685, 705, 817, 1011, 1021, 1055. 2818 685, 1010, 1011, 1017, 1028, 1029, 1030, 1080, 1097, 1101. 2819 685, 687, 1011, 1022, 1031. 2820 685, 1011, 1032. 2821 3, 1037. 2822 1038, 1040, 1059. 2823 1038, 1042, 1059. 2824 1038. 2825 104s, 1046. 2826 1042, 1060. 2827 1038, 1044. 2828 1045. 2829 707, 1045. 2830 707, 1047, 1049. 2831 709, 1047. 2832 1054, 1055, 1056, 1057. 2833 1056, 1057. 2834 1056, 1057. 2835 1058. 2836 1058, 1059. 2837 1059, 1077, 1101. 2838 1040, 1050, 1051, 1052, 1053. 2839 1051, 1052, 1053. 2840 1053, 1054. 2841 1063. 2842 1060, 1061, 1072, 1077, 1084. 2843 1060, 1061, 1072, 1084. 2844 1060, 1061, 1072, 1084. 2845 1060, 1062, 1072, 1077, 1084. 2846 1060, 1062, 1063, 1065, 1066. 2847 1059, 1060, 1061, 1077, 1091, 1092, 1094, 1095, 1096, 1101. 2848 1060, 1077, 1091, 1092, 1094, 1096, 1101. 2849 1060, 1077, 1091, 1092. xlviii TABLE OF SECTIONS Sections of the Code Civil Procedure Quoted or cited on page: 2850 1060, 1091, 1139. 2851 1037, 1038, 1069, 1070. 2852 474, 1071. 2853 709, 1071. 2854 709, 1071. 2855 1072, 1077, 1083, 1084. 2856 1077, 109H, 1094, 1101. 2857 109S, 117S. 2858 1055, 1071, 107S. 2859 1058, 107S. 2860 1059, 1073 2979 1004. 3017 1184. 3220 1143, 1147. 3228 428. 3229 428, 814. 3230 428. 3240 228. 3251 224, 228. 3256 228, 232. 3296 138. 3811 57. 3320 522, 712, 1031, 1138, 1152, 1156. 3333 579. 3334 59, 579. 3343 13, 53, 681. 3347 108, 110, 112. 3355 54. TABLE OF LAWS CITED [References are to pages.] Act of Mar. 1813, 0. 86 1813, c. 139 1819, c. 244 1828, c. 130 1830, c. 320 1837, c. 460 16, 1778 PAGE 3 833 6 734 21,43 5, 123, 158, 280, 674, 722, 965, 1060, 1130 1837, c. 245 123 1837, p. 530, § 34 1055 1843, c. 9 12 1844, c. 104 158 1847, c. 80 789, 829 1847, c. 470 77 1848, c. 319 440 1849, c. 160 239 1849, c. 306 13, 23 1849, c. 375 264 1850, c. 292 1011 1851, c. 108 13 1854, c. 197 79 1855, c. 547 94 1863, c. 362 236, 551 1863, c. 403 590 1864, c. 71 524 1866, c. 115 1011 1867, c. 194 11 1867, c. 658 1002 1867, c. 728 551 1867, c. 782 264, 549 1867, p. 783, § 2 1055 1869, c. 22 264 1870, c. 359 44, 49, 77, 149, 150, 437, 515, 523, 1020 1870, c. 394 755 1870, c. 59 1040, 1051 1870, c. 170 1002 1871, c. 603 209 1871, 0. 834 1002 1872, 0. 680 406 1873, c. 830 94, 734, 738, 742 1875, c. 442 1040, 1051 1875, c. 542 793, 959 1876, c. 118 33 1877, c. 206 1071 1880, c. 36 259 1880, c. 245 77, 120. 325, 613, 722, 814, 815 1882, 0. 185 • i029, 1080 1882, c. 410 636 1883, c. 686 829 1884, c. 104 722 1884, c. 133 79, 80 1884, c. 390 22 1884, c. 408 1029, 1080 1884, 0. 490 13, 23 1884, c. 530 53, 54, 56 1885, c. 262 79 1885, c. 367 303 1885, c. 427 835 1886, c. 27 961 1887, c. 372 712 1887, c. 416 113 1887, c. 701 286 1887, c. 703 94, 735, 1178 1887, c. 713 910 1888, c. 555 259 1888, c. 571 829 1888, c. 751 789 1890, o. 367 712 1892, c. 399 867, 888 1892, c. 465 522, 1156 1892, c. 576 1051 1892, c. 591 420 1892, c. 642 11, 12 1892, c. 679 39 1892, c. 686 11 1893, c. 70 522 1893, c. 100 789, 829 1893, c. 295 291 1893, c. 683 808 1893, c. 686 511, 789, 815, 1092, 1130 1893, c. 711 835 1894, c. 76 882 1894, c. 731 31, 246, 275, 405, 455, 456 1895, c. 426 1121 1895, c. 531 94, 1179 1895, c. 595 100, 1126, 1127 1895, c. 827 635 1895, c. 891 103 1895, c. 946 15 1896, c. 61 1072 1896, c. 90 138 1896, c. 272 29, 95 1896, c. 547 312 1896, c. 570 275, 282 1896, c. 908 29, 610, 881, 889 1897, c. 37 1179 1897, c. 78 635 1897, c. 104 423 1897, c. 284 879, 923 1897, c. 701 419, 421, 423 1898, c. 230 634, 638 1898, c. 264 746, 747 1899, c. 61 113 1899, c. 76 923 xlix TABLE OF LAWS CITED [References axe to pages.] 1899, 1899, 1899, 1899, 1899, 1899, 1899, 1900, 1900, 1900, 1900, 1900, 1901, 1901, 1901, 1901, 1901, 1901, 1902, 0.605 c. 606 c. 725 c. 607 c. 486 c. 672 c. 737 c. 382 c. 501 c. 510 c. 554 c. 658 c. 20 c. 141 c. 293 c. 409 c. 410 c. 493 c. 114 25 1902, c. 349 73 1903, c. 85 95 1903, c. 225 135 1903, c. 370 622 1903, c. 623 891 1904, c. 137 1189 1904, c. 386 872, 873 1904, c. 692 622 1904, c. 750 286 1904, c. 755 1049 1905, c. 328 882 1905, c. 368 519 1905, c. 430 498 1908, c. 128 823, 1109 1908, c. 502 1090 1909, c. 65 547 1909, c. 183 923 1909, c. 184 291 1909, c. 231 PAGE 1090 112 1179 1011 440 194 796 102, 157 969 1138 1137 872, 891, 923 999 132 1006 7,29 964 548, 561 1039 DOMESTIC RELATIONS LAW 22 80 81 82 PAGE SECTION 9 112 1036 116 1055 117 1069 118 PAGE 738 747 747 748 TABLE OF CASES CITED [References are to pages.] Aaron, Est. of, 7 N. Y. Supp. 735; 114. Aaron, Matter of, 5 Dem. 362; 526. Abbett, Matter of, 29 Misc. 566; 865. Abbey v. Aymar, 3 Dem. 400; 450. Abbott V. Curran, 98 N. Y. 665 (aff'g 20 Week. Dig. 334); 490. Abercombie v. Holder, 63 N. Y. 628; 137. Abercrombie, Matter of, 24 App. Div. 407; 329. Abernethy v. Catlin, 2 Dem. 341; 947. Ablowich, Matter of, 118 App. Div. 626; 698, 1133. Ackels, Matter of, 23 Misc. 321; 260. Acker v. Ledyard, 8 Barb, 514; 261. Acker, Matter of, 5 Dem. 19; 318. Ackerman v. Emott, 4 Barb. 626; 1068. Ackerman, Matter of, 2 Redf. 521; 541. Ackley v. Dygert, 33 Barb. 176; 974, 976. Adair v. Brimmer, 74 N. Y. 539; 668, 726. Adams v. Butts, 16 Pick. 343; 824. Adams v. Cowen, 177 U. S. 472; 1161. Adams v. Fassett, 149 N. Y. 61; 1188. Adams, Matter of, 30 Misc. 184; 732. Adams v. Olin, 78 Hun, 309; 809, 813. Adler v. Davis, 31 Misc. 47; 814. Adler, Matter of, 60 Hun, 481; 496. Ainslee v. Radcliffe, 7 Paige, 440; 835, 836. Akers, Est. of, N. Y. L. J., Mar. 19, 1903; 229. Akers, Matter of, 173 N. Y. 620; 259. Akers, Matter of, 74 App. Div. 461; 259. Albert, Matter of, 38 Misc. 61; 317, 407, 410. Albertson, Matter of, 113 N. Y. 434; 1034. Albrecht v. Canfield, 92 Hun, 240; 84. Aldinger v. Pugh, 132 N. Y. 403; 11. Aldrich v. Moore, 26 N. Y. St. Rep. 964; 1065. Alexander, Matter of, 16 Abb. Pr. N. S. 9; 471. Alexander, Matter of, 83 Hun, 147; 854. Alexander, Matter of, 70 N. Y. St. Rep. 431; 1038. Alfson V. Bush, 182 N. Y. 393; 828. Alger, Matter of, 38 Misc. 143; 259, 260. AUeman, Matter of, 1 Connoly, 441; 55, 286, 303. Allen V. Bishop, 25 Wend. 414; 837. Allen V. Kelly, 55 App. Div. 454; 720. Allen V. Kelly, 171 N. Y. 1 (rev'g 66 App. Div. 623); 708, 1064, 1065. Allen V. Ketcham, 5 N. Y. Supp. 566; 542 Allen 'v. Malcom, 12 Abb. N. S. 335; 78. Allen, Matter of, 2 Dem. 203; 506, 507, 613. Allen, Matter of, 3 Dem. 524; "828. Allen, Matter of, 7 Civ. Proc. Rep. 159; 512, 703. Allen, Matter of, 24 N. Y. St. Rep. 251; 541. Allen, Matter of, 81 Hun, 91; 186. Allen, Matter of, 36 Misc. 398; 773. Allen, Matter of, 96 N. Y. 327; 1020, 1140. Alpine v. Potter, 126 N. Y. 285; 1031. Althause, Matter of, 63 App. Div. 252; 866. Altman v. Hofeller, 152 N. Y. 498; 220, 723. American Bible Society v. Oakley, 4 Dem. 450; 532. American Surety Co., Matter of, 61 Misc. 542; 717. Ames V. Downing, 1 Bradf. 321; 786. Ametrano v. Downs, 33 Misc. 180 (aff'd 170 N. Y. 388); 948. Amherst College v. Ritch, 151 N. Y. 282; 443, 906. Ammarell, Matter of, 38 Misc. 399; 9. Anderson v. Anderson, 112 N. Y. 104; 46, 423, 462, 466. Anderson v. Fry, 116 App. Div. 740; 927. Anderson, Matter of, 84 App. Div. 268 123, 124. Anderson, Matter of, 122 App. Div. 453 1189. Anderson v. Thompson, 38 Hun, 394 771. Andrake v. Cohen, 32 Hun, 225; 1096. Andress, Matter of Henry W., Surr. Decs. 1898, 396; 58. Andrews, In re, 1 Johns. Ch. 99; 1011. Andrews, Matter of, 162 N. Y. 1 (aff'g 43 App. Div. 394); 247, 317, 319, 391. Andrews v. Townshend, 21 J. & S. 522; 1040. Angevine's Est., 1 Tucker, 245; 674. Angevine v. Jaclison, 103 N. Y. 470; 118, 194 195 199. Annett v. Terry] 35 N. Y. 256; 733. Anon V. Gelpcke, 5 Hun, 245; 1008. Anonymous, 4 Hun, 414; 1048. Anonymous, 14 N. Y. St. Rep. 490; 1081. Ansonia Brass & Copper Co. v. Connor, 98 N. Y. 574; 223. Anthony v. Harrison, 14 Hun, 198; 839. Anthony, Matter of, 40 Misc. 497; 866. Archer, Matter of, 51 Misc. 260; 1131. Arcularius v. Sweet, 25 Barb. 406; 450. li lu TABLE OF CASES CITED [References are to pages.] Arensburg, Matter of, 120 App. Div. 463; 355 Argus Co., Matter of the, 138 N. Y. 557; 1170. Arkenburg v. Arkenburg, 27 Misc. 760; 494. Arkenburgh, Matter of (No. 1), 11 App. Div. 44 (aff'g 17 Misc. 543); 210. Arkenburgh, Matter of (No. 2), 11 App. Div. 193; 1076. Arkenburgh, Matter of, 17 Misc. 543; 204. Arkenburgh, Matter of, 38 App. Div. 473; 180, 493, 935, 1127, 1146. Arkenburgh, Matter of, 13 Misc. 744; 1135, 1W6, 1155, 1156. Arkenburgh, Matter of, 58 App. Div. 583; 806, 1131. Armstrong v. Galusha, 43 App. Div. 248; 96, 451. Armstrong v. Lear, 12 Wheat. 175; 153. Armstrong, Matter of, 32 N. Y. St. Rep. 441; 193. Armstrong, Matter of, 55 Misc. 487; 357. Arnold v. Haroun, 43 Hun, 278; 1162. Arnold, Matter of, 114 App. Div. 244; 40, 883, 1051. Arnold v. Sandford, 14 Johns. 417; 220. Arnton, Matter of, 106 App. Div. 326; 957, 1149. Arthur v. Griswold, 60 N. Y. 143; 203. Arthur v. Nelson, 1 Dem. 337; 1146. Ashheim, Matter of, 185 N. Y. 609 (aff'd ' 185 N. Y. 604); 1188, 1189. Ashmore, Matter of, 48 Misc. 312; 516, 521, 534. Asinari v. Bangs, 3 Dem. 385; 257. Astor, Matter of, 6 Dem. 402; 886, 888. Astor, Matter of, 20 Abb. N. C. 405; 899. Astor, Matter of, 17 N. Y. St. Rep. 737; 900. AtktQS V. Kinnan, 20 Wend. 241; 974. Atkinson v. Striker, 2 Dem. 261; 681. Attorney General v. Continental Life Ins. Co., 93 N. Y. 45; 140. Attorney, Matter of an, 83 N. Y. 164; 123. Augsburg V. ShurtUff, 180 N. Y. 138; 875. Austin, Matter of, 35 App. Div. 278; 439. Austin, Matter of, 13 App. Div. 247; 745. Austin, Matter of, 50 Him, 604; 939. Austin V. Metropolitan St. Ry. Co., 108 App. Div. 249; 1183. Austin V. Munroe, 47 N. Y. 360; 139, 236, 825, 845, 846. Austin V. Oakes, 117 N. Y. 577; 448. Avery v. Everett, 110 N. Y. 317; 539. Avery, Matter of, 45 Misc. 529; 467, 472, 668. Ayers v. Courvoisier, 101 App. Div. 97; 501. Azzeli's Est., Matter of, 4 N. Y. Supp. 462; 136. B. S. Inst. V. Pelham, 148 N. Y. 737; 229. Babcook, Matter of, 115 N. Y. 450; 834, 1112. Babcock, Matter of, 86 App. Div. 563; 228. Babcock, Matter of, 42 Misc. 235; 235. Babcock v. Stoddard, 3 T. & C. 207; 951. Backhouse, Matter of, 110 App. Div. 737 (aff'd 185 N. Y. 544); 864, 881, 918. Backus, Matter of, 49 App. Div. 410; 256. Bacon v. Bacon, 4 Dem. 5; 1013, 1151. Badger v. Badger, 88 N. Y. 546; 266. Badger, Est. of, 3 Law Bulletin, 71; 526, 527. Badger, Matter of, 3 Law Bulletin, 71, 526. Baer, Matter of, 147 N. Y. 354; 448. Baggott V. Boulger, 2 Duer, 160; 698, 699, 727, 802. Baier v. Baier, 4 Dem. 162; 687, 1019. Bailey v. Hilton, 14 Hun, 3; 181, 276, 408. Bailey, In re, 14 N. Y. St. Rep. 325; 8. Bailey, Matter of, 47 Hun, 477; 238. Bailey v. Stewart, 2 Redf. 212; 68, 181, 276, 393. Bain v. Matteson, 54 N. Y. 663; 500, 512, 1009. Baird, Matter of, 126 App. Div. 439; 774. Baker v. Kingsland, 10 Paige, 366; 980. Baker, Matter of, 26 Hun, 626; 501. Baker, Matter of, 42 App. Div. 370; 1135. Baker, Matter of, 38 Misc. 151 (aff'd 83 App. Div. 530); 878. Baker, Matter of, 35 Hun, 272; 1020. Baker, Matter of, N. Y. Law Jr., May 28, 1902; 895. Baker, Matter of, 83 App. Div. 530; 874. Baker's WiU, Matter, of, 2 Redf. 179; 374. Baldwin, Matter of, 158 N. Y. 713; 60, 197, 221. Baldwin, Matter of, 30 Misc. 169; 229. Baldwin, Matter of, 27 App. Div. 506; 476, 479. Baldwin v. Palen, 24 Misc. 170; 1022. Baldwin v. Rice, 183 N. Y. 55 (aff'd 100 App. Div. 241; 44 Misc. 64); 585, 591, 693 Baldwin v. Smith, 91 Hvm, 230; 147, 148. Baldwin v. Smith, 3 App. Div. 350; 8, 437, 442, 445, 1100. Ball v. Dey, 7 Wend. 513; 289. Ball V. Dixon, 83 Hun, 344; 927. Ball V. Miller, 17 How. Pr. 300; 147, 964, 965, 981. Ballard v. Charlesworth, 1 Dem. 501 ; 486, 567. Balleis, Matter of, 144 N. Y. 132; 873. Ballou V. Ballou, 78 N. Y. 325; 770. Ballou V. Ballou, 8 Week. Dig. 362; 1107. Bamberger v. Amer. Surety Co., 48 Misc. 221; 720, 723. Bankard, Matter of, 19 Week. Dig. 452; 516, 517, 527. Banks, Matter of, 108 App. Div. 181; 179. Banning v. Gtmn, 4 Dem. 337; 494. Banning, Matter of, 108 App. Div. 12; 164. Banzer v. Banzer, 166 N. Y. 429; 449. Barandon, Matter of, 41 Misc. 380; 583. Barber v. Case, 12 How. Pr. 351; 113. Barber v. Converse, 1 Redf. 330; 562. Barber, Matter of, 92 Hun, 489; 261. Barbineau, Matter of, 27 Misc. 417; 351. TABLE OF CASES CITED liii [References are to pages.] Barefield, Matter of, 177 N. Y. 387; 117, 136, 137, 222, 1108. Barker, Matter of, 4 Misc. 40; 1096. Barnes v. Barnes, 13 Hun, 233; 941. Barnes, Matter of, 70 App. Div. 523; 254, 296, 341. Barnes, Matter of, 7 App. Div. 13 (aff'd 154N.Y. 737);943, 944. Barnett v. Kincaid, 2 Lansing, 320; 978. Bam-um, Matter of, 129 App. Div. 418; 903. Barr, Matter of, 38 Misc. 355; 539. Barrard v. Burrowes, 2 Robertson, 213; 78. Barras v. Barras, 4 Redf. 263; 805, 1130. Barre, In re, 5 Redf. 64; 1037. Barringer, Matter of, 29 Misc. 457; 95. Barrow v. Barrow, 29 N. Y. St. Rep. 240; 944. Barry v. Boyle, 1 T. & C. 422; 330. Barry v. Brown, 2 Dem. 309; 253, 328, 332. Barry v. Largbert, 98 N. Y. 309; 846. Barson v. MuUigan 191 N. Y. 306; 519. Bartholic, Matter of, 141 N. Y. 166; 191, 311. Bartlett, Ex parte, 4 Bradf. 221; 1042. Bartlett, Matter of, 4 Misc. 380; 893. Bartlett v. Mayor, 5 Sandf. 44; 745. Barton v. Goven, 116 N. Y. 658; 371. Bartsch, Matter of, 60 Misc. 272; 1066. Bascom v. Albertson, 34 N. Y. 584; 436. Baskin v. Baskin, 36 N. Y. 416; 328, 336, 337. Baskin v. Baskin, 4 Lansing, 90; 525, 526. Bass, Matter of, 57 Misc. 531; 925. Batchelor v. Batchelor, 1 Dem. 209; 506, 627. Bates V. Underbill, 3 Redf. 372; 834. Battel V. Torrey, 65 N. Y. 294; 974. Battle, Matter of, 5 Dem. 447; 858. Baucus V. Barr, 45 Hun, 582 (aff'd 107 N. Y. 624); 698, 731, 1132. Baucus V. Stover, 89 N. Y. 1; 164, 616, 697, 731, 780, 1132, 1143. Baucus V. Stover, 24 Hun, 109; 774. Bauer v. Kastner, 1 Dem. 136; 1161. Baumann v. Moseley, 63 Hun, 492; 820. Baxter v. Baxter, 76 Hun, 98; 156, 393. Bayer, Matter of, 54 Hun, 189; 136, 137. Bayer v. PhilUps, 17 Abb. N. C. 429; 1067. Baylis v. Swartwout, 5 Redf. 395; 935. - Beach, Matter of, 3 Misc. 393; 180, 182, Beach, Matter of, 19 App. Div. 630; 869, 870. Beadleston v. Beadleston, 2 N. Y. Supp. 814; 124. Beakes, Matter of, 5 Dem. 128; 478, 508, 509, 688. Beard v. Beard, 140 N. Y. 260; 1141, 1144. Beard v. Beard, 51 N. Y. St. Rep. 735; 1153. Beard, Matter of, 77 Hun, 111; 1151. Beardslee v. Dolge, 143 N. Y. 160; 9. Beaver, Matter of, 62 Misc. 155; 895. Beck V. Gillis, 9 Barb. 56; 947. Beck, Matter of, 6 App. Div. 211; 319, 391, 426. Beck, Matter of, 26 Misc. 179 (aff'd 6 App. Div. 211 and 154 N. Y. 750); 122, 894. Becker, Matter of, 28 Hun^ 207; 183, 411. Beckett, Matter of Apphcation of, 103 N. Y. 167; 314, 322, 333, 342, 348. Bedell v. Achnell, 2 Dem. 292; 515. Bedell, Matter of, 2 Connoly, 328; 382. Bedell, Matter of, 107 App. Div. 284; 380. BedeU's Will, 12 N. Y. Supp. 96; 338. Bedford, Matter of, 30 Hun, 551; 136, 137. Bedlow, Matter of, 67 Hun, 408; 375, 382, 390. Beebe v. Estabrook, 11 Hun, 523 (aff'd 79 N. Y. 246); 1162. Beebe, Matter of, 20 Hun, 462; 755. Beebe, Matter of, 11 N. Y. Supp. 522; 1045. Beecher v. Barber, 6 Dem. 129; 960. Beeker v. Lynch, 1 Bradf. 458; 279. Beekman v. Bonsor, 23 N. Y. 303; 501, 958, 959. Beekrnan v. Vanderveer, 3 Dem. 221; ,936, 951. Beers, Ex parte, 2 Bradf. 163; 330. Beers v. Shannon, 73 N. Y. 292; 40, 43, 608. Beider v. Steinhauer, 15 Abb. N. C. 428; 728 Belden v. Belden, 118 App. Div. 296; 660. Belden v. Meeker, 2 Lans. 473, 47 N. Y. 307; 150, 490. Bell V. Villard, 48 Misc. 587; 420. Bellesheim, Est. of, 1 N .Y. Supp. 276; 996. Bellinger v. Potter, 36 N. Y. St. Rep. 601; 780. Bello Corrunes, The, 6 Wheat. 168; 559. Bender, Matter of, 86 Hun, 570; 224, 232. Benedict v. Cooper, 3 Dem. 362; 54, 55, 184. Benedict v. Dunning, 110 App. Div. 303; 1029. Benedict v. Ferguson, 15 App. Div, 96; 824. Benedict v. Webb, 98 N. Y. 460; 448. BeneventanOj. Matter of, 38 Misc. 272; 326, 328. Benjamin v. Dimmick, 4 Redf. 7; 497. Benjamin v. Ver Nooy, 168 N. Y. 578; 814. Benjamin v. Welsh, 73 Hun, 371; 450. Bennett v. Byrne, 2 Bradf. Ch. 216; 1042. Bennett v. Grain, 41 Hun, 185; 159. Bennett v. Garlock, 79 N. Y. 316; 512. Bennett v. Lyndon, 8 App. Div. 387; 470. Bennett, fatter of, 9 N. Y. Supp. 549; 411. Bennett,, Matter of, 21 Abb. N. C. 238; 133 Bennett, Matter of, 60 Misc. 28; 483. Bennett v. Pieman, 48 Hun, 612; 133. Bensen v. Manhattan R. Co., 14 App. Div. 442; 149, 150. Benson, In re, 96 N. Y. 499; 958. Bentley, Matter of, 31 Misc. 656; 866. Benton, Matter of, .71 App. Div. 522; 200. liv TABLE OF CASES CITED [References are to pages.] Berdell v. ScheU, 2 Dem. 292; 523. Berg V. Rottek, Daily Register, Dec. 28, 1899" 139. Bergen' Matter of, 56 Misc. 92; 842. Bernes v. Weisser, 2 Bradf. 212; 836. Bemey, Est. of, 2 McCarthy, 455; 98. Bernhardt, Matter of, 16 N. Y. St. Rep. 240; 175. Bems, Matter of, 52 Misc. 426; 774. Bemsee, Matter of Will of, 141 N. Y. 389; 331 334 337 344. Bernstein, 'Matter of, 58 Misc. 115; 1005. Berrien's Est., 16 Abb. Pr. N. S. 23; 791. Berrien, Matter of, 3 Dem. 263; 557. Berry, Matter of, 23 Misc. 330; 898. Bertine v. Hubbell, 1 Dem. 335; 230. Bethime, Matter of, 4 Dem. 392; 309. Betsinger v. Chapman, 24 Him, 15 (aff'd 88N. Y. 487);102, 103. Bettels, Matter of, 4 N. Y. Supp. 393; 710. Bettman, Matter of, 65 App. Div. 229; 117. Betts V. Betts, 4 Abb. N. C. 317; 1153. Betts V. Jackson, 6 Wend. 173; 294, 295, 461. Betts V. Krindell, 20 Abb. N. C. 1 ; 62. * Bevan v. Cooper, 72 N. Y. 317; 7, 9, 236, 417, 441, 931, 1095, 1098. Beyea, Matter of, 10 Misc. 198; 1100, 1121. Bible Society v. Oakley, 4 Dem. 450; 209, 415, 686, 1086, 1100. Bick V. Murphy, 2 Dem. 251; 717. Bigelow V. Sterns, 19 Johns. 39; 4. Biggars, Matter of, 39 Misc. 426; 1108, 1156. Biggs V. Angus, 3 Dem. 93; 258. Bilhngs V. Carver, 54 Barb. 40; 757. Bingham v. Burhngame, 33 Hun, 211; 161. Bingham v. Jones, 25 Hun, 6; 500. Bingham, Matter of, 127 N. Y. 296; 9, 24, 105, 811, 962, 969, 975. Binghamton Trust Co., Matter of, 87 App. Div. 26; 1102. Birdsairs Will, Matter of, 13 N. Y. 421; 353, 354. Bischoff V. Engel, 10 App. Div. 240; 609, 724. Bishop V. Grand Lodge, 112 N. Y. 627; 771. Bishop, Matter of, 82 App. Div. 112; 888. Bishop, Matter of. 111 App. Div. 545; 905. Bishop, Matter of, 31 N. Y. St. Rep. 314; 375. Bishop, Matter of, 10 N. Y. Supp. 217; 380. Bissell V. Saxton, 66 N. Y. 55; 698. Bittleston v. Clark, 1 Cas. Temp. § 250; 278. Black, Matter of, 1 Conn. 477; 872. Black V. Woodman, 5 Redf. 363; 584. Blackstone, Matter of, 69 App. Div. 127 (aff'd 171 N. Y. 56); 865. Blair v. Keese, 59 Misc. 107; 1160. Blair, Matter of, 49 App. Div. 417; 250. Blair, Matter of, 34 Misc. 444; 250. Blair, Matter of, 99 App. Div. 81; 1131. Blair, Matter of, 28 Misc. 611; 186, 250. Blair, Matter of, 84 Hun, 581; 317. Blair, Matter of, 16 N. Y. Supp. 875; 330. Blair, Matter of, 16 Daly, 547; 373. Blair, Matter of, 60 Hun, 523; 143, 212, 214, 517. Blair, Matter of, 67 App. Div. 116; 1155. Blair, Matter of Lewis R., 152 N. Y. 645; 316. Blaisdell v. Raymond, 9 Abb. 178»i.; 124. Blake v. Blake, 30 Hun, 469; 1027. Blake, Matter of, 60 Misc. 627; 625, 651. Blakeney, Matter of, 1 Conn. 128; 1147, 1148. Blakeney, Matter of, 23 Abb. N. C. 32; 1149. Blancan, Matter of, 4 Redf. 151; 473. Blanchard v. Lambert, 43 Iowa, 228; 542. Blanchard v. Nestle, 3 Denio, 37; 350. Blanck v. Morrison, 4 Dem. 297; 509, 555, 672. Blank, Matter of, 2 Redf. 443; 626. Blatohford v. Paine, 24 N. Y. 140; 459. Bleeker v. Lynch, 1 Bradf. 458; 351, 355. Bliss v. Fosdick, 76 Hun, 50i; 186. Bliss, Matter of, 6 App. Div. 192; 867, 868, 881. Bliven v. Seymour, 88 N. Y. 469; 447, 450, 951 959 Blood' V. Kane, 130 N. Y. 514; 615, 825, 928, 930, 1074. Bloodgood V. Bruen, 8 N. Y. 362; 803, 831. Bloodgood V. Mass. Benefit Life Assn., 19 Misc. 460; 1012. Bloomer v. Bloomer, 2 Bradf. 339; 156, 393. Blow, Matter of, 2 Connoly, 360; 513. Blum, Matter of, 83 App. Div. 161; 1100. Board v. Heyman, 3 Abb. Prac. (U. S.) 396; 80. Board of Underwriters v. Nat. Bank, 146 N. Y. 64; 220. Bodine, Matter of, 119 App. Div. 492; 183, 723. Boell V. Schwartz, 4 Bradf. 12; 389. Boerum v. Betts, 1 Dem. 471; 64, 109. Bogardus v. Clark, 4 Paige, 623; 153, 394. Bogart, Est. of, 67 How. Pr. 313; 343. Bogart, Matter of, 46 App. Div. 240; 230. Bogart, Matter of, 43 App. Div. 583; 439. Bogart, Matter of, 28 Hun, 468; 955. Bogart, Matter of, 41 Misc. 598; 956. Bogart V. Van Velsor, 4 Edw. Ch. 718; 1068. Bogers, Matter of, 41 Misc. 598; 956. Bohde v. Bruner, 2 Redf. 333; 243. BoUes, Matter of 37 Misc. 562; 350, 372. ' Boiling V. Coughlin, 5 Redf. 116; 1054, 1055, 1056. Bolt V. Murray, 2 N. Y. St. Rep. 232; 371. Bolton V. Brewster, 32 Barb. 389; 490, 543, 568. Bolton V. De Peyster, 25 Barb. 539; 447. Bolton, Matter of, 141 N. Y. 554; 195. Bolton, Matter of, 20 Misc. 532; 1067. Bolton, Matter of, 146 N. Y. 257; 445, 860. Bolton, Matter of, 149 N. Y. 257; 437. Bolton, Matter of, 35 Misc. 688; 900, 911. TABLE OF CASES CITED Iv [References are to pages.] Bolton, Matter of, 159 N. Y. 129; 3, 4, 10, 47, 549, 1131, 1176. Bolton V. Sohriever, 26 Abb. N. C. 230; 8. Bolton V. Sohriever, 58 Super. Ct. 520 (ardl35N. Y. 65);37. Bolton V. Schriever, 135 N. Y. 65; 36, 39, 490. Bonard's Will, 16 Abb. Pr. (N. S.) 128; 364, 368. Bonfanti v. Deguerre, 3 Bradf. 429; 98, 99. Bonilla v. Mestre, 34 Hun, 551; 604. Bonnell v. Ranney, 2 Dem. 327; 617, 620. Bonner, Matter of, 33 Misc. 9; 375. Bonner, Matter of, 30 Misc. 31; 1163. Bonnett, In re, 9 N. Y. Supp. 459; 414. Bonnett, Matter of, 1 Connoly, 294; 61, 41 411. Booth V. Baptist Church, 126 N. Y. 215; 452 929 Booth' V. Kitchen, 7 Hun, 255; 104, 280. Booth, Matter of, 127 N. Y. 109; 315, 322, 330. Booth, Matter of, 24 N. Y. St. Rep. 647; 143. Booth V. Timoney, 3 Dem. 416; 33, 40, 41. Bork, Matter of, 55 Misc. 175; 1128. Borrowe v. Corbin, 31 App. Div. 172; 1076. Bostwick V. Atkins, 3 N. Y. 53; 996. Bostwick, Matter of, 160 N. Y. 489; 875. Bostwick, Matter of, 4 Johns. Ch. 102; 1063, 1066. Bostwick, Matter of, 119 App. Div. 455; 268, 943. Bostwick, Matter of, 49 Misc. 186; 8, 942. Botsford, Matter of, 37 App. Div. 73; 959. Bottome v. Alberts, 47 Misc. 665; 58. Bottome v. Nealy, 54 Misc. 258; 58. Bottome v. Neeley, 124 App. Div. 600; 139, 140. Boughton V. Flint, 74 N. Y. 476.; 8, 138, 151, 183, 190, 408, 805, 1063, 1098, 1111, 1129. Bovee v. King, 11 Hun, 250; 62. Bowditch V. Ayrault, 138 N. Y. 222; 1078. Bowen v. Idley, 11 Wend. 227; 6 Paige, 46; 44. Bowers v. Emerson, 14 Barb. 652; 513. Bowers v. Smith, 10 Paige, 193; 45, 47, 465. Bowne v. Lange, 4 Dem. 350; 818, 1129. Bowne, Matter of, 6 Dem. 51; 84, 85, 278. Bowron v. Kent, 190 N. Y. 422 (rev'g 12 App. Div. 74; 1161. , Bowron v. Kent, 51 Misc. 136; 1162. Boyd V. Bigelow, 14 How. Pr. 511; 813. Boylan, Matter of, 25 Misc. 281; 1185. Boyle V. St J John, 28 Hun, 454; 726, 732. Boynton v. Laddy, 20 N. Y. St. Rep. 148; 250. Bradhurst v. Field, 135 N. Y. 564; 451, 930. Bradley v. Bradley, 3 Redf. 512; 577. Bradley v. Burwell, ,3 Dem. 61; 731. Bradley, Matter of, 70 Hun, 104; 60, 283, 409, 411, 964. Bradley, Matter of, 25 Misc. 261; 1185. Bradley, Matter of Will, of 70 Hun, 104; 278 973 Bradner v. Faulkner, 12 N. Y. 472; 942. Bradner v. Faulkner, 34 N. Y. 347; 495, 770, 1107. Bradway, Matter of, 74 Hun, 630; 118, 199. Brady, Est. of, 17 N. Y. St. Rep. 836; 136. Brady, Matter of, 58 Misc. 108; 1029. Brady v. McCosker, 1 Comst. 217; 153. Brady v. McCosker, 1 N. Y. 214; 465. Brady v. M'Crosson, 5 Redf. 431; 340. Brainbridge v. McCuUough, 1 Hun, 488, 859, 1124. Brainerd v. Birdsall, 2 Dem. 331; 779, 782. Brainerd v. DeGraef, 29 Misc. 560; 813. Bramley v. Forman, 15 Hun, 144; 158, 729 Brand, Matter of, 68 App. Div. 225; 322. Brandreth v. Brandreth, 54 Misc. 158; 948. Brandreth, Matter of, 169 N. Y. 437; 875, 879. Brandreth, Matter of, 28 Misc. 468; 876, 892 Brautj Matter of, 30 Misc. 14; 39. Brantingham v. Huff, 43 App. Div. 414; 270, 310, 743. Brantingham v. Huff, 174 N. Y. 53; 735, 736, 742, 743. Bratt, Matter of, 10 Misc. 491; 949. Braunsdorf, Matter of, 13 Misc. 666; 533, 861, 1145, 1146. Breevort v. M'Jimsey, 1 Ed. Ch. 551; 1001. Brehm v. Mayor, 104 N. Y. 186; 967. Brennan v. Lane, 4 Dem. 322; 495. Breslin v. Smyth, 3 Dem. 251; 578, 727, 1059. Brewster, Matter of, 1 Connoly, 172; 935. Brewster, Matter of, 5 Dem. 259; 568, 636, 646, 648. Brez, Matter of, 172 N. Y. 15; 923. Brick V. Brick, 66 N. Y. 144; 105, 109, 201, 249, 359, 373, 375. Brick, Est. of, 9 Civ. Proc. Rep. 397; 1030. Brick's Est., 15 Abb. Pr. 12; 5, 6, 30, 47, 84, 109, 180, 182, 183. Brigg, Matter of, 39 App. Div. 485; 1070, 1146. Briggs V. Carrol, 117 N. Y. 288; 931. Briggs, Matter of, 47 App. Div. 47; 291. Brinckerhoff v. Farias, 52 App. Div. 256; 234. Brink v. Masterson, 4 Dem. 524; 951. Brinkerhoff v. Remsen, 8 Paige, 499; 341. Brinkerhoff v. Tieman, 61 Misc. 586; 421. Brintnall, Matter of, 40 Misc. 68; 470. Brisbane v. Peabody, 3 How. 109; 79. Brissell, Matter of, 16 App. Div. 137; 345. Bristed v. Weeks, 5 Redf. 529; 123, 371. Bristol, Matter of, 16 Abb. 397; 187. Brockett v. Brush, 18 Abb. Pr. 337; 818. Broderick, Matter of, Surr. Decs. 1899, 189; 163. Broderick's Will, 21 Wallace, 503; 34, 44. Bromley v. MiUer, 2 T. & C. 675; 405. Ivi TABLE OP CASES CITED [References are to pages.] Bronner, Matter of, 30 Misc. 31; 1087. Bronson, Matter of, 69 App. Div. 487; 790. Bronson, Matter of, 150 N. Y. 1; 39, 865, 883, 915. Brooktoan, Matter of, 11 Misc. 675; 254, 259 260. Brooks, Est. of, 4 Law Bull. 8; 504. Brooks, Matter of, 2 Connoly, 172; 951. Broome v. Van Vook, 1 Redf. 444; 1111. Brough, Matter of, 41 Misc. 263; 377. Brown, Accounting of, 72 Hun, 160; 1049. Brown's Accounting, 16 Abb. (N. S.) 457; 1103. Brown v. Bedford, 4 Dem. 304; 1106. Brown v. Brown, 64 App. Div. 544; 26. Brown v. Brown, 1 Barb. Ch. 189; 608, 609. Brown v. Brown, 117 App. Div. 199; 268. Brown v. Brown, 41 N. Y. 507; 1034. . Brown v. Campbell, 1 Hopk. Ch. 233; 1025. Brown v. Catholic Mutual, etc., 33 Hun, 263; 770. Brown v. Clark, 77 N. Y. 369; 247, 251, 255, 262, 263, 320, 335, 336, 344, 345, 347. Brown v. DeSelding, 4 Sandf. 10; 343. Brown's Est., 93 N. Y. 295; 449. Brown v. Knapp, 17 Hun, 160; 933. Brown v. Knapp, 79 N. Y. 136; 943. Brown v. Landon, 30 Hun, 57 (aff'd 98 N. Y. 634); 148, 490. Brown, Matter of, 31 Hun, 166; 121, 122. Brown, Matter of, 65 How. 461; 122, 231. Brown, Matter of, 112 App. Div. 370; 351. Brown, Matter of, 47 Hun, 360; 265, 310. Brown, Matter of, 2 Connoly, 386; 507. Brown, Matter of, 5 Dem. 223; 1106, 1143. Brown, Matter of, 3 Civ. Proe. Rep. 39; 1135. Brown, Matter of, 35 Misc. 362; 1133. Brown, Matter of, 60 Misc. 35; 1126, 1129. Brown, Matter of, 60 Misc. 628; 94, 498, 803, 804. Brown, Matter of, 154 N. Y. 313; 447. Brown, Matter of, 42 Misc. 444; 951. Brown, Matter of, 76 App. Div. 185; 1128. Brown v. Public Administrator, 2 Bradf. 103; 838. Brown v. Quintard, 177 N. Y. 75; 449, 930. Brown v. Wheeler, 53 App. Div. 6; 147, 1133, 1135. Brown v. Windmuller, 4 J. & S. 75; 139. Browne v. Bedford, 4 Dem. 304; 1065. Brownell, Matter of, 6 Misc. 52; 1034. Bruce v. Bruce, 62 Hun, 416; 1144. Bi-uce V. Griscom, 9 Hun, 280; 1161. Bruce, Matter of, 59 N. Y. Supp. 1083; 907. Bruchaeser, Matter of, 49 Misc. 194; 443. Bruen v. GiUet, 115 N. Y. 10; 726. Brunaman, Matter of, 67 N. Y. St. Rep. 44; 1067. Brundage v. Bnmdage, 60 N. Y. 544; 449, 927, 1033. Brundage, Matter of, 31 App. Div. 348; 871, 897. Brunor, Matter of, 21 App. Div. 259; 200. Brush, Matter of, 35 Misc. 689; 364. Brush V. WilkinS) 4 Johns. Ch. 506; 252. Bryant v. Thompson, 59 Hun, 545; 93, 949. Bryant v. Thompson, 128 N. Y. 426; 186, .187. Bryar v. Willcocks, 3 Cow. 159; 780. Buchan v. Rintoul, 70 N. Y. 1; 1083. Buchanan v. Belsey, 65 App. Div. 58; 428. Buck's Est., 15 Abb. 12; 890. Bucklaud v. Gallup, 105 N. Y. 453; 845. Buckler, Matter of, 96 App. Div. 397; 1044. Buckley, Matter of, 2 N. Y. Supp. 24; 348, 358. Buckley, Matter of, 41 Hun, 106; 35, 36. Buckley v. Staats, 4 Redf. 524; 847. Buckley's Will, Matter of, 2 N. Y. Supp. 24; 352. Bueklin v. Chapin, Administratrix, 1 Lans. 433; 807. Budd V. Walker, 113 N. Y. 637; 1185. Budlong V. Clemens, 3 Dem. 145; 853. Budlong, Matter of, 100 N. Y. 203; 234. Budlong, Matter of, 126 N. Y. 423; 191, 355, 373, 386. Buel, Matter of, 44 App. Div. 4; 331, 333, 344. Buffalo Trust Co. v. Leonard, 154 N. Y. 141; 952, 953. Bulkey v. Van Wyck, 5 Paige, 536; 1011. Bulkley v. Redmond, 2 Bradf. 281; 44, 294 543. Bull V. Kendrick, 4 Dem. 330; 123, 124. Bull, Matter of, 1 Connoly, 395; 228, 233, 241. Bull, Matter of, 6 N. Y. Supp. 565; 235. Bull V. Wheeler, 6 Dem. 213; 366. BuUard v. Benson, 1 Dem. 486; 943. BuUard, Matter of, 37 Misc. 663 (aff'd 76 App. Div. 207); 875. Bullock V. Bogardus, 1 Denio, 276; 797, 800. Bullowa V. Provident Life, etc., 125 App. Div. 545; 111. Bumpus V. Bumpus, 79 Hun, 626; 453. Bumstead v. Read, 31 Barb. 661; 36, 37, 49. Bumstead v. Sanders, 39 N. Y. St. Rep. 618; 1068. Bunce v. Bunce, 20 Civ. Proc. Rep. 332; 153. Bunce, Matter of, 6 Dem. 278; 266, 309. Bunnell v. Ranney, 2 Dem. 327; 616, 1121. Bunting, Matter of, 98 App. Div. 122; 10. Burbank, Matter of, 104 App. Div. 312; 256, 292. Burden, Matter of, 47 Misc. 329; 894, 898, 899. Burdick, Matter of, 98 App. Div. 560; 436. Burdick, Matter of, 47 Misc. 28; 1038. TABLE OF CASES CITED Ivii [References are to pages.] Burdsall, Matter of, 64 App. Div. 346; 956. Burger V. Burger, 111 N. Y. 523; 118, 119, 194, 195, 196, 199, 217. Burger v. HiU, 1 Bradf. 360; 30, 34, 153. Burgis V. Burgis, 1 Lee's Ecc. Rep. 121; 7. Burke v. Nolan, 1 Dem. 436; 337, 341, 343. Burkhalter v. Norton, 3 Dem. 610; 779, 780. Burling, Matter of, 5 Dem. 47; 1088, 1120. Burmester v. Orth, 5 Redf. 259; 1043. Burnett v. Gould, 27 Hun, 366; 818. Burnett, Matter of, 15 N. Y. St. Rep. 116 190. Burnham v. Comfort, 108 N. Y. 535 948. Burnham, Est. of, Surr. Deo. 1896, 437 1049. Burnham v. Harrison, 3 Redf. 345; 963 Bums, Est. of, 26 Abb. N. C. 380; 1013 Burr, Matter of, 16 Misc. 89; 865, 866 895. Burr, Matter of, 48 Misc. 56; 789, 831 950, 1007. Burr, Matter of, 116 App. Div. 518; 197, Burr, Matter of, 118 App, Div. 482; 666 680. Burras v. Looker, 2 Edwards' Ch. 499 631. Burt V. Burt, 41 N. Y. 46; 495. Burtis V. Dodge, 1 Barb. Ch. 77; 236, 239, 240, 946. Burtis, Matter of, 107 App. Div. 51; 217, 293. Burtis, Matter of, 43 Misc. 437; 324. Burton v. Burton, 45 Hun, 68; 71, 723. Burwell v. Shaw, 2 Bradf. 322; 99, 481, 782, 1123. Bush V. Whitaker, 45 Misc. 74; 269. Bushbey, Matter of, 59 Misc. 317; 1175. Bushe V. Wright, 118 App. Div. 320; 619, 620, 1076. Bushnell v. Drinker, 5 Redf. 581; 147. Bushnell, Matter of, 17 N. Y. St. Rep. 813; 1060, 1065, 1068. Busse v. Schenck, 12 Daly, 12; 1008. Butler V. Benson, 1 Barb. 526; 325, 326, 346. Butler V. Emmet, 8 Paige, 12; 8, 180, 995. Butler, Est. of, 39 N. Y. St. Rep. 851; 1111. Butler's Est., In re, 9 N. Y. Supp. 641; 615, 616, 1146. Butler V. Jarvis, 51 Hun, 248; 526. Butler v. Johnson, 111 N. Y. 204; 803, 831, 832, 964, 1184. Butler, Matter of, 58 Hun, 400; 744, 745, 869. Butler, Matter of, 1 Connoly, 58; 1152. Butler, Matter of the Est. of, 38 N. Y. 397' 609 777. Butler V. Perrott, 1 Dem. 9; 551, 625, 645. Butman, Matter of, 130 App. Div. 156; 693. Button V. Button, 57 App. Div. 297; 449. Byrne v. Byrne, 109 App. Div. 476; 355, 427. Byrne v. Van Holsen, 5 Johns. 66; 1036. Byrnes v. Baer, 86 N. Y. 218; 448. Byrnes, Matter of, 2 Connoly, 522; 1010. Byrnes v. Stilwell, 103 N. Y. 453; 449. Cadmus v. Oakley, 2 Dem. 298; 123. Cadmus v. Oakley, 3 Dem. 321; 288. Cady, Matter of, 36 Hun, 122 (aff'd 103 N. Y. 678); 484, 485, 486, 672. Cady, Matter of, 103 N. Y. 678; 1023. Cager, In re. 111 N. Y. 343; 443, 864, 871. Cahil V. Russell, 140 N. Y. 402; 437, 445, 860. Cairns v. Chaubert, 9 Paige, 160; 243, 1143. Caldwell, Matter of, 188 N. Y. 116; 113, 244. Calhoun v. Jones, 2 Redf. 34; 385, 387. Calkins v. Calkins, 1 Redf. 337; 950. Callaghan, Matter of, 69 Hun, 161; 10, 1004. Callahan, Matter of, 152 N. Y. 320; 803, 8S1, 854, 937, 1111, 1127. Callahan; Matter of, 1 Tucker, 62; 162. Callahan, Matter of, 139 N. Y. 51; 221. Calyer v. Calyer, 4 Redf. 304; 493. Cameron, Matter of, 97 App. Div. 434 (aff'd 181 N. Y. 560); 904, 917. Cameron, Matter of, 61 Misc. 546; 288. Cameron, Matter of, 47 App. Div. 123 (aff'd 166 N. Y. 610); 125, 246, 247, 457, 538, 562, 669. Camman v. Whittlesey, 70 App. Div. 598; 946. Camp V. Camp, 18 Hun, 217; 1162. Camp V. Frazer, 4 Dem. 212; 777. Camp, Matter of, 126 N. Y. 377; 7, 1095, 1096. Camp, Matter of, 81 Hun, 387; 108, 110. Camp, Matter of, 91 Hun, 204; 1096. Camp, Matter of, 50 Hun, 388; 1188. Campbell v. Beaumont, 91 N. Y. 464; 449. Campbell v. Campbell, 16 N. Y. Supp. 165; 770. Campbell v. Cowdrey, 31 How. Pr. 172; 942. Campbell v. Foster, 35 N. Y. 363; 720. Campbell v. French, 3 Ves. 321; 389. Campbell v. Gallagher, 18 Civ. Proc. 90; 187. Campbell v. Logan, 2 Bradf. 90; 7, 109, 278, 325. Campbell, Matter of, 48 Hun, 417; 230. Campbell, Matter of, 170 N. Y. 84 (aff'd 67 App. Div. 627) ; 255, 335. Campbell, Matter of, 88 Hun, 374; 441. Campbell, Matter of, 35 Misc. 572; 335. Campbell, Matter of, 66 App. Div. 478; 979. Campbell, Matter of, 1 Tucker, 240; 992, 995. Campbell, Matter of, 77 N. Y. 84; 247. Campbell, Matter of, 50 Misc. 485; 179, 916. Iviii TABLE OF CASES CITED [References are to pages.] CampbeU, Matter of, 192 N. Y. 312; 558, 564, 567. Campbell, Matter of, 56 Misc. 229; 665 (rev'd 123 App. Div. 212), 676. CampbeU, Matter of, 48 Misc. 278; 774. Campbell, Matter of, 96 App. Div. 561; 1114. Campbell v. Rawdon, 18 N. Y. 412; 453. Campbell v. Thatcher, 54 Barb. 382; 5, 109 179 Canady v. George, 6 Rich. Eq. S. C. 103; 542. Canfield v. Crandall, 4 Dem. Ill; 408. Cant, Matter of, 6 Dem. 269; 668. Carey, Matter of, 24 App. Div. 531; 344, 345. Carey, Matter of, 14 Misc. 486; 314, 327, 338, 350. Carey, Matter of, 11 App. Div. 289; 752, 753, 754. Carhart, Matter of, 2 Dem. 627; 68. Carle v. Underbill, 3 Bradf. 101; 250, 314. CarU, Matter of, 38 Misc. Rep. 474, 475; 247. Carman v. Brown, 4 Dem. 96; 964. Carman, In re, 3 Redf. 46; 1032. Carolan v. O'Donnell, 105 App. Div. 577; 428. Carpenter v. Bonner, 26 App. Div. 462; 500, 512. Carpenter v. Carpenter, 2 Dem. 534; 449. Carpenter v. Historical Society, 1 Dem. 606; 311. Carr, Matter of, 19 N. Y. Supp. 647; 183. Carr v. Tompkins, Matter of, 46 N. Y. St. Rep. 585; 180. Carroll v. Carroll, 60 N. Y. 121; 156. Carroll v. Collins, 6 App. Div. 106; 734, 735, 736, 742. Carroll v. Hughes, 5 Redf. 337; 237, 240, 583, 1111. Carroll v. Norton, 3 Bradf. 291; 338, 349. Carter v. Beckwith, 128 N. Y. 312; 361. Carver, Matter of, 3 Misc. 567; 261, 351. Carver's WiU, In re, 23 N. Y. Supp. 753; 349, 380. Cartwright, Matter of, 3 Dem. 13; 75. Cary, Matter of, 31 Misc. 72; 875. Case, Matter of, 4 Dem. 124; 338. Case, Matter of, 1 N. Y. St. Rep. 152; 317. Case v. Spencer, 86 App. Div. 454; 10, 493. Casey's Est., In re, 6 N. Y. Supp. 608; 1111, 1127. Casey v. Gardner, 4 Bradf. 13; 479, 555, 595. Casoni v. Jerome, 58 N. Y. 315; 497, 576, 725 1092, Cass V. Cass, 41 N. Y. St. Rep. 36; 1080. Cassidy v. McFarland, 138 N. Y. 209; 228. Castles's Will, Matter of, 2 N. Y. Supp. 638; 226. Caton V. Caton, 2 H. L. 127; 2 Kent's Com. 511; 1 Jarman on Wills, 79; 322. Caujolle's Appeal, 9 Abb. 393; 197. Caujolle V. Ferrie, 23 N. Y. 90; 197, 266. Cauldwell, Matter of, 188 N. Y. 115; 827. Caulfield v. Sullivan, 85 N. Y. 153; 255, 319, 320, 336, 457, 583, 949. Cavanaugh v. O'Neil, 20 Misc. 233; 58. Cavin, Matter of, 1 Connoly, 117; 590. Caw V. Robertson, 5 N. Y. 125; 122. Chadeagne, Matter of, 10 Hun, 97; 1122. Chaffee v. Baptist Miss. Conv., 10 Paige, 85; 92, 235, 317, 324, 326, 328, 329, 344 Chamberlain v. Glea^on, 163 N. Y. 214 1034. Chamberlain, Matter of, 140 N. Y. 390 770, 771. Chamberlain v. Taylor, 105 N. Y. 185 449, 961. Chambers v. Chambers, 61 App. Div. 299 355, 373, 374, 375. Chamisers v. Cruikshank, 5 Dem. 414; 495, Champion v. Brown, 6 Johns. Ch. 398 1106. Champlin v. Champlin, 58 N. Y. 620; 447 Champney v. Blanchard, 39 N. Y. Ill 874. Chapman v. Fonda, 24 Hun, 130; 967, 968. Chapman, Matter of, 162 N. Y. 456; 222, Chapman v. Rodgers, 12 Hun, 342; 287 297. Charlick's Est., 11 Abb. N. C. 56; 936. Chase, Matter of, 41 Hun, 203; 121, 296. Chase, Matter of, 32 Hun, 318; 516, 661. Chase, Matter of, 40 Misc. 616; 1029. Chatfield v. Hewlett, 2 Dem. 191; 112, 113, 241. Chauncey, Matter of, 119 N. Y. 77; 951, 959. Chauncey, Matter of, 32 Hun, 430; 116. Chauvet v. Ives, 173 N. Y. 192 (aff'd 62 App. Div. 339); 546. Cheeney V. Arnold, 18 Barb. 434; 339. Chegary v. Jenkins, 5 N. Y. 376; 162. Chemical Nat. Bk. v. Colwell, 132 N. Y. 250; 1170. Chemimg Canal Bank v. Judson, 8 N. Y. 254; 9, 442. Cheney v. Price, 90 Hun, 238; 354. Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425; 147. Chesterman, Matter of, 75 App. Div. 573; 701. Children's Aid Society v. Loveridge, 70 N. Y. 387; 104, 121, 280, 288, 356, 368, 376. Chipman, Matter of, 82 Hun, 108, 827. Chipman v. Montgomery, 63 N. Y. 221 46, 465, 1076. Chisolm V. Hamersley, 114 App. Div. 565: 1139. Choate, Matter of, 105 App. Div. 356 209, 531, 532. Choate, Matter of, 110 App. Div. 874; 305. Choteau v. Suydam, 21 N. Y. 179; 789, 845, 846. Church V. Olendorf, 19 N. Y. St. Rep. 700 579. ^ Church V. Olendorf, 49 Him, 439; 967, 968, 1185. Churchill v. Carter, 15 Hun, 385; 289. TABLE OF CASES CITED lix [References are to pages.] Churchill v. Prescott, 2 Bradf. 304; 509, 557. Chwatal v. Schreiner, 148 N. Y. 683; 448. Cinn., H. & D. R. R. v. Ives, 20 N. Y. St. Rep. 67; 745. Ciotto, Matter of, 106 App. Div. 143; 629, 676. Citizens' Nat. Bank v. Toplitz, 113 App. Div. 73; 1077. City of Johnstown v. Wade, 157 N. Y. 50; 221. City of N. Y. V. U. S. Trust Co., 78 App. Div. 366; 546. City of Rochester, Matter of, 110 N. Y. 159' 844 961. Clapp'v. Fullerton, 34 N. Y. 190; 357, 358, 365, 367, 390. Clapp, Matter of, 30 Misc. 395; 1125. Clapp V. Meerole, 1 Abb. Ct. App. Dec. 362; 513. Clark, Admr., v. Van Ambergh, 14 Hun, 557; 780. Clark V. Butler, 4 Dem. 378; 946. Clark V. Clark, 8 Paige, 152; 804, 1008, 1066. Clark V. Clark, 84 Hun, 362; 959. Clark V. Davis, 1 Redf. 249; 351. Clark, Est. of, 12 Civ. Pro. Rep. 383; 859. Clark V. Fisher, 1 Paige, 176; 34, 349. Clark V. Hyland, 88 App. Div. 392; 1126. Clark V. Jacobs, 56 How. Pr. 519; 447. Clark, Matter of, 15 N. Y. Sup. 370; 39. Clark, Matter of, 168 N. Y. 427 (rev'g 61 App. Div. 337); 135, 136, 137. Clark, Matter of, 40 Hun, 233; 142, 219, 355. Clark,' Matter of, 34 N. Y. St. Rep. 523; 194 199 770. Clark,' Matter of, 82 Hun, 344; 199. Clark, Matter of, 36 Hun, 301; 233. Clark, Matter of, 40 N. Y. St. Rep. 12; 36 544. Clark, Matter of, 1 Tucker, 445; 259. Clark, Matter of, 57 App. Div. 5; 361. Clark, Matter of, 5 Dem. 377; 836. Clark, Matter of, 2 Abb. N. C. 208; 847, 1082. Clark, Matter of, 9 N. Y. Supp. 444; 865. Clafk, Matter of, 5 Redf. 466; 180, 501, 1008. Clark, Matter of, 119 N. Y. 427; 134, 514, 614, 615, 616, 618, 1100. Clark v. Montgomery, 23 Barb. 464; 1065. Clark V. Owens, 18 N. Y. 434; 540. Clark V. Poor, 73 Hun, 143; 458. Clark V. Soovill, 191 N. Y. 8 (aff'd 116 App. Div. 923); 804, 1128, 1129. Clark V. Scovill, 111 App. Div. 35; 1128. Clark V. Smith, 34 Barb. 140; 260. Clark V. Sullivan, 8 N. Y. Supp. 565; 124. Clarke v. Bogardus, 12 Wend. 69; 955. Clarke v. Clarke, 145 N. Y. 476; 882. Clarke, Matter of, 5 Redf. 225; 986, 987. Clarke v. Schell, 84 Hun, 28; 383. Clausman, In re, 9 N. Y. St. Rep. 182; 373. Clauss, Matter of, 16 App. Div. 34; 856. Clayton v. Wardell, 2 Bradf. 1, 7; 805, 831. Clayton v. Wardell, 4 N. Y. 230; 542. Clemans, Matter of, 2 Connolly, 237; 771. Clements, In re, 17 W. Dig. 431; 1066. Cleveland, Matter of, 28 Misc. 369; 372, 375. Cleveland v. Whiton, 31 Barb. 544; 1011. CHfford V. Morrell, 22 App. Div. 470; 500, 501, 512. CUft V. Moses, 116 N. Y. 144; 961. Chnch, Matter of, 180 N. Y. 300; 866. CUne V. Sherman, 78 Hun, 298; 177. Clinton, Matter of, 16 Misc. 199; 1141, 1142, 1148, 1152. Clock V. Chadeagne, 10 Hun, 97; 8. Close V. Van Husen, 19 Barb. 509; 957. Closs V. Eldert, 30 App. Div. 338; 1099. Clowes V. Van Antwerp, 4 Barb. 416; 1063. Clowes V. Van Antwerp, 6 N. Y. 466; 1064. Cluff V. Day, 14 N. Y. St. Rep. 729; 697. Cluff V. Day, 124 N. Y. 195; 728, 1010. Cluff V. Tower, 3 Dem. 253; 111. Clute, Matter of, 37 Misc. 710; 99, 328, 479. Coann v. Culver, 188 N. Y. 9; 501. Coates V. Cheever, 1 Cow. 463; 113. Cobb V. Beardsley, 37 Barb. 192; 577. Cobb V. Hanford, 88 Hun, 21; 47, 577. Cochrane's Exr. v. IngersoU, 73 N. Y. 613; 164. Cockrane v. Libby, 18 Maine, 39; 542. Cockrane v. Schell, 140 N. Y. 516; 1016, 1171. Cocks V. Barlow, 5 Redf. 406; 62. Codding v. Newman, 63 N. Y. 639; 479, 555. Coe V. Kniffen, 2 Johns. 31; 256. Coe, Matter of, 55 App. Div. 270; 187. Coe, Matter of, 47 App. Div. 177; 217, 361. Coffin V. Coffin, 34 N. Y. 9; 314. Coffin V. Coffin, 23 N. Y. 1; 331, 332, 340. Cogan V. McCabe, 23 Misc. 739; 1101. Coggshall V. Greene, 9 Hun, 471; 473, 555, 556, 665, 672. Coggswell, Matter of, 4 Dem. 248; 864. Cogswell's Est., 4 Redf. 241; 523. Cohen's Est., 58 How. Pr. 496; 182. Cohen, Matter of. Law Bull., March 26, 1891; 519. Cohen, Will of, 1 Tucker, 286; 317. Cohn, Matter of, 78 N. Y. 248; 1023. Coit V. Patchen, 77 N. Y. 533; 354, 368. Cole V. Andrews, 176 N. Y. 374; 1160. Cole V. Gourley, 79 N. Y. 527; 402. Cole V. Mordaunt, 4 Vesey, 196; 297. Colebrook, Matter of, 26 Misc. 139; 39. Colegrove v. Horton, 11 Paige, 261; 699. Coleman v. Coleman, 5 Redf. 424; 834. Coleman, Matter of. 111 N. Y. 220; 287. Colgan V. Dunne, 50 Hun, 443; 952. ColUer V. Idley's Executors, 1 Bradf. 94; 153, 416. Collier v. Munn, 41 N. Y. 143; 1146, 1156. Colligan v. M'Kernan, 2 Dem. 421; 297. Collins V. Beebe, 54 Hun. 318; 848. Collins, Ex parte, 5 Redf. 20; 331. Ix TABLE OF CASES CITED [References are to pages.] Collins V. Hoxie, 9 Paige, 81 ; 239. Collins, Matter of, 144 N. Y. 522; 1106. Collins, Matter of, 104 App. Div. 184; 885. Collins, Matter of, 39 Misc. 752; 175. CoUins V. Stewart, 2 App. Div. 1st. Dept. 271; 607, 608. CoUyer Case, 1 Connoly, 546; 242, 1157. CoUyer v. Collyer, 4 Dem. 53; 44, 226, 295. 297, 460, 461, 1135. Collyer v. Collyer, 110 N. Y. 481; 226, 259, 294 295 Collyer, Matter of, 4 Dem. 24; 771. Collyer, Matter of, 113 App. Div. 468; 618. Colon's Est., 1 Tuck. 244; 1091, 1122. Colson V. Brainard, 1 Redf. 324; 980. Colton V. Ross, 2 Paige, 398; 34, 153. Colwell, Matter, of, 15 N. Y. St. Rep. 742; 955 1133 Coman, Est', of, 5 N. Y. St. Rep. 442; 755. Comey v. Clark, 23 N. Y. St. Rep. 402; 1002. Comins, Matter of, 9 App. Div. 492; 744, 749, 787. Conant v. Wright, 22 App. Div. 216; 1097. Conanty, Matter of, 26 Misc. 104; 351. Conger v. Conger, 105 App. Diy. 589; 1141. Congregation S. L. A. Sakoler v. Sind- rack, 15 App. Div. 82; 826. Cong. Unit. Society, Matter of, 34 App. Div. 387; 848, 1082. Conklia v. Egerton, 21 Wend. 430; 500, 601. Conklin, Matter of, 39 Misc. 771 ; 868. Conklin v. Weatherwax, 173 N. Y. 43; 931 Conkling, Matter of, 15 St. Rep. 748; 604. Connelly, Matter of, 38 Misc. 466; 904, 909. ConnoUy, Matter of, N. Y. Law J., July 26, 1902; 924. Connor, Matter of, 29 Misc. 391; 369, 371. Connor, Matter of, 7 N. Y. Supp. 855; 358. Consalus, Matter of, 95 N. Y. 340; 779, 1123. Constantine, Est. of, 22 N. Y. St. Rep. 883; 1071. Constantine, Matter of, 5 N. Y. Supp. 554; 475. Continental Nat. Bank v. Thurber, 74 Hun, 632; 71, 723. Conway, Matter of, 5 Dem. 290; 850. Conway, Matter of, 124 N. Y. 455; 247, 255, 316, 319, 320, 322. Coogan, Matter of, 27 Misc. 563 (45 App. Div. 628; 162 N. Y. 613); 904, 909, 917. Coogan V. Ockerhausen, 18 N. Y. St. Rep. 366; 963. Cook V. Lowry, 95 N. Y. 103; 1140, 1170. Cook, Matter of, 194 N. Y. 400; 907. Cook, Matter of, 114 App. Div. 718 (rev'd 187N. Y. 253); 863. Cook, Matter of, 187 N. Y. 253; 743, 744, 869, 871. Cook, Matter of, 125 App. Div. 114 (aff'd 194 N. Y. 400); 220. Cook V. Munn, 12 Abb. N. C. 344; 958. Cook V. White, 43 App. Div. 388 (aff'd 167 N. Y. 588); 247, 281, 319, 335, 359, 360, 427. Cooke V. Meeker, 36 N. Y. 15; 942, 944. Cooke V. Piatt, 98 N. Y. 35; 501, 513. Cooksey, Matter of, 182 N. Y. 92; 880. Cooley V. Lobdell, 153 N. Y. 596; 286. Cooley, Matter of, 186 N. Y. 220; 892. Cooley V. McEhneel, 149 N. Y. 228; 439, 440. Coon V. Coon, 38 Misc. 693; 448. Coon V. Knapp, 8 N. Y. 402; 1095. Cooney, Matter of, 112 App. Div. 657; 440. Coonley, Matter of, 38 Misc. 219; 233. Coop V. Lowerre, 1 Barb. Ch. 45; 473, 485, 555, 556, 557, 672. Coope, Matter of, 53 Misc. 509; 405. Cooper V. Benedict, 3 Dem. 136; 304, 330, 349, 417. Cooper V. Bockett, 4 Moore's P. C. C. 419; 261. Cooper V. Felter, 6 Lansing, 485; 839. Cooper, Matter of, 51 Misc. 381; 1185. Cooper, Matter of, 2 Paige, 34; 1056. Cooper, Matter of, 6 Misc. 501; 1106, 1131, 1132. Cooper, Matter of, 51 Misc. 381; 936. Copland v. Van Alst, 9 Week. Dig. 407; 201. Corbett, Matter of, 90 Hun, 182; 852, 854, 984. Corbett, Matter of, 171 N. Y. 516; 864. Corbin v. Casina Land Co., 26 App. Div. 410; 734. Corbin, Matter of, 101 App. Div. 25; 226. Corbin v. Westcott, 2 Dem. 559; 177. Corey v. The People, 45 Barb. 262; 775. Corley v. McEmeel, 31 Abb. N. C. 113; 154, 156. Corley v. McElmeel, 87 Hun, 13; 394. Com V. Com, 4 Dem. 394; 674, 675, 1055. Comell, Matter of, 17 Misc. 468; 471, 476. Comell, Matter ofj 43 App. Div. 241; 373, 384. Cornell, Matter of, 75 N. Y. St. Rep. 664; 479. Cornell, Matter of, 66 App. Div. 162; 875, 902. Comell, Matter of, 170 N. Y. 423; 875. Comell, Matter of, 89 App. Div. 412; 348. Comes V. Wilkin, 79 N. Y. 129; 1187. Comes V. Wilkins, 14 Hun, 428; 731. Cornish v. Cornish, 1 Lee's Ecc. Rep. 14; 7. Comwall's Est., 1 Tucker, 250; 963, 965. Cornwell v. Comwell, 1 Dem. 1 ; 517. Comwell V. Deck, 2 Redf. 87; 1113. Comwell V. Riker, 2 Dem. 354; 349, 356, 358. Comwell V. Wooley, 43 How. 475; 122. Corse V. Chapman, 153 N. Y. 466; 125, 440. Corwin, Matter of, 10 Misc. 196; 965. Corwin v. Merrit, 3 Barb. 341; 148. Cosgrove, Matter of, 31 Misc. 422; 294. Costello, Matter of, 117 App. Div. 807; 868, 881, 885, 906. Cotheal v. Cotheal, 40 N. Y. 405; 264, 266. TABLE OF CASES CITED Ixi [References are to pages.] Cotter V. Quinlan, 2 Dem. 29; 802. Cotterel v. Brook, 1 Bradf. 148; 99, 664, 699 782 1123 Cottle V. Vanderkeyden, 11 Abb. N. S. 17; 509. Cottle V. Van Hayden, 56 Barb. 622; 553. Cottrell, Matter of, 95 N. Y. 329; 304, 314, 331, 344, 345, 349. Coutant, Matter of, 24 Misc. 350; 1004. Covenhoven v. Shuler, 2 Paige Ch. 123; 448, 450. Cowdrey, Matter of, 5 Dem. 453; 853, 858. Cowley V. People, 65 N. Y. 464; 371. Cox V. Pearce, 112 N. Y. 637; 817. Cox V. Schermerhom, 18 Hun, 16; 1143. Cozine v. Horn, 1 Bradf. 143; 1042, 1043. Cozine, Matter of, 113 App. Div. 23; 1131. Cozine, Matter of, 104 App. Div. 182; 1126. Craig V. Craig, 3 Barb. Ch. 76; 944, 1011, 1020. Cram v. Cram, 2 Redf. 244; 1032. Cramer v. Cramer, 35 Misc. 17; 927. Cramer, Matter of, 170 N. Y. 275; 448. Cramer, Matter of, 43 Misc. 494; 1161. Crandall v. Shaw, 2 Redf. 100; 516, 521. Crane, Matter of,. 68 App. Div. 355; 200, 236, 347. Crary, Matter of, 31 Misc. 72; 892. Crawford, v. Crawford, 5 Dem. 37; 619, 620. Crawford, Matter of, 113 N. Y. 560; 948, 1151. Crawford v. McCarthy, 159 N. Y. 514; 927 928 Crawford v. Nassoy, 173 N. Y. 163; 772. Crawford v. Nassoy, 56 App. Div. 433; 772. Creamer v. Waller, 2 Dem. 351; 99, 249, 782, 1123. Creeley v. Ostrander, 3 Bradf. 107; 390. Crerar, Matter of, 31 Misc. 481 ; 884. Crerar, Matter of, 56 App. Div. 479, 903, 904, 907, 908. Crickard, Matter of, 52 Misc. 63; 1055. Crispell v. DuBois, 4 Barb. 393; 377, 383, 385. Crittenden, Will of Lucius, 1 Tucker, 135; 310. Croft v. WilUams, 88 N. Y. 384; 726. Crolius v. Stark, 64 Barb. 112; 349, 354. Cromer v. Pickney, 3 Barb. Ch. 466; 932 Cromwell v. Kirk, 1 Dem. 599; 10. Cromwell v. Phipps, 6 Dem. 60; 539, 996. Crooke v. County of Kings, 97 N. Y. 421; 448. Croop, Matter of, 6 N. Y. Supp. 664; 352. Crosbie v. McDonald, 4 Vesey, 616; 255. Crosier v. Cornell Steamboat Co., 27 Hun, 215 (aff'd 92 N. Y. 626); 490. Crossman v. Crossman, 2 Dem. 69; 78. Crossman v. Crossman, 95 N. Y. 145; 248, 261, 262, 408. Crossman, Matter of, 2 Dem. 69; 408. Crouse v. Wilson, 73 Hun, 353; 9, 95. Crouter v. Crouter, 133 N. Y. 56; 78. Crowe V. Brady, 5 Redf. 1; 771. Crowley, Est., N. Y. Law J., January 16, 1901; 1119. Crowley, Matter of, 33 Misc. 624; 1087, 1088. Crozier v. Bray, 120 N. Y. 366; 448. Crozier v. Cornell Steamboat Co., 27 Him, 215; 568. Cruger v. Halliday, 11 Paige, 314; 1019. Cruger, Matter of, 36 Misc. 477; 33, 38, 312, 375. Cruger, Matter of, 34 N. Y. Supp. 191; 1112. Cruger, Matter of, 54 App. Div. 405 (aff'd 166 N. Y. 602); 875. Cruger v. Ring, 11 Barb. 364; 991. Cruikshank v. Cruikshank, 9 How. Pr. 350; 801, 816. Cruikshank v. Home, etc., 113 N. Y. 337; 958. Cruikshank, Matter of, 40 MisQ. 325; 1185. Crumb, Will of, 6 Dem. 478; 278, 387. Cudney v. Cudney, 68 N. Y. 148; 373, 382, 388. CuUen V. Miller, 9 N. Y. Leg. Obs. 62; 113. Cumberland v. Codrington, 3 Johns. Ch. 229; 843. Cummings v. Banks, 2 Barb. 602; 585, 838. Cunard, Matter of, 6 N. Y. Supp. 2 Con- noly, 16 (aff'd 27 N. Y. St. Rep. 128); 752, 754, 755, 758. Cunningham v. Hewitt, 84 App. Div. 114; 256. Cunningham v. Souia, 1 Redf. 462; 408, 663. Currin v. Panning, 13 Hun, 458; 440. Curry's Est., 19 N. Y. Supp. 728; 227. Curry v. Keil, 19 App. Div. 375; 1067. Curry, Matter of, 25 Hun, 321; 752, 755. Curry v. Pringle, 11 Johns. 444; 4. Curser, Matter of, 89 N. Y. 401; 554, 566. Curtice, Matter of, 111 App. Div. 230; 892. Curtis, Matter of, 15 Misc. 545 (aff'd 9 App. Div. 285); 499, 1143, 1144. Curtis, Matter of, 31 Misc. 83; 867, 894. Curtis, Matter of, 29 N. Y. St. Rep. 469; 1033. Curtis V. Wilhams, 3 Dem. 63; 150, 702, 703. • . Curtiss, Matter of, 142 N. Y. 219; 880, 923. Curtiss, Matter of, 9 App. Div. 285; 478, 1140, 1142, 1152. Cushing, Matter of, 40 Misc. 505, 865. Cushman v. Horton, 59 N. Y. 149; 436, 450. Cuthbert v. Jacobson, 2 Dem. 134; 853, 1088, 1119. Cutler V. Mayor, 92 N. Y. 166; 943. Cutting, Matter of, 5 Dem. 456; 555, 557, 672. Czech V. Bean, 35 Misc. 729; 519, 640. Dack V. Dack, 84 N. Y. 663; 331. Daggett, Matter of, 1 Misc. 248; 780. Daggett V. Mead, 11 Abb. N. C. 116; 813. Dake, Matter of, 76 App. Div. 403; 261, 317. Ixii TABLE OF CASES CITED [References are to pages.] Dakin v. Demming, 6 Paige, 95; 9, 49, 109, 616. Dakin v. Hudson, 6 Cow. 221; 5, 149. Dale, Matter of, 56 Hvin, 169 (aff'd 134 N. Y. 614); 330, 333, 348. Dale V. Roosevelt, 8 Cowen, 333; 578. Dalrymple v. Arnold, 21 Hun, 110; 826. Daly, Matter of, 34 Misc. 148; 179, 902. Daly, Matter of, 100 App. Div. 373; 894. Damarell v. Walker, 2 Redf. 198; 1072. Dan V. Brown, 4 Cow. 483; 256, 260, 297, 458. Daniels, Matter of, 71 Hun, 195; 1042. Darde v. Conklin, 73 App. Div. 590; 813 Darling v. Arthur, 22 Hun, 84; 331. Darling v. Pierce, 15 Hun, 542; 23, 26. Darrow v. Calkings, 154 N. Y. 503; 85. Dates, Matter of, 35 N. Y. St. Rep. 338; 154. Dates, Matter of, 12 N. Y. Supp. 205; 291. Davenport, Matter of, 37 Misc. 169; 8, 539, 542. Davenport, Matter of, 67 App. Div. 191; 1181. Davenport, Matter of, 43 Misc. 573; 77, 561, 1168. David, Matter of, 44 Misc. 337; 164. Davids, Matter of, 5 Dem. 14; 963, 973. Davidson, Matter of, 5 Dem. 224, 165. Davis V. CrandaU, 101 N. Y. 311; 78, 85, 890, 927, 929. Davis V. Davis, 27 Misc. 455; 309. Davis, Matter of, 91 Hun, 209; 354. Davis, Matter of, 91 Hun, 53; (aflf'd 149 N. Y. 539); 899, 901, 906. Davis, Matter of, 43 App. Div. 331; 1106, nil. Davis, Matter of, 37 Misc. 326; 1133. Davis, Matter of, 149 N. Y. 539; 885, 905, 906. Davis, Matter of, 184 N. Y. 299; 869, 870. Davis, Matter of, 105 App. Div. 222 (aff'd 182 N. Y. 468); 226, 280. Davis, Matter of, 182 N. Y. 468 (aff'd 105 App. Div. 221); 305, 392, 440. Davis, Matter of, 59 Misc. 310; 437, 439. Davis, Matter of, 45 Misc. 306; 467. Davis, Matter of, 48 Misc. 489; 506. Davis, Matter of, 119 App. Div. 35; 1108. Davis V. Meyers, 86 Hun 236; 813. Davoue v. Fanning, 2 Johns. Ch. 252; 383, 991. Dawson, Matter of, 3 Bradf. 130; 38, 1064. Day, Ex part«, 1 Bradf. 476; 268, 269, 270. Dayger, Matter of, 110 N. Y. 660 (aff'g 47 Hun, 127); 319, 337. Daymen, Matter of, 47 App. Div. 315; 118. Dayton v. Johnson, 69 N. Y. 419; 543, 632, 702; 729. Dearing, Matter of, 4 Dem. 81 ; 479. De Baum, Matter of, 2 Connoly, 304; 381. De Castro, Matter of, 32 Misc. 193; 330. De Caters v. LeRay De Chaumont, 3 Paige's Ch. 179; 991 Decker, Matter of, 37 Misc. 527; 227, 239 1067, 1139. Decker v. Newton, 1 Redf. 477; 1095. Deery v. Byrne, 120 App. Div. 6; 124, 809, 811. DeForest, Matter of, 86 Hun, 300; 1121. DeForest, Matter of, 119 App. Div. 782: 850, 852. Degen, Matter of, 89 Hun, 143; 201. De Graaf, Matter of, 24 Misc. 147; 867, 898, 911. De Groot, Matter of, 9 N. Y. Supp. 471; 295, 459. De Groot, Matter of, 2 Connoly, 210; 462, DeHaas, Matter of, 9 App. Div. 561; 329. DeKalb v. Kelk, 30 Misc. 367; 814. Delabarre v. McAlpine, 71 App. Div. 591; ' 30, 46. Delafield v. Parish, 42 Barb. 274; 187. Delafield v. Parish, 1 Redf. 1 (afl'd 25 N. Y. 9); 256, 304, 349, 350, 351, 353, 354, 356, 417. Delafield v. Parish, 4 Bradf. 24; 526. Delamater v. M'Caskie, 4 Dem. 549; 760. Delaney v. Van Aulen, 84 N. Y. 16; 447, 959 Delano, Matter of, 176 N. Y. 486 (rev'g 82 App. Div. 147); 879. Delaplaine v. Lawrence, 10 Paige, 602; 106. Delaplaine v. Lawrence, 3 N. Y. 301; 993. Delaplaine, Matter of, 5 Dem. 398; 8. Delaplaine, Matter of, 45 Hun, 225; 33, 125 246 247 457. Delaplaine', Matter of, 6 Dem. 269; 45 Hun, 225; 143. Delmar v. Dehnar, 65 App. Div. 582; 185, 428. Delprat, Matter of, 27 Misc. 355; 330, 333, 345. De Marcellin, Ex parte, 24 Hun, 207; 1043. Demarest, Est. of, 1 Civ. Proo. Rep. 302; 679. Deming, Matter of, 10 Johns. 232, 473. Demmert, Matter of, 5 Redf. 299; 545. Demmert v. Schnell, 4 Redf. 409; 376, 383. Demott V. Field, 7 Cow. 58; 846. Denham v. Cornell, 67 N. Y. 556; 948. Denike v. Harris, 84 N. Y. 89; 1023. ' Denise v. Denise, 110 N. Y. 562 (afi'g 41 Hun, 9); 813, 820. Dennis v. Jones, 1 Dem. 80; 974. De Notteback v. Astor, 13 N. Y. 98; 450. Denton, Matter of, 86 App. Div. 358; 69, 76, 80. Denton, Matter of, 137 N. Y. 433; 448. Deobold v. Oppermann, 111 N. Y. 531; 177, 713, 730. De Peyster v. Clendinning, 8 Paige, 296; 500. De Peyster v. Ferrers, 11 Paige. 13; 1029. De Peyster, Matter of, 4 Sandf. Ch. 511; 1142, 1143. De Pierris, Matter of, 79 Hun, 279; 99, 1077, 1123. Depuy, Matter of, 8 N. Y. 229; 852. TABLE OF CASES CITED Ixiii [References are to pages.] Depuy, Matter of, 9 N. Y. Supp. 121; 852. Depuy V. Wurtz, 53 N. Y. 556-, 36. Deraismes v. Dunham, 22 Hun, 86; 666, 685, 1022, 1023. Derickson v. Derickson, 4 Dem. 295; 1044. De Russy, Matter of, 14 N. Y. Supp. 177 (affd 128 N.Y. 619); 1081. Despard v. Churchill, 63 N. Y. 192; 42, 583, 698, 603, 605. De Yaugrigneuse, Matter of, 46 Misc. 49; 375 Devin'v. Patchen, 26 N. Y. 441; 8, 231, 236. Devoe, Matter of, 66 App. Div. 1 (aff'd 171 N.Y. 281); 97, 1178. DeVoe, Matter of, 107 App. Div. 245; 1181. Dewey, Matter of, 163 N. Y. 63; 1164. DeWitt V. Barley, 17 N. Y. 340; 357. DeWitt V. Barley, 9 N. Y. 371; 369. DeWitt V. Chandler, 11 Abb. Pr. 459; 311. DeWitt, Matter of, 113 App. Div. 790; 440. Deyo, Matter of, 36 Hun, 512 (aff'd 102 N.Y. 724); 183. Deyo V. Morss, 30 App. Div. 56; 843. Dickie v. Van Vleck, 5 Redf. 284; 371. Dickinson v. Bush, 17 Wkly. Dig. 17; 124. Dickinson v. Col. Trust Co., 33 Misc. 668; 45. Didion, Matter of, 54 Misc. 201; 872. Diefenthaler, Matter of, 39 Misc. 765; 327, 337 Diez, Will of, 50 N. Y. 88; 327. Diez's Will, 56 Barb. 691; 246. Dill, Matter of, 60 Misc. 294; 1142. Dimon, Matter of, 82 App. Div. 107; 897. Dingman, Matter of, 66 App. Div. 228; 192. Dinsmore, Est. of, 2 Law Bulletin, 28; 527. Disoway v. Hayward, 1 Dem. 176; 869. Dissosway, Matter of, 91 N. Y. 235; 161, 225. Dittrich, Matter of, 53 Misc. 511, 1111. Dittrich, Matter of, 62 Misc. 277; 211. Dittrich, Matter of, 120 App. Div. 504; 681, 683. Dixon, Matter of, 42 App. Div. 481; 217, 219, 361, 383. Dixon V. People, 18 Mich. 84; 642. Doane, Matter of, N. Y. Law Jr., Mar. 12, 1903; 898 Doane v. Mercantile Trust Co., 160 N. Y. 494; 1168. Dobie V. Armstrong, 160 N. Y. 684; 352, 365, 367, 372, 427. Dobke V. McClaran, 41 Barb. 491; 182. Dohson V. Central R. R. of N. Y., 38 Misc. 582; 831. Dockstader, Matter of, 6 Dem. 106; 326. Dodge V. Cornelius, 168 N. Y. 242 (rev'g 40 App. Div. 18); 314. Dodge V. Manning, 1 N. Y. 298; 844. Dodge, Matter of, 105 N. Y. 585 (aff'g 40 Hun, 443); 116, 233. Dodge, Matter of, 40 Hun, 443; 337. Dodin V. Dodin, 16 App. Div. 42; 735. Dodin V. Dodin, 17 Misc. 36 (aff'd 16 App. Div. 42); 735, 736, 742, 1178. Doe V. Roe, 2 Barb. 200; 341, 343. Doheny, Matter of , 70 App. Div. 370; 148, 533 Doig, Matter of, 126 App. Div. 746; 176, 1129. Dolan, Matter of, 4 Redf. 611; 951. Dolan, Matter of, 88 N. Y. 309; 975, 986, 992 996. Dole V. Irish, 2 Barb. 639; 39. Dolon, Matter of, 66 Hun, 199; 181, 408. Donald v. Mallory, 77 N. Y. 656; 645. Donner, Matter of, 37 Misc. 67; 317. Donohue, Matter of, 97 App. Div. 206; 355. Dooley, Matter of, 3 Law Bulletin, 18; 630. DooUttle V. Lewis, 7 Johns. Ch. 45; 583. Doran v. Dempsey, 1 Bradf. 490; 162. Doran, Matter of, 38 N. Y. Supp. 544; 804. Doran, Matter of, 73 N. Y. St. Rep. 593; 856. Doritz V. Doritz, 40 App. Div. 236; 1008, 1117. Dorman, Matter of, 5 Dem. 112; 366, 368. Doughty v. Stillwell, 1 Bradf. 300; 947. Douglas, Matter of, 62 App. Div. 303; 179 903 Douglas, Matter of, 60 App. Div. 64; 1140. Douglas, Matter of, 38 Misc. 609; 334. Douglas, Matter of, 62 App. Div. 303; 180. Douglas v. Mayor, 2 Duer, 110; 746. Douglass V. Ferris, 138 N. Y. 192; 1058, 1092. Douglass V. Satterlee, 11 Johns. 16; 494, 495. Douglass V. Yost, 64 Hun, 155; 1166. Downing, Est. of, Thomas, N. Y. L. Jr., Mar. 12, 1903; 1033. Downing v. Marshall, 23 N. Y. 366; 958, 1168. Downing v. Smith, 4 Redf. 310; 1096. Dows, Matter of, 39 Misc. 621, 956. Dows, Matter of, 167 N. Y. 227 (aff'd 183 U. S. 278); 880. Doyle V. Mayor, 26 Misc. 61; 133. Drake, Matter of, 45 App. Div. 206; 197, 219 373 375 Drake v. Pell, 3 Edw. Ch. 261; 102. Drake v. Price, 5 N. Y. 430; 1032, 1150. Draper v. Anderson, 37 Barb. 168; 1061. Draper v. Montgomery, 108 App. Div. 63; 479, 488. Drezel v. Bemey, 1 Dem. 163; 663. Drowne, Matter of, 1 Conuoly, 163; 553. Drowne, Matter of, 56 Misc. 417; 1042. Du Bois V. Brown, 1 Dem. 317; 204, 212, 224, 231, 232, 233, 237, 241, 242, 445. Dubois V. Ray, 35 N. Y. 162; 453. Dubois V. Sands, 43 Barb. 412, 494. Duclos V. Benner, 136 N. Y. 560; 943. Duell V. Glynn, 56 Misc. 41; 886. Duffie, Est. of, 3 Law Bull. 49; 37. Duffy, Est. of, 1 Dem. 202; 40. Duffy's Est., Matter of, 18 N. Y. Supp. 924; 963. Duffy V. Smith, 1 Dem. 202; 42, 603, 1078. Ixiv TABLE OF CASES CITED [References are to pages.] Dugan V. Denyse, 13 App. Div. 214; 141, 1067. Dummett, Matter of, 38 Misc. 477; 1146. Duncan v. Guest, 5 Redf. 440; 100, 1121, 1135. Duncklee v. Butler, 30 Misc. 58; 1025, 1026. Dunford v. Weaver, 84 N. Y. 445; 163, 165. Dunham v. Deraismes, 165 N. Y. 65; 931. Dunham, Matter of, 1 Connoly, 323; 1123. Dunkel, Matter of, 10 N. Y. St. Rep. 213; 1153. Dunkel, Matter of, 5 Dem. 188; 1141. Dunn, Matter of, 1 Dem. 294; 106, 189, 212 Dunn, Matter of, 39 App. Div. 510; 1094. Dunn, Matter of, 5 Redf. 27; 836. Dunn V. Travis, 56 App. Div. 317; 540. Dunne v. Amer. Surety Co., 34 Misc. 584; 721. Dunne v. Amer. Surety Co., 43 App. Div. 91; 721, 722, 726, 729. Dunning v. Dunning, 82 Hun, 462; 930. Dunning v. Ocean National Bank, 61 N. Y. 497; 501, 1009. Dimscombe, Matter of, 10 N. Y. Supp. 247; 850. Dupuy v. Wurtz, 53 N. Y. 556; 38, 39. Duryea v. Mackay, 151 N. Y. 204; 9, 531, 960, 965, 986. Duryea, Matter of, 128 App. Div. 205; 871. Dusenbury, Matter of, 106 App. Div. 235; 963. Dusenbury, Matter of, 33 Misc. 166; 77. Dusenbury, Matter of, 34 Misc. 666; 1005. Dustan v. Carter, 3 Dem. 149; 942. Dutton V. Dutton, 8 How. Pr. 99; 1043. Dwight's Est., 9 N. Y. Supp. 927; 1080, 1104. Dworsky v. Amdtstein, 29 App. Div. 274- 540. Dwyer, Matter of, 29 Misc. 382; 262, 351 386, 387. Dwyer, Matter of, 112 App. Div. 195- 1108. Dye v. Kerr, 15 Barb. 444; 1127. Dyer v. Erving, 2 Dem. 160; 261, 277. 310, 319, 320, 321, 452. Dyer, Matter of, 5 Paige, 534; 1045. Eadie, Matter of, 39 Misc. 117; 1131. Eagan v. Kergill, 1 Dem. 464; 729. Eagle V. Emmet, 4 Bradf. 117; 539. Earl of Easton v. Seymour, 2 Curteis, 339- 3 Curteis, 530; 299. Earle, Matter of 71 N. Y. Supp. 1038 (aff'd 74 App. Div. 458); 902, 904. Earle v. McGoldrick, 15 Misc. Rep. 136- 1008. Early v. Early, 5 Redf. 375; 295, 459, 460. East River Natl. Bank v. M'Caffrey 3 Redf. 97; 981. Eaton, Matter of, 55 Misc. 472; 904. Eaton V. North, 7 Barb. 631; 289. Ebeling v. Ebeling, 61 Misc. 537; 1161. Eberhardt v. Schuster, 6 Abb. N. C Ul- 933. ■ ' Eberle v. Schilling, 32 Misc. 195: 1091 1092. Eckert, Matter of, 36 Misc. 610; 394. Eckler, Matter of, 126 App. Div. 199; 186 Eckler, Matter of, 47 Misc. 320; 305, 372! Eddy, Matter of, 41 Misc. 263; 377. Eddy, Matter of, 10 Misc. 211; 516, 618. Edgerton, Matter of, 35 App. Div. 125- 875. Edmonds, Matter of, 47 App. Div. 229- 818, 1128. Edsall V. Vandermark, 39 Barb. 589; 93. Edson V. Parsons, 85 Hun, 263; 258, 270. Edson V. Parsons, 155 N. Y. 555; 268. Edwards v. Edwards, 2 Cr. & M. 612; 825. Edwards, Matter of, 58 Iowa, 431; 542. Edwards, Matter of, 32 N. Y. Supp. 901; 878. Edwards, Matter of, 110 App. Div. 623; 189. Egan, Est. of, 7 Misc. 262; 1144. Egan V. Kergill, 1 Dem. 464, 806. Egan, Matter of, 46 Misc. 375; 378. Egan, Matter of, 89 App. Div. 565; 928, 932. Egan V. Pease, 4 Dem. 301; 348. Egbert v. McGuire, 36 Misc. 245; 1007. Eichman, Matter of, 33 Misc. 322; 817, 818. Eighmie v. Strong, 49 Hun, 16; 821. Eisenlord v. Clum, 126 N. Y. 564; 95. Eisner v. Avery, 2 Dem. 466; 113, 161. Eisner, Est. of, 8 N. Y. St. Rep. 748; 1131. Eisner, Matter of, 5 Dem. 383; 532, 1132. Eldred, Matter of, 115 N. Y. 403; 808. Eldred, Matter of, 109 App. Div. 777; 296, 305, 348. Elgin, Matter of, 1 Tuck. 97; 1055. Elias V. Schweyer, 13 App. Div. 336; 666. Ellerson v. Westcott, 148 N. Y. 149; 270. EUick, Will of, Matter of, 19 Wkly. Dig. 231 . 217 ElUs V. Filon, 85 Hun, 485; 812, 813, 1131. Ellis, Matter of, 22 St. Rep. 77; 413. Ellis, Matter of, 1 Connoly, 206; 441. Ellis, Matter of, 22 N. Y. St. Rep. 77; 68, 417. Elmer v. Kechele, 1 Redf. 472; 473, 557, 672. Elmer, Matter of, 88 Hun, 290; 314. Eked V. Eames, 115 N. Y. 403; 1022. Elster, Matter of, 39 Misc. 63; 378. Eltmg, Matter of, 33 Misc. 675; 1033. Elting, Matter of, 93 App. Div. 516; 1078. Elwood V. Northrop, 106 N. Y. 172; 974. Ely V. Holton, 15 N. Y. 595; 735. Embree v. Hannah, 5 Johns. 101; 632. Embury, Matter of, 154 N. Y. 746; 866, 884. Embury, Matter of, 19 App. Div. 214; (aff'd 154 N. Y. 746), 910, 9I5. Emerson v. Bowers, 14 N. Y. 449: 472, 473, 485, 555, 556, 557, 672. TABLE OF CASES CITED Ixv [References are to pages.] Emery, In re, 13 Civ. Proc. Rep. 365; 679. Emmons, Matter of, 110 App. Div. 701; 247, 256, 335. Enders v. Enders, 2 Barb. 362; 947. Engelbrecht, Matter of, 15 App. Div. 541; 224. Engler, Matter of, 56 Misc. 218; 326, 328, 338. English V. Mclntyre, 29 App. Div. 439; 1012. Ensign, Est. of, 103 N. Y. 284; 103, 104, 279, 548. Enston, In re, 113 N. Y. 174; 443. Erie R. Co. v. Ramsey, 45 N. Y. 644; 161. Erlacher, Matter of, 3 Redf. 8; 827, 963. Ermand, Dey, Matter of, 24 Hun, 1 ; 408. Erving, Matter of, 103 App. Div. 500; 942. Erwin v. Loper, 43 N. Y. 521; 801, 802, 861. Euston, Matter of, 113 N. Y. 174; 865, 866. Evans v. Cleveland, 72 N. Y. 486; 108. Evans v. Ellis, 5 Denio, 640; 383. Evans, Matter of, 33 Misc. 671 ; 188, 309. Evans, Matter of, 37 Misc. 337; 203, 376. Evans, Matter of, 113 App. Div. 373; 258. Evans v. Schoonmaker, 2 Dem. 249 (aff'd 31 Hun, 638); 41, 42, 586, 598. Everdell v. Hill, 58 App. Div. 151; 258, 268. Everts v. Everts, 62 Barb. 577; 616. Ewen V. Perrine, 6 Redf. 640; 373, 388. Eysaman, Matter of, 113 N. Y. 62; 121, 288. Fail, Matter of, 56 Misc. 217; 95. Fairbanks v. Corlies, 1 Abb. 150; 187. Fall's Est., In re, 10 N. Y. Supp. 41; 118. Falls, Matter of, 29 N. Y. St. Rep. 759; 194 195 199. Farde'tte v. U.S. F. & G. Co., 86 App. Div. 50; 699, 708, 1068. Fargo's Est., Matter of, 18 N. Y. Supp. 670; 853. Farley v. McConnell, 7 Lansing, 428; 543, 701. Farley v. McConnell, 52 N. Y. 630; 150, 701. Farmers' L. & T. Co. v. Hill, 4 Dem. 41; 4, 146, 180. Farmers' L. & T. Co., Matter of, 49 App. Div. 1; 234. Farmers' L. & T. Co. v. McCarthy, 128 App. Div. 621; 950. Farmers' L. & T. Co. v. M'Kenna, 3 Dem. 219; 82, 83. Farmers' L. & T. Co. v. Pendleton, 179 N. Y. 486; 1090. Famsworth v. OUphant, 19 Barb. 30; 109, 1096. Farqueharson v. Nugent, 6 Dem. 296; 1144. Farrell v. Calkins, 10 Barb. 348; 220. Farrinton v. American L. & T. Co., 18 Civ. Proc. 135; 584. Fattosini, Matter of, 33 Misc. 18; 77, 658, 559, 560, 1168. Faulkner, Ex parte, 7 Hill, 181; 468. Fay, Matter of, 37 Misc. 532; 873. Fay V. Muhlker, 13 Daly, 314; 139. Fayerweather, Matter of, 143 N. Y. 114; 910. Feehan, Matter of, 36 Misc. 614; 163, 164. Feely, Matter of, 4 Redf. 306; 1041, 1043, 1055, 1056. Feeney, Matter of, 55 Misc. 158; 360. Felt V. Dorr, 29 Hun, 14; 160. Fenton v. Fenton, 35 Misc. 479; 927. Ferguson v. Cummings, 1 Dem. 433; 161, 162, 163. Ferguson v. Harrison, 27 Misc. 380; 606. Ferguson, Matter of, 41 Misc. 465; 506, 508. Ferigan, Matter of, 92 App. Div. 376; 626. Fernbacher v. Pembacher, 4 Dem. 227; 207, 663, 669. Fernbacher, Matter of, 18 Abb. N. C. 1; 113. Fernbacher, Matter of, 8 Civ. Proc. Rep. 349; 233, 674. Ferrer v. Pyne, 81 N. Y. 281; 436. Ferrie v. Public Adm'r, 3 Bradf. 151; 550. Ferrigan, Matter of, 42 App. Div. 1 ; 132, 133. Ferrigan, Matter of, 92 App. Div. 376; 558. Ferrin v. Myrick, 41 N. Y. 315; 825, 827, 846. Ferris v. Burrows, 34 Hun, 104 (aff'd 99 N.Y. 616); 1168. Ferris' Est., 1 Tuck. 15; 481, 1100. Ferris v. Ferris, 2 Dem. 336; 1022. Ferris v. Pub. Adm'r, 3 Bradf. 249; 94. Fetherly v. Waggoner, 11 Wend. 599; 297. •Fettiplace v. Gorges, 1 Ves. Jr. 46; 96. Field V. Field, 77 N. Y. 294; 801. Field V. Gibson, 20 Hun, 274; 584. Field V. Parker, 4 Hun, 342; 162. Field V. Van Cott, 15 Abb. Pr. N. S. 349; 728. Fielding, Matter of, 30 Misc. 700; 974. Fiester v. Shepard, 92 N. Y. 251; 10, 100, 662, 854, 936, 937, 1016. Filley's Est., 20 N. Y. Supp. 427; 111, 681, 684. Filley, Matter of, 47 N. Y. St. Rep. 428; 180. Finck, Matter of, 115 App. Div. 871; 217. Finn, Matter of, 44 Misc. 622; 1108, 1130. Finn, Matter of, 1 Misc. 280; 389. First National Bank v. Tamajo, 77 N. Y. 476; 138. Fisch, Matter of, 34 Misc. 146; 869, 871. Fish V. Coster, 28 Hun, 64; 512, 513, 1010. Fish V. Ferris, 3 E. D. Smith, 567; 92, 235. Fish, In re, 19 Abb. Pr. 209; 944. Fish, Matter of, 88 Hun, 56; 338. Fisher v. Banta, 66 N. Y. 468; 98. Fisher v. Fisher, 1 Bradf. 335; 771, 1102, 1153. Fisher, Matter of, 93 App. Div. 186; 1144. Fisher, Matter of, 96 App. Div. 133; 867. Fisk V. Hubbard, 21 Wend. 651; 451. Fisk, Matter of, 45 Misc. 299; 1049, 1140. Ixvi TABLE OF CASES CITED [References are to pages.] Fiske V. Anderson, 33 Barb. 71; 81. Fitch, In re, 3 Redf. 457; 1052. Fitch, Matter of, 160 N. Y. 87; 35, 39, 584, 602, 883, 1094. Fitch V. Witbeck, 2 Barb. Ch. 161; 963, 965. Fithian's Est., 3 N. Y. Supp. 193; 53, 138, 615, 617. Fithian, In re, 44 Hun, 457; 616. Fitler, Matter of, 11 Abb. N. C. 107; 712. Fitzgerald, In re, 33 Misc. 325; 315. Fitzpatrick v. Brady, 6 Hill, 581; 854. Fitzsimmons, Matter of, 174 N. Y. 16; 114, 221 Flagg,' Est. of, 10 N. Y. St. Rep. 694; 1053. Flanagan v. Fidelity & Deposit Co., 32 Misc. 424; 721. Flaudrow v. Hammond, 13 App. Div. 325; 583. Flandrow, Matter of, 28 Hun, 279; 468. Flansburgh, Matter of, 32 Hun, 49; 350. Fleet V. Simmons, 3 Dem. 542; 667, 700. Fleming, Matter of, 5 Dem. 336; 527. Fliess V. Buckley, 90 N. Y. 286; 797. Flint, Matter of, 15 Misc. 598; 827, 850, 965. Florence, In re, 2 Bradf. 281; 461. Florence, Matter of, 54 Him, 328; 36. Florence, Matter of Will, 7 N. Y. Supp. 578; 37, 39. Florence v. Sands, 4 Redf. 210; 929. Flynn v. Diefendorf, 51 Hun, 194; 817. Flynn, Matter of, 58 Misc. 628; 1047. Flynn, Matter of, 136 N. Y. 287; 176, 178, 179, 408. Flynn, Matter of, 92 App. Div. 379; 558, 626. Flynn, Matter of, 20 N. Y. Supp. 919 (aff'dl36N.Y. 287);181. Flynn v. McDermott, 183 N. Y. 62; 944, 945. Foehner v. Huber, 42 App. Div. 439; 538. Fogarty, Matter of, 117 App. Div. 583; 1076, 1077. Foley, Matter of, 39 App. Div. 248; 837, 964, 981. Foley, Matter of, 55 Misc. 162; 292, 344. Folts, Matter of, 71 Hun, 492; 121, 358, 370. Foos, Matter of, 2 Dem. 600; 246. Foote V. Beecher, 78 N. Y. 155; 201. Foote V. Bruggerhof, 66 Hun, 406; 1152. Forbes v. Halsey, 26 N. Y. 53; 992, 995. Forbes, Matter of, 60 Hun, 171; 389. Forman v. Marsh, 11 N. Y. 544; 1067. Forman, Probate of the Will of, 1 Tucker, 205; 367. Forman v. Smith, 7 Lans. 443; 376, 377. Forman's Will, 54 Barb, 274; 364, 368. Forster v. Kane, 1 Dem. 67; 230, 236. Forsyth v. Burr, 37 Barb. 540; 764, 782. Forsyth, Matter of, 10 Misc. 477; 864. Fortune, Matter of, 14 Abb. N. C. 416; 110. Fosgate v. Hydraulic Co., 12 Barb. 352; 540. Foster, Ex parte, 3 Redf. 632; 139. Foster v. Foster, 7 Paige, 48; 59, 104, 106, 188, 278. Foster, Matter of, 8 Misc. 344; 836, 837. Foster, Matter of, 15 Misc. 176; 955. Foster, Matter of, 30 Misc. 573; 1011, 1014. Foster, Matter of, 37 Misc. 581; 1016, 1098. Foster, Matter of, 38 Misc. 347; 966. Foster v. Wilber, 1 Paige, 537; 6. Fountain v. Carter, 2 Dem. 313; 61, 411. Fouvergne v. City of New Orleans, 18 How. 470; 44. Fowler v. Hebbard, 40 App. Div. 108; 808, 809. Fowler v. Lockwood, 3 Redf. 465; 243, 1103. Fowler v. Ramsdell, 4 Albany Law Jour- nal, 94; 364. Fowler v. Walter, 1 Dem. 240; 502, 610. Fox V. Burns, 12 Barb. 677; 772. Fox V. Fee, 167 N. Y. 44; 402. Fox V. Fee, 24 App. Div. 314; 976. Fox, Matter of. Est. of, 92 N. Y. 93; 981. Fraenznick v. Miller, 1 Dem. 136; 1123, 1136. France v. Willets, 4 Dem. 369; 1124. Frank, Matter of, 1 App. Div. 39; 134, 1158. FrankUn, Matter of, 26 Misc. 107; 835, 1033, 1112, 1142, 1147, 1148, 1163. Frazer, Matter of, 92 N. Y. 239; 767, 772, 776, 979, 1111, 1126. Freel, Matter of, 49 Misc. 386; 1162. Freeman v. Coit, 96 N. Y. 63; 449, 450. Freeman v. Coit, 27 Hun, 447; 827. Freeman v. Freeman, 4 Redf. 211; 1141, 1152. Freeman v. Kellogg, 4 Redf. 218; 485, 567, 661, 665, 678, 699. Freeman, Matter of, 46 Hun, 467; 304, 349. Freeman v. Nelson, 4 Redf. 374; 848. Freligh, Matter of, 42 Misc. 11; 1032. French v. Dauchy, 134 N. Y. 542; 724. French, Matter of, 52 Hun, 303; 444.. Frethey v. Durant, 24 App. Div. 58; 147, 148. Freund v. Washburn, 17 Hun, 543; 83. Frey, Matter of, 2 Connoly, 70; 346. Freygang, Matter of, 3 Law Bull. 60; 1020. Frick, Matter of, 19 N. Y. Supp. 316; 354, 367. Friedell, Matter of, 20 App. Div. 382; 8. Fries v. Osborn, 190 N. Y. 35; 451. Frost V. Brisbin, 19 Wend. 11; 745. Frost V. Craig, 28 N. Y. St. Rep. 157; 771. Frost V. Frost, 15 Misc. 167; 84. Frost, Matter of, 38 Misc. 304; 335. Frothingham v. Hodenpyl, 41 N. Y. St. Rep. 398; 1123. Frye, Matter of, 48 N. Y. St. Rep. 572; 16, 21. Fuller, Matter of, 22 N. Y. St. Rep. 362; 47. Fuller, Matter of, 16 Civ. Proo. Rep. 412: 226. A.BLE OF CASES CITED Ixvii [References are to pages.] Fuller, Matter of, 20 N. Y. St. Rep. 352; 441. Fuller, Matter of, 62 App. Div. 428; 885. Fuller V. Yates, 8 Paige, 325; 1099. FuUerton v. Jackson, 5 Johns. Ch. 278; 1070. Fulton V. Whitney, 66 N. Y. 548; 150, 672. Fumiss V. Fumiss, 2 Redf. 497; 1011. Furniss, Matter of, 86 App. Div. 96; 806, 1090, 1131, 1152. Gaffney, Matter of, 116 App. Div. 583; 176, 409. Gagan's Will, In re, 20 N. Y. Supp. 426; 288. Gaines v. Ghew, 2 How. (U. S.) 245; 153. Gaines v. Fuentes et al., 2 Otto (92 U. S.), 10; 44. Gaines, Matter of, 74 Hun, 94; 197. Gaines, Matter of, 84 Hun,- 520; 33. Gaines v. New Orleans, 6 ■Wallace, 642; 44. Gall V. Gall, 64 Hun, 601; 736. GaU V. Gall, 114 N. Y. 109; 266. Gall, Matter of, 40 App. Div. 114; 176, 848. Gall, Matter of, 2 Connoly, 286 (aff'd 131 N. Y. 593); 263. Gall, Matter of, 5 Dem. 374; 267, 309. Gall, Matter of, 32 N. Y. St. Rep. 695; 252 Gall, Matter of, 182 N. Y. 270; 148, 176, 181, 1128. Gall, Matter of, 107 App. Div. 310; 1140. Gall's Will, 9 N. Y. Supp. 466; 266. Gallagher v. Crooks, 132 N. Y. 338; 449. GaUup, Matter of, 43 App. Div. 437; 378. GaUup V. Wright, 61 How. Pr. 286; 452, 453. Gamber, Matter of, 53 Misc. 168; 330. Gamble v. Gamble, 39 Barb. 373; 314, 343. Gannon, Matter of, 2 Misc. 330; 368. Gannon v. McGuire, 160 N. Y. 476; 222. Gansevoort v. Nelson, 6 Hill, 392; 801, 816. Gantert, Matter of, 136 N. Y. 106; 961, 962. Garber v. Haaz, 2 Dem. 216; 287. Gardiner v. Gardiner, 34 N. Y. 155; 373, 382. Gardiner v. Raines, 3 Dem. 98; 338. Gardner v. Gardner, 5 Paige, 170; 189. Gardner v. Gardner, 22 Wend. 526; 359. Gardner v. Gardner, 7 Paige, 112; 1132. Gardner, Matter of, 140 N. Y. 123; 450. Gardner, Matter of, 5 Redf. 14; 1130. Gardner v. Pitcher, 109 App. Div. 106; 817. Garland, Matter of, 40 Misc. 579; 868. Garlock v. Vandervort, 128 N. Y. 374; 9, 95, 147, 148, 436, 442, 443, 444, 1076, 1134. Gamer, Matter of, 59 Misc. 116; 7, 104, 301, 548. Gartland, Matter of, 60 Misc. 33; 248, 260. Garvey v. N. Y. Life & Trust Co., 27 N. Y. St. Rep. 389; 1185. Garvey v. Owens, 35 N. Y. St. Rep. 133; 1068, 1102. Garvey v. U. S. Fid., etc., Co., 77 App. Div. 391; 860. Gasten, Matter of, 16 Misc. 125; 948. Gates V. Gates, 34 App. Div. 608; 270. Gearns, Matter of, 27 Misc. 76; 138, 1106, 1125, 1158. Gedney, Matter of, 30 Misc. 18; 30. Gedney, Matter of, 33 Misc. 360; 1004. Gee, Matter of, 33 N. Y. Supp. 425; 130. Geib V. Topping, 83 N. Y. 46; 140. Geis, In re, 27 Misc. 490; 99, 935. Geissler, George, Est. of, N. Y. Law Jour., June 19, 1902; 197. Gelston v. Shields, 16 Hun, 143 (aff'd 78 N. Y. 275); 1070. Genet v. Tallmadge, 1 Johns. Ch. 561; 1048. Genet v. Willock, 93 App. Div. 588; 810. Gennert, Matter of, 96 App. Div. 8; 587, 594. Geoffrey v. Gilbert, 154 N. Y. 741; 769. Geoghegan v. Foley, 5 Redf. 501; 1071. Georgi, Matter of, 21 Misc. 419; 983, 988. Georgi, Matter of, 35 Misc. 685; 965, 969. Georgi, Matter of, 44 App. Div. 180 (aff'g 37 Misc. 242); 973, 996. Gerard, Matter of, 1 Dem. 244; 946, 1140. Gerlach, Matter of, 29 Misc. 90; 548, 568. German Bank, Matter of, 39 Hun, 181; 972, 976. German Savings Bank v. Sharer, 25 Hun, 409; 1002. Gerould v. Wilson, 81 N. Y. 573; 150, 701, 730. Gerow's Est., 23 N. Y. Supp. 847; 1112. Gerry v. Post, 13 How. Pr. 118; 541. Getty V. Amelung, 7 Albany Law Jour. 415; 528. Gibbons v. Shepard, 2 Dem. 247; 102. Gibbs, Matter of, 60 Misc. 645; 866. Gibson, Matter of, 24 Abb. N. S. 45; 942. Gibson, Matter of, 2 Connoly, 125; 945. Gibson, Matter of, 128 App. Div. 769; 261. Gibson v. State, 38 Misc. 547; 542. Gick, Matter of, 49 Misc. 32 (aff'd 113 App. Div. 16); 752, 755, 767, 758, 759, 760. Giddings v. Seward, 16 N. Y. 365; 929, 947. Gifford V. Dyer, 2 R. I. 99; 389. Gihon, Matter of, 29 Misc. 273; 206, 520. Gihon, Matter of, 48 App. Div. 598; 208, 209, 471. Gihon, Matter of, 27 Misc. 626; 532. Gihon, Matter of, 64 App. Div. 504; 894. Gihon, Matter of, 169 App. Div. 443; 529, 894, 897, 924. Gilbert v. Comstock, 93 N. Y. 484; 808. Gilbert v. Knox, 62 N. Y. 125; 314, 324, 331 341 343. Gilbert, Matter' of, 3 N. Y. St. Rep. 208; 1030. Gilbert, Matter of, 104 N. Y. 200; 190. Ixviii TABLE OF CASES CITED [References are to pages.] Gilbert, Matter of, 39 Hun, 61; 1067. Gilbert, Matter of, 11 N. Y. Supp. 743; 1074. Gilbert, Matter of, 25 Misc. 584; 1147. Gilbert v. Morrison, 53 Hun, 442; 832, 945. Gilchrist, Matter of, 37 Misc. 543; 552. Gilchrist v. Rea, 9 Paige, 66; 189, 964, 980. Giles V. De TaUeyrand, 1 Dem. 97; 100, 269. Giles' Est., 11 Abb. N. C. 57; 270. Gill V. Brouwer, 37 N. Y. 549; 958. Gill V. Clark, 31 Misc. 337; 134. Gill, Matter of, 183 N. Y. 347; 148, 802, 1100. GiU, Matter of, 42 Misc. 457; 801, 1107. Gilleran, Matter of, 50 Hun, 399; 604. GiUespie v. Brooks, 2 Redf. 349; 789, 1112. Gillespie v. MulhoUand, Daly, Ch. J., 12 Misc. 40; 113. GiUet V. Hutchinson's Adm., 24 Wend. 184; 846. Gillian v. Guaranty Trust Co., 186 N. Y. 127; 736, 931. Gillies V. Kreuder, 1 Dem. 349; 165. GilUgan, Est. of, 1 Con. 137; 102. Gilhnan, Est. of, 15 N. Y. St. Rep. 718; 165. GiUman, Matter of, 12 Civ. Proc. R. 179; 139 Gillman, Matter of, 7 St. Rep. 321; 182. GiUman, Matter of, 38 Barb. 364 (1 Redf. 354); 153, 315, 393. Gilman v. Gilman, 1 Redf. 354; 189. Gilman v. Gihnan, 3 Hun, 22; 196. Gilman v. Gihnan, 6 Thomp. & C. 214 (aff'd63N.Y. 41);237, 495. Gilman v. Gihnan, 63 N. Y. 41; 8, 1155. Gilman, Matter of, 82 App. Div. 186; 830. Gihnan, Matter of, 92 App. Div. 462; 196, 198, 830. Gilman, Matter of, 38 Barb. 364; 343. Gittings V. Russel, 114 App. Div. 405; 1176. Glacius V. Fogel, 88 N. Y. 434; 100, 780, 805, 831, 848, 861, 1107, 1127. Gladding v. Follett, 2 Dem. 58; 1015, 1079. Glann, Matter of, 2 Redf. 75; 978. Glasius V. Fogel, 88 N. Y. 434; 10. Glaskin v. Sheehy, 2 Dem. 289; 1086. Gleason, Matter of, 17 Misc. 510; 670. Glockner's Will, 2 N. Y. Supp. 97; 360. Gloucester, Matter of, 11 N. Y. Supp. 899; 267, 270. Glover v. HoUey, 2 Bradf. 291; 239, 1078. Glover v. New York, 7 Hun, 232; 622, 656. Goddard, Matter of, 94 N. Y. 544; 622. Godding v. Porter, 17 Abb. Pr. 314; 818. Godding v. Porter, 17 Abb. Pr. 374; 133. Godme v. Kidd, 64 Hun, 585 (29 Abb. N. C. 37); 269, 270, 736, 743. Goebel v. Wolf, 113 N. Y. 405; 447. Goelet, Matter of, N. Y. Law Jour., July 19, 1901; 924. Goetschius, Est. of, 2 Misc. 278; 1106. Goetschius, Matter of, 23 N. Y. Supp. 975; 227. Goetz, Matter of, 120 App. Div. 10; 530, 531 533 Goggin, Matter of, 43 Misc. 233; 498, 507 552. Golden, Matter of, 40 Misc. 544; 38, 275. Goldsticker, Matter of, 192 N. Y. 35; 154. Goldsticker, Matter of, 54 Misc. 175; 194. Goldsticker, Matter of, 123 App. Div. 474; 267. Gombault v. PubUc Administrator, 4 Bradf. 226; 279, 310. Goodenough v. De Groot, 3 Law Bull. 35; 486. Goodrich v. Pendleton, 4 Johns. Ch. 552; 3, 502. Goods of Lay, 2 Ciu-teis, 375; 299. Goodsell V. Western Union Tel. Co., 109 , N. Y. 147; 220. Goodwin v. Crooks, 58 App. Div. 464 942. Goodwin, Matter of, 122 App. Div. 800 1064. Goodwin, Matter of, 95 App. Div. 183 349, 391. Goodyear v. Watson, 14 Barb. 481; 838, Goran's Est., 23 N. Y. Supp. 766; 598. 600. Gorden, Matter of, 172 N. Y. 25; 268. Gordon, Matter of, 39 N. Y. St. Rep. 909; 770. Gordon, Matter of, 68 App. Div. 388; 1099. Gorham v. Ripley, 16 How. Pr. 314; 819. Goss, Matter of, 98 App. Div. 489; 800, 803 831 Goss, Matter of, 71 Hun, 120; 770. Gottsberger v. Taylor, 19 N. Y. 150; 698, 699, 702. Goulbum V. Sayre, 2 Redf. 310; 111. Gould V. Gould, 3 Story, 537; 153. Gould, Matter of, 9 N. Y. Supp. 606 (aff'd 131 N. Y. 630); 275. Gould, Matter of, 19 App. Div. 352; 892, 897. Gould, Matter of, 156 N. Y. 423; 896. Gouudry, Matter of, 57 App. Div. 232; 197, 715, 785, 787. Gouraud, Matter of, 95 N. Y. 256; 60, 155, 410, 413, 416, 966. Govan's Est., 2 Misc. 291; 704. Gove V. Harris, 4 Dem. 293; 99, 249. Covers, Matter of, 5 Dem. 40; 109, 249. Gowdey, Matter of, 101 App. Div. 275; 193. Graham v. Dickinson, 3 Barb. Ch. 169; 948. Graham v. Linden, 50 N. Y. 547; 147. Graham, Matter of, 39 Misc. 226; 49, 78. Graham v. The Pubhc Administrator, 4 Bradf. 127; 36, 38. Graham's Will, 9 N. Y. Supp. 122; 334, 346. ff > ' TABLE OF CASES CITED Ixix [References are to pages.] Grant v. Grant, 1 Sand. Ch. 235; 295. Grant, Matter of, 16 N. Y. Supp. 716; 181. Grant, Matter of, 37 Misc. 151; 935. Grant, Matter of, 56 App. Div. 176; 1063. Grant, Matter of, 122 App. Div. 602; 729, 733. Grant's Est., Matter of, 49 N. Y. Supp. 574; 516. Graves, Matter of, 171 N. Y. 41; 864. Graves, Matter of, 52 Misc. 433; 868. Gray's Will, Matter of, 5 N. Y. Supp. 464; 351 354 Greeley's Will, 15 Abb. Pr. N. S. 393; 248, 310. Greeley's Will, 15 Abb. N. S. 393; 308, 468. Green v. Day, 1 Dem. 45; 101, 1129, 1133. Green v. Green, 4 Redf. 357; 1010. Green, In re, 67 Hun, 531 ; 330, 373. Green, Matter of, 153 N. Y. 223; 875, 879. Green, Matter of, 48 Misc. 31; 558. Green v. Salmon, 8 Ad. & E. 348; 824. Green v. Sanders, 18 Hun, 361; 1144. Greenblatt v. Hermann, 144 N. Y. 13; 976. Greene v. Day, 1 Dem. 45; 100. Greenhough v. Greenhough, 5 Redf. 191; 787. Greenland v. Waddell, 116 N. Y. 234; 499, 500. Greensboro v. Underbill, 12 Vt. 604; 542. Gregory, Matter of, 13 Misc. 363; 60, 78, 276, 738. Gregory, Matter of, 15 Misc. 407; 252. Giffin v. Condon, 18 Misc. 236; 827. Griffin, Matter of, 118 App. Div. 515; 774. Griffin v. Sarsfield, 2 Dem. 4; 1044, 1051, 1070. Griffith, Matter of, 49 Misc. 405; 774, 779, 1133. Griggs V. Day, 18 N. Y. Supp. 796 (aff'd 135 N. Y. 469); 138. Griggs V. Guinn, 29 Abb. N. G. 144; 138. Grinnell v. Howland, 51 Misc. 132; 1168. Griswold v. Griswold, 4 Bradf. 216; 833. Griswold, Matter of, 15 Abb. 299; 250. Griswold v. Sawyer, 125 N. Y. 411; 769, 771. Gross V. Clark, 1 Civ. Proc. R. 25 (afi'd 1 Civ. Proc. R. 469); 757. Gross, Matter of, 14 St. Rep. 429; 365. Grosvenor v. Allen, 9 Paige, 75; 997. Grosvenor, Matter of, 124 App. Div. 331; 894, 898, 899. Grotrian, Matter of, 30 Misc. 23; 931. Grout, Est. of, 2 How. N. S. 140; 938. Grout, In re, 15 Hun, 361; 1156. Grove, Matter of, 64 Barb. 526; 109. Grubb v. Hamilton, 2 Dem. 414; 678. Grymes v. Hone, 49 N. Y. 17; 874. Gugel V. Vollmer, 1 Dem. 484; 260. Guion V. UnderhiU, 1 Dem. 302; 163, 165. Guiterman v. Liverpool, etc., S. S. Co., 83 N. Y. 358; 370. Guldenkirch, Matter of, 35 Misc. 133; 1136. Gurofsky v. Lehigh Valley R. R. Co., 121 App. Div. 126; 545. Guth V. Dalton, 58 How. Pr. 289; 57. Guy V. Craighead, 6 App. Div. 1st Dep. 463; 608. Gwin, Wm., Matter of, 1 Tucker, 44; 299. Haas V. Childs, 4 Dem. 137; 516, 517. Hacket, Matter of, 14 Misc. 282; 910, 916. Hadden, Matter of, 1 Connoly, 306; 927. Hafner v. Hafner, 62 App. Div. 316; 448. Hagadorn v. Conn. Mutual Life Ins. Co., 22 Hun, 249; 370. Hagan v. Sone, 68 App. Div. 60; 427. Hagan v. Yates, 1 Dem. 584; 365, 388. Hagar, Matter of, 48 Misc. 43; 405. Haggerty, Matter of, 9 Hun, 175; 1038. Haight V. Brisbin, 7 Civ. Proc. Rep. 152; 486. Haight V. Brisbin, 100 N. Y. 219; 661, 666, 667, 669, 674, 724. Haight V. Brisbin, 96 N. Y. 132; 674. Haight, Matter of, 51 App. Div. 310; 1141. Halbert, Matter of, 15 Misc. 308; 349, 360, 363. Hale, Matter of, 6 App. Div. 411; 1081. Hale, Matter of, 45 App. Div. 578; 132. Haley, Matter of, 21 Misc. 777; 472, 556, 667. Hall V. Beston, 13 App. Div. 116; 118. Hall V. Brennan, 64 Hun, 394; 967. Hall V. Brennan, 140 N. Y. 409; 1188. Hall V. Campbell, 1 Dem. 415; 1012, 1103. Hall V. Carter, 8 Ga. 388; 495. Hall V. Dusenbury, 38 Hun, 125; 837, 850. Hall V. Hall, 78 N. Y. 535; 1009, 1032. Hall V. Lauderdale, 46 N. Y. 70; 527. Hall, Matter of, 61 App. Div. 266; 7, 196. Hall, Matter of, 164 N. Y. 196; 222. Hall, Matter of, 36 Misc. 618; 922. Hall, Matter of, 7 Abb. N. C. 149; 1124. Hall, Matter of, 16 Misc. 174; 750, 1136. Hall v. Strong, 117 App. Div. 912; 1122. Hall V. Tokeler, 2 Robt. 318; 255. Hall V. Tryon, 1 Dem. 296; 1144. Hallenbeck, Matter of, 119 App. Div. 757; 578, 775, 1143. Hallenbeck v. Van Valkenburg, 5 How. Pr. 281; 314. HaUock V. Bacon, 64 Hun, 90; 815. Hallock, Matter of, 42 Misc. 473, 868. Halsey v. Halsey, 3 Dem. 196; 207, 674. Halsey, Matter of, 17 Week. Dig. 241; 190. Halsey v. Van Amringe, 6 Paige, 12; 239. Halstead, Matter of, 41 Misc. 606; 152. Halstead, Matter of, 51 Misc. 542; 296. Hamersley, Est. of, 15 Abb. N. C. 187; 529, 530. Hamersley v. Lockman, 2 Dem. 524; 283, 310. Hamersley, Matter of, 43 Hun, 639; 281, 283. Hamersley, Matter of, 7 N. Y. St. Rep. 292; 462. Hamilton v. Cutting, 60 App. Div. 293; 1076. Hamilton, Matter of, 20 N. Y. Supp. 73; 408. Hamilton, Matter of, 76 Hun, 201 ; 9, 104, 308, 309. Ixx TABLE OF CASES CITED [References are to pages.] Hamilton, Matter of, 41 Misc. 268; 909. Hamilton, Matter of, 66 Hun, 74; 462. Hamlin v. Stevens, 177 N. Y. 39; 736, 743. Hammond, Matter of, 16 St. Rep. 977; 256. Hammond, Matter of, 92 Hun, 478; 853, 854, 937. Hancock, Matter of, 91 N. Y. 284; 23. Hancox v. Meeker, 95 N. Y. 528; 139, 1141, 1142. Hancox v. Wall, 28 Hun, 214; 1085. Hangen v. Hackemeister, 17 J. & S. 34; 632. Hangen v. Hackemeister, 21 J. & S. 532 (aff'dll4N. Y. 566);632. Haniman, Matter of, 50 Misc. 245; 755, 760. Hanley v. Singer, 3 Dem. 589; 242. Hannah, Matter of, 11 N. Y. St. Rep. 327; 217. Hannah, Matter of, 45 Hun, 561 ; 197. Hannahs v. Hannahs, 68 N. Y. 610; 233. Hanover, Matter of, 3 Redf. 91; 594. Hanslet v. Vihnar, 76 N. Y. 630; 226. Hapgood V. Houghton's Executors, 10 Pick. 154; 824. Hara, Matter of, 50 Misc. 495; 1155. Harbeck, Matter of, 161 N. Y. 211; 879. Harbeck, Matter of, 81 Hun, 26; 1102, 1156. Hard v. Ashley, 88 Hun, 103; 259, 294, 461, 462. Hard v. Ashley, 117 N. Y. 606; 1076. Hardenberg v. Manning, 4 Dem. 437; 839. Hardenberg v. Hardenburg, 46 Conn. 30; 606. Hardenbrook, Matter of, 23 Misc. 538; 1142. Hardenburg, Matter of, 85 Hun, 580; 196, 331 334 Harder, Matter of, 124 App. Div. 770; 871. Hardin, Matter of, 44 Misc. 441; 1180. Hardy v. Ames, 47 Barb. 413; 799. Hardy, Matter of, 2 Dem. 91; 471. Harlow, Matter of, 73 Hun, 433; 181, 403. Harmon, Matter of, 46 Misc. 229, 1189. Harnett v. Garvey, 66 N. Y. 641; 371. Harnett, Matter of, 15 N. Y. St. Rep. 725; 1140. Harper v. Harper, 1 T. & C. 351; 304, 349, 358. Harper, Matter of, 27 Misc. 471; 1141, 1153. Harrington v. Keteltas, 92 N. Y. 40; 750, 788, 1136, 1188. Harrington v. Libby, 6 Daly, 259; 525, 526. Harriot, Matter of, 145 N. Y. 540; 190, 221. Harris v. Am. Bible Society^ 4 Abb. N. S. 421; 441. Harris v. Clark, 7 N. Y. 242; 448. Harris v. Clark, 3 N. Y. 93; 839. Harris v. EH, 25 N. Y. 138; 1123. Harris v. Harris, 26 N. Y. 433; 292, 297, 394, 458, 459, 462. Harris v. Harris, 36 Barb. 88; 293. Harris, Matter of, 19 Misc. 388; 4, 353 390. Harris, Matter of, 1 Civ. Proc. Rep. 162- 936. Harris, Matter of, 4 Dem. 463; 1150. Harris v. Meyer, 3 Redf. 450; 664, 839.. Harrison v. Clark, 87 N. Y. 572; 37, 683 725. Harrison v. McMahan, 1 Bradf. 283; 555 556. Harry v. Hilton, 11 Abb. N. C. 448; 58. Harstrom, Matter of, 7 Abb. N. C. 391- 4, 8, 43. Hart v. Coltrain, 19 Wend. 378; 543. Hart v. Hart, 45 App. Div. 280; 814, 1128. Hart V. Kip, 148 N. Y. 306; 39, 1188. Hart, Matter of, 2 Redf. 156; 487, 700. Hart, Matter of, 6 N. Y. St. Rep. 535; 677. Hart, Matter of, 60 Hun, 516; 1124. Hart V. Ten Eyck, 2 Johns. Ch. 62; 779. Harteau, Matter of, 53 Misc. 201; 1033, 1171. Hartnett v. Wandell, 60 N. Y. 346; 467, 468, 469, 471, 480. Hartwell v. McMaster, 4 Redf. 389; 116, 323, 361, 363. Harvens, Will of, 8 Misc. 574; 444. Harvey v. Kennedy, 81 App. Div. 261; 932. Harvey, Matter of, 3 Redf. 214; 150, 490. Harvey v. Ohnstead, 1 N. Y. 483; 449. Harvey v. Richards, 1 Mason, 380; 42, 605. Harwood, Matter of, 52 Misc. 82; 1171. Hasbrouck v. Hasbrouck, 29 N. Y. 182; 842. Haskett, Ex parte, 3 Redf. 165; 523, 529. Hasldns, Matter of, 111 App. Div. 754 (rev'g 49 Misc. 177); 1141, 1153. Haslehurst, Matter of Est. of, 4 Misc. 366; 1063. Hassey v. Keller, 1 Dem. 577; 667, 672. Hassler v. Hassler, 1 Bradf. 248; 525. Hastings, Est. of Sarah, N. Y. Law Jour., June 27, 1902; 494. Hastings, Est. of, 6 Dem. 423; 758. Hastings, Matter of, 6 Dem. 307; 760, 927. Hastings v. Tousey, 123 App. Div. 480; 524, 531. Hatch, Matter of, 182 N. Y. 320; 989. Hatch V. Sigman, 1 Dem. 519; 293, 294. 461. Hathaway, Matter of, 27 Misc. 474; 35, 37, 883, 888. Hathaway, Matter of, 71 N. Y. 238; 21. Hathaway, Matter of, 24 N. Y. Supp. 468; 847. ^^ Hatten, Est. of, 6 Dem. 444; 229, 230. Hatton V. McFaddon, 15 N. Y. St. Rep. 124; 1023. Haug, Matter of, 29 Misc. 36; 479, 498, 508, 547, 552, 554. Haughian v. Conlan, 86 App. Div. 290; 427, 428. Haughian, Matter of, 37 Misc." 457; 499. TABLE OF CASES CITED Ixxi [References axe to pages.] Hauselt v. Gano, 1 Dem. 36; 846, 1082. Havemeyer, Matter of, 3 App. Div. 519; 661, 666, 667, 1023. Havemeyer, Matter of, 32 Misc. 416; 865. Havens v. Saoket, 15 N. Y. 365; 949. Havens v. Sherman, 42 Barb. 636; 974, 976. Havens, WiU of, 8 Misc. 574; 1134, 1135. Hawke v. Hawke, 146 N. Y. 366; 427. Hawke v. Hawke, 74 Hun,, 370; 425. Hawke v. Hawke, 82 Hun, 439; 421. Hawley v. Cramer, 4 Cow. 735; 991. Hawley, Matter of, 104 N. Y. 250; 4, 37, 146, 148, 1011, 1059, 1061, 1084, 1101. Hawley, Matter of, 100 N. Y. 206 (aff'g Est. of Singer, 3 Dem. 571); 116, 176, 177, 178, 180, 903. Hawley, Matter of, 37 Misc. 667; 554. Hawley, Matter of, 36 Hun, 258; 1085. Hawley, Matter of, 44 Misc. 186; 382. Hawley v. Singer, 3 Dem. 589; 1153. Haxtun v. Corse, 2 Barb. Ch. 521; 449. Haxtun, Matter of, 102 N. Y. 157; 977, 978, 979. Hayden, Matter of, 54 Hun, 197; 1140, 1144, 1146, 1148. Hayden v. Pierce, 144 N. Y. 512; 1187. Hayden v. Suyden, 48 Misc. 109; 860. Hayes, Matter of, 40 Misc. 500; 1140. Hayle v. Hasted, 1 Curt. 236; 278. Hayne v. Sealy, 22 Misc. 243; 771. Hays V. Hibbard, 3 Redf. 28; 948. Hays V. Jackson, 6 Mass. 153; 45. Hayward, Matter of, 44 App. Div. 265; 173. Hayward v. Place, 4 Dem. 487 (aff'd 105 N. Y. 628); 503, 508, 555, 672. Haywood v. Townsend, 4 App. Div. 246; 730. Hazard, Matter of, 73 Hun, 22; 836, 837. Heady's WiU, 15 Abb. Pr. N. S. 211; 416. Healy v. Healy, 55 App. Div. 315; 743. Healy, Matter of, 27 Misc. 352; 96, 277. Heaney, Matter of, 125 App. Div. 619; 1139. Hearman, Matter of, 34 N. Y. St. Rep. 231 ■ 979 990. Heath v. 6ole, 15 Hun, 100; 330, 332, 333, 342, 343. Heath v. Heath, 18 Misc. 521; 736. Heath v. Koch, 173 N. Y. 629; 427. Hebbard v. Haughian, 70 N. Y. 55; 296. Hecht, Matter of Application of, 71 Hun, 62; 1009, 1030. Hedding Meth. Epis. Church, Matter of, 35 Hun, 315; 936. Hedges v. Hedges, Prec. in Ch. 269; Gilb. Eq. Rep. 12; 298. Hedges, Matter of, 57 App. Div. 48; 375. Heelas, Matter of, 5 Redf. 440; 1135. Heermans v. Hill, 2 Hun, 409; 8, 176. Heihnan v. Jones, 5 Redf. 398; 100, 183, 409, 664. Heinemann v. Heard, 62 N. Y. 448; 734. Heinrich v. Heidt, 106 App. Div. 179; 817. Hellenberg v. Ind. Order of B'nai B'rith, 94 N. Y. 580; 770. Hembury, Matter of, 37 Misc. 454; 773. Henderson, Matter of, 157 N. Y. 423; 176, 177, 179, 902. Henderson v. Scott, 32 Hun, 413; 933. Hendricks v. Decker, 35 Barb. 298; 933. Hendrickson v. Ladd, 2 Dem. 402; 502, 583, 586, 589. Heney v. Mead, 4 Law Bull. 10; 124. Henning v. Miller, 83 Hun, 403; 812. Henry v. Bishop, 2 Wend. 575; 328. Henry, Est. of, 4 Dem. 253; 203. Henry v. Henry, 4 Dem. 253; 123. Henry v. Henry, 3 How. N. S. 386; 190. Henry v. Henry, 3 Dem. 322; 413. Henry, Matter of, 2 How. N. S. 250; 83, 91. Henry, Matter of, 5 Dem. 272; 225. Henry, Matter of, 18 Misc. 149; 349. Hepburn v. Hepburn, 2 Bradf. 74; 943. Hepburn v. Montgomery, 97 N. Y. 617; 118, 195. Herbeck, In re, 16 Abb. Pr. N. S. 214; 1037. Herbert v. Smith, 6 Lans. 493; 81. Hermance, Matter of, 2 Dem. 1; 1044. Hermann v. Wagner, 81 Hun, 431; 808. Herrick v. Mahn, 22 Wend. 388; 261. Herrick v. Snyder, 27 Misc. 462; 258, 337, 338. Herrington v. Lowman, 22 App. Div. 266; 546. Hertell v. Bogert, 9 Paige, 52; 495. Hertfelder's Est., 1 Law Bull. 96; 1112. Hervy, Matter of, 67 Hun, 13; 963. Herzog v. Title Co., 177 N. Y. 86; 931. Hesdra's Est., In re, 4 Misc. 37; 119, 177, 181. Hesdra, Matter of, 119 N. Y. 615 (aff'g 17 N. Y. St. Rep. 612); 323, 345. Hetherington, Matter of, 25 Wkly. Dig. 4; 676. Heuser, Matter of, 87 Hun, 262; 1124. Hewitt, Matter of, 31 Misc. 81; 359. Hewitt V. Newberger, 141 N. Y. 538; 4. Hewitt's Will, 91 N. Y. 261; 5 Redf. 271; 315, 316. Hewlett V. Ehner, 103 N. Y. 156; 116, 118, 197. Hewlett V. Wood, 55 N. Y. 634; 357, 358, 369. Heyen, Matter of, 40 Misc. 511; 669. Heyzer v. Morris, 110 App. Div. 313; 354, 371, 376. Hickey v. Dixon, 42 Misc. 4; 1036. Hicks V. Hicks, 12 Barb. 322; 569. Hicks, Matter of, 14 St. Rep. 320; 118, 135. Hicks, Matter of, 170 N. Y. 195; 615. Hicks, Matter of, 54 App. Div. 582; 686, 1073, 1096. Hicks, etc., v. Walton, 14 App. Div. 199; 812. Hierman v. Hapgood, 1 Dem. 188; 140. Higgin, Matter of, 55 Misc. 175; 873. Higgins, Matter of, 94 N. Y. 554; 348. Ixxii TABLE OF CASES CITED [References are to pages.] Higgins V. Union Trust Co., 32 N. Y. St. Rep. 197 (aff'd 127 N. Y. 635); 46. Hildebrand, Matter of, 1 Misc. 245; 771. HiU V. Crockford, 24 N. Y. 128; 403. Hill V. Horton, 4 Dem. 88; 36, 37. Hill, Matter of, 43 Misc. 583; 518. Hill V. Nelson, 1 Dem. 357; 1150. Hill V. Newichawanick Co., 8 Hun, 459 (aff'd 71 N. Y. 593); 794. HiU V. Nye, 17 Hun, 457; 735, 742, 743. Hilton, Matter of, 29 Misc. 532; 516. Hinman, Matter of, 32 Misc. 536; 950. Hirsch, Matter of, 116 App. Div. 367, 373 133, 1145. Hitchcock, Matter of, 16 Wkly. Dig. 533 349. Hitchcock V. Thompson, 6 Hun, 279; 319 Hitchins, Matter of, 39 Misc. 767; 1151 Hitchler, Matter of, 21 Misc. 417; 77, 934 Hoag V. Lamont, 16 Abb. N. S. 91; 77. Hoag V. Wright, 174 N. Y. 36; 358. Hoagland, Matter of, 51 App. Div. 347; 1032. Hobart v. Hobart, 62 N. Y. 84; 201. Hobson V. Blackburn, 1 Addams, 274; 268. Hobson V. Hale, 95 N. Y. 598; 961, 1142. Hodgman, Matter of, 11 App. Div. 344; 125. , Hodgman, Matter of, 82 Hun, 419; 181. Hodgman, Matter of, 31 N. Y. St. Rep. 479; 619. Hodgman, Matter of, 69 Hun, 487 (aff'd 140 N. Y. 421); 943. Hodgman, Matter of, 140 N. Y. 421; 177, 186, 187, 929, 945, 953. Hodgman, Matter of, 10 N. Y. Supp. 491; 1087. Hoes V. Halsey, 2 Dem. 577; 112. Hoes, Matter of, 54 App. Div. 281 ; 133. Hoes, Matter of, 119 App. Div. 288; 179, 183, 631, 1172. Hoes V. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435, 482 (rev'g 73 App. Div. 363); 40, 151, 632. Hoes V. Van Hoesen, 1 Barb. Ch. 379; 1168. Hoey V. Gih-oy, 129 N. Y. 132; 448. Hoffman, Matter of, 143 N. Y. 327; 862, 867, 923. Hoffman, Matter of, 42 Misc. 90; 834, 897. Hoffman v. Pennsylvania Hospital, 1 Dem. 118; 945, 946. Hogan V. Kavanaugh, 138 N. Y. 417; 844, 845, 861, 931, 960, 983. Hogarty, Matter of, 62 App. Div. 79; 233. Hogle V. Hogle, 49 Hun, 313; 85, 890. Holbrook, Matter of, 39 Misc. 139; 1149. Holcomb V. Holcomb, 95 N. Y. 316; 357, 384. Holcomb V. Nettleton, 41 Misc. 504; 513, 813, 814. Holden, Matter of, 126 N. Y. 589; 224, 231, 233 234 Holland v. Alcock, 108 N. Y. 312; 465. Holland v. Ferris, 2 Bradf. 334; 294, 660. HoUenback v. Fleming, 6 Hill, 303; 328. HoUenbeck v. Van Valkenbrn-gh, 5 How. 281; 325. Holley v. Chamberlain, 1 Redf. 333; 1043, 1044. Holly V. Gibbons, 176 N. Y. 520; 831, 852, 961, 962. Holmes v. Cock, 2 Barb. Ch. 426; 487, 691, 700. Holmes, Matter of. No. 2, 79 App. Div. 267; 162, 204. Hohnes, Matter of, 37 App. Div. 15 (aff'd 159 N. Y. 532); 615. Hohnes v. Mead, 52 N. Y. 343; 454, 501. Hohnes v. Remson, 4 Johns. Ch. 460: 632. Hohnes v. Roper, 141 N. Y. 64; 839. Holmes v. Seeley, 17 Wend. 75; 1036. Holt V. Jex, 48 Hun, 528; 927. Holt V. Tuite, 188 N. Y. 17; 743. Holyoke v. Union Mutual Ins. Co., 22 Hun, 75 (aff'd 84 N. Y. 648); 609, 632, 769. Hone V. De Peyster, 106 N. Y 645; 230. Hone V. Lockman, 4 Redf. 61 ; 834. Hood V. Hayward, 124 N. Y. 1; 689, 726, 1090. Hood V. Hood, 5 Dem. 50; 176, 1008. Hood V. Hood, 85 N. Y. 561; 49, 501, 660, 724, 861, 1107. Hood, Matter of, 98 N. Y. 363 (aff'g 2 Dem. 583); 660, 685, 728, 1010. Hood, Matter of, 104 N. Y. 103: 118, 119, 1120. Hook V. Pratt, 8 Hun, 102; 459. Hooley v. Gieve, 82 N. Y. 625; 1023. Hooper v. Beecher, 109 N. Y. 609; 187. Hoople, Matter of, 179 N. Y. 308; 917. Hopkins v. Kent, 145 N. Y. 363; 448. Hopkins v. Lane, 6 Dem. 12 (aff'd 17 N. Y.St. Rep. 677); 23, 24. Hopkins, Matter of, 35 Misc. 702; 259. Hopkms, Matter of, 6 N. Y. St. Rep. 390; 385. Hopkuis, Matter of, 43 Misc. 464; 743. Hopkins, Matter of, 102 App. Div. 458; 449, 735, 1178. Hopkins, Matter of, 41 Misc. 83 (aff'd 95 App. Div. 57); 223. Hoplmia, Matter of, 73 App. Div. 559; 200. Hopkms, Matter of, 95 App. Div. 57; 208, 210. Hopkins, Matter of, 97 App. Div. 126; 259. Hopkins, Matter of, 109 App. Div. 861; 259. Hopkms, Matter of, 172 N. Y. 360; 325, 326. Hopkins v. Van Valkenburgh, 16 Hun, 3; 979. Hopper V. Hopper, 125 N. Y. 400; 584, 585, 604. Hopper, Matter of, 5 Dem. 242; 40, 41, 43. Hopper, Matter of, 5 Paige, 489; 24. Hopper V. Reed, 32 Daily Reg., Oct. 26, 1887; 268. Hopper V. Sage, 112 N. Y. 530; 794. TABLE OF CASES CITED Ixxiii [References are to pages.] Hoppock V. Tucker, 59 N. Y. 202; 436, 448. Horn, Matter of, 39 Misc. 133; 866. Horn V. PuUman, 72 N. Y. 269; 201, 349, 351, 354, 365, 376. Hombeck v. Am. Bible Society, 2 Sand. Ch. 133; 453. Homer v. Sidway, 124 N. Y. 538; 269. Horsfield v. Black, 40 App. Div. 264; 1009. Horton v. Brown, 29 Hun, 654; 800, 802, 813 Horton v. Cantwell, 108 N. Y. 255; 465. Horton v. McCory, 47 N. Y. 21; 948, 1067. Hosack, Matter of, N. Y. Law J., Oct. 30, 1902; 924. Hosack V. Rogers, 11 Paige, 603; 162. Hosack V. Rogers, 9 Paige, 461; 1153. Hosea v. Skinner, 32 Misc. 653; 947. Hosford, Matter of, 2 Redf. 168; 1040. Hosford, Matter of, 27 App. Div. 427; 788, 1103, 1106, 1111, 1127, 1136, 1146, 1155. Houdayer, Matter of, 150 N. Y. 37; 865. Houghton V. Watson, 1 Dem. 299; 1036, 1065. House, Matter of, 2 Connoly, 524; 510. House, Matter of, 20 Civ. Proc. Rep. 131; 548. Hovey V. McLean, 1 Dem. 396; 486, 557. Hovey v. Smith, 1 Barb. 372; 838. Howard v. Doughty, 3 Redf. 535; 516. Howard v. Hewlett, 5 Redf. 330 237. Howard v. HoUoway, 7 Johns. 394 260. Howard, Matter of, 11 Misc. 224; 984. Howard, Matter of, 3 Misc. 170; 1156. Howard v. Moot, 64 N. Y. 262; 393. Howell v. Blodgett, 1 Redf. 323; 791. Howell, Matter of, 34 Misc. 40; 874. Howell, Matter of, 34 Misc. 432; 923. Howland v. Ralph, 3 Johns. 20; 757. Howland v. Taylor, 53 N. Y. 627; 197, 200, 217. Howland v. Union Theological Seminary, 5 N. Y. 193; 447. Hoye V. Flynn, 30 Misc. 636; 814, 1128. Hoysradt v. Kingman, 22 N. Y. 372; 314, 315, 327, 332, 338, 343. Hoyt V. Bonnett, 50 N. Y. 538; 818, 1169. Hoyt V. Hilton, 2 Edw. Ch. 202; 1070. Hoyt V. Hoyt, 112 N. Y. 493 (aff'g 9 N. Y. St. Rep. 731); 154, 155, 182, 281, 408, 416, 422, 423. Hoyt V. Hoyt, 85 N. Y. 142; 450, 931. Hoyt V. Hoyt, 17 Hun, 192; 933. Hoyt V. Jackson, 2 Dem. 443; 248, 287, 416. Hoyt V. Jackson, 1 Dem. 553; 939, 940. Hoyt, Matter of, 5 Dem. 432; 114, 116. Hoyt, Matter of, 31 Hun, 176; 415, 937, 938. Hoyt, Matter of, 160 N. Y. 607; 1028, 1078. Hoyt, Matter of, 44 Misc. 76; 882. Hoyt, Matter of, 55 Misc. 159; 280. Hoyt V. Ross, 20 N. Y. Supp. 521; 355. Hubbard v. Hubbard, 8 N. Y. 196; 299. Hubbard, Matter of, 21 Misc. 556; 884, 910. Huber, Matter of, 86 App. Div. 458; 897. Huck V. Kraus, 50 Misc. 528; 840. Hudson, Matter of, 37 Misc. 539; 622. Hudson, Matter of, 5 Redf. 333; 589. Hudson V. Reeve, 1 Barb. 89; 930. Huestis, Will of. In re, 23 N. Y. Weekly Dig. 224; 121. Hughes v. Golden, 44 Misc. 128; 882. Hughes, In re, 95 N. Y. 55; 40, 42, 598, 602, 603, 605. Hughes V. Jones, 116 N. Y. 67; 361. Hughes, Matter of, 1 Tucker, 38; 1043. Hughes, Matter of, 61 Misc. 207; 258, 461, Hughes, Matter of, 41 Misc. 75; 425, 937, 938, 949. Huiell, Matter of, 6 Dem. 352; 266, 1178. Hull V. Cartledge, 18 App. Div. 54; 469. Hull, Matter of, 109 App. Div. 248; 907. Hull, Matter of. Ill App. Div. 322; 880. Hull Matter of, 97 App. Div. 258; 618. Hull V. Rawls, 27 Misc. 471; 542. Hulse, Matter of, 41 Misc. 307; 774. Hultslander v. Thompson, 5 Hun, 348; 812. Humbert v. Wurster, 22 Hun, 405; 468. Humfreville, Matter of, 19 App. Div. 381; 161, 164, 225. Humfreville, Matter of, 154 N. Y. 115; 163, 164, 225. Humfreville, Matter of, 8 App. Div. 312; 180, 181. Humfreville, Matter of, 6 App. Div. 535; 1131. Hun, Matter of, 144 N. Y. 472; 833. Hunt's Est., In re, 34 N. Y. Supp. 1088; 1054. Hunt V. Hunt, 72 N. Y. 217; 71, 723. Hunt V. Hunt, 171 N. Y. 396 (aff'g 55 App. Div. 430); 268. Hunt V. Hunt, 110 App. Div. 533; 1013. Hunt, Matter of, 86 Hun, 232; 869. Hunt, Matter of, 110 N. Y. 278; 322, 331, 346. Hunt, Matter of, 41 Misc. 72; 1149. Hunt, Matter of, 38 Misc. 613; 1140. Hunt, Matter of, 120 App. Div. 883; 189. Hunt, Matter of, 121 App. Div. 96; 1150. Hunt, Petition of, 1 Tuck. 55; 113. Hunter v. Hunter, 19 Barb. 631 ; 104. Huntington, Matter of, 168 N. Y. 399; 874. Huntington, Matter of, 39 Misc. 477; 781. Hurd V. Callahan, 5 Redf. 393; 981. Hurd, Matter of, 6 Misc. 171 ; 58, 138, 140. Hurd, Matter of, 47 Misc. 567; 882. Hurd V. Railroad Company, 33 Him, 109; 712. Hurlburt v. Durant, 88 N. Y. 121; 662, 853, 859, 936, 1016, 1032, 1138, 1151. Hurlburt v. Hurlburt, 128 N. Y. 424; 296. Hurlburt, Matter of, 51 Misc. 263; 1078. Hurlburt, Matter of, 43 Hun, 311; 52, 1101. Hurlbut, Matter of, 48 App. Div. 91; 372, 375. Ixxiv TABLE OP CASES CITED [References are to pages.] Hurlbut, Matter of, 26 Misc. 461; 383. Hurst, Matter of, 111 App. Div. 460; 533, 1140, 1144. Hurtin v. Proal, 3 Bradf. 414; 97, 1177. Hustis V. Aldridge, 144 N. Y. 508; 809, 810. Hutchings v. Cockrane, 2 Bradf. 295; 341. Hutchinson, Matter of, 10 N. Y. St. Rep. 10; 667. Hutchison, Matter of, 84 Hun, 563; 1155. Huyck, Matter of, 49 Misc. 391; 734 Hyatt V. Allen, 56 N. Y. 553; 794. Hyatt V. Dusenbury, 106 N. Y. 663; 186, 187. Hyatt V. Lunnin, 1 Dem. 14; 330, 349. Hyde v. Stone, 7 Wend. 354; 546. Hyland v. Baxter, 98 N. Y. 610; 176, 1063, 1065. Hyland, Matter of, 24 Misc. 357; 543. Hyland's Will, 27 N. Y. Supp. 961; 326, 327. Hynes v. Alexander, 2 App. Div. 109; 1076. Hynes, Matter of, 105 N. Y. 560; 1036. Hynes v. M'Dermott, 95 N. Y. 451; 266. Ibert, Matter of, 48 App. Div. 510; 104, 965, 972. Tde V. Brown, 178 N. Y. 26; 1068. Idley V. Browen, 11 Weild. 227; 294, 461. Illensworth v. lUensworth, 110 App. Div. 399; 234. Illensworth v. Illensworth, 39 Misc. 194; 335. lugersoU v. Mangam, 84 N. Y. 622; 78. IngersoU, Matter of, 95 App. Div. 212; 1140. Ingraham, Matter of, 35 Misc. 577; 105, 224, 227, 233. Ingraham, Matter of. 60 Misc. 44; 1139. Iredale, Matter of, 53 App. Div. 45; 217, 367. Ireland, Matter of, 47 Misc. 545; 573. Irish, Matter of, 28 Misc. 648; 894. Irvin, Matter of, 24 Misc. 353; 9, 1125. Irvin, Matter of, 68 App. Div. 158; 618, lido, 1184. Irving V. Royal Ex. Assurance of London, 122 App. Div. 56; 127. Irwin, Matter of, 36 Misc. 177; 909. Irwin, Matter of, 59 Misc. 143; 1023, 1025. Irwin V. Teller, 188 N. Y. 25; 932. Isenhart v. Brown, 2 Ed. Ch. 341; 839, 951. Isham v. Gibbons, 1 Bradf. 69; 7, 38, 644, 545, 569, 590. Isham V. N. Y. Assn., etc., 177 N. Y. 218, 222 ( aff'd 177 N. Y. 218); 186, 880, 882, 926. Isola V. Webber, 12 App. Div. 267; 229. Ivison V. Ivison, 80 App. Div. 599; 357, 427. Jack, Matter of, 52 Misc. 424; 39. Jackson, Accoimting of, 16 Week. Dig. 345- 1012, 1084. . Jackson v. Betts, 6 Cow. 377; 297, 458. Jackson v. Bonham, 15 Johns. 226; 540. Jackson v. Christman, 4 Wend. 277; 318, 343, 348. Jackson v. Halloway, 7 Johnson, 394; 258, 336. Jackson v. Holladay, 3 Redf. 379; 988. Jackson v. Jackson, 39 N. Y. 153; 317, 318, 325, 326, 329, 332, 337. Jackson v. LeGrange, 19 Johns. 386; 297, 458. Jackson, Matter of, 32 Hun, 200; 117. Jackson v. Pattie, 9 Johnson, 312; 258. Jackson v. Tailer, 41 Misc. 36; 924. Jackson v. Van Deusen, 5 Johns. 144; 339. Jackson v. Vickory, 1 Wend. 406; 292. Jacob, Matter of, 5 App. Div. 508; 661, 669. Jacobs, Matter of, 109 App. Div. 293; 803, 816. Jacobson, Matter of, 6 Dem. 298; 322. Jacquet, Matter of, 40 Misc. 575; 1038, 1042, 1054. James v. Adams, 22 How. Practice, 409; 34, 645. James v. Beesley, 4 Redf. 236; 837. James, Matter of, 87 Hvm, 57; 409. James, Matter of, 146 N. Y. 78; 447, 770, 839. James, Matter of, 144 N. Y. 6; 865, 913, 915, 921. Jauncey v. Rutherford, 9 Paige, 273; 105, 189. Jauncy v. Thome, 2 Barb. Ch. 59; 344. Jemison v. Bank, 85 N. Y. 546; 124. Jenkins v. Jenkins, 1 Paige, 243; 405, Jenkins, Matter of, 39 Misc. 618; 366. Jenkins v. Robinson, 4 Wend. 436; 149. Jenkins v. Shaffer, 6 Dem. 59; 522. Jenkins v. Young, 35 Hun, 569; 975. Jenkins v. Young, 43 Hun, 194; 976. Jenkinson v. Harris, 27 Misc. 714; 809. Jermain v. Lake Shore & M. S. Ry. Co., 91 N. Y. 483; 794. Jeroms v. Jeroms, 18 Barb. 24; 780, 791. Joel v. Ritterman, 2 Dem. 242; 160, 860. Joel V. Ritterman, 5 Redf. 136; 164. John, Est. of, 18 N. Y. Supp. 172; 975, 992, 993. John, Evan, Est. of, 21 Civ. Proc. Rep. 326; 974. Johnson v. Bell, not reported, 1020. Johnson v. Borden, 4 Dem. 36; 1043, 1044, 1045, 1051. Johnson v. Cockrane, No. 2, 91 Hun, 165; 425, 426. Johnson v. Cole, 178 N. Y. 364; 1160. Johnson v. Corbett, 11 Paige, 265; 775, 840, 997. Johnson v. Hubbell, 66 Am. Dec. 784; 269. Johnson v. Johnson, 4 Dem. 93; 583, 1054. Johnson v. Lawre, 95 N. Y. 165; 1010. Johnson v. Lawrence, 95 N. Y. 154; 728, 1138, 1151. Johnson, Matter of, 37 Misc. 334; 122. Johnson, Matter of, 17 Hun, 538; 190. Johnson, Matter of, 7 Misc. 220; 359, 369. Johnson, Matter of, 1 Connoly, 518; 417. TABLE OF CASES CITED Ixxv [References are to pages.] Johnson, Matter of, 28 Misc. 363; 379. Johnson, Matter of, 15 N. Y. St. Rep. 752; 669, 671. Johnson, Matter of, 37 Misc. 542; 906. Johnson, Matter of, 18 App. Div. 371 ; 963. Johnson, Matter of, 6 Dem. 146; 881. Johnson, Matter of, 57 App. Div. 494; 1027, 1141, 1151. Johnson, Matter of, 27 Misc. 167; 28. Johnson, Matter of, 170 N. Y. 139; 1147, 1148. Johnson, Matter of, 60 Misc. 277; 261. Johnson v. Richards, 3 Hun, 454; 148, 1171. Johnson v. Robinson, 4 Wend. 437; 149. Johnson v. Smith, 25 Hun, 171; 40, 147, 543 Johnson v. Wallis, 112 N. Y. 230; 583, 607. Johnson's Will, 27 N. Y. Supp. 649; 354. Johnston, Matter of, 6 Dem. 355; 235, 881. Johnston, Matter of, 60 Hun, 516; 750. Johnston v. Smith, 25 Hun, 171; 41, 568, 645, 769. Jones's Est., In re, 3 Misc. 586; 8. Jones V. Arkenburgh, 112 App. Div. 483; 847. Jones V. Hamersley, 4 Dem. 427; 281, 308, 437, 441. Jones V. Hamersley, 2 Dem. 286; 516, 517. Jones V. Hooper. 2 Dem. 14; 8. Jones V. Hoyt. 10 Abb. N. C. 324; 124. Jones, In re, 30 Misc. 354; 1101. Jones V. Jones, 42 Hun, 563; 330. Jones V. LeBaron, 3 Dem. 37; 978. Jones, Matter of, 28 Misc. 599; 238. Jones, Matter of, 10 N. Y. St. Rep. 163; 899 Jones, Matter of, 1 Redf. 263; 786, 1080, 1106. Jones, Matter of, 28 Misc. 356; 922. Jones, Matter of, 54 Misc. 202; 84, 891. Jones's Will, Matter of, 25 N. Y. Supp. 109; 368. Joost, Matter of, 50 Misc. 78; 1106. Jordan, Matter of, 50 App. Div. 244; 831. Jordan v. PoUlon, 77 N. Y. 518; 996. Jouffret v. Loppin, 20 App. Div. 455; 842. Joumault v. Ferris, 2 Dem. 320; 1111, 1124, 1127. Joumeay, Matter of, 15 App. Div. 567; 371. Judd V. Warner, 2 Dem. 104; 1026. Judson V. Gibbons, 5 Wend. 224; 478, 1010. Judson, Matter of, 73 App. Div. 620; 892. Jumel V. Jumel, 7 Paige, 591; 1063. Jurjo V. Dunscomb, 2 Bradf. 105; 590. Kade v. Lauber, 16 Abb. Prac. N. S. 288; 103. Kahn v. Hoes, 14 Misc. 63; 295, 459, 461. Kahn, Matter of, 1 Connoly, 510; 366, 368. Kain v. Fisher, 6 N. Y. 697; 771. Kain v. Masterton, 16 N. Y. 174; 993. Kalbfleisch v. Kalbfleisch, 67 N. Y. 354; 389; 931. Kalbfleisch, Matter of, 78 App. Div. 464; 824, 1109. Kalish V. Kalish, 166 N. Y. 368; 448, 465. Kammerrer v. Zeigler, 1 Dem. 177; 973, 978, 979. Kane v. Bloodgood, 7 Johns. Ch. 89; 1096. Kane, Matter of, 20 N. Y. Supp. 123; 327, 337 Kane, Matter of, 38 Misc. 276; 770, 1077. Kane, Matter of, 64 App. Div. 566; 793, 1106, 1115. Kapp v. Pub. Adm'r, 2 Bradf. 258; 772. Karstens v. Karstens, 20 Misc. 247; 541. Kasson, Matter of, 46 App. Div. 348; 684. Katz V. Schnaier, 87 Hun, 343; 421, 426, 1187. Kaufman, Matter of, 39 St. Rep. 236; 118, 195, 199. Kaufman, Matter of, 131 N. Y. 620 (aff'd 61 Hun, 331); 263, 265. Kavanagh's Est., 9 N. Y. Supp. 443; 206. Kavanagh v. Wilson, 5 Redf. 43; 980. Keahon, Matter of, 60 Misc. 508; 893. Kearney V. Cruikshank, 117 N. Y. 95; 793, 959. Kearney, Matter of, 69 App. Div. 481; 325 Kearney v. McKeon, 85 N. Y. 136; 139, 191, 231, 812. Kechele, Matter of, 1 Tucker, 52; 557. Keef, Matter of, 43 Hun, 98; 117, 1133. Keefe, Matter of, 164 N. Y. 352 (aff'd 47 App. Div. 214); 222. Keefe, Matter of, 47 App. Div. 214; 382. Keefe, Matter of, 27 Misc. 618; 385. Keegan v. Smith, 60 App. Div. 168; 698, 730, 1132, 1133, 1136. Keeler v. Keeler, 22 N. Y. St. Rep. 439; 363, 364. Keeler v. Keeler, 3 N. Y. Supp. 629; 364, 368. Keeler, Matter of, 5 Dem. 218; 182. Keeler, Matter of, 2 Connoly, 45; 226. Keeney, Matter of, 194 N. Y. 251; 864. Keeney v. Whitemarsh, 16 Barb. 141 ; 279. Keep, Matter of, 17 N. Y. St. Rep. 812; 270. Keep's Will, Matter of, 2 N. Y. Supp. 750; 268, 269. Keinz, Matter of, 88 Hun, 298; 661. Kelaher v. McCahill, 26 Hun, 148; 1066. Keleman, Matter of Will of, 126 N. Y. 73; 441. Kellett V. Rathburn, 4 Paige, 102; 186, 189, 1122. Kelley's Est., 1 Abb. N. C. 102; 975, 995. Kelley v. Hogan, 71 App. Div. 343; 447, 448. Kellinger, Est. of, 2 McCarty, 68; 161. Kelhnger v. Roe, 7 Paige, 362; 92, 235, 1042. Kellogg, Matter of, 104 N. Y. 648; 118, 199. Kellogg, Matter of, 39 Hun, 275; 1133. Kellogg, Matter of, 187 N. Y. 355; 1069, 1070. Kellum, Matter of, 52 N. Y. 517; 345. Ixxvi TABLE OF CASES CITED [References are to pages.] Kellum, Matter of Will of, 50 N. Y. 298; 153, 155, 345, 408, 410. Kelly V. Beers, 194 N. Y. 49; 1108. Kelly V. Drew, 12 AUen, 107; 542. Kelly V. Jay, 79 Hun, 535; 490. Kelly, Matter of, 62 N. Y. 198; 226. Kelly, Matter of, 29 Misc. 169; 872, 909. Kelly V. Pratt, 41 Misc. 31; 834. Kelly V. West, 80 N. Y. 139; 543, 565, 645, 723, 730. Kelsey v. Church, 112 App. Div. 408; 886. Kelsey v. Van Camp, 3 Dem. 530; 443, 706, 1021. Kelsey v. Western, 2 N. Y. 500; 844. Kemeys, Matter of, 56 Hun, 518; 871. Kemp, Matter of, 49 Misc. 396; 788. Kempf, Matter of, 53 Misc. 200; 1146. Kendall, Matter of, 2 Law Bull. 51; 125. Kendrick, Matter of, 107 N. Y. 104; 101. Kennedy, Matter of, 167 N. Y. 163 (aff'g 53 App. Div. 105; 30 Misc. 1); 256, 294, 352, 458. Kennedy, Matter of, 20 Misc. 531; 895. Kennedy, Matter of, 113 App. Div. 4; 893. Kennedy, Matter of, 98 App. Div. 27; 906. Kennedy v. Ryall, 69 N. Y. 379; 36. Kenny, Matter of, N. Y. Law Jour., Oct. 24, 1890; 141. Kenny, Matter of, N. Y. Law Jour., June 1, 1908; 314. Kent V. Hopkins, 86 Hun, 611; 538. Kenworthy, Matter of, 63 Hun, 165; 1148, 1149. Keough, Matter of, 42 Misc. 387; 774. Kernoohan, Matter of, 104 N. Y. 618- 794, 1033. Kerr v. Dougherty, 17 Hun, 341; 933. Kerr v. Dougherty, 79 N. Y. 327; 942, 958. Kerr v. Kerr, 41 N. Y. 272; 109, 676. Kerrigan, Est. of, 2 McCarty, 334; 1055. Kerry v. Dimon, 37 N. Y. Supp. 92; 293 461. Kerslaw v. Thompson, 4 Johns. Ch. 609- 996. Kerwin, Matter of, 59 Hun, 589; 1062. Kesler v. Bell, 48 Misc. 428; 58. Ketcham's Est., 5 N. Y. Supp. 566; 541. Ketchum v. Morrell, 2 N. Y. Legal Ob- server, 58; 632, 654. Keteltas v. Green, 9 Hun, 599; 938. Keteltas v. Keteltas, 72 N. Y. 312; 102. Kettel v. Baxter, 60 Misc. 428; 737, 1178. Kettletas v. Gardner, 1 Paige, 488; 1056. Kiah V. Grenier, 56 N. Y. 220; 448. Kidd V. Chapman, 2 Barb. Ch. 414; 818. Kidd, Matter of, 115 App. Div. 205 (rev'g 188 N. Y. 274), 914. Kidd, Matter of, 188 N. Y. 274; 874, 879. Kiedaisch, Matter of, 2 Connoly, 435; 354. Kiedaisch, Matter of, 13 N. Y. Supp. 255- 361, 369, 371. Kieman, Matter of, 38 Misc. 394; 38. Kilbum V. See, 1 Dem. 353; 513. Kilfoy V. Powers, 3 Dem. 198; 277. Killan, Matter of, 66 App. Div. 312- 71 147. ' ' Killan, Matter of, 172 N. Y. 547; 222, 519. KilMan v. Heinzerling, 47 Misc. 511;' 736! Killian v. Heinzerling, 114 App. Div 410- 758. Kimbel v. Kimbel, 14 App. Div. 570; 1099. Kimberley, Matter of, 150 N. Y. 90; 931 958. Kine v. Farrell, 71 App. Div. 219; 270. King V. King, 3 Johns. 552; 842. King, Matter of, 29 Misc. 268; 377. ICing, Matter of, 10 Civ. Proc. Rep. 175; 963, 965. King, Matter of, 71 App. Div. 581 (30 Misc. 575);896, 898, 899. King, Matter of, 42 How. 607; 1072. King, Matter of, 122 App. Div. 354; 523, 527. King V. Paddock, 18 Johns. 141; 540, 541. King V. Talbot, 40 N. Y. 76; 525, 667, 943, 950, 1024, 1026. King V. Todd, 27 Abb. N. C. 149; 801, 802, 813, 816. Kingsland, Matter of, 60 Hun, 116; 578, 966. Kingsland v. Murray, 133 N. Y. 170; 196, 222, 843, 844, 931, 983. Kingsley v. Blanchard, 66 Barb. 317; 304, 342, 349. Kinkele v. Wilson, 151 N. Y. 269; 449. Kinne v. Johnson, 60 Barb. 69; 377, 382, 385. Kinnealy v. People, 98 App. Div. 192; 1170. Kinnier v. Rogers, 42 N. Y. 531; 861, 962. Kinsella, Matter of, 50 Misc. 235; 615, 1074. Kintz V. Friday, 4 Dem. 540; 1133, 1161, 1162. Kip V. Van Cortlandt, 7 Hill, 346; 336. Kipp, Matter of, 70 App. Div. 567; 824, 1109. Kipp, Matter of, 41 N. Y. Supp. 259; 1117. Kirby, Matter of, 36 Misc. 312; 1128. Kircheis v. Scheig, 3 Redf. 277; 507. Kirk V. McCann, 117 App. Div. 56; 147. Kirwin v. Malone, 45 App. Div. 93; 573. Kissam, Matter of, 59 Misc. 308; 260. Kittel V. Domeyer, 175 N. Y. 205 (rev'g 70 App. Div. 134); 769. Kittle v. Huntley, 67 Hun, 617; 827. Kivlin, Matter of, 37 Misc. 187; 391. Klein v. Laudman, 29 Mo. 259; 542. Klett, In re, 3 Misc. 385; 347. Klunck, Matter of, 33 Misc. 267; 1065. Knab, Matter of, 38 Misc. 717; 1129. Knapp V. Curtiss, 6 Hill, 388; 801. Knapp V. Knapp, 10 N. Y. 276; 294, 295, 461, 462. Knapp V. Reilley, 3 Dem. 427; 327, 337, 417. Knapp's Will, 23 N. Y. Supp. 282; 255, 335. FF , • Knibbs, Matter of, 45 Misc. 83 (aff'd 108 App. Div. 134) ; 956. TABLE OF CASES CITED Ixxvii [References are to pages.] Knight, Matter of, 21 Abb. N. C. 388; 1026. Knittel, Matter of, 5 Dem. 371; 752, 753. Knoedler, Matter of, 140 N. Y. 377; 769. Knowlton v. Atkins, 134 N. Y. 313; 449. Knox V. Nobel, 77 Hun, 230; 38, 472. Koch, Est. of, 12 N. Y. Supp. 94; 76. Koch's Est., Matter of, 9 N. Y. Supp. 814; 772. Koch, Matter of, 19 Civ. Proc. Rep. 165; 69, 80. Koch, Matter of, 33 Misc. 672; 1088, 1112. Koch, Matter of, 33 Misc. 153; 1112. Kochler v. Hughes, 148 N. Y. 507; 964. Koenig v. Wagenen, 126 App. Div. 772; 160, 751. Kohler v. Knapp, 1 Bradf. 241; 7, 41. Konvalinka v. Schlegel, 104 N. Y. 125; 1099. Koons V. Wilkin, 2 App. Div. 13; 826, 1188. Kopp, Matter of, 15 Civ. Pro. 282; 227. Krakauer, Matter of, 33 Misc. 674; 114. Kranz, Matter of, 41 Hun, 463; 137, 150, 183. &aus. Matter of, 4 Dem. 217; 140. Kreischer, Matter of, 30 App. Div. 313; 1100. Krisfeldt, Matter of, 49 Misc. 26; 513, 1145. Krueger v. SchUnger, 19 Misc. 221; 834. Kruse v. Fricke, 2 Dem. 264; 526. Kucielski, Matter of, 49 Misc. 404; 583, 942. KuUman v. Cox, 26 App. Div. 158; 1036. Kurtzman, Matter of, 2 N. Y. St. Rep. 655; 164, 225. Kurzman v. Lowy, 23 Misc. 380; 1012. Kyle V. Kyle, 67 N. Y. 400; 151, 197, 805, 1129, 1130, 1132. L'Amoureux v. Crosby, 2 Paige, 422; 361. LaBau v. Vanderbilt, 3 Redf. 384; 355, 415, 937. Lacy, Matter of, 35 Misc. 581; 377. Ladd, Matter of Est. of, 5 Civ. Proc. Rep. 50' 965 Ladd V. Stevenson, 122 N. Y. 325; 176. Lafferty v. Lafferty, 5 Redf, 326; 59, 104, 105, 108, 109, 249, 280, 310. Lahn v. Sullivan, 116 App. Div. 609 927. Laird v. Arnold, 25 Hun, 4; 826. Laird v. Arnold, Matter of, 42 Hun, 136 826. Laird, Matter of, 42 Hun, 136; 963, 976 Lake v. Ranney, 33 Barb. 49; 373, 378. Lamb, Matter of, 22 N. Y. St. Rep. 350 230. Lamb, Matter of, 10 Misc. 638; 1121. Lamb's Will, In re, 18 N. Y. Supp. 173 288. Lambert v. Craft, 98 N. Y. 342; 10, 100, 800, 801, 802, 854, 856. Lambert v. Metrop. St. R. Co., 33 Misc. 579' 571 573 Lammer v. Stoddard, 103 N. Y. 672; 1188. Lamphere v. Lamphere, 54 App. Div. 17; 813, 814. Lamport, Matter of, N. Y. Law Jour. June 2, 1908, 378. Lancaster v. Insurance Co., 62 Mo. 121; 541. Lane v. Albertson, 78 App. Div. 607; 1170. Lane v. Lane, 95 N. Y. 494; 121, 314, 331, 332, 344, 345. Lane, Matter of, 39 Misc. 522; 871. Lang, Matter of, 144 N. Y. 275; 177. Lang, Matter of, 9 Misc. 521; 329, 355, 366. Langbein, Matter of, 1 Dem. 443; 405, 590. Langdon v. Astor's Executors, 16 N. Y. 9; 335, 336. Langdon, Matter of, 153 N. Y. 6; 880. Langlois's Est., 2 Connoly, 481; 1111. Langtry, Matter of, 5 N. Y. Supp. 501 346. Lansing, Ex parte, 3 Paige, 264; 91. Lansing, Matter of, 17 N. Y. St. Rep. 440 217. Lansing, Matter of, 31 Misc. 148; 903, 908 Lansing, Matter of, 182 N. Y. 238; 863 881. Lapham, Matter of, 19 Misc. Rep. 71 353, 361, 368. Larabee v. Ballard, 1 Dem. 496; 314. Laramie, Matter of, 24 N. Y. St. Rep. 702 1135. Laramie, Matter of, 6 N. Y. Supp. 175; 7 Larkin v. McNamee, 2d Dept., 109 App Div. 884; 428. Larkins v. Maxon, 103 N. Y. 680; 815. Larson, Matter of, 31 Hun, 539; 737. Lasak, Matter of, 1 Connoly, 490; 226, 250. Lasak, Matter of, 131 N. Y. 624; 248, 249, 250. Lasak, Matter of, 8 N. Y. Supp. 740 (aff'd 121 N. Y. 706); 498, 507, 508, 509. Lathrop v. American Board of Foreign Missions, 67 Barb. 590; 367. Lathrop v. Borden, 5 Hun, 560; 366. Lathrop v. Dunlap, 63 N. Y. 610; 263. Lathrop v. Smith, 24 N. Y. 417; 507, 551, 552, 645. Latson, Matter of, 1 Duer, 696; 4, 162. Lattan, Matter of, 42 Misc. 467; 1135. Latz, Matter of, 110 N. Y. 661; 221. Latz, Matter of, 33 Hun, 618; 579, 1184. Laudy, Matter of, 148 N. Y. 403 (modify- ing S. C, 78 Hun, 479; later S. C, 161 N. Y. 42a); 196, 216, 328, 329, 336. Laudy, Matter of, 14 App. Div. 160; 217, 218, 219, 329, 346. Lavin v. Thomas, 123 App. Div. 113; 350. Law, Matter of, 56 App. Div. 454; 586. Law, Matter of, 80 App. Div. 73 (aff'd 175 N.Y. 471); 247, 291, 456. Lawrence v. Brown, 5 N. Y. 394; 973, 974. Ixxviii TABLE OF CASES CITED [References are to pages.] Lawrence v. Elmendorf, 5 Barb. 73; 583, 605. Lawrence v. Embree, 3 Bradf. 364; 942. Lawrence, Est. of, 1 Tuck. 68; 1120. Lawrence v. Lawrence, 3 Barb. Ch. 74; 584, 607. Lawrence v. Lindsay, 68 N. Y. 104; 436, 1161. Lawrence, Matter of, 27 Misc. 473; 361. Lawrence, Matter of, 37 Misc. 702; 1144. Lawrence, Matter of, 48 App. Div. 83; 361. Lawrence, Matter of, 79 Hun, 176; 987. Lawrence, Matter of, 16 N. Y. St. Rep. 971; 1123. Lawrence v. Miller, 2 N. Y. 245; 974. Lawrence v. Niag. F. I. Co., 2 App. Div. 267; 770, 1077. Lawrence v. Norton, 45 Barb. 448; 348. Lawrence v. Parsons, 27 How. Pr. 26; 278 279 515 Lawrence v. Townsend, 88 N. Y. 24; 104, 610. Lawson, Matter of, 42 App. Div. 377; 198. Lawson, Matter of, 36 Misc. 96; 1087, 1135. Lawton v. Corlies, 127 N. Y. 100; 460. Lawton v. Lawton, 35 App. Div. 389; 1025. Laytiu v. Davidson, 95 N. Y. 263; 728, 1138, 1151. Layton, Matter of, 15 Misc. 660; 411. Leahy v. Campbell, 70 App. Div. 127; 812, 1185. Leaird, Matter of, 58 Misc. 477; 291. Leavy v. Gardner, 63 N. Y. 624; 109. Leaycraft v. Simmons, 3 Bradf. 35; 253, 256, 318, 330, 349. Le Brantz v. Conklin, 39 Misc. 715; 426. Le Count v. Le Count, 1 Dem. 29; 616. Ledgier v. Canfield, 78 App. Div. 596; 845, 931 Ledwith v. Claffey, 18 App. Div. 115; 373, 374. Ledwith v. Ledwith, 1 Dem. 154; 1037, 1043. Ledwith v. Union Trust Co., 2 Dem. 439; 1055, 1061. Ledyard v. Bull, 119 N. Y. 62; 546, 786, 1122, 1131. Lee V. Dill, 11 Abb. Pr. 214; 377, 378. Lee V. Lee, 39 Barb. 172; 231. Lee V. Lee, 85 Hun, 588; 809. Lefevre v. Lefevre, 59 N. Y. 434; 451, 453, 454. LeFevre v. Tool, 84 N. Y. 951; 451. Leffingwell, Matter of, 30 Hun, 528; 133, 136. Legg V. Meyer, 5 Redf. 320; 304. Leggatt, Matter of, 47 App. Div. 381; 162. Leggett V. Hunter, 19 N. Y. 445; 501. Leggett V. Stevens, 185 N. Y. 70; 465. Leidenthal v. Correll, 5 Redf. 267; 770. Leinkauf, Matter of, 4 Dem. 1; 78, 85, 1151. Leland v. Manning, 4 Hun, 7; 790. Lenihan, Matter of, Surr. Decs. 1901, 470; 163. Lent V. Howard, 89 N. Y. 169; 533, 1026, 1102, 1145, 1146, 1156. Leonard v. Columbia S. N. Co., 84 N. Y. 48; 150, 490, 543. Leonard v. Davenport, 58 How. Pr. 384; 453. Leonard v. Harney, 173 N. Y. 352; 769. Leonard v. Steele, 4 Barb. 21; 949. Leopold, Matter of, 35 Misc. 369; 866. Lerche v. Brasher, 104 N. Y. 157; 806, 812, 1132. LeRoy v. Bayard, 3 Bradf. 227; 785. LeRoy, Est. of, 16 Code Civ. Proc. 343; 503, 702. LeRoy's Est., In re, 5 N. Y. Supp. 555; 517. LeRoy, Ex parte, 3 Bradf. 227; 338. Leslie, Ex parte, 3 Redf. 280; 780, 957, 1132. LesUe v. Leslie, 15 Week. Dig. 56; 125, 289. Leslie v. Leslie, 92 N. Y. 636; 368. Lesser, Matter of, 119 App. Div. 507; 1184. Letson v. Evans, 33 Misc. 437; 960. Levett V. Polhemus, 86 App. Div. 496; 616, 1076. Levin v. Russel, 42 N. Y. 251; 622, 656. Levy, Matter of, 41 Misc. 68; 932. Levy's Will, 1 Tuck. 87; 288, 589. Lewin v. Lewin, 2 Ves. 415; 950. Lewis V. BuLkley, 1 Cas. Temp. sec. 513 and 190, notes; 278. Lewis V. Cook, 150 N. Y. 163; 99, 424, 425. Lewis V. Grognard, 17 N. J. Eq. 425; 599. Lewis V. Jones, 50 Barb. 645; 188, 360, 361. Lewis V. Lewis, 11 N. Y. 220; 328, 329, 330, 331, 337, 342, 344, 345, 346, 348. Lewis V. Maloney, 12 Hun, 207; 933. Lewis, Matter of, 17 Weekly Dig. 311; 531, 532. Lewis V. Merritt, 98 N. Y. 207; 347. Lewis V. Watson, 3 Redf. 43; 717. Lexington Ave., Matter of (No. 1), 157 N. Y. 678 (afl'g 30 App. Div. 602); 113. Libbey v. Mason, 112 N. Y. 525; 219, 558, 564, 566, 567. Libolt, Matter of, 102 App. Div. 29; 868. Lichtenberg v. Herdtfelder, 103 N. Y. 302; 492, 670. Lichtenstein, Matter of, 16 Misc. 667; 978, 983. Liddington, Matter of, 20 N. Y. St. Rep. 610; 410. Liddle, Matter of, 35 Misc. 173; 960. Liddy, Matter of, 5 N. Y. Supp. 636; 375. Liddy's Will, In re, 5 N. Y. Supp. 639; 381. Liddy's Will, Matter of, 4 N. Y. Supp. 468; 352, 371. Liesel, Est. of, 18 N. Y. St. Rep. 392; 1083. Lilienthal, Matter of, Westchester County Surr. Court, Feb. 1899; 1121. Limbolt, Matter of, 102 App. Div. 29; 774; Limburger v. Ranch, 2 Abb. N. S. 279: 377. TABLE OF CASES CITED Ixxix [References are to pages.] Lindley, Matter of, 1 Connoly, 500; 1044. Liney, Matter of, 34 N. Y. St. Rep. 700: '386. Linsly v. Bogert, 152 N. Y. 646 (aff'g 67 N. Y. St. Rep. 653); 1140. Linthicum v. Caswell, 19 App. Div. 541; 929. Linton v. Crosby, 66 Iowa, 386; 773. Lippen v. Eldred, 2 Barb. 130; 451. Lippincott, Matter of, 5 Dem. 299; 224. Liscomb, Matter of, 60 Misc. 647; 989. Liss, Matter of, 39 Misc. 123; 834, 897. Litchfield v. Vernon, 41 N. Y. 134; 833. Little Falls Nat. Bank v. King, 53 App. Div. 541; 845. Little V. Lynch, 99 N. Y. 112; 140, 141. Livermore v. Wortman, 25 Hun, 341; 525. Livingston v. Gardner, 4 Redf. 517; 801. Livingston, Matter of, 9 Paige, 440; 2 Dem. 575; 239. Livingston, Matter of, 1 App. Div. 568; 898. Livingston v. Newkirk, 3 Johns. Ch. 312; 806, 843, 985. Llado, Matter of, 50 Misc. 227; 1076. Lloyd v. Lloyd, 1 Redf. 399; 779, 780. Lobrascino, Matter of, 38 Misc. 415; 77, 1168. Lockhart v. White, 18 Tex. 102; 542. . Locklan, Ex parte, 4 Abb. N. 0. 173; 235. Lockman v. Reilly, 95 N. Y. 64; 1067. Lockwood V. Dillenbeck, 104 App. Div. 71; 817. Lockwood V. Lockwood, 21 N. Y. St. Rep. 93* 405 Lockwood V. Lockwood, 3 Redf. 330; 939, 940. Lockwood, Matter of, 8 N. Y. Supp. 845; 367. Lockwood V. Thome, 18 N. Y. 285; 1111. Lockwood's Will, Matter of, 2 Connoly, 118; 368. Loder v. Whelpley, 111 N. Y. 239; 200, 349. 373. I Loesche v. Griffin, 3 Dem. 358; 784. Loewenguth, Matter of, 114 App. Div. 754; 191, 192. Loewensteine's Will, Matter of, 2 Misc. 323; 367, 368. Logiorato, Matter of, 34 Misc. 31; 559, 560, 1168. Long Island L. & T. Co., Matter of, 92 App. Div. 5; 227, 930. Long V. Long, 142 N. Y. 545; 724, 844, 983 Long, Matter of, 43 Misc. 560; 368. Long V. Rodgers, 79 Hun, 441 ; 422, 423. Longbotham, Matter of, 38 App. Div. 607; 1122. Look, Matter of, 125 N. Y. 762 (aff'g 4 Silv. 233);346. Look, Matter of, 5 N. Y. Supp. 50; 438. Loop V. Northrup, 59 Hun, 75; 731. Loper, Matter of, 2 Redf. 545; 789. Lord, Matter of, HI App. Div. 152; 880. Lord Trimbleston v. Lady T., 3 Hagg. Eco. Rep. 243; 7. Lorillard, Matter of, 6 Dem. 268; 864. Loring v. Steineman, 1 Mete. 204; 542. Losee's Case, 13 Misc. 298; 337. Losee, Matter of, 119 App. Div. 107 (aff'g 46 Misc. 336; 95, 102, 539, 550. Losee, Matter of, 46 Misc. 363; 540, 542. Losee's Will, In re, 34 N. Y. Supp. 1120: 339. Lovmsbury v. Sherwood, 53 App. Div. 318; 809, 813, 815. Louth v. Hunt, 154 N. Y. 179; 1033. Lovell v. Quitman, 25 Hun, 537 (aff'd 88 N.Y. 377); 258, 260. Lowenstein, Matter of, 29 Misc. 722; 551, 561, 625. Lowenthal, Matter of, 2 Misc. Rep. 323: 355. Lowerre, Matter of, 48 Misc. 317; 965. Lowman v. Eknira, C. & N. R. R. Co., 85 Hun, 188; 490, 572. Lowman, Matter of, 1 Misc. 43; 226, 360, 382. Lowman v. R. R. Co., 85 Hun, 188; 1053. Lowndes, Matter of, 60 Misc. 506; 880. Lowrie, Matter of, 89 App. Div. 226; 909. Lowry v. Farmers' L. & T. Co., 172 N. Y. 137' 1033 Lowry, Matter of, 89 App. Div. 226; 179, 904. Loxley v. Jackson, 3 Phill. Rep. 126; 461. Lucas V. Hessen, 17 Abb. N. C. 271; 826. Luce V. Dunham, 69 N. Y. 36; 97, 102, 436, 450, 1178. Luce, Matter of, 17 Wkly. Dig. 35; 976. Luce, Matter of, 29 Hun, 145; 998. Ludlam v. Otis, 15 Hun, 410; 320. Ludlow, Est. of, 4 Misc. 594; 894. Ludlow, Matter of, 5 Redf. 391; 83. Ludwig v. Bungart, 48 App. Div. 613 (rev'g 33 Misc. 177); 46, 47, 1076. Ludwig V. Bungart, 33 Misc. 177 (rev'g 48 App. Div. 613); 928, 1076. Lupton V. Lupton, 2 Johns. Ch. 626; 952, 953, 961. Lusk V. Alburtis, 1 Bradf. 456; 279. Lussen v. Timmerman, 4 Dem. 250; 553, 592 Lutz, Matter of, 43 Misc. 230; 1179. Lyddy's Will, In re, 4 N. Y. Supp. 468; 369. Lyendecker v. Eisemann, 3 Dem. 72; 767. Lyman, Est. of, 60 Hun, 82; 816. Lyman, Matter of, 11 N. Y. Supp. 530; 852. Lyman, Matter of, 14 Misc. 352; 333, 342. Lyman v. Phillips, 3 Dem. 459 (aff'd 98 N. Y. 267); 314, 328, 337. Lynch v. Maloney, 2 Redf. 434; 943. Lynch, Matter of, 33 Hun, 309; 8, 992, 993 995 Lynch, Matter of, 52 How. Pr. 367; 944. Lynch v. Patchen, 3 Dem. 58; 854. Lynes v. Coley, 1 Redf. 405; 584, 603. Lynes v. Townsend, 33 N. Y. 558; 449, 930. Lyon V. I. S. Association, 127 N. Y. 402; 943. Ixxx TABLE OF CASES CITED [References are to pages.] Lyon, Matter of, 1 Misc. 447; 849, 934. Lyon V. Park, 111 N. Y. 350; 606, 609. Lyon V. Smith, 11 Barb. 124; 339, 343. Lyon's Will, Matter of, 26 N. Y. Supp. 469; 181. Lyons v. Dorf, 49 Misc. 652; 770. Lytle V. Beveridge, 58 N. Y. 592; 453. Maack, Matter of, 13 Misc. 368; 1113, 1135. Maas V. Ger. Sav. Bk., 73 App. Div. 524 (aff'd 177 N. Y. 377); 609, 610. Mabie, Matter of, 5 Misc. 179; 373. Mabon v. Ongley Elec. Co., 156 N. Y. 196; 610. Macauley, Matter of, 27 Hun, 577; 78, 935. Macauley, Matter of, 94 N. Y. 574; 62, 853, 859, 935, 1016, 1083. Maccafil, Matter of, 127 App. Div. 21; 393, 499, 538. Mackay v. FuUerton, 4 Dem. 153; 1055, 1072. Mackay, Matter of, Will of James, 110 N. Y. 611; 328, 329, 336, 337. MacLaury v. Hart, 121 N. Y. 636; 983. Macomber's Est., 11 N. Y. Supp. 198; 806. Macomber, Matter of, 2 Connoly, 278; 1188. MacRae, Matter of, 189 N. Y. 142; 742. Magee v. Vedder, 6 Barb. 352; 800, 802, 978. Magoun, Matter of, 41 Misc. 352; 679. Mahaney v. Carr, 175 N. Y. 455; 736. Mahlstedt, Matter of, 67 App. Div. 176; 875, 876. Mahoney v. Bernard, 45 App. Div. 499; 1172. Mahoney, Matter of, 34 St. Rep. 183; 354. Mahoney, Matter of, 37 Misc. 472; 835, 837. Mahoney, Matter of, 88 App. Div. 140; 163. Mahoney, Matter of, 34 Hun, 501; 976, 977, 996, Mairs v. Freeman, 3 Redf. 181 ; 253, 256. Mairs, Matter of, 4 Redf. 160; 525. Malcom, James, Will of. Matter of, Day- ton's Surr., 3d Ed., 159; 101. Mallon, Est. of, 13 Civil Proc. 205; 571, 702. Mallon, Matter of, 38 Misc. 27; 1023. Malloy, Matter of, 1 Dem. 421; 572. Maloney v. Wordin, 11 Hun, 202; 489. Mandeville v. Maudeville, 8 Paige, 476; 483, 486. Manhattan Oil Co. v. Gill, 118 App. Div. 17; 1145. Manice v. Manice, 43 N. Y. 305; 448, 450. Manice, Matter of, 31 Hun, 119; 1141. Manley, Matter of, 12 Misc. 472; 473, 506, 512, 557. Mann v. Mann, 1 Johns. Ch. 231; 454. Mann, Matter of, 51 Misc. 315; 252. Manning, Matter of, 169 N. Y. 449; 905, 906. Mansfield, Matter of, 10 Misc. 296; 860 Mansfield v. Shaw, 3 Phill. 22; 278. Mapes, Matter of, 5 Dem. 446; 526. Maples V. Howe, 3 Barb. Ch. 611; 991. Marcellus, Matter of, 165 N. Y. 70; 805, 806, 1063, 1130. March v. March, 186 N. Y. 99; 958. Marcial's Est., 15 N. Y. Supp. 89; 438. Marcial, Matter of, 37 St. Rep. 569; 8, 47. Maresi, Matter of, 74 App. Div. 76; 896, 897. Mariclo, Matter of, 63 How. Pr. Rep. 62; 1179. Maritch, Matter of, 29 Misc. 270; 58. Market Nat. Bank v. Pacific Nat. Bank, 11 Abb. N. C. 104; 89 N. Y. 397; 80. Marks v. Emigrant Indust. Sav. Bk., 122 App. Div. 661; 519. Marks, Matter of, 40 Misc. 507; 895. Marks, Matter of, 128 App. Div. 775; 189. Marlor, Matter of, 121 App. Div. 398; 380. Marre v. GinocMo, 2 Bradf. 165; 786, 1135. Marsh v. Avery, 81 N. Y. 29; 231. Marsh v. Brown, 18 Hun, 319; 1161. Marsh v. Gilbert, 2 Redf. 465; 1161. Marsh, Matter of, 45 Hun, 108; 118, 194, 294. Marsh v. Tyrrell, 2 Hagg. 87, 110; 374. Marshall, Matter of, 3 Dem. 173; 1140. Marston v. Paulding, 10 Paige, 40; 493. Martens, Matter of, 106 App. Div. 50; 942, 943, 944, 945. Martin v. Andrews, 59 Misc. 298; 1170. Martin v. Dry Dock, East Broadway & Battery Railroad Co., 92 N. Y. 70; 571. Martin v. Duke, 5 Redf. 597 (approved 36 Hun, 122); 484 557, 661, 678. Martin v. Gage, 9 N. Y. 398; 1122. Martin v. Hann, 32 App. Div. 602; 720. "- ■ " " — N. Y. 193; 350, 372, 373, 376, 378. Martin, Matter of, 98 : Martin, Matter of, 27 Misc. 416; 1010. Martin, Matter of, 124 App. Div. 793; 1151. I Martine's Est., 11 Abb. N. C. 50; 100, 101. Martinhoff v. Martinhoff, 81 N. Y. 641; 408. Marvin v. Marvin, 11 Abb. N. S. 97; 104, 106, 189, 280. Marvin v. Marvin, 2 Abb. N. S. 100; 281. Marvin v. Marvin, 3 Abb. Ct. of App. Dec. 192; 373, 374, 376. Marx, Matter of, 49 Misc. 189; 1157. Marx V. McGlinn, 88 N. Y. 357; 347, 355, 373, 376, 377. Mason & H. O. Co. v. Pugsley, 19 Hun, 282; 289. Mason v. Luddington, 56 How. Pr. 172; 133. Mason, Matter of, 60 Hun, 46; 370. Mason, Matter of, 98 N. Y. 527; 1141, 1146. Mason v. Williams, S3 Hun, 398; 372, 381. Mason v. Williams, 3 Dem. 285; 529, 530. Master's Est., 1 McCarthy, 459; 336. Masterson v. Townsend, 123 N. Y. 458; 447. TABLE OF CASES CITED Ixxxi [References are to pages.] Masterton, Matter of, 6 Dem. 450; 758. Masury, Matter of, 28 App. Div. 580; 877, 878. Mather, Matter of, 90 App. Div. 382 (afE'dl79N. Y. 526);904. Mather, Matter of, 41 Misc. 414; 179, 904, 916. Mathewson, Matter of, 8 App. Div. 8; 1140. Matson v. Abbey, 141 N. Y. 179; 813. Matter v. Waack, 5 N. Y. Supp. 522; 149. Matthews v. Am. Cent. Ins. Co., 154 N. Y. 449; 9 App. Div. 339; 476, 518, 526. Matthews, Matter of, 122 App. Div. 605; 927 929 Matthews, Matter of, 153 N. Y. 443; 1179. Matthews v. N. Y., 1 Sandf. Ch. 132; 622, 656. Matthews v. Studley, 17 App. Div. 303; 1076. Mauran v. Hawley, 2 Dem. 396; 756, 757, 784. Maverick v. Reynolds, 2 Bradf. 360; 349. Maxwell, Matter of, 1 Conn. 230; 1026. May, Matter of, 53 Hun, 127; 184, 1158. Maybee, Matter of, 40 Misc. 518; 725, 1068. Mayer, Matter of, 84 Hun, 539; 187. Mayor v. Gorman, 26 App. Div. 191 ; 797. Maze v. Brown, 2 Dem. 217; 617. McAleenan, 53 App. Div. 193; 117. McAlpine v. Potter, 126 N. Y. 285; 1140, 1142, 1143, 1147, 1150, 1151. McArthur, Matter of, 12 N. Y. Supp. 822; 358. McAvoy, Matter of, 112 App. Div. 377; 872. McCabe, Matter of, 18 N. Y. Supp. 715; 9, 492. McCabe, Matter of, 84 App. Div. 145; 40, 544, 568. McCaffrey, Matter of, 50 Hun, 371; 776. MoCartee v. Camel, 1 Barb. Ch. 455; 540, 541. McCarter, Est. of, 18 Week. Dig. 433; 1086. McCarter, Matter of, 94 N. Y. 558; 1016, 1085. McCarthy v. Bonynge, 12 Daly, 356; 57. McCarthy, Matter of, 5 Hun, 7; 358. McCarthy, Matter of, 50 Misc. 128; 315, 327. McCarthy v. Supreme Court of Foresters, 107 App. Div. 185; 490. McCarty v. Terry, 7 Lansing, 236; 540. McCauley, Matter of, 49 Misc. 209; 606. McCloskey, 10 Civ. Proc. Rep. 178; 128. McClouth, Matter of, 9 Misc. 385; 936. McClure v. Wooley, 1 Dem. 574; 441. McCoU V. Sun Mutual Ins. Co., 50 N. Y. 332* 123. McColium,' Matter of, 80 App. Div. 362; 1144. MoComb, Matter of, 117 N. Y. 378; 541, 861, 962, 1120. McConnor, Matter of, 60 Misc. 22; 1055. McCord V. Lunsbury, 5 Dem. 68; 336, 346. McCord, Matter of, 2 App. Div. 324; 533, 1146. McCormick, Ex parte, 2 Bradf. 170; 474. McCormick, Matter of, 40 App. Div. 73; 233, 1013. McCormick, Matter of, 22 Misc. 309; 1015. McCormick, Matter of, 46 Misc. 386; 1143. McCom V. McCom, 100 N. Y. 511; 451, 931. M'Coskry, Est. of, 5 Dem. 256; 127, 130. McCoun V. Sperb, 53 Hun, 166; 732. McCue V. Garvey, 14 Hun, 562; 825, 828. McCue, Matter of, 17 Week. Dig. 501; 366, 368. McCullough V. McCready, 52 Misc. 542, 829. McDermott, Matter of, 49 Misc. 402; 828. McDonald v. Garrison, 9 Abb. 178; 124. McDonald, Matter of, 51 Misc. 318; 828. McDonnell, Ex parte, 2 Bradf. 32; 474. McDonough v. Loughlin, 20 Barb. 238; 121, 288, 319, 337, 342. McDougall, 141 N. Y. 21; 950. McDowell, Matter of. Est. of, Phillip, Surr. Decs. 1896, p. 139; 58. McEchron, Matter of, 55 App. Div. 147; 230. McEvoy, Matter of, 3 Law Bulletin, 31; 595, 601, 704. McEwan, Matter of, 51 Misc. 455; 913. McGarren, Matter of, 112 App. Div. 503; 7, 9, 95, 196, 309, 548, 662. McGarry v. McMahon, 124 App. Div. 607; 500. McGarvey, In re, 6 Dem. 145; 1096". McGee, Matter of, 5 App. Div. 527; 969, 979. McGeorge v. Buel, 24 N. Y. 169; 661. McGill, Matter of, 26 Misc. 102; 375. McGillivray, Matter of, 138 N. Y. 308; 661, 1023. McGinness, Matter of, 13 Misc. 714; 48. McGlynn, Matter of, 41 Misc. 156, 1143, 1148. McGorray, Matter of, 20 N. Y. Supp. 366; 182. McGoughran, Matter of, 124 App. Div. 312; 151, 154, 196, 942, 1077. McGovern, Matter of, 5 Dem. 424; 287. McGowan, Matter of, 28 Hun, 246; 415, 937. McGowan v. Underhill, 115 App. Div." 638; 360, 427. McGowen, Matter of, 36 N. Y. St. Rep. 689; 518, 526. McGrath v. Weiller, 98 App. Div. 291 ; 584. McGraw, Matter of, 9 App. Div. 372; 332, 342, 350, 373. McGregor v. Buel, 24 N. Y. 166; 484, 516, 706. McGregor v. McGregor, 1 Keyes, 133; 486, 555 557 672 M'Guire v.' Kerr, 2 Bradf. 244; 315, 318. McGuire, Malter of, 106 App. Div. 131; 755. Ixxxii TABLE OF CASES CITED [References are to pages.] Mclntyre, Matter of, 4 Redf. 489; 785. Mclntyre, Matter of, N. Y. Law Jour., June 2, 1908; 314. McKay, Matter of, 33 Misc. 520; 931. McKay, Matter of, 5 Misc. 123; 942, 943, 951. McKay, Matter of, 37 Misc. 590; 96. McKay v. McAdam, 80 Hun, 260; 945. McKee, Matter of, N. Y. Law Jour., Jan. 10, 1902; 1033. McKeon, Matter of, 26 Misc. 464; 48. McKeon, Matter of, 37 Misc. 658; 1023. McKeown v. Fagan, 4 Redf. 320; 855. McKeown v. Officer, etc., 25 N. Y. St. Rep. 319; 441. McKibbel v. Nafis, 27 N. Y. Supp. 723; 113. McKiernan, Est. of, 4 Civ. Proc. Rep. 218; 853 M'Knight, Matter of, 80 App. Div. 384, 679. McKyring v. Bull, 16 N. Y. 297; 729, 806. McLaren, Matter of, 6 Misc. 483; 1142, 1148, 1152. McLaren v. McMartin, 36 N. Y. 88; 831; 832, 846. McLamey, Matter of, 153 N. Y. 416 (aff'g 90 Hun, 361) ; 263, 265. McLauchlin v. Brett, 2 Civ. Proc. 194; 187. McLaughHn v. McDevitt, 63 N. Y. 213; 373 377 McLaughlin's Will, 2 Redf. 504; 360. McLaury v. Hart, 121 N. Y. 636; 843. McLean, Matter of, 31 Misc. 703; 352. McLeod, Matter of, 32 Misc. 229; 549. McLosky v. Reid, 4 Bradf. 334; 253, 1040, 1051. McLouth V. Hunt, 154 N. Y. 179; 187, 1027, 1028. McMahon v. Harrison, 6 N. Y. 443; 485, 555, 557, 672. McMahon v. Harrison, 10 Barb. 659; 556. McMahon v. Smith, 20 Misc. 305; 224, 231, 233, 731. McMahon v. Smith, 24 App. Div. 25; 730, 1120. McManus, Matter of, 35 Misc. 678; (rev'd 66 App. Div. S3) ; 179. McManus v. McManus, 179 N. Y. 338; 931. McMaster, Matter of, 14 C. P, Rep. 195; 146. McMaster, Matter of, 16 N. Y. St. Rep. 240; 165. M'Mulkin, Matter of, 5 Dem. 295; 32. McHurray v. McMurray, 66 N. Y. 175; 976. McNaboe v. Marks, 51 Misc. 207; 1169. McNally v. Brown, 5 Redfr 372; 293, 295, 461. McNamara v. Dwyer, 7 Paige, 239; 608. McNaughton v. Chave, 5 Abb. N. S. 225; 53, 146. McNaughton v. McNaughton, 34 N. Y. 201; 436, 948. McNulta v. Huntington, 62 App. Div. 257; 610. McNuIty v. Kurd, 72 N. Y. 618; 10 100 802, 862; 869, 1098, 1127, 1133. ' McPherson v. Clark, 3 Bradf. 93; 261. McPherson, In re, 104 N. Y. 306; 443 884 885, 889, 890, 918. McPherson, Matter of, 5 Dem. 168; 1089. McSorley v. McSorley, 2 Bradf, 188- 349. McWhorten v. Benson, Hopk. Ch. 28; 239. Meacham v. Steames, 9 Paige, 403; 1140, 1142. Mead v. Jenkins, 4 Redf. 369; 144. Mead v. Jenkins, 96 N. Y. 31; 967. Mead v. Jenkins, 4 Dem. 85; 221. Mead v. Sherwood, 4 Redf. 352; 974, 976. Mead v. Sommers, 2 Dem. 296; 753. Meagley, Matter of, 39 App. Div. 83; 982, 983. Mee V. Gordon, 187 N. Y. 400; 1007. Meech, Matter of, 1 Connoly, 535; 1043. Meehan, Matter of, 29 Misc. 167; 771, 1185. Meehan v. Rourke, 2 Bradf. 385; 339. Meeker v. Crawford, 5 Redf. 450; 1012, 1153. Meekin v. B. H. & C. R. R., 164 N. Y. 145; 545. Meeks V. Meeks, 34 Misc. 466; 1076. Meeks v. Meeks, 51 Misc. 638; 1076. Meiggs V. Hoagland, 68 App. Div. 182; 405, 406. Melcher v. Fisk, 4 Redf. 22; 848, 1082. Mellen, Matter of, 56 Hun, 553; 135. MeUen v. Mellen, 139 N. Y. 210; 444, 465, 1170. Mench, Est. of, WilUam, 5 Dem. 341; 1120. Menck, In re, 5 N. Y. St. Rep. 342; 1088. Mendinhall's Appeal, 124 Penu. St. 387; 389. Menge, Matter of, 13 Misc. 653; 314, 333, 342. Mensc'hke, Matter of, 61 Misc. 9; 829. Mentz V. Newwitter, 122 N. Y. 491; 268. Menzie, Matter of, 54 Misc. 188; 1034. Merchant, Matter of, 1 Tucker, 17; 664. Merchant v. Merchant, 25 N. Y. St. Rep. 268; 976, 978, 984. Merchants' Insurance Co. v. Hinman et al., 15 How. Prac. R. 182; 98. Merchant's Will, 1 Tucker, 151; 324. Mergentime, Matter of, 129 App. Div. 367; 873 Merino v. Munoz, 99 App. Div. 201; 801. Merriam, Matter of, 136 N. Y. 58; 155, 392, 437, 442. Merriam, Matter of, 16 N. Y. Supp. 738; 344. Merrick v. Jackson, 2 Dem. 214; 109. i Merrill v. Rolston, 5 Redf. 220 ; 310. "■ Merritt v. Clason, 12 Johns. 102; 322. Merritt v. Jackson, 2 Dem. 214; 105. Merritt, Matter of, 86 App. Div. 179; 1161. Merritt v. Merritt, 32 App. Div. 442; 1102, 1156, 1188. Merritt v. Seaman, 2 Seld. 168; 846. Merritt v. Thompson, 1 Hilt. 563; 541. TABLE OF CASES CITED Ixxxiii [References are to pages.] Merritt's Will, In re, 5 Dem. 544; 64, 69, 76, 283. Mersereau, Matter of, 38 Misc. 208; 776, 1178. Mertens, Est. of F. W., N. Y. Law Jour., Nov. 26, 1901; 134. Messman v. Egenberger, 46 App. Div. 46; 538, 1159, 1161. Metcalf, Matter of, 16 Misc. 180; 351, 388. Metcalf, Matter of, 6 Misc. 524; 444, 445. Metropolitan Trust Co. v. Rodgers, 1 Dem. 365; 760. Metzger v. Metzger, 1 Bradf. 266; 1110. Meyer, I., Est. of, Surr. Decs. 1901, p. 18; 88 Meyer, Matter of, 131 N. Y. 409; 526. Meyer, Matter of, 95 App. Div. 443; 8, 1162. Meyer, Matter of, 98 App. Div. 7; 1189. Meyer v. Weil, 1 Dem. 71 ; 850. Meyers, Matter of, 28 Misc. 359; 256, 297. Middlebrook v. Merchants' Bank, 3 Keyes, 135; 610. Milbank v. Crane, 25 How. 193; 1030. Miles, In re, 12 N. Y. Supp. 157; 233. Miles, Matter of, 5 Redf. 110; 237, 240. Miles, Matter of, 170 N. Y. 75; 852, 1117. Miles, Matter of, 33 Misc. 147 (aff'g 170 N.Y. 75); 818, 1129. Milhau, Matter of, 28 Misc. 366; 498. Millan, Matter of, 126 App. Div. 155; 1181. Millard, Est. of, 6 Misc. 425; 894. Millard, Matter of, 2 Connoly, 91 ; 750. Miller v. Coates, 66 N. Y. 609; 1095. Miller v. Coudert, 36 Misc. 43; 1161. Miller v. Crawford, 14 N. Y. Supp. 358; 770. Miller v. Gilbert, 144 N. Y. 68; 447, 450. Miller, Matter of, 2 App. Div. 615; 975. Miller, Matter of, 11 App. Div. 337; 255, 335 Millerj Matter of, 18 App. Div. 211 (aff'g 155 N. Y. 646); 449. MiUer, Matter of, 5 Dem. 382; 544. Miller, Matter of Application of, 70 Hun, 61; 852, 859, 1016. Miller, Matter of, 15 Misc. 556; 1185. Miller, Matter of, 28 Misc. 373; 417. Miller, Matter of, 29 Misc. 272; 1049. Miller, Matter of, 36 Misc. 310; 384. Miller, Matter of, 37 Misc. 449; 877. Miller, Matter of 50 Misc. 70; 257. Miller, Matter of, 77 App. Div. 473; 879. Miller, Matter of, 30 N. Y. St. Rep. 212; 540. MUler, Matter of, 110 N. Y. 216; 735, 864. Miller, Matter of, 4 Redf. 302; 825. Miller v. Maujer, 82 App. Div. 419; 425. Miller v. Potter, 17 How. Pr. 526; 203. Miller V. White, 5 Redf. 320; 304, 349, 391. Milliken, Matter of, 32 Misc. 317; 407. Mills V. Albany Exch. Sav. Bk., 28 Misc. 251; 750. Mills V. Hoffman, 92 N. Y. 182; 112. Mills V. Hoffman, 26 Hun, 594; 1136. Mills V. Hudson, 140 N. Y. 99; 1334. Mills V. Husson, 140 N. Y. 99; 1016. Mills, Matter of, 86 App. Div. 555; 865. Mills V. Mills, 115 N. Y. 80; 1185. Mills V. Smith, 141 N. Y. 256; 952, 953. Miner, Matter of, 146 N. Y. 121; 200. Miner, Matter of, 39 Misc. 506; 855. Minot V. Minot, 17 App. Div. 520; 1179. Minturn, Matter of, 15 N. Y. Supp. 54 7n.; 864. Mitchell, Matter of, 61 Hun, 372; 927. Mitchell, Matter of, 39 Misc. 120; 241. Mitchell, Matter of, 41 Misc. 603; 1107. Mitchell V. Mitchell, 16 Hun, 97 (aff'g 77 N. Y. 596); 325, 328, 329, 337, 346. Mitchell V. Thome, 134 N. Y. 541; 519. Mittnacht v. Bache, 16 App. Div. 426; 771. Mock V. Garson, 84 App. Div. 65; 339, 427. Mock, Matter of, 49 Misc. 283; 881. Moderno, Matter of, 63 Hun, 261; 849. Moehring, Matter of, 24 Misc. 418; 507, 511 552. Moehring, Matter of, 154 N. Y. 423; 613, 617, 618, 686, 946. Moench, Matter of, 39 Misc. 480; 1189. Moesvyll, Est. of, 3 Law Bulletin, 80; 520. Moffat, Matter of, 24 Hun, 325; 1143. Moffet V. Elmendorf, 152 N. Y. 475; 448, 958. Moffett V. Ehnendorf, 82 Hun, 470; 336, 449. Monahan v. Fitzpatrick, 16 Misc. 508; 1121. Monarque v. Monarque, 80 N. Y. 320; 465. Mondorf, Matter of, 110 N. Y. 450; 231, 372, 373, 375. Monell V. Denison, 17 How. Pr. 422; 543. Monell, Matter of, 19 N. Y. Supp. 361; 84. Monell, Matter of, 28 Misc. 308; 162, 234, 858. Monell V. Monell, 5 Johns. Ch. 561 ; 1048. Monro's Est., 15 Abb. Pr. 363; 23. Monroe, Matter of, 4 Connoly, 496; 248. Monroe, Matter of, 5 N. Y. Supp. 552; 262. Monroe, Matter of, 142 N. Y. 484; 493, 666, 683. Monteith, Matter of, 27 Misc. 163; 183. Montgomery v. Donning, 2 Bradf. 220; 764, 770, 786. Montross v. Wheeler, 4 Lans. 99; 109, 616. Moody V. Gleason, 7 Cowen, 482; 92, 235. Mooers v. White, 6 Jolms. Ch. 360; 256, 336, 980. Moor, Matter of, 46 Misc. 537; 344. Moor, Matter of, 109 App. Div. 777; 348. Moore's Est., 1 Tuck. 41; 1136. Moore v. Griswald, 1 Redf. 388; 346. Moore v. Lyons, 25 Wend. 119; 453. Moore, Matter of, 90 Hun, 162; 864, 871. Moore, Matter of, 18 Week. Dig. 42; 1066. Moore, Matter of, 109 App. Div. 726; 331, 332. Moore" V. Millet, 2 Hilt. 522; 104. Moore V. Moore, 21 How. S. Pr. 211; 197. Moore v. Moore, 2 Bradf. 261 ; 349. Moore v. Moore, 5 N. Y. 262; 991. Ixxxiv TABLE OP CASES CITED [References are to pages.] Moorehouse v. Hutchinson, 2 Dem. 429; 62, 567, 681. Moorehouse v. Hutchinson, 4 Dem. 362; 1014, 1016. Mootrie v. Hunt, 4 Bradf. 173; 516, 520. Moran, Est. of, 5 Misc. 176; 554. Morau, Matter of, 59 Misc. 133; 205. Moran, Matter of, 58 Misc. 488; 849, 850, 934', 935. More V. Finch, 65 Hun, 404; 490. Morehouse v. B. H. R. R. Co., 185 N. Y. 520; 115. Morehouse v. Cooke, Hopkins' Ch. 226; 1044. Morgan v. Cowie, 49 App. Div. 612; 863, 903. Morgan, Ex parte, 66 N. Y. 618 (aff'd 63 Barb. 621); 1022. Morgan, Matter of, 104 N. Y. 74; 201, 1160. Morgan, Matter of, 4 Dem. 168; 611, 512. Morgan, Matter of, 2 How. Pr. N. S. 194; 557 Morgan, Matter of, 150 N. Y. 35; 865. Morgan, Matter of, 36 Misc. 753; 909. Morgan v. Morgan, 3 Dem. 612; 668. Morgan v. Warner, 45 App. Div. 424 (aff'd 162 N. Y. 612); 893, 907. Morgenstem, Matter of, 9 Misc. 198; 439, 1179. Moriarity, Matter of, 27 Misc. 161; 525, 533, 1145, 1146. MoiTell V. Dennison, 8 Abb. Pr. 401; 78. Morrell v. Dickey, 1 Johns. Ch. 153; 1051, 1070. Morris v. Keys, 1 Hill, 540; 403. Morris v. Sickley, 133 N. Y. 456; 453, 931, 932. Morrison v. Lawrence, 2 How. Pr. (N. S.) 72; 134. Morrison v. Morrison, unreported, 735. Morrison v. Mutual Life Ins. Co., 57 Hun, 97; 632, 769. Morrow v. McMahon, 35 Misc. 348; 450, 540. Morrow v. Morrow, 12 Hun, 386; 780. Morschauser v. Pierce, 64 App. Div. 558; 769. Morse v. Scott, 4 Dem. 507; 366. Mortimer v. Chambers, 63 Hun, 335; 1184. Morton, Matter of, 7 Misc. 343; 801. Morton, Matter of, 58 N. Y. St. Rep. 515; 816. Morton v. Woodbury, 153 N. Y. 243; 448, 958. Moser v. Cockrane, 107 N. Y. 35; 983. Moses, Matter of, 60 Misc. 637; 873. Mott V. Ackerman, 92 N. Y. 539; 500, 501, 512, 513, 1009. Mott V. Fort Edward, etc., Co., 79 App. Div. 179; 151. Mott, In re, 2 Dem. 154; 1124. Motz, Matter of, 6 N. Y. St. Rep. 343; 760. Moulton, Matter of, 32 N. Y. St. Rep. 631 ; 670, 672. Moulton, Matter of, 10 N. Y. Supp. 717; 566, 661, 673. Moultrie v. Hunt, 23 N. Y. 394; 32, 33. Mount, Matter of, 27 Misc. 411; 183. Mount, Matter of, 3 Redf. 9; 827, 963. Mount, Matter of, 185 N. Y. 162 (aff'd 107 App. Div. 1); 435, 436. Mount v. Mitchell, 31 N. Y. 836, 837, 848. Mount V. Mount, 68 App. Div. 184; 618. Mount V. Tuttle, 40 Misc. 456; 444. Mouran v. Hawley, 2 Dem. 396; 53. Mowry v. Peet, 88 N. Y. 453; 807, 820. Mowry v. Silber, 2 Bradf. 133; 347, 376 377. Moyer v. Weil, 1 Dem. 71; 586; 1130. Muir V. L. & W. Orphan Home, 3 Barb. Ch. 477; 34, 153. Muir V. Wilson, 1 Hopkins' Ch. 512; 708. Mull, Est. of, 16 St. Rep. 981; 227. Muller, Matter of, 25 App. Div. 269; 1016. MuUon, Matter of, 145 N. Y. 98; 786, 801, 1135. Mulry, Est. of James, N. Y. Law Jour., March 14, 1900; 1087. Mumford v. Coddington, 1 Dem. 27; 936. Mumford v. Rochester, 4 Redf. 451; 450. Mundorif v. Wangler, 44 N. Y. Super. Ct. 495; 697, 713. Munger, Matter of, 38 App. Div. 268; 373, 382 Munroe's Est., 15 Abb. 363; 53. Munson v. Howell, 12 Abb. Pr. 77; 813. Munzor, Est. of, 4 Misc. 374; 134, 1144, 1145, 1158. Murdock v. Ward, 67 N. Y. 387; 96, 97, 102, 1178. Murphy v. Kron, 20 Abb. N. C. 259; 4. Murphy, Matter of, 48 App. Div. 211; 315. Murphy, Matter of, 15 Misc. 208; 332, 333, 342 388 Murpfiy, Matter of, 41 App. Div. 153; 357, 359, 372, 373, 382. Murphy, Matter of, 144 N. Y. 557; 265, 1178. Murphy, Matter of, 28 Misc. 650; 378. Murphy, Matter of, 79 App. Div. 541; 211. Murphy v. Naughton, 68 Hun, 424; 826, 827. Murray v. Blatchford, 1 Wend. 583; 495, 790. Murray, Matter of, 40 Misc. 433; 469, 470. Musgrave, Matter of, 5 Dem. 427; 601, 704. Mutual Life Ins. Co. v. Corey, 27 N. Y. St. Rep. 608 (rev'd 48 id. 247): 328. Mutual Life Ins. Co. v. Holloday, 13 Abb. N. C. 16; 267, 270. Mutual Life v. Schwaner, 36 Hun, 373 (aff'd 101 N.Y. 681); 148. Myer v. Cole, 12 Johns. 349; 846. Myer, Matter of, 184 N. Y. 54; 352, 353, 358. Mygatt v. Washburn, 15 N. Y. 316; 1112. Mygatt V. Wilcox, 45 N. Y. 306; 242. Nanz V. Oakley, 60 Hun, 431; 924. Nanz V. Oakley 120 N. Y. 84; 726, 732. Nash, Matter of, 37 Misc. 706; 405, 406. 'Nash, Matter of, 76 App. Div. 212; 345. TABLE OF CASES CITED Ixxxv [References are to pages.] Nash V. New York, 4 Sandf. Ch. 1; 622. National Harrow Co. v. Bement & Sons, 163 N. Y. 505; 222. National Trust Co. v. Gleason, 77 N. Y. 400; 558. Nay, Matter of, 6 Dem. 346; 752, 755. Nealis v. Meyer, 21 Misc. 344; 139. Neely, Matter of, 24 Misc. 255; 844. Neher, Matter of, 57 Misc. 527; 817. Neiding, Matter of, 56 Misc. 216 (rev'd 123 App. Div. 894); 123. Neil, Matter of, 35 Misc. 254; 1132. Neilley v. Neilley, 89 N. Y. 352; 1131. Nelson, Matter of, 141 N. Y. 152; 341, 346, 347. Nelson, Matter of, 97 App. Div. 212; 372, 373 Nelson v. McGiffert, 3 Barb. Ch. 158; 254, 257, 258, 314, 344. Nelson v. The Pub. Adm., 2 Bradf. 210; 253. Nesbit V. Nesbit, 3 Dem. 329; 503, 542. Nesmith, Matter of, 140 N. Y. 609; 1102, 1156. Nesmith, Matter of, 6 Dem. 333; 704. Nethercott v. Kelly, 24 N. Y. St. Rep. 171 ; 1065. Neugent v. Neugent, 2 Redf. 369; 342. Nevins, Matter of, 4 Misc. 22; 328. Nevins's Will, Matter of, 24 N. Y. Supp. 828; 336. New V. NicoU, 73 N. Y. 132; 729. Newcomb, Matter of, 192 N. Y. 238; 250; 38. Newcomb v. Newcomb, 33 Misc. 191; 958. Newcomb V. Webster, 113 N. Y. 191; 257. Newcombe, Matter of, 18 N. Y. Supp. 549; 24. Newcombe, Matter of, 63 Hun, 633; 23. Newcome v. St. Peters Church, 2 Sand. Ch. 636; 150. Newell, Stewart, Est. of, N. Y. Law Jour., August 8, 1902 (38 Misc. 563); 751, 860. Newhouse v. Gale, 1 Redf. 217; 520, 663, 1055. Newhouse v. Godwin, 17 Barb. 236; 383, 385. Newland, Matter of, 7 Misc. 728; 1149. Newland, Matter of, 59 N. Y. St. Rep. 526; 1148. Newton v. Stanley, 28 N. Y. 61 ; 927, 928, 929 Nexsen v. Nexsen, 2 Keyes, 229; 358, 383. Nexsen v. Nexsen, 3 Abb. Dec. 360; 380. Nichols V. Chapman, 9 Wend. 452; 836. Nichols, Matter of, 40 Hun, 387; 294. Nichols, Matter of, 91 Hun, 140; 869. Nichols, Matter of, 4 Redf. 288; 1112. Nichols, Matter of, 60 Misc. 299; 1181. Nichols V. Nichols, 12 Hun, 428; 933. Nicoll, Matter of, 1 Johns. Ch. 25; 1045. Niles V. Crocker, 88 Hun, 312; 802, 813, 815, 816. Niles, Matter of, 47 Hun, 348; 117, 134. Niles, Matter of, 13 St. Rep. 756; 322. Nisbet, Matter of, 5 Dem. 286; 336. Niven, Matter of, 29 Misc. 550; 903, 904, 908. Nockin, Matter of, 15 N. Y. St. Rep. 731; 237 Noll, Matter of, 10 App. Div. 356 (aff'd 154 N. Y. 765); 708, 724, 1068. Nolting, Matter of, 43 Hun, 456; 541. Nones, Matter of, 27 Misc. 165; 540, 549, 1175. Noon, Matter of, 31 Misc. 420; 317. Norris v. Beyea, 13 N. Y. 273; 447. Norris v. Norris, 32 Hun, 175; 47. Norsbury v. Bergh, 15 How. Pr. 315; 964. Norton v. Coons, 3 Dem. 130; 731. Norton v. Lawrence, 1 Redf. 473; 105, 281. Norton, Matter of, 58 Misc. 133; 1141. Norton v. Norton, 2 Sandf. 296; 1107. Nottingham, Matter of, 88 Hun, 443; 191. Nowak, Matter of, 38 Misc. 713; 1067. Noyes v. Children's Aid Society, 70 N. Y. 483' 231 Noyes', Matter of, 3 Dem. 369; 833. Noyes, Matter of, 5 Dem. 315; 949. Nutting, Matter of, 74 App. Div. 468; 1076. N. Y. Central, etc., Matter of, 60 N. Y. 116; 996. N. Y. Institution, etc., v. How's Exrs., ION. Y. 84; 436. N. Y. Life Ins. & Trust Co. v. Baker, 165 N. Y. 484; 1028. N. Y. Life Ins. & Trust Co. v. Hoyt, 161 N.Y.I; 96. N. Y. Life Ins. & Trust Co. v. Sands, 26 Misc. 252; 234. N. Y. Life, etc., v. Viele, 161 N. Y. 11; 942. Oakes, Matter of, 19 App. Div. 192; 942. Oakley, Est. of, Surr. Dec. 1902, 76; 229. O'Berry, Matter of, 179 N. Y. 285; 904, 917. O'Brien v. E., S. Bank, 99 App. Div. 77; 874. O'Brien's Est., 19 N. Y. Supp. 541; 227, 486, 678. O'Brien v. General Synod, etc., 10 App. Div. 605; 1067. O'Brien v. Jackson, 42 App. Div. 171; 812, 1008. O'Brien v. Jackson, 167 N. Y. 31; 139. O'Brien, Matter of, 5 Misc. 136; 119. O'Brien, Matter of, 33 Misc. 17; 183. O'Brien, Matter of, 45 Hun, 284; 578, 620. O'Brien, Matter of, 34 Misc. 436 (aff'd 65 App. Div. 282); 752, 753. ' O'Brien, Matter of, 65 App. Div. 282 (aff'g 34 Misc. 436); 758. O'Brien, Matter of, 39 App. Div. 321; 961, 964. O'Brien, Matter of, 145 N. Y. 379; 8, 1156. O'Brien, Matter of, 25 N. Y. Supp. 704; 1155. O'Brien v. Neubert, 3 Dem. 156; 555, 558, 672, 674. Ixxxvi TABLE OF CASES CITED [References are to pages.] Ockerhausen, Matter of, 59 Hun, 200; 164. Ockershausen, Matter of, 10 N. Y. Supp. 928; 1163. Ocobock V. Eeles, 37 App. Div. 114; 424. O'Connell's Est., Matter of, 1 Misc. 50; 861. O'Connell, Matter of, 33 App. Div. 483; 1127. O'Conner v. Gifford, 117 N. Y. 271; 750, 788, 801, 1136. O'Connor v. Huggins, 113 N. Y. 511; 150, 543, 567, 975. O'Connor, Matter of, 29 Misc. 391; 371. O'Dea, Matter of, 84 Hun, 591; 365. Odell, Est. of, 18 N. Y. St. Rep. 997; 1158. Odell, Matter of, 1 Connoly, 94; 134, 135, 136, 137. Odell, Matter of, 1 Misc. 390; 181, 282. O'Dell, Matter of, 52 Hun, 88; 1014. O'Donohue, Matter of, 28 Misc. 607 (aff'd 44 App. Div. 186); 886. Offerman, Matter of, 25 App. Div. 94; 865, 898. O'Flynn v. Powers, 136 N. Y. 412; 844, 1186, 1188. O'Gara v. Eisenloher, 38 N. Y. 296; 266, 542. Ogden, Matter of, 41 Misc. 158; 827, 1155, ' 1156. Ogg, Matter of, 1 Connoly, 10; 1063. Ogilvie V. Hamilton, 1 Lee's Ecc. Rep. 418; 7. Ogsbury, Matter of, 7 App. Div. 71 ; 875, 877. Ogsbury v. Ogsbury, 45 Hun, 388; 448. O'Hara, Matter of, 19 Misc. 254; 944. O'Hara, Matter of, 62 Hun, 631; 1023. O'Hare, Matter of, 60 Misc. 269; 558. O'Keefe, Matter of, 80 App. Div. 513; 234. Olcott V. Baldwin, 190 N. Y. 99- 1141 1150. Oliver v. Frisbie, 3 Dem. 122; 666, 1023. Oliver, Will of John, Matter of, 13 Misc 466; 347. Olmstead v. Long, 4 Dem. 44; 180. Olmstead, Matter of, 24 App. Div. 190- 1018. Olmsted v. Keyes, 85 N. Y. 593; 1176. Olmsted v. Vredenburgh, 10 How. Pr 215; 160. O'Neil V. Howe, 16 Daly, 181; 140. O'Neil, Matter of, 26 N. Y. St. Rep. 242- 288. O'Neil, Matter of, 1 Tuck. 34; 1056. O'Neil, Matter of, 49 Misc. 285; 970 972 O'Neil's Will, 91 N. Y. 516; 247, 315, 316' 318, 319, 321. O'Neill V. Barry, 20 App. Div. 121 ; 812 O'Neill, Matter of, 46 Hun, 500; 184. Onondaga Trust, etc., Co. v. Price 87 N. Y. 542; 929. Oosterhoudt, Matter of, 15 Misc. 566; 831 Oppenheim v. Wolf, 3 Sandf . Ch. 571 ; 541 Oraindi's Est., 9 N. Y. Supp. 873; 114. Oram v. Oram, 3 Redf. 400; 676. Orcutt V. Orms, 3 Paige, 464; 842. Ordish v. McDermott, 2 Redf. 460; 266 O'Reilly v. Meyer, 4 Dem. 161; 243,'ll02, Orminston v. Olcott, 84 N. Y. 339- 726 950, 1026. ' ' O'Rourke, Matter of, 12 Misc. 248- 831 Orr V. Oilman, 183 U. S. 278; 880. ' Orser, Matter of, 4 Civ. Proc. Rep. '129- 949, 1129. Orser v. Orser, 24 N. Y. 51; 342. Orser v. Orser, 5 Dem. 21; 1110. Orson, WOl of. Matter of, 18 Week. Dig 306; 122. Orth V. Haggerty, 126 App. Div. 118; 932. Orton V. Orton, 3 Keyes, 486; 932, 951. Osborne v. McAlpine, 4 Redf. 6; 240. Osborne v. Parker, 66 App. Div. 277; 800, 813, 815. Osgood V. Manhattan Co., 3 Cowen, 612; 980. Otis, Matter of, 6 N. Y. St. Rep. 631; 118. Otis V. Thompson, Hill & D. Supp. 131; 1036. Otis's Will, Matter of, 22 N. Y. Supp. 1060; 349, 351. Otto V. Van Riper, 164 N. Y. 536; 724. Oviedo V. Duffie, 5 Redf. 137; 36, 37. Owen, Matter of, 48 App. Div. 607; 122. Owens v. Bloomer, 14 Hun, 296; 827, 963. Owens, Matter of, 33 N. Y. Supp. 422; 443. Owens V. Missionary Society, 14 N. Y. 380; 311. Pache V. Oppenlieim, 93 App. Div. 221; 827. Packard v. Dunfee, 119 App. Div. 599; 470, 846. Packard, Matter of, 53 Misc. 163; 757. Paddock v. Kirkham, 102 N. Y. 597; 124, 809, 811. Paddock, Matter of, 6 How. Pr. 215; 1023. Paddock, Matter of, 81 App. Div. 267; 931. Page, Matter of, 107 N. Y. 266; 553, 55«, 628. Page, Matter of, 39 Misc. 220; 868. Paige V. Bergh, 10 Paige's Ch. 140; 452. Paige, Matter of, 62 Barb. 476; 313. Pain V. Aldrich, 133 N. Y. 544; 369. Paine, Matter of, 6 Dem. 361; 295. Palma, Matter of, 42 Misc. 469; 348. Palma, Matter of, 117 App. Div. 366; 874, Pahner v. Dunham, 24 N. Y. St. Rep. 997; 706. Palmer v. Dunham, 6 N. Y. Supp. 262; 1140. Palmer, Matter of, 115 N. Y. 493; 108. Palmer, Matter of, 3 Dem. 129; 770. Paramore, Matter of, 15 N. Y. St. Rep. 449; 631, 756. Parhan v. Moran, 4 Hun, 717; 149, 490. Parish's Est., 29 Barb. 627; 523, 526, 752. Parish v. Parish, 87 App. Div. 430; 223. Parish Will Case, 25 Abb. Pr. 35; 257. Park, Matter of, 8 Misc. 550; 918. TABLE OF CASES CITED Ixxxvii [References are to pages.] Parker v. Bee, 65 App. Div. 598 (aff'd 17-3 N. Y. 332); 962. Parker v. Day, 155 N. Y. 383; 845. Parker, Matter of, 1 Barb. Ch. 154; 492. Parker v. Supervisors, 106 N. Y. 392; 526. Parkinson v. Parkinson, 2 Bradf. 77; 943. Parr, Matter of, 45 Misc. 564; 93, 1125. Parsell v. Stryker, 41 N. Y. 480; 269, 270, 736. Parsons v. Lyman, 20 N. Y. 103; 40, 42, 436, 583, 598, 602, 603, 605, 609. Parsons, Matter of, 117 App. Biv. 321; 864. Patterson v. Buchanan, 40 App. Div. 493; 813, 824. Patterson v. Copeland, 52 How. Pr. 460; 608. Patterson v. Hamilton, 26 Hun, 665; 212. Patterson v. Knapp, 83 Hun, 492; 133. Patterson, Matter of, 63 Hun, 529; 9, 142, 195, 212, 215, 216, 217. Patterson, Matter of, 5 Misc. 178; 945. Patterson, Matter of, 146 N. Y. 327; 154, 490, 543, 565. Patterson, Matter of, 79 Hun, 371; 182. Patterson, Matter of, 16 N. Y. Supp. 146; 199. Patterson, Matter of, 4 How. Pr. 34; 360. Patterson, Matter of, 29 N. Y. Supp. 451; 79 Hun, 371 (aff'd 146 N. Y. 327); 510 Patterson, Matter of, 15 N. Y. Supp. 963; 522. Patterson, Matter of, 39 N. Y. St. Rep. 849; 714. Patterson v. Patterson, 59 N. Y. 574; 824, 825, 826, 827. Patterson's WiU, 13 N. Y. Supp. 463; 351. PatuUo, Matter of, David, 1 Tucker, 140; 715. Paxton v. Brogan, 12 N. Y. Supp. 563; 248. Payne, Matter of, 78 Hun, 292; 779. Pearsall v. Elmer, 5 Redf. 181; 468. Pearsall, Matter of, 21 N. Y. St. Rep. 305; 190, 1135. Pease v. Egan, 3 Dem. 320; 175, 224. Pease v. Egan, 131 N. Y. 264; 964. Pease v. Gillette, 10 Misc. 467; 1088. Peaslee, Matter of, 73 Hun, 113; 8. Peaslee, Matter of, 51 N. Y. St. Rep. 134; 409. Peaslee, Matter of, 81 Hun, 597; 957. Peck v. Belden, 6 Dem. 299; 385. Peck v. Carey, 27 N. Y. 9; 338, 341, 343, 344, 359. Peck, Matter of, 39 N. Y. St. Rep. 234; 118, 195. Peck, Matter of, 60 Hun, 583; 199. Peck, Matter of, 3 Redf. 345; 981. Peck, Matter of, 57 Misc. 535; 1181. Peck, Matter of, 79 App. Div. 296 (aff'g 177N.Y. 538); 1144, 1155. Peck, Matter of, 17 N. Y. Supp. 248; 358, 369. Peck V. Peck, 23 Hun, 312; 105, 189. Peck V. Peck, 3 Dem. 548; 692. Peck V. Sherwood, 56 N. Y. 615; 773, 775, 1034, 1124. Peebles v. Case, 2 Bradf. 226; 287, 348. PeU, Matter of, 171 N. Y. 48; 862, 864, 904, 924. Peltz V. Schultes, 64 Hun, 369; 1100. Pemberton v. Pemberton, 13 Vesey, 290; 153. Pendle v. Waite, 3 Dem. 261; 782. Pendelton's Case, 5 N. Y. Supp. 849; 361. People V. Adirondack Ry. Co., 160 N. Y. 225' 222. People V. Augsbury, 97 N. Y. 501 ; 370. People V. Barker, 152 N. Y. 417; 222. People, etc., v. Barker, 81 Hun, 22; 893. People ex rel. Gould v. Barker, 150 N. Y. 52; 469. People V. Barnes, 12 Wend. 492; 723, 724. People V. Bergen, 53 N. Y. 404; 161. People V. Bloedel, 4 N. Y. Supp. 100; 749. People ex rel. Byrne v. Brugman, 3 App. Div. 155; 1070. People V. Byron, 3 Johns. Cases, 53; 708. People V. Carr, 100 N. Y. 236; 4. People V. Carr, 25 Hun, 325; 21. People V. Carr, 86 N. Y. 512; 10, 21. People ex rel. Lent v. Carr, 100 N. Y. 236; 10, 11. People v. Chapin, 101 N. Y. 682; 630. People V. Coleman, 107 N. Y. 541; 891. People V. Commissioners, 31 Hun, 235; 468, 469. People V. Donohue, 70 Hun, 317; 1030. People V. Downing, 4 Sandf. 189; 699, 629. People V. Dunlap, 13 Johns. 437; 723. People V. Etz, 5 Cowen, 314; 540. People v..FaIkner, 2 Sandf. 81; 725. People ex rel. Patrick v. Fitzgerald, N. Y. Law Jour., June 12, 1902, 310. People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339; 186, 303, 691. People ex rel. Davis v. Gardner, 45 N. Y. 812; 10. People V. Harman, 2 Sw. 576; 148, 149. People V. Kearney, 31 Barb. 430; 1037. People V. Kemmler, 119 N. Y. 580; 371. People ex rel. Breslin v. Lawrence, 107 N. Y. 607; 186, 187. People V. Laws, 4 Abb. 296; 721. People V. Mercein, 3 Hill, 399; 1038. People V. Murray, 5 Hill, 468; 322. People ex rel. Nickerson, 19 Wend. 16; 1038. People V. O'Brien, 36 N. Y. 276; 357. People V. Pierson, 176 N. Y. 20; 1064. People V. Pleas, 2 Johns. Cas. 376; 791. People V. Rowland, 5 Barb. 449; 725. People ex rel. Adams v. Sigel, 46 How. Pr. 151; 1008. People V. Striat, 148 N. Y. 566; 369. People V. StruUer, 16 Hun, 234; 486. People V. Sup. Oneida Co., 82 Hun, 105; 23 People V. Townsend, 37 Barb. 520; 150. Ixxxviii TABLE OF CASES CITED [References are to pages.] People V. Waldron, 52 How. Pr. 221; 8, 645. People V. Weissenbach, 60 N. Y. 385; 749. People ex rel Adams v. Westbrook, 61 How. 138; 978, 979, 980. People V. Wilcox, 22 Barb. 178; 1043. People V. Woodbury, 70 App. Div. 416; 160, 161. People's Trust Co. v. Flynn, 188 N. Y. 385; 959. People's Trust Co. v. Harman, 43 App. Div. 348; 935. People's Trust Co., Matter of, 37 Misc. 239' 175 Pepoon, In re, 91 N. Y. 255; 331, 344, 345 P. E. "p. School, Matter of, 86 N. Y. 396; 229 Perego's Will, Matter of, 65 Hun, 478; 332 342 PerkiAs v. Hill, 56 N. Y. 87, 91; 194. Perkins v. Stimmel, 114 N. Y. 359; 615, 617, 623, 724. Perkins v. Taylor, 19 Abb. Pr. 146; 140. Perley v. Sands, 3 Edwards' Ch. Rep. 325; 674. Perrott v. Perrott, 14 East. 423; 258. Perry, Matter of, 5 Misc. 149; 10. Perry, Matter of, 37 N. Y. St. Rep. 576; 1185. Perry, Matter of, 38 Misc. 167; 774. Perry v. Perry, 21 N. Y. Supp. 133; 462. Peters v. Carr, 2 Dem. 22; 77, 848. Peters v. Public Administrator, 1 Bradf. 200; 566. Peters v. Stewart, 2 Misc. 257 (rev'g 1 Misc. 8); 817, 818. Peters v. Tall Chief, 121 App. Div. 309 (rev'g 52 Misc. 617) ; 39. Peters, Matter of, 51 Misc. 367; 276. Peteresen v. The Bank, 32 N. Y. 21; 584, 606, 607, 608, 609, 610. Peterson, Matter of, 79 Hun, 371; 677. Peterson, Matter of, 51 Misc. 367; 77. Petrie, Matter of, 5 Dem. 352; 486, 668. Petrie v. Petrie, 126 N. Y. 683; 201, 357. Petrie v. Petrie, 6 N. Y. Supp. 831; 369. Petrie v. Petrie, 7 Lans. 93; 951. Pettigrew v. Foshay, 12 Hun, 486; 1099. Pettit, Matter of, 65 App. Div. 30; 883, 915. Pew V. Hastings, 1 Barb. Ch. Rep. 452; 5, 7, 109, 180. Peyser, Matter of, 5 Dem. 244; 237, 1125, 1152. Peyser v. Wendt, 2 Dem. 221; 160, 935. Pfarr, Matter of, 38 Misc. 223; 550. Pfiester v. Writer, 33 Misc. 701; 444. Pfyfe, Matter of, 5 N. Y. Leg. Obs. 331; 818 Phalen, Matter of, 6 Dem. 446; 411. Phalen, Matter of, 51 Hun, 208; 190, 964, 973. Phalen, Matter of, 4 N. Y. Supp. 408; 966. Phalen v. U. S. Trust Co., 186 N. Y. 178; 268, 270, 879. Phelps, Matter of, 5 N. Y. Supp. 270; 326. Phelps, Matter of, 19 Weekly Dig. 293; 387. Philbin v. Patrick, 22 How. Pr. 1; 138. Philip, Matter of, 46 N. Y. St. Rep. 356; 259. Philips V. PhiHps, 77 App. Div. 113; 371. Philips V. The Parish of St. Clements Danes, 1 Eq. Cas. Abr. 404; 298. Phillips V. Chater, 1 Dem. 533; 360, 365, 366. Phillips V. Davies, 92 N. Y. 199; 450. Phillips v. Liebmann, 10 App. Div. 128; 1057, 1073. Phillips, Matter of, 34 Misc. 442; 339. Phillips, Will of, Matter of, 98 N. Y. 267; 324, 329, 332, 336. Philp, Matter of, 29 Misc. 263; 525, 528, 529, 532, 1134. Philson V. Moore, 23 Hun, 152; 948. Phipps V. Carman, 84 N. Y. 650; 140. Phipps, Matter of, 77 Hun, 325 (aff'd 143 N.Y. 641); 865, 866. Phoenix v. Livingstone, 101 N. Y. 451; 1031, 1142, 1143, 1151. Phcenix v. Trustees of Columbia, 87 App. Div. 438 (aff'd 179 N. Y. 592); 860. Pickney v. Smith, 26 Hun, 524; 977. Pierce v. Chamberlain, 41 How. Pr. 501; 944. Pierce, Matter of, 12 How. Pr. 532; 1043. Pierce, Matter of, 60 Misc. 25; 878. Pierrepont V. Edwards, 25 N. Y. 128; 959. Pierson, Matter of, 19 App. Div. 478; 182, 803. Pike, In re, 2 Redf. 255; 1032. Pike, Matter of, 83 Hun, 327; 217, 349, 373 Pilling V. Pilling, 45 Barb. 92; 354. Pilsbury, Matter of, 50 Misc. 367; 392. Pimel V. Betjemann, 183 N. Y. 194; 931, 958. Pinckney v. Smith, 26 Hun, 524; 84, 890. Pinckney, WiU of, 1 Tucker, 436; 255, 256. Piper V. Barse, 2 Redf. 19; 948. Pitcher, In re, 4 Law Bull. 32; 1097. Pitkin V. Wilcox, 12 N. Y. Supp. 622; 579. Pitkin V. Wilcox, 20 Civ. Proc. Rep. 27; 614. Pittman v. Johnson, 35 Hun, 41 (aff'd 102 N.Y. 742); 933, 951. Place, Matter of, 105 N. Y. 629 (aff'g 4 Dem. 487; also aff'g 4 N. Y. St. Rep. 533); 506, 507,669. Place, Matter of, 5 Dem. 228; 209. Plath, Matter of, 56 Hun, 223; 516. Piatt, Matter of, 8 Misc. 144; 916. Piatt v. Mickle, 137 N. Y. 106; 97, 1178. Piatt V. Piatt, 105 N. Y. 488; 843, 845, 931, 960. Plopper, Matter of, 15 Misc. 202; 984. Plum, Matter of, 37 Misc. 466; 623. Plumb, In re, 64 Hun, 317 (aff'd 135 N. Y. 661); 123, 125, 190, 289. Plumb, Matter of, 135 N. Y. 661; 1056, 1057. TABLE OF CASES CITED Ixxxix [References are to pages.] Plumb, Matter of, 52 Hun, 119; 1064, 1065. Plumb, Matter of, 24 Misc. 249; 1065. Plummer, Matter of, 38 Misc. 536; 931, Pollock, Ex parte, 3 Redf. 100; 136, 137. Pollock V. Hooley, 67 Him, 370; 405. Pomroy v. Hincks, 180 N. Y. 73; 1182. Pond, Matter of, 40 Misc. 66; 1185, 1188. Pond, Matter of, 42 Misc. 165; 1155. Popham V. Spencer, 4 Redf. 401; 616, 1078. Popp, Matter of, 123 App. Div. 2; 1145. Porter v. Brewster, 29 N. Y. 106; 543. Porter v. Kingsbury, 77 N. Y. 164; 933. Porter, Matter of, 1 Misc. 489; 75, 76, 78. Porter, Matter of, 60 Misc. 504; 1131. Porter v. Purdy, 29 N. Y. 106; 151, 162, 490, 568. Porter's Will, 22 N. Y. Supp. 1062; 283, 326. Porteus V. Holm, 4 Dem. 14; 345, 346. Post V. Hover, 33 N. Y. 594; 930. Post V. Ingraham, 122 App. Div. 738; 1076. Post V. Mason, 26 Hun, 187 (aff'd 91 N. Y. 539) ; 153, 345, 346, 383. Post V. Mason, 91 N. Y. 539; 281, 380, 385, 393. Post, Matter of, 5 App. Div. 113; 83, 890. Post, Matter of, 19 N. Y. Supp. 18; 136. Post, Matter of, 30 Misc. 551; 227. Post, Matter of, 38 N. Y. St. Rep. 1; 184. Post, Matter of, 64 Hun, 635; 190, 191. Post, Matter of, 9 N. Y. Supp. 449; 501, 1029. Post V. Moore, 181 N. Y. 15; 882. Postley V. Cheyne, 4 Dem. 492; 678, 769. Potter V. Chapin, 6 Paige, 639; 311. Potter, Matter of, 17 App. Div. 267; 201. Potter, Matter of, 161 N. Y. 84; 201, 355. Potter, Matter of, 32 Hun, 599; 199. Potter, Matter of, 33 N. Y. St. Rep. 936; 261, 262. Potter, Matter of, 51 App. Div. 212; 880. Potter v. McAlpine, 3 Dem. 108; 346, 365, 779. Potter V. Ogden, 136 N. Y. 384; 4, 75, 78, 85, 727. Potter V. Richards, 10 Wend. 607; 241. Potts V. Baldwin, 67 App. Div. 434; 816, 817, 818, 1129. Powell V. Demming, 22 Hun, 235; 530. Powell, Matter of, 5 Dem. 281; 508, 509. Power V. Burmester, 12 N. Y. Supp. 25; 565. Power V. Burmester, 34 N. Y. St. Rep. 716; 490. Power V. Speckman, 126 N. Y. 354; 37, 49, 161, 565, 660, 677. Powers, In re, 124 N. Y. 361 ; 844, 961, 962, Powers V. Powers, 16 N. Y. St. Rep. 770; 944. Prall, Matter of, 78 App. Div. 301; 873. Pray, Matter of, 40 Misc. 516; 1105. Prentice, Matter of, 160 N. Y. 568; 221. Prentice, Matter of, 25 App. Div. 209; 1142, 1153. Prentiss v. Weatherly, 68 Hun, 114; 144 N. Y. 707; 577, 723. Prescott, Est. of, 4 Redf. 178; 261. Preston, Matter of, 75 App. Div. 250; 865. Preston, Matter of, N. Y. Law Jour., May 28, 1901; 874. Price V. Brown, 1 Bradf. 291; 347. Price V. Brown, 112 N. Y. 677; 135. Price V. Fenn, 3 Dem. 341; 65, 284, 976, 998. Price V. Wilson, 3 N. & M. 512; 824. Priest V. Watkins, 2 Hill, 225; 468, 470. Priester v. Hohlock, 70 App. Div. 256; 771. Prime, In re, 136 N. Y. 347; 443, 873. Primmer, Matter of, 49 Misc. 413; 827. Prince v. Hazelton, 20 Johns. 501; 297, 298. Prince, Matter of, 56 Misc. 222; 801. Pringle v. Burroughs, 185 N. Y. 375; 353. Printup, Matter of, 121 App. Div. 322; 39. Pritchard v. Pahner, 68 N. Y. St. Rep. 588; 88 Hun, 416; 328. Prive V. Foucher, 3 Dem. 339; 47, 437. Probst, Matter of, 40 Misc. 431; 866. Proctor, Matter of, 41 Misc. 79; 892. Proctor V. Wanamaker, 1 Barb. Ch. 302; 7, 627, 645, 674. Prote, Matter of, 54 Misc. 495; 1182. Prout, Matter of, 11 N. Y. Supp. 160; 116. Prout, Matter of, 52 Hun, 109; 98. Prout, Matter of, 53 Hun, 541; 911. Prout, Matter of, 128 N. Y. 70; 598, 609, 704. Pruyn v. Brinkerhoff, 57 Barb. 176; 121, 189, 289. Pruyn, Matter of, 141 N. Y. 544; 493, 1122 1123 Pryer v. Clapp, 1 Dem. 387; 60, 77, 408, 411. Public Administrator v. Burdell, 4 Bradf. 252; 634. Public Administrator v. Elias, 4 Dem. 139; 758. Public Administrator v. Hughes, 1 Bradf. 125; 550, 566. Public Admiaistrator v. Watts, 1 Paige, 347; 309. Pugsley V. Aiken, 1 Kern. 494; 846. PuUen, Matter of, 52 Misc. 75; 829. Pulhnan, Matter of, 46 App. Div. 574; 865, 896, 899. Pullman v. Willets, 4 Dem. 536; 242. Purdy v. Hayt, 92 N. Y. 445; 8, 9, 147, 437, 442, 443, 444, 445, 1135. Purdy, Matter of, 46 App. Div. 33; 196, 294, 295, 327. Purdy, Matter of, 24 Misc. 301; 894. Purdy V. Webster, 3 How. N. S. 263; 124. Purdy's Will, 20 N. Y. Supp. 307; 322. Putman v. Ritchie, 6 Paige, 390; 1036. Putnam v. Lincoln Safe Deposit Co., 49- Misc. 578; 950, 1188. Putney, Matter of, 61 Misc. 1; 1063. Pye, Matter of, 21 App. Div. 266; 205. Pye, Matter of (No. 1), 18 App. Div. 306; (No. 2), 309; 673, 674, 930. xc TABLE OF CASES CITED [References are to pages.] Quackenbos, Matter of, 38 Misc. 66; 160. Quakenboss v. Southwick, 41 N. Y. 117; 499, 660, 666, 685, 1023. Quatlander, Matter of, 29 Misc. 566; 963. Quin V. Hill, 6 Dem. 39; 1065. Quin, Matter of, 1 Connoly, 381; 243, 1102. 957. Smith V. Lusk, 2 Dem. 595; 1096. Smith, Maria, Est. of, Surr. Decs., 1894, 329; 58. Smith, Matter of, 41 N. Y. St. Rep. 337; Smith, Matter of, 158. Smith, Matter of. Smith, Matter of. Smith, Matter of, 388. Smith, Matter of, 445. Smith, Matter of. Smith, Matter of. Smith, Matter of. Smith, Matter of. Smith, Matter of. Smith, Matter of. Smith, Matter of, Smith, Matter of. Smith, Matter of. Smith, Matter of, 1903; 1108. Smith, Matter of. Smith, Matter of, 15 N. Y. St. Rep. 734; 89 Hun, 606; 182. 36 Misc. 128; 380. 24 N. Y. Supp. 928; 18N. Y.Supp.l74;438, 16 Weekly Dig. 472 ; 486. 18 Misc. 139,; 827. 71 App. Div. 602; 892. 40 App. Div. 480; 907. 7N.Y.Supp. 327;1023. 46 App. Div. 318; 1090. 13 Misc. 592; 1135. 66 App. Div. 340; 1151. 1 Misc. 269; 1111. N. Y. Jour., March 13, 120App.Div. 199; 1076. 58 Misc. 493; 818. Smith, Matter of, 75 App. Div. 339; 804, 827 Smith, Matter of, 42 Misc. 639; 770. Smith, Matter of, 111 App. Div. 23; 113. Smith, Matter of, 95 N. Y. 516; 121, 201. Smith V. McGowan, 3 Barb. 404; 261. Smith V. Meakim, 2 Dem. 129; 964. Smith V. Murray, 1 Dem. 34; 936, 955, 957. Smith V. Northampton Bank, 4 Cush. 1; 469. Smith V. Parsons, 146 N. Y. 116; 1064. Smith V. Patten, 9 Abb. N. S. 205; 818. Smith V. Remington, 42 Barb. 75; 1185. Smith V. Robertson, 24 Hun, 210; 252. Smith V. Second Nat. Bank, 169 N. Y. 467; 585. Smith V. Second Nat. Bank, 70 Hun, 357; 602, 606. Smith V. Smith, 2 Dem. 43; 1043. Smith V. Talmadge, 3 Law Bull. 97; 124. Smith V. Tiffany, 16 Hun, 552; 609. Smith V. Velie, 60 N. Y. 106; 821. Smith V. Wells, 69 N. Y. 600; 79. Smith's Will, 24 N. Y. Supp. 928; 362, 365. Smythe v. Rowe, 4 Law Bull. 60; 76. Snedeker, Matter of, 95 App. Div. 149; 197, 828. Snedeker v. Snedeker, 47 App. Div. 471; 1183. Snell, Matter of, 32 Misc. 611; 315. Snelling, Matter of, 136 N. Y. 515; 350, 372 373 Snow V. Hamilton, 90 Hun, 157; 421. Snyder, Mattes of, 103 N. Y. 178; 162, 164. Snyder, Matter of, 34 Hun, 302; 164. Snyder v. Sherman, 88 N. Y. 656; 200. Snyder v. Snyder, 96 N. Y. 88; 806. Snyder v. Snyder, 5 Civ. Proc. Rep. 267; 1131. Society v. Hopper, 33 N. Y. 624; 362. Soden, Matter of, 38 Misc. 25; 353, 355. Sogaard, Matter of, 39 Misc. 519; 518. Sohn, Matter of, 1 Civ. Proc. Rep. 373; 520, 679. Solomon, Matter of, 4 Redf. 509; 1004. Solomons v. Kursheedt, 3 Dem. 307; 779, 1103, 1121. Sommerville, Matter of, 1 Tuck. 76; 113. Sondheim, Matter of, 32 Misc. 296 (aff'd 69 App. Div. 5); 885. Soule, Matter of, 6 Dem. 137; 63, 411. Soule, Matter of, 72 Hun, 594; 180, 183. Soule, Matter of, 46 Hun, 661; 190. Soule, Matter of, 3 N. Y. Supp. 259; 373, 377 378 383 Soule,' Matter of, 19 N. Y. St. Rep. 532; 416. Soverhill v. Suydam, 59 N. Y. 140; 1133. Spaulding v. Gibbons, 5 Redf. 316; 338. Spaulding, Matter of, 49 App. Div. 514 (aff'g 22 Misc. 420); 875. Spears v. Burton, 31 Misc. 547; 542. Spears, Matter of, 89 Hun, 49; 1077. Speckles v. Public Administrator, 1 Dem. 475* 633. Spehn'an v. Terry, 74 N. Y. 448; 92, 707. XCVl TABLE OF CASES CITED [References are to pages.] Spence v. Chambers, 39 Hun, 193; 194. Spencer v. Hay Library Assoc, 36 Misc. 393; 927. Spencer v. Popham, 5 Redf. 425; 62, 63, 617, 619. Spencer v. Spencer, 38 App. Div. 403; 929, 1141, 1153. Spencer v. Strait, 40 Hun, 463; 1155. Spencer's Est., 4 N. Y. Supp. 395; 744. Spencer, Matter of, N. Y. Law Jour., June 2, 1908; 312. Sperb V. McCoun, 110 N. Y. 605; 732. Spicer v. Raplee, 4 App. Div. 471; 831. Spicer's Will, 1 Tucker, 80; 91. Spofford V. Pearsall, 138 N. Y. 57; 448. Spooner, Matter of, 86 Hun, 9; 1155. Sprague, Matter of, 125 N. Y. 732; 118, 195 199. Sprague, Matter of, 46 Misc. 216; 1146. Sprague, Matter of, 41 Misc. 608; 774. Spraker v. Davis, 8 Cowen, 132; 980. Sprathoff, Matter of, 50 Misc. 109; 194, 195. Spratt, Matter of, 17 App. Div. 636; 373. Spratt, Matter of, 4 App. Div. 1; 275, 384. Spratt V. Syms, 104 App. Div. 232; 246, 587, 590. Spreen, Matter of, 1 Civ. Proc. Rep. 375; 755, 759. Springstead, Matter of, 8 N. Y. Supp. 596; 367. Spurr, etc., v. Empire State Surety Co., 117 App. Div. 816; 125. Staats V. Staats, 11 Johns. 337; 450. Stachelberg v. Stachelberg, 52 Misc. 22; 267. Stachelberg v. Stachelberg, 124 App. Div. 232; 1178. StadtmuUer, Matter of, 110 App. Div. 76; 827. Stagg v. Jackson, 1 N. Y. 206; 436, 1008, 1009, 1107, 1142. Stanfield, Matter of, 135 N. Y. 292; 942, 943, 944. Stanley v. National Union Bank, 115 N. Y. 122; 812. Stanley v. Stanley, 4 Dem. 416; 676. Stanton, Est. of, 18 St. Rep. 807; 227. Stanton, Matter of, 1 Connoly, 108; 669. Stanton, Matter of, 41 Misc. 278; 1102 1106. Stanton v. Wetherwax, 16 Barb. 259; 366. Stapler v. Hoffman, 1 Dem. 63; 184, 310 403, 664. Stapleton, Matter of, 71 App. Div. 1 ; 186, 196. Starr v. Starr, 132 N. Y. 154; 450. State V. Wilbur, 77 N. Y. 158; 770. Steamboat Orleans v. Phoebus, 11 Peters, 175; 299. Stebbins v. Hart, 4 Dem. 501 ; 372. Stebbins, Matter of, 52 Misc. 438; 868, 871. Steele v. Conn. Gen. Life Ins. Co., 22 Misc. 249; 769. Steencken, Matter of, 58 App. Div. 85; 228. Steencken, Matter of, 51 App. Div. 417' 1088. Steenwerth, Matter of, 97 App. Div. 116' 201. Stein, Conrad, Est. of. Law Jour., June 17 1902; 88. Stein V. Wilzinski, 4 Redf. 441; 342. Steinback v. Diepenbrock, 5 App. Div 208; 211. Steinbrugge, Matter of (report filed July 1902); 878. Steinway, Matter of, 37 Misc. 704; 615. Steinway v. Steinway, 163 N. Y. 183; 1170. Steinway v. Yon Bernuth, 59 App. Div. 261; 1076. Stephen, Matter of, 2 N. Y. Supp. 36; 74. Stem's Est., In re, 9 N. Y. Supp. 445; 662, 663. Stern, Matter of, 33 Misc. 542; 494. Stems, Matter of, 2 Connoly, 272; 616, 517. Stevens, Matter of, 20 Misc. 157; 10, 936. Stevens, Matter of, 114 App. Div. 607; 187, 235. Stevens, Matter of, 40 Misc. 377; 936. Stevens, Matter of, 187 N. Y. 471; 1028, 1033. Stevens, Matter of, 25 N. Y. St. Rep. 993; 1156. Stevens v. Melcher, 80 Hun, 614; 942, 943, 945. Stevens v. Melcher, 152 N. Y. 551; 942, 944, 1034, 1140. Stevens v. Reynolds, 6 N. Y. 458; 269. Stevens v. Stevens, 3 Redf. 507; 610, 714. Stevens v. Stevens, 2 Dem. 469; 614, 697. Stevenson, Matter of, 86 Hun, 325; 1126, 1135. Stevenson, Matter of, 77 Hun, 203; 99, 856. Stevenson v. Weisser, 1 Bradf. 343; 838. Steward's Est., 10 N. Y. Supp. 24; 778. Stewart v. Chambers, 2 Sandf. Ch. 393; 950. Stewart v. Lispenard, 26 Wend. 255; 350, 354. Stewart, Matter of, 135 N. Y. 413; 194, 196, 198. Stewart, Matter of, 23 App. Div. 17; 92, 189, 235. Stewart, Matter of, 13 N. Y. Supp. 219; 355 Stewart, Matter of, 10 N. Y. Supp. 744; 385. Stewart, Matter of, 131 N. Y. 274; 416, 443, 880, 884. Stewart, Matter of, 77 Hun, 564; 752. Stewart, Matter of, 1 Connoly, 412; 949. Stewart, Matter of, 30 App. Div. 371; 1023. Stewart v. O'Donnell, 2 Dem. 17; 819. Stewart v. Phelps, 71 App. Div. 91; 1033. Stewart's Will, 2 Redf. 77; 342. Stewart's Will, Matter of, 3 N. Y. Supp. 284; 540. Stickuey, Matter of, 161 N. Y. 43 (aff'g 31 App. Div.) 383; 252, 254, 334. TABLE OF CASES CITED XCVll [References are to pages.] Stickney Matter of 41 Misc. 70; 262. Stiens, Matter of, 60 Misc. 631; 757. Stikeman, Matter of, 48 Misc. 156; 472. Stiles V. Burch, 5 Paige, 132; 147. Stillman, Matter of, 28 N. Y. St. Rep. 213; 342. Stillman, Matter of, 9 N. Y. Supp. 446; 348. Stillwell V. Carpenter, 2 Abb. N. C. 238; 151. Stillwell V. Carpenter, 59 N. Y. 414; 7, 1098. Stillwell, Matter of, 68 Hun, 406; 1002. Stillwell V. Swarthout, 81 N. Y. 109; 974, 975, 995, 998. Stimson v. Vrooman, 99 N. Y. 74; 449, 451, 453. St. John, Est. of, Daily Reg., May 21, 1883; 527. St. John, Matter of Chauncey, 1 Tucker, 126; 837, 1106. St. John, Matter of, 104 App. Div. 460; 1122. St. John V. McKee, 2 Dem. 236; 1111, 1127, 1155. St. John V. Voorhies, 19 Abb. Pr. 53; 1082. St. Luke's Home v. Assn. for Indigent Females, 52 N. Y. 191; 452. Stockwell, Matter of, 17 Misc. 108; 329. Stohr, Matter of, 23 N. Y. Supp. 280; 1063. Stokes V. Dale, 1 Dem. 260; 224, 227. Stokes, Est. of, 1 Dem. 260; 175. Stokes V. Weston, 142 N. Y. 433; 449. Stolzel V. Cruikshank, 4 Dem. 352; 474. Stone, Matter of, 56 Misc. 247; 905. Stone V. Scriptiu'e, 4 Lansing, 186; 609, 610. Stone's Will, N. Y. Law Jour.; 234. Storm, Matter of, 84 App. Div. 552; 531, 730, 1120. Storm's Will, 3 Redf. 327; 256, 335. Story V. Dayton, 22 Hun, 450; 91, 181. Story V. N. Y. & Harlem R. R. Co., 6 N. Y. 85; 220. Stotesbury, Matter of, not reported; 1066. Stouvenel v. Stephens, 2 Daly, 319; 540, 541. Stover, Matter of, 4 Redf. 82; 36, 38, 39. Stow V. Stow, 1 Redf. 305; 291. Stowell, Matter of, 15 Misc. 533; 964, 981. Stowenel's Est., 1 Tuck. 241; 1122. Strickland, Matter of, 10 Misc. 486; 1 Connoly, 435; 770, 978, 1126. Strickland, Matter of, 22 N. Y. St. Rep. 901; 1089. Strong V. Harris, 84 Hun, 314; 616. Strong, Matter of, 117 App. Div. 796; 910. Strong, Matter of. 111 App. Div. 281; 165, 174, 698, 780. Strong V. Strong, 3 Redf. 477; 180. Strong's Will, In re, 16 N. Y. Supp. 104; 339 Stuart V. Foster, 18 Abb. Pr. 305; 780. Stuart V. Palmer, 74 N. Y. 188; 884. Stumpf, Matter of, 4 App. Div. 282; 9. Stuyvesant v. Weil, 167 N. Y. 421; 965. Suarez, Matter of, 3 Dem. 164; 478, 555. Suarez v. The Mayor, 2 Sandf. Ch. 173; 656, 688. Sudlow V. Pinckney, 1 Dem. 158; 163. Suess, Matter of, 37 Misc. 459; 1144. Sullivan v. Fosdick, 10 Hun, 173; 503, 590. Sullivan, Matter of, 51 Hun, 379; 539. Sullivan, Matter of, 84 App. Div. 51 ; 188. Sulz V. Mut. Res. F. I. Assn., 145 N. Y. 563; 769, 771. Sulz V. Mutual Reserve, 7 Misc. 593; 555. Summers, Matter of, 37 Misc. 575; 981. Supplee V. Sayre, 51 Hun, 30; 802, 813. Susz V. Forst, 4 Dem. 346; 662, 664. Sutherland v. Brush, 7 Johns. Ch. 17; 495, 700. Sutherland, Matter of, 28 Misc. 424; 359, 360. Sutherland v. St. Lawrence County, 42 Misc. 38; 689. Sutton, Matter of, 149 N. Y. 618 (aff'g 3 App. Div. 208, and 15 Misc. 659); 865, 898. Sutton V. Public Administrator, 4 Dem. 33; 558, 626. Sutton V. Ray, 72 N. Y. 482; 217. Sutton V. Weeks, 5 Redf. 353; 503, 703, 713. Suydam, Matter of, 84 Hun, 514; 355, 383. Swade, Matter of, 65 App. Div. 592; 875. Swales, Matter of, 60 App. Div. 599; 548. Swart, Matter of, 2 Silv. 585; 931. Swartwout v. Burr, 1 Barb. 495; 998. Swartwout v. Swartwout, 2 Redf. 52; 1055. Sweeney v. Warren, 127 N. Y. 426; 10. Sweet V. Chase, 2 N. Y. 79; 448. Sweet V. Sweet, 1 Redf. 451 ; 258. Sweetland, Matter of, 47 N. Y. St. Rep. 285; 871. Sweezy v. Thayer, 1 Duer, 286; 948. Sweezy v. Willis, 1 Bradf. 495; 97, 1176. Swenarton v. Hancock, 22 Hun, 38; 208, 287 Swift,' In re, 137 N. Y. 77; 443, 862, 864, 865, 898. Sworthout, Matter of, 38 Misc. 56; 833, 838. Tacke's Will, In re, 3 N. Y. Supp. 112; 226. Taff's Est., In re, 8 N. Y. Supp. 282; 1112, 1146. Taggard, Matter of, 138 N. Y. 610; 1008. Taggart, Est. of, 40 N. Y. St. Rep. 368; 569. Taggart'sEst., Matter of, 16 N. Y. Supp. 514; 543. Taggart v. Murray, 53 N. Y. 236; 447. Talmage, Matter of, 59 Misc. 130; 441. Tanas v. Municipal Gas Co., 88 App. Div. 251; 558. Tappen v. M. E. Church, 3 Dem. 187; 445, 1135. Tarrant v. Ware, 25 N. Y. 425; 344. Tartaglio, Matter of, 12 Misc. 245; 77, 558, 560, 1168. XCVlll TABLE or CASES CITED [References are to pages.] Tarver v. Tarver, 9 Pet. 174; 44, 153. Tavshanjian v. Abbott, 59 Misc. 642; 252, 1179. Taylor v. Dodd, 58 N. Y. 335; 931. Taylor, Matter of, 13 N. Y. St. Rep. 176; 35,36,38. ,,„„ Taylor, Matter of, 30 App. Div. 213; 1122, 1188. Taylor, Matter of, 6 Dem. 158; 40. Taylor v. Public Administrator, 6 Dem. 158; 40, 633. Taylor v. Shuit, 4 Dem. 528; 781. Taylor v. Syme, 17 App. Div. 513; 490, Taylor v. Syme, 162 N. Y. 513; 584, 585. Taylor v. Taylor, 3 Bradf. 54; 997. Te Culver, Matter of, 22 Misc, 217; 1171. Teed v. Morton, 90 N. Y. 502; 436. Teeter v. Teeter, 47 N. Y. St. Rep. 580; 812. Terhune v. Brookfield, 1 Redf. 220; 104. Terry v. Dayton, 31 Barb. 519; 1131. Terry v. Sampson, 112 N. Y. 415; 519. Terwilliger v. Brown, 44 N. Y. 237; 991, 995. Thacher v. Henderson, 63 Barb. 271 ; 1036. Thayer v. Clark, 48 Barb. 243; 920. Thayer v. Clark, 4 Abb. (Ct. of App.) 391; 699, 725, 729. Thayer, Matter of, 58 Misc. 117, 892. The Thomas Jefferson, 10 Wheaton, 428; 299 Theobold v. Smith, 103 App. Div. 200; 735, 1178. Thieriot, Matter of, 117 App. Div. 686; 666. Thistle V. Thistle, 5 Civ. Proc. Rep. 43; 78. Thomas, Est. of, N. Y. Law Jour., Novem- ber 8, 1902; 896. Thomas, Matter of 39 Misc. 137; 880. Thomas, Matter of, 3 Misc. 388; 871. Thomas, Matter of, 33 Misc. 729; 549, 565. Thomas, Matter of, 39 Misc. 223; 788, 894. Thompson v. Brown, 4 Johns. Ch. 619; 1025. Thompson v. Carmichael, 3 Sandt. Ch. 120; 538. Thompson's Case, 21 Barb. 107; 368. Thompson, Est. of, 1 Civ. Proc. Rep. 264; 593, 594. Thompson, Ex parte, 4 Bradf. 154; 297, 298. Thompson, Matter of, 5 Dem. 117; 445. Thompson, Matter of, 57 App. Div. 317; 902, 905. Thompson, Matter of, 6 Dem. 656; 713. Thompson, Matter of, 1 Wend. 43; 331, 745. Thompson, Matter of, 11 Paige, 453; 105, 189. Thompson, Matter of, 33 Barb. 334 (aff'g 28 How. Pr. 581); 509. Thompson, Matter of 41 Misc. 420; 1107. Thompson, Matter of, 41 Misc. 223; 1089. Thompson, Matter of, 184 N. Y. 36; 3, 493, 769. Thompson, Matter of, 50 Misc. 222; 378. Thompson, Matter of, 121 App. Div. 470; 378. Thompson v. Mott, 2 Dem. 154; 1124. Thompson v. Quimby, 2 Bradf. 449; 322, 364. Thompson v. Quimby, 21 Barb. 107; 365. Thompson v. Stevens, 62 N. Y. 634; 331, 342. Thompson v. Taylor, 71 N. Y. 217; 854, 855, 856. Thompson v. Tracy, 60 N. Y. 174; 209. Thompson v. Whitemarsh, 100 N. Y. 35; 845. Thomson v. Am. Surety Co., 170 N. Y. 109 (aff'g 56 App. Div. 113); 732, 733. Thomson v. MacGregor, 81 N. Y. 592; 732. Thomson v. Thomson, 1 Bradf. 24; 99, 764, 777, 778, 782, 785, 1123. Thorn v. De Breteuil, 179 N. Y. 64; 1144. Thorn, Est. of, 4 Monthly Law Bulletin, 48; 54. Thorn v. Garner, 113 N. Y. 198; 942. Thorn v. Shiel, 15 Abb. N. S. 81; 249. Thome, Matter of, 155 N. Y. 140 (aff'g 23 App. Div. 624); 310, 734, 742. Thome, Matter of, 44 App. Div. 8 (rev'g 27 Misc. 624); 875. Thome v. Underbill, 1 Dem. 306; 1160. Thorp V. Riley, 3 N, Y. Supp. 547; 123. Thrall, Matter of, 30 App. Div. 271; 1156. Thurber v. Chamber, 66 N. Y. 42; 449. Thurber, Matter of, 37 Misc. 155; 1082. Thurber, Matter of, 162 N. Y. 244; 717. Tickel V. Quinn, 1 Dem. 425; 806, 1110, 1112. Tiers v. Tiers, 2 Dem. 209; 441. Tifft, Matter of, 55 Misc. 151; 360, 371. Tifft V. Porter, 8 N. Y. 516; 928. Tighe V. Morrison, 116 N. Y. 263; 701. Tighe, Will of, N. Y. Law Jour., Aug. 15, 1898; 262. Tilby V. Tilby, 3 Dem. 258; 116. Tilden v. Dows, 3 Dem. 240; 1014. Tilden v. Dows, 2 Dem. 489; 1129. Tilden v. Fiske, 4 Dem. 357; 478, 687, 1020. Tilden v. Green, 130 N. Y. 29; 448, 450. Tilden, Matter of, 56 App. Div. 277 (rev'g 32 Misc. 118); 153, 154, 176, 183. Tilden, Matter of, 5 Dem. 230; 183. Tilden, Matter of, 32 Misc. 118; 281. Tilden, Matter of, 98 N. Y. 434; HI, 176, 177, 178, 180, 221, 903. Tillotson, Ex parte, 2 Edwards' Ch. 113; 91. Tilloston V. Race, 22 N. Y. 122; 452, 453. Tilman v. Davis, 95 N. Y. 17; 94, 95, 96, 102. Tibiey v. Clendenning, 1 Dem. 212; 820. Tilton v. Ormsbee, 70 N. Y. 609 (aff'g 10 Hun,); 761, 762. Tunerson, Matter of, 39 Misc. 675; 955. Timon v. Claffy, 45 Barb. 438; 44, 293. Timpson v. Lorsch, 50 Misc. 398; 425. TABLE OF CASES CITED XCIX [References are to pages.] Tisdale, Matter of, 110 App. Div. 857; 777, 935, 1083. Title Guarantee v. Trust Co., 114 App. Div. 778; 1155. Titus V. Perry, 13 N. Y. St. Rep. 237; 812. Titus V. Poole, 145 N. Y. 414; 1526. Tobias v. Ketcham, 32 N. Y. 319; 1007. Tobin V. Carey, 34 Hun, 432; 89. Toch V. Toch, 81 Hun, 410; 842, 928. Todd, Matter of, 64 App. Div. 435; 1140. ToUes V. Wood, 99 N. Y. 616; 27. Tompkins, Matter of, 69 App. Div. 474; 217. Tompkins v. Moseman, 5 Redf. 402; 1029. Tompkins v. Rice, 55 Hun, 563; 771. Tonnele v. Hall, 4 N. Y. 140; 322, 452, 1160. Tonnelle v. Hall, 2 Abb. 205; 932. Tooker v. Bell, 1 Dem. 52; 518. Topping's Est., In re, 14 N. Y. Supp. 495; 1112. Topping, Matter of, 9 N. Y. Supp. 447; 966. Topping, Matter of, 29 N. Y. St. Rep. 211; 984. Torkington, Matter of, 79 Hun, 118; 201. Toronto G. T. Co. v. C, B. & Q. R. R. Co., 123 N. Y. 37; 610, 1012. Torry v. Bowen, 15 Barb. 304; 343. Torry v. Prazer, 2 Redf. 486; 1068. Totten, Matter of, 179 N. Y. 112; 222, 878, 1108. Toulon, Matter of, 66 Hun, 199; 75. Tousey, Matter of, 34 Misc. 363; 389. Townley, Matter of, 1 Connoly, 400; 346. Townsend v. Bogart, 5 Redf. 93; 313, 330, 349. Townsend, Matter of, 75 Hun, 593; 350. Townsend, Matter of, 83 Hun, 200; 835, 837 Townsend, Matter of, 5 Dem. 147; 948. Townsend v. N. Y. Life Ins. Co., 4 N. Y. Civ. Proc. Rep. 404; 808. Townsend v. Pell, 3 Dem. 367; 41, 42. Townsend v. Whitney, 75 N. Y. 425;158, 161, 859. Tracer v. Jennison, 106 U. S. 191; 44. Tracy v. Frost, 11 N. Y. Supp. 561; 826. Tracy, Matter of, 18 Abb. N. C. 242; 234. Tracy, Matter of, 179 N. Y. 501 (rev'g 87 App. Div. 215); 882, 925. Tracy v. Reynolds, 7 How. Pr. 327; 190. Tracy v. Suydam, 30 Barb. 110; 807. Trask v. Annett, 1 Dem. 171; 713. Trask's Est., In re, 49 N. Y. Supp. 825; 1100. Trask v. Sturges, 170 N. Y. 482; 447, 449. Traver, Matter of, 9 Misc. 621; 181. Travis, Matter of, 85 Hun, 420; 943. Travis, Matter of, 19 Misc. 393; 864. Travis V. Travis, 48 Hun, 343; 708, 712. Treadwell, Matter of, 85 App. Div. 570; 110, 1088. Treadwell, Matter of, 77 App. Div. 155; 1090. Treadwell, Matter of, 37 Misc. 584; 479, 506, 508, 665. Tredwell, Matter of, 58 Misc. 103; 373. Trelease, Matter of, 49 Misc. 205; 950. Tremenheere v. Chapin, 56 Misc. 208; 1007. Trimble v. Dzieduzyiki, 57 How. 208; 1050. Trimm, Matter of, 30 Misc. 493; 734, 748. Trotter, Matter of, 182 N. Y. 465; 439, 441. Troup V. Reid, 2 Dem. 471; 343. Truesdale, Matter of, 40 Misc. 336; 677. Trustees v. Ritch, 91 Hun, 509; 265. Trustees of The Theological Seminary v. Calhoun, 25 N. Y. 422; 287, 314, 331, 341, 343, 344, 388. Tucker, Matter of, 29 Misc. 728; 1152. Tucker, Matter of, 27 Misc. 616; 880. Tucker v. McDermott, 2 Redf. 312; 1080, 1081. Tucker v. Tucker, 4 Keyes, 136; 9, 151. Tugwell V. Heyman, 3 Camp. 298; 824. TuUy, Matter of, 54 Misc. 184; 1037. Tuohay v. Public Administrator, 2 Dem. 412; 628. Turfier, Matter of, 78 Hun, 258; 1125. Turhune v. Brookfield, 1 Redf. 220; 280, 310, 385. Turner v. Mather, 86 App. Div. 172; 928, 932. Turrell, Matter of, 28 Misc. 106 (aff'd 166 N. Y. 330); 322, 330, 333, 336, 345, 346, 348. Tuttle V. Heiderman, 5 Redf. 199; 939. Tuttle V. Tuttle, 2 Dem. 48; 958. Twenty-Third St. Bap. Church v. Comek, 117 N. Y. 601; 839. Twichell, Matter of, 117 App. Div. 301; 1054. Tyers, Matter of, 41 Misc. 378; 553, 558, 565, 567, 665. Tyler v. Gardiner, 35 N. Y. 559; 373, 374, 375, 377. Tyler v. Mapes, 19 Barb. 448; 338. Tyler, Matter of, 60 Hun, 566; 11, 23. Tyler, Matter of, 6 Dem. 48; 509. Tymon v. Comwell, 2 Dem. 650; 631. Tyndall, Matter of, 117 App. Div. 294; 115, 196. Tyndall, Matter of, 48 Misc. 39; 1059, 1063. Uhlman v. N. Y. Life Ins. Co., 109 N. Y. 421; 1076. Uline V. N. Y. C. & H. R. R. Co., 79 N. Y. 175; 124. Ullmann, Matter of, 137 N. Y. 403; 442, 443, 885, 906. Ulrich V. UHch, 17 N. Y. Supp. 721; 812. Ulster Co. Savings Inst. v. Fourth Natl. Bank, 8 N. Y. Supp. 162; 606. Ulster Co. Savings Inst. v. Young, 161 N. Y. 23; 816. Underbill v. Dennis, 9 Paige, 209; 23, 92, 189, 235, 1043, 1044. Underbill's Est., 9 N. Y. Supp. 457; 159. Underbill, Matter of, 117 N. Y. 471 (aff'd 1 Connoly 113); 7, 9, 100, 183, 953. TABLE OF CASES CITED [References are to pages.] Underhill, Matter of, 35 App. Div. 434 (aff'd 158 N. Y. 721); 1010, 1151. Underhill, Matter of, 1 Connoly, 541; 1122. Underhill, Matter of, 27 N. Y. St. Rep. 720; 1172. UnderhUl v. Newburger, 4 Redf. 499; 243, 513, 786, 800, 802, 1103, 1131. Union Trust Co. v. Gage, 6 Dem. 358; 161. Union Trust Co., Matter of, 65 App. Div. 449; 148. Union Trust Co., Matter of, 70 App. Div. 5; 1150. Union Trust Co., Matter of, 172 N. Y. 494; 221 223. Union Trust Co., Matter of, 179 N. Y. 261; 263. United States v. Ricketts, 2 Cr. Cir. Ct. 553; 832. United States Trust Co. v. Bixby, 2 Dem. 494; 1152. United States Trust Co., Matter of, 175 N. Y. 304; 10, 99, 1122. United States Trust Co. v. Soher, 178 N.Y. 442, 1171. United States Trust Co. v. Stanton, 76 Hun, 32; 771. Upton v. Bernstein, 27 N. Y. Supp. 1078; 291 Urquliart v. Fricker, 3 Add. 58; 278. Van Alen v. Hewins, 5 Hun, 44; 105, 109, 249. Van Alst V. Hunter, 5 Johns. Ch. 158; 349, 351. Van Alstyne v. Van Alstyne, 28 N. Y. 375; 336. Van Arsdale v. King, 155 N. Y. 325; 221. Van Benthuysen, Matter of (report filed June, 1902); 878. Van Beuren V. Dash, 30 N. Y. 393; 958. Van Bokkelin v. Ingersoll, 5 Wend. 315; 220. Van Buren v. Cockbum, 14 Barb. 118; 261. Van Buren, Matter of, 19 Misc. 373; 242. Van Cortlandt v. Kipp, 1 Hill, 590; 263 319, 334, 336. Van Dawalker, Matter of, 63 App. Div, 550; 369. Van Derzee, Matter of, 73 Hun, 532; 1185 Van Deusen v. Sweet, 51 N. Y. 385; 261 543, 568. Van Dyke, Matter of, 44 Hun, 394; 1185 Van Epps v. Van Dusen, 4 Paige, 64; 1095 Van Geisen, Matter of, 47 Hun, 5; 327, 337 346. Van Gelder v. Van Gelder, 84 N. Y. 658 229 Van Giessen v. Bridgford, 83 N. Y. 348 41. Van Guysling v. Van Kuren, 35 N. Y. 70 350, 351, 353, 362, 365, 368. Van Hanswyck v. Weise, 44 Barb. 494 325. Van Hoffman v. Ward, 4 Redf. 244 332. Van Houten, Matter of, 18 App. Div. 301- 164. Van Houten, Matter of, 11 App. Div. 208- 200, 217. Van Houten, Matter of, 15 Misc. 196; 328 344. Van Kleeck, Matter of, 121 N. Y. 701; 864. Van Nostrand, Matter of, 3 Misc. 396- 1155, 1156. Van Nostrand v. Moore, 52 N. Y. 12- 448. Van Orman v. Van Orman, 34 N. Y. St Rep. 824; 217, 373. Van Post, Est. of, N. Y. Law Jour., June 20, 1901; 903, 908. Van Rensselaer v. Morris, 1 Paige, 13; 393. Van Rensselaer v. Van Rensselaer, 113 N. Y. 207; 942. Van Schaack v. Saunders, 32 Hun, 515 468. Van Schuyver v. Mulford, 59 N. Y. 426 448. Van Sinderen v. Lawrence, 50 Hun, 272 1079, 1098, 1099. Van Sise, Matter of, 38 Misc. 155; 786. Van Slooten v. Dodge, 145 N. Y. 327; 818. Van Slooten v. Wheeler, 76 Hun, 55; 771 812. Van Slooten v. Wheeler, 140 N. Y. 624 806, 1131. Van Tassel v. Burgen, 119 App. Div. 509 267. Van Valkenburg v. Lasher, 53 Hun 594 1133. Van Vechten v. Van Veghten, 8 Paige, 104; 957. Van Vleck v. Burroughs, 6 Barb. 341; 61 1122. Van Vleck, Matter of, 32 Misc. 419; 961 964, 973. Van Vliet, Matter of, 5 Misc. 169; 927. Van Voorhees, Matter of, 55 Misc. 185 803, 850, 851. Van Voorhis, Matter of, 1 N. Y. St. Rep 306; 415. Van Wagonen, Matter of, 69 Hun, 365 23 Van Wert v. Benedict, 1 Bradf. 114; 260 Van Wert, Matter of, 3 Misc. 563; 1156. Van Wyck v. Brasher, 81 N. Y. 260 359. Van Wyck, In re, 1 Barb. Ch. 565; 499. Van Wyck v. Van Wyck, 22 Hun, 9; 679. Van Zandt v. Grant, 67 App. Div. 70 (aff'd 175 N. Y. 150); 720, 723, 726. Valentine v. Jackson, 9 Wend. 302; 468. Valentine, Matter of, 22 Week. Dig. 175; 226. Valentine, Matter of, 9 Abb. N. C. 313; 236. Valentine, Matter of, 72 N. Y. 184; 974. Valentine, Matter of, 3 Dem. 563; 1029, 1030, 1079. Valentine v. Valentine, 2 Barb. Ch. 430; 1008. Valentine v. Valentine, 4 Redf. 265; IIU. Vandecar, Matter of, 49 Misc. 39; 950. TABLE OF CASES CITED CI [References are to pages.] Vandemark v. Vandemark, 26 Barb. 416 187. Vanderbilt, Matter of, 172 N. Y. 69; 925 Vanderbilt, Matter of, 3 Redf. 384; 363 364. Vanderbilt, Matter of, 50 App. Div. 246 879. Vanderbilt, Matter of, 68 App. Div. 27 894, 923. Vanderheyden v. Vanderheyden, 2 Paige 287; 239, 243, 1153. Vanderpoel v. Van Valkenburg, 6 N. Y, (2 Seld.) 190; 153, 156, 281, 392. Vandervort, Matter of, 8 App. Div. 341 445. Vauderwater, Matter of, 115 N. Y. 699 (aff'g 27 Week. Dig. 314); 1044. Vassar, Matter of, 127 N. Y. 1 ; 888. Vechten v. Keator, 63 N. Y. 52; 448. Vedder, Matter of, 14 St. Rep. 470; 363, 732. Vedder, Matter of, 6 Dem. 92; 364. Vedder, Matter of, 2 Connoly, 54S; 943. Vedder v. Saxton, 46 Barb. 188; 772, 1113. Veeder v. Mudgett, 95 N. Y. 295; 797. Vermilyea v. Beatty, 6 Barb. 429; 584. Vernon, Est. of, 1 Civ. Proc. Rep. 304; 679. Verplanck, In re, 91 N. Y. 439; 95, 147, 436, 443, 444, 445, 1133. Verplanck, Matter of, 91 N. Y. 439, 450; 9. Vinot, Matter of, 7 N. Y. Supp. 51; 865. Voelckner v. Hudson, 1 Sandf. 215; 775, 1113. Voelpel, Est. of, 4 Law Bull. 79; 1059. Voessing v. Voessing, 4 Redf. 360; 1066, 1095. Vogel V. Arbogast, 4 Dem. 399; 764, 777. Vogel V. Lehritter, 139 N. Y. 223; 320, 321 452. Volha'rd v. Volhard, 119 App. Div. 266; 616, 1076. Von Beck v. Thomson, 44 App. Div. 373; 738, 743. Vonder Leith, Matter of, 25 Misc. 255; 818, 1129. Von Glahn, Matter of, 53 App. Div. 165; 1125. Von Hoffman v. Ward, 4 Redf. 244; 36, 38 39 Von Sachs v. Kretz, 72 N. Y. 548; 1188. Voorhees v. Voorhees, 39 N. Y. 463; 293, 388 Voorhis, Est. of, 1 How. N. S. 261; 121. Voorhis, Est. of, 5 Civ. Proc. Rep. 444; 125. Voorhis, Matter of, 1 N. Y. St. Rep. 306; 209. Voorhis, Revocation of Probate of Will of Ann, Matter of, 125 N. Y. 765; 314, 331, 333 342 Voorlis V. Voorhis, 50 Barb. 119 (aff'd 39 N. Y. 463); 44. Voshall V. Clarke, 123 App. Div. 124; 365. Vought v. Williams, 120 N. Y. 253; 540. Vowers, Matter of, 113 N. Y. 569; 439, 441. Vreedenburgh v. Calf, 9 Paige, 128; 7, 180, 674. Vreeland v. McClelland, 1 Bradf. 393; 41. Vroom V. Van Home, 10 Paige, 649; 468, 470. Wachter, Matter of, 16 Misc. 137; 829. Wade V. Holbrook, 2 Redf. 378; 360. Wadsworth v, AUcott, 6 N. Y. 64; 1107. Wadsworth, Est. of, 24 N. Y. St. Rep. 416; 91, 92. Wadsworth, Matter of, 2 Barb. Ch. 381; 1022. Wadsworth v. Sharpsteen, 8 N. Y. 388; 361. Wager v. Wager, 89 N. Y. 162; 45, 46, 47, 421, 465, 500, 616. Wager v. Wager, 96 N. Y. 164; 450. Wagner, Matter of, 119 N. Y. 32; 10, 99, 443, 787, 1117, 1122, 1123. Wagner, Matter of, 119 N. Y. 28 (aff'g 52 Hun, 32) ; 784, 1099. Wagner, Matter of, 40 Misc. 480; 1127. Wagner, Matter of, 81 App. Div. 163; 1064. Wait, Matter of, 16 N. Y. St. Rep. 292; 248. Wait, Matter of, 39 Misc. 74; 1133. Waite, Matter of, 43 App. Div. 296; 1185. Walcott V. Brown, 2 Brown's Ch. 205; 953 Waldo V. Hayes, 96 App. Div. 454; 928. Waldo V. Waldo, 32 Hun, 251; 116, 199. Waldron, Matter of, 19 Misc. 333; 254, 460. Walker, Matter of, 43 Misc. 475; 133, 972. Walker, Matter of, 70 App. Div. 263; 850. Walker, Matter of, 17 N. Y. Supp. 666; 771. Walker, Matter of, 136 N. Y. 20; 9, 100, 151, 441, 752, 758. Walker, Matter of, 54 Misc. 177; 37, 39, 1070, 1176. Wall V. Bulger, 46 Hun, 346; 933. Wallace v. Blake, 4 N. Y. Supp. 438; 123. Wallace, Matter of, 71 App. Div. 284; 885, 888. Wallace, Matter of, 68 App. Div. 649; 665. Wallace, Matter of, 28 Misc. 603; 180, 904. Wallace v. Payne, 9 App. Div. 34; 425. Wallace v. Payne, 14 App. Div. 597; 425. Wahath, Matter of, 37 Misc. 696; 180, 903. Walrath, Matter of, 69 Hun, 403; 194. Walsh V. Downs, 3 Dem. 202; 753. Walsh V. Laffan, 2 Dem. 498; 332. Walsh, Matter of, 1 Tucker, 132; 326. Walsh V. Ryan, 1 Bradf. 433; 104, 277, 280, 310. Walter v. Ham, 68 App. Div. 381; 450. Walther v. Regnault, 56 Hun, 560; 513. Walther's Will, Matter of, 7 N. Y. Supp. 417; 417. Walton V. Godwin, 54 Hun, 387; 123. Walton V. Howard, 1 Dem. 103; 231, 237. Walton, Matter of, 112 App. Div. 176; 618. Cll TABLE OF CASES CITED [References are to pages.] Walton, Matter of, 38 Misc. 723; 1121. Walton V. Walton, 4 Abb. Ct. App. 512; 721. Walton V. Walton, 1 Keyes, 1; 578. Walton V. Walton, 7 Johns. Ch. 268; 927. Walworth, Matter of, 66 App. Div. 171; 880. Wandell, In re, 32 Hun, 545; 1063, 1064, 1065. Wanninger's Est., In re, 3 N. Y. Supp. 137; 517. Wanninger, Matter of, 120 App. Div. 273; 1142. Ward V. Craig, 87 N. Y. 550; 118, 195. Ward V. Ford, 4 Redf. 34; 1012. Ward, In re, 1 Redf. 254; 576, 577. Ward, Matter of, 49 Misc. 181; 1136, 1140. Ward, Matter of, 50 Misc. 483; 548, 676. Ward, Matter of, 57 Misc. 328; 734. Ward V. Ward, 105 N. Y. 68; 1007. Waring, Matter of, 7 Misc. 502; 159. Waring, Matter of, 99 N. Y. 115; 1030. Waring, Matter of, 46 Misc. 222; 1070. Waring v. Waring, 1 Redf. 205; 777. Warner, Est. of, 2 Connoly, 347; 1176. Warner v. Knower, 3 Dem. 208; 1132. Warner, Matter of, 39 App. Div. 91; 1184. Warner, Matter of, 53 App. Div. 565; 197, 1113. Warner, Matter of, 39 Misc. 432; 929, 956. Wamock, Matter of, 103 App. Div. 61; 217. Warren, Matter of, 105 App. Div. 582; 847, 848. Warren, Matter of, 62 Misc. 446; 881. Warren v. Union Bank of Rochester, 157 N. Y. 259; 1068. Warrin, Matter of, 56 App. Div. 414; 795, 801, 802, 1111, 1125, 1129. Washbon v. Cope, 144 N. Y. 287; 153, 443, 445. Washbon, Matter of, 38 N. Y. St. Rep. 619; 1155. Washburn, Matter of, 12 Misc. 242; 68, 71, 76, 283. Water Commrs. of Amsterdam, 104 N. Y. 677; 229. Waterman, Matter of, 60 Misc. 292; 1150. Waterman, Matter of, 112 App. Div. 313; 666. Waterman v. Whitney, 11 N. Y. 157; 355. Waters v. Waters, 7 Misc. 519; 80. Watson V. Donnelly, 28 Barb. 653; 447. Watson, Matter of, 2 Dem. 642; 47, 82, 84. Watson, Matter of, 12 N. Y. Supp. 115; 360. Watson, Matter of, 171 N. Y. 256; 873. Watson, Matter of, 5 Lansing, 466; 860. Watson, Matter of, 64 Hun, 369; 1100, 1185. Watson, Matter of, 115 App. Div. 310- 1127. Watson, Matter, of, 101 App. Div. 550; 200. Watson V. Nelson, 69 N. Y. 537; 164. Watts, Matter of, 68 App. 357; 1100. Watts V. Public Administrator, 4 Wend. 168 (rev'g 1 Paige's Ch. 347); 315. ' Waugh v. Waugh, 28 N. Y. 94; 454. Way, Matter of, 6 Misc. 484; 282. Weaver, Matter of, 53 Misc. 245; 774, 829 Webb, Benj., Est. of, N. Y. Law Jour.. May 18, 1901; 134. Webb, Matter of, 11 Hun, 124; 584. Webb, Matter of, N. Y. Law Jour. May 18, 1901; 888. Webster v. Cole, 17 Hun, 507; 218. Weed v. Mutual Ben. Life Ins. Co., 70 N. Y. 561; 361. Weed V. Waterbury, 5 Redf. 114; 592. Weeks v. CornweU, 104 N. Y. 325; 101. Weeks, Est. of, 1 Civ. Proc. Rep. 164; 692 702. Weeks, In re, 5 Dem. 194; 237, 770, 1146. Weil, Matter of, 16 N. Y. St. Rep. 1; 367. Weil, Matter of, 49 App. Div. 52; 706. Weil, Matter of, 110 App. Div. 67; 848, 855. Weiner, Matter of, 9 App. Div. 621; 837. Weir v. Fitzgerald, 2 Bradf. 42; 349, 351, 373. Weir, Matter of, 59 Misc. 320; 777. Weisell, Matter of, 51 Misc. 325; 515. Weiss, Est. of, Surr. Decs. 1896, 597; 77. Weiss, Matter of, 39 Misc. 71; 1160. Welch V. Gallagher, 2 Dem. 40; 1061, 1084, 1095. Welch, Matter of, 74 N. Y. 299; 1044. Welch, Matter of, 61 Misc. 5; 151. Welch V. N. Y. Central, 53 N. Y. 610; 150. Welch V. St. Patrick Church, 63 N. Y. St. Rep. 235 (81 Hun, 372); 328. Wellbrook v. Otten, 35 Misc. 459; 931. Weller v. Weller, 4 Hun, 195; 818. Welling, Matter of, 51 App. Div. 355; 200, 231, 236, 1140. Welling V. WeUing, 3 Dem. 511; 1149. Wells V. Betts, 45 App. Div. 115; 407, 424. Wells V. Disbrow, 48 N. Y. St. Rep. 746; 944 1102. Wells,' Matter of, 113 N. Y. 396; 451. Wells, Matter of, 113 N. Y. 393; 957, 958. Wells, Matter of, 123 App. Div. 79; 548. Wells V. Wallace, 2 Redf. 58; 181. Welsh, Matter of, 1 Bradf. 238; 377. Welsh V. People, 88 N. Y. 458; 353. Wendell, Matter of, 43 Misc. 571; 355, 369. Wenner, Matter of, 125 App. Div. 358; 951. Wentz, Matter of, 9 Misc. 240; 1063, 1066. West V. Gunther, 3 Dem. 386; 1050. West V. Mapes, 14 Week. Dig. 92; 516. West, Matter of, 40 Hun, 291 (aff'd 111 N. Y. 687); 661, 665, 670, 675. Westbrook, Matter of, 44 Misc. 339; 262. Westcott V. Cady, 5 Johns. Ch. 334; 257, 447, 543 568. Westerfield, Matter of, 61 App. Div. 413; 176. Westerfield v. Rogers, 63 App. Div. 18; 1076. Westerfield v. Rogers, 174 N. Y. 230; 1077. Westerman, Matter of, 29 Misc. 409; 376. TABLE OF CASES CITED cm [References are to pages.] Western v. Romaine, 1 Bradf. 37; 231, 239. Weston V. Goodrich, 86 Hun, 194; 884. Weston, Matter of, 91 N. Y. 502; 1136. Weston, Matter of, 60 Misc. 275; 247. Westum, Matter of, 5 App. Div. 595; 190. Westum, Matter of, 60 Hun, 298; 383, 385, 389. Westum, Matter of, 152 N. Y. 93; 862, 892, 895, 899, 906. Wetmore v. Carryl, 5 Redf. 544; 261. Wetmore v. N. Y. Inst, for the Blind, 9 N. Y. Supp. 753; 951. Wetmore v. Parker, 7 Lansing, 121 (aff'd 52 N. Y. 450); 75. Wetmore v. Parker, 52 N. Y. 450; 150, 392, 449. Wetmore v. Porter, 92 N. Y. 76; 845. Wetmore v. St. Luke's Hospital, 56 Hun, 313; 930, 932, 959. Wetmore v. Wetmore, 149 N. Y. 520; 27. Wetmore v. Wetmore, 162 N. Y. 503; 222. Wever v. Marvin, 14 Barb. 376; 99, 782. Wheaton, Matter of, 37 Misc. 184; 666. Wheeler, Matter of, 28 N. Y. St. Rep. 638; 119. Wheeler, Matter of, 48 Misc. 323; 965, 972 973 975. Wheeler, Matter of, 115 App. Div. 616; 871. Wheeler, Matter of, 32 App. Div. 183 (aff'd 161 N. Y. 652); 452. Wheeler, Matter of, 46 Hun, 64; 662. Wheeler v. Ruthven, 74 N. Y. 428; 30 Am. Rep. 315; 436. Wheeler v. Wheeler, 9 Cow. 34; 495. Wheeler's Will, In re, 25 N. Y. Supp. 313; 373. Wheelwright v. Rhoades, 28 Him, 57; 1140, 1152, 1153. Whelan's Est., Matter of, 2 N. Y. Supp. 635; 226. Whelan, Matter of, 6 Dem. 425; 226. Whelpley v. Loder, 1 Dem. 368; 230. Whipple, Matter of, 81 App. Div. 589; 1143, 1144, 1149. Whipple V. Ripson, 29 App. Div. 70; 193. Whitaker v. Whitaker, 52 N. Y. 368; 839. Whitbeck, Matter of, 22 Misc. 494; 1171. Whitcomb v. Whitcomb, 92 Hun, 443; 813, 815. White V. Bogart, 73 N. Y. 256; 852. White V. Howard, 46 N. Y. 144; 1142. White V. Howard, 52 Barb. 294; 39. White V. Lewis, 3 Dem. 170; 784, 788. White V. Lowe, 1 Redf. 376; 548. White V. Mann, 26 Misc. 361; 541. White, Matter of, 31 Misc. 484; 540. White, Matter of, 52 App. Div. 252; 179. White, Matter of, 121 N. Y. 406; 352, 365, 367. White, Matter of, 5 N. Y. Supp. 295; 387. White, Matter of, 15 N. Y. St. Rep. 753; 387 White, Matter of, 6 Dem. 375; 1111. White, Matter of, 23 N. Y. St. Rep. 882; 375, 461. White, Matter of, 119 App. Div. 140; 752, 753 White V. Nelson, 2 Dem. 265; 40, 41. White V. Poillon, 25 Hun, 69; 1002. White V. Pomeroy, 7 Barb. 640; 1043, 1044. Whitehead v. Kennedy, 69 N. Y. 466; 383. Whitehead, Matter of, 3 Dem. 227; 705, 1021, 1030. Whitehead, Matter of, 38 App. Div. 319; 803, 1100, 1117. Whiting, Matter of, 33 Misc. 274; 930. Whiting, Matter of, 19 Misc. 85; 770. Whiting, Matter of, 150 N. Y. 27; 865. Whitlock V. Bowery Savings Bank, 36 Hun, 460; 578, 579. Whitlock V. Whitlock, 1 Dem. 160; 1036. Whitmark, Matter of, 15 N. Y. St. Rep. 745; 204. Whitney v. Britton, 16 App. Div. 457; 99. Whitney, Matter of, 90 Hun, 138; 262. Whitney, Matter of, 153 N. Y. 259 (rev'g 90 Hun, 138); 315, 319, 329. Whitney v. Phoenix, 4 Redf. 194; 1152. Whitney v. Townsend, 67 N. Y. 40; 203. Whitson V. Whitson, 53 N. Y. 479; 436, 1141, 1154. Whittemore, Matter of, 1 Connoly, 155; 1051. Wick, Matter of, 53 Misc. 211; 1146. Wicke, Matter of, 74 App. Div. 221; 1110. Wickwire v. Chapman, 15 Barb. 302; 553. Widmayer, Matter of, 28 Misc. 362; 27. Widmayer, Matter of, 52 App. Div. 301; 118, 199. Widmayer, Matter of, 34 Misc. 439; 361. Widmayer v. Widmayer, 76 Him, 254; 1076. Wigand V. De Jonge, 8 Abb. N. C. 260; 24, 26. Wiggins, Ex parte, 29 Hun, 271; 1023. Wiggins V. Sweet, 39 Amer. Dec. 716; 579. Wightman v. Stoddard, 3 Bradf. 393; 388. Wilber V. Warren, 104 N. Y. 195; 839. Wilbur, Matter of, 27 Misc. 126; 1111. Wilcox's Est., 1 Misc. 55; 161. Wilcox, Est. of, 11 Civ. Proc. Rep. 115; 243, 963, 1102. Wilcox, Matter of, 37 N. Y. St. Rep. 462; 195 Wilcox, Matter of, 131 N. Y. 610; 261. Wilcox, Matter of, 14 N. Y. Supp. 109; 345, 346. Wilcox, Matter of, 125 App. Div. 152; 1139. Wilcox, Matter of, 55 Misc. 170; 417, 437, 441. Wilcox V. Quimby, 73 Hun, 524; 1034. Wilcox V. Smith, 26 Barb. 316; 105, 231, 239, 818, 1106, 1112. Wilde V. Smith, 2 Dem. 93; 446, 788. Wildey v. Robinson, 85 Hun, 362; 1152. Wiley, Matter of, 119 N. Y. 642; 514, 579, 614, 618, 1096, 1100. Wilkin, Matter of, 90 App. Div. 324; 1029. Wilkins v. EUett, 9 Wall. 740; 609. CIV TABLE OF CASES CITED [References are to pages.] Willets, Matter of, 112 N. Y. 289; 728, 1097, 1149. Willets, Matter of, 51 Misc. 176 (aff'd 119 App. Div. 119); 916. Willets, Matter of, 119 App. Div. 119 (aff'd 190 N. Y. 527); 904. Willett, Matter of, 6 Dem. 435; 139, 232, 242. Williams v. Clarke, 82 App. Div. 199; 1036. Williams v. Conrad, 30 Barb. 524; 1010. Williams v. Crary, 5 Cow. 368; 957. Williams V. Crary, 8 Cow. 246; 957. Williams v. Freeman, 88 N. Y. 561; 452. Williams v. Jones, 166 N. Y. 522; 453. Williams v. Kinney, 43 Hun, 8; 1106. Williams, Matter of, 6 Misc. 512; 193. Williams, Matter of, 17 N. Y. St. Rep. 839; 134, 227. Williams, Matter of, 34 Misc. 748; 256. Williams, Matter of, 40 N. Y. St. Rep. 356; 327, Williams, Matter of, 2 Connoly, 579; 332, 342. AVilUams, Matter of, 19 N. Y. Supp. 778; 373 Williams, Matter of. 111 N. Y. 680 (aff'd 5 Dem. 292); 558. Williams, Matter of, 5 Dem. 292; 592, 594. Williams, Matter of, 31 App. Div. 617; 773. Williams, Matter of, 1 Redf. 208; 952. Williams, Matter of, 1 Misc. 35; 972, 979. Williams, Matter of, 26 Misc. 636; 1010, 1090. Williams, Matter of, 187 N. Y. 286; 115. Williams, Matter of, 57 Misc. 537; 1117, 1188. Williams v. Mclntyre, 16 Weekly Dig. 651; 818. Williams v. Purdy, 6 Paige, 166; 804, 1131. Williams v. Storrs, 6 Johns. Ch. 353; 1036. Williams v. Whittell, 69 App. Div. 340; 546. Williams's Will, In re, 15 N. Y. Supp. 828; 373. Williamson v. Williamson, 6 Paige, 298; 940, 943. Williamson v. Williamson, 2 Redf. 449; 319, 337, 347, 348. Willing, Est. of, 7 Civ. Proc. Rep. 92; 1148. Willis V. Mott, 36 N. Y. 486; 327, 337, 338, 343. Willis V. Sharp, 115 N. Y. 396; 855. Willis V. Sharp, 113 N. Y. 586; 1144. Willoughby v. McCluer, 2 Wend. 608; 786. Willson V. Willson, 2 Dem. 462; 1111, 1127. Wilmot V. Robinson, 42 Misc. 244; 930, 932. Wilson V. Baptist Ed. Society, 10 Barb. 308; 839. Wilson V. Hetterick, 2 Bradf. 427; 333, 342. Wilson, Matter of, 103 N. Y. 374; 121. Wilson, Matter of, 76 Hun, 1; 327. Wilson, Matter of, 92 Hun, 318; 479, 551 552, 555. Wilson V. Moran, 3 Bradf. 172; 383, 385. Wing, In re, 41 Hun, 452; 755, 758. Winne, Matter of, 50 Misc. 113; 354. Winne v. Winne, 166 N. Y. 263; 270, 743, Winnington, Est, of, 1 Civ, Proc. Rep', 267- 586, Winter, Matter of, 21 Misc, 552; 890, Wintermeyer v, Sherwood, 77 Hun, 193' 817, 1187, Wischmann, Matter of 80 App, Div, 520- 700, Wise, Est, of, 2 Civ, Proc, Rep, 230re,; 594, Withers, Est. of, 2 Civ. Proc, Rep, 162- 231, 233, Wohlgemuth, Matter of, 110 App, Div 645; 176, 302, Wolf's Appeal, Matter of, 22 W, N, C (Pa,) 93; 746, Wolfe's Est,, 15 N, Y, Supp, 539; 864, Wolfe, Catharine, Est, of, 6 Dem. 268; 865. Wolfe, In re, 137 N, Y. 205; 443, 900, Wolfe V, Lynch, 2 Dem, 610; 995. Wolfe, Matter of, 89 App, Div, 349 (aff'd 179 N, Y. 599); 862, 869, Wolstenholme v, Wolstenholme File Mfg, Co., 64 N. Y. 272; 220. Wood v. Brown, 34 N, Y, 337; 45, 494, 495, 660, 1011, 1100, Wood V, Byington, 2 Barb, Ch, 387; 964, 981, Wood, Est, of, 29 St. Rep. 298; 182. Wood, Est. of, 70 Hun, 230; 670, Wood, Est, of, 7 N, Y, St, Rep, 721; 101, 1093. Wood V. Ford, 4 Redf. 34; 1032. Wood V. Keyes, 8 Paige, 365; 1175, Wood, In re, 3 Redf, 9n.; 827, 963, Wood V, Knapp, 100 N, Y, 109; 80, Wood V. Mather, 44 N, Y, 256; 1067, Wood, Matter of, 38 Misc, 64; 985, Wood, Matter of, 40 Misc, 155; 893, 956, Wood, Matter of, 5 Dem, 345; 105, 1017, 1093, 1098, Wood, Matter of, 70 App, Div, 321; 148, 985, Wood, Matter of, 2 Connoly, 144; 261, Wood, Matter of, 17 N, Y, Supp, 354; 506, 508. Wood, Matter of, 8 N. Y. Supp. 884; 675, Wood, Matter of, 34 Misc, 209; 1087, Wood V, Rusco, 4 Redf, 380; 806, 1131, Wood V, Tunicliff, 74 N, Y. 38; 830, Wood V, Vanderburgh, 6 Paige, 285; 961. Wood V. Wood, 4 Paige, 299; 678. Woodbury, Matter of, 13 Misc. 474; 840, 841. Woodbury, Matter of, 40 Misc. 143; 827, 930. Wooden v. W. N, Y. & P, R, R,, 126 N, Y, 10; 545, Woodhouse v, Woodhouse, 5 Redf, 131; 163, Woodruff's Esty 1 Tuck, 58; 1107. Woodruff v. Woodruff, 3 Dem. 505; 99, 664. TABLE OF CASES CITED CV [References are to pages.] Woods, Matter of, 55 Misc. 181; 1146, 1154. Woodsworth, Matter of, 2 Barb. Ch. 351; 1011. Woodward v. James, 44 Hun, 95; 949. Woodward v. James 115 N. Y. 346; 1030, 1034. Woodward, Matter of, 69 App. Div. 286; 112, 1110. Woodward, Matter of, 28 Misc. 602; 248. Woodward, Matter of, 167 N. Y. 28; 355, 380, 453. Woodward, Matter of, 52 App. Div. 494; 375. Woodward, Matter of, 117 N. Y. 522; 449. Woodward, Matter of, 13 N. Y. St. Rep. 161; 243, 981, 1102. Woodworth, Matter of, 5 Dem. 156; 96. WooUey, Matter of, 38 Misc. 353; 958. WooUey v. WooUey, 95 N. Y. 231; 319, 345. Woolsey, Matter of, 17 Misc. 547; 332, 342, 360. Worden v. Van Gieson, 6 Dem. 237; 326. Wormser v. Croce, 120 App. Div. 287; 252. Wormser, Matter of, 51 App. Div. 441; 896, 906, 911. Wormser, Matter of, 36 Misc. 434; 894. Wormuth v. Hale, 17 Week. Dig. 180; 546. Worrall v. Driggs, 1 Redf, 499; 1100. Wotton, Matter of, 59 App. Div. 584; 1023. Wright's Accounting, 4 Redf. 345; 806. Wright v. Austin, 56 Barb. 17; 957. Wright, In re, 20 N. Y. Supp. 86; 1059. Wright, Matter of, 22 N. Y. St. Rep. 83; 1065. Wright, Matter of, 121 App. Div. 581; 231. Wright v. Nostrand, 58 How. Pr. 184; 57. Wright v. Trustees of M. E. Church, Hoff. Ch. 202; 102, 147. Wright V. Wright, 3 Redf. 325; 219. Wuesthoff V. Germania Life Ins. Co., 107 N. Y. 580; 1068, 1069, 1070. Wyckoff V. Van Sicklen, 3 Dem. 75; 1153. Wyhe V. Lockwood, 86 N. Y. 291; 449. Wyman v. Wyman, 26 N. Y. 253; 1077. Wyman v. Wyman, 118 App. Div. 109; 344. Wyse V. Wyse, 155 N. Y. 367; 358. Yale V. Baker, 2 Hun, 468; 180, 183. Yarwood v. The Trusts, etc., Co., 94 App. Div. 47; 269. Yates V. Houston, 3 Tex. 433; 542. Yates V. Root, 4 App. Div. 439; 812. Yates v. Thomas, 35 Misc. 552; 724. Yeandle v. Yeandle, 5 N. Y. Supp. 535 370. Yeddo v. Whitney, 17 Weekly Dig. 120 806. Yetter, Matter of, 44 App. Div. 404 117. York, Matter of, 1 How. Pr. N. S. 16 1135. Young V. Brush, 28 N. Y. 667; 1155. Young V. Hicks, 92 N. Y. 235; 8. Young, Matter of, 17 Misc. 680; 437, 444, 1146. Young Men's Christian Association, Mat- ter of, 22 App. Div. 325; 854, 936. Young v. Purdy, 4 Dem. 455; 1098. Young V. Young, 5 Weekly Dig. 109 (aff'g 80 N. Y. 422); 787. Young V. Young, 2 Misc-. 381; 843, 861. Younger v. Dufiie, 94 N. Y. 534; 315, 318, 457. Youngs V. Youngs 45 N. Y. 254; 447. Yung, Matter of, N. Y. Law Jour., July 11, 1908; 263, 266. Zapf V. Carter, 90 App. Div. 407; 223. Zeigler, Matter of, 19 N. Y. Supp. 947; 366. Zeph, Matter of, 50 Hun, 523; 539. Zerega, Matter of, 58 Hun, 505; 9, 36, 37, 39. Zerwinski or Siriski, Matter of, 51 Misc. 661; 659. Zeuschner, Est. of, 15 N. Y. St. Rep. 744; 1117. Ziemer v. Crucible Steel Co., 99 App. Div. 169; 151, 490. Zwickert, Matter of, 26 N. Y. Supp. 773; 1038. SUEEOGATES' COUETS STATE OF NEW YORK PART I INTRODUCTORY DEFmiTIONS The statutory definitions should be carefully read before beginning the study of chapter 18 of the Code of Civil Procedure. These definitions are contained in § 2514. Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be ob- served, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof : 1. The word, " intestate,'' signifies a person who died without leaving a valid will; but where it is used with respect to particular property, it signifies a person who died without effectually disposing of that property by will, whether he left a will or not. 2. The word, "assets," signifies personal property applicable to the pay- ment of the debts of a decedent. 3. The word, "debts," includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action; and the word "creditor " includes every person hav- ing such a claim or demand, any person having a claim for expense of ad- ministration, or any person having a claim for funeral expenses. 4. The word, "will," signifies a last will and testament, and includes all the codicils to a will. 5. The expression, "letters of administration," includes letters of temporary administration. 6. The expression, "testamentary trustee," includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is act- ing in the execution of a trust created by the will, which is separable from his functions as executor or adminstrator. 7 The word, " surrogate," where it is used in the text, or in a bond or under- 1 1 SURROGATES COURTS taking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. 8. The expression, "judicial settlement," where it is applied to an account, signifies a decree of a surrogate's court, whereby the account is made con- clusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified in the statute; and an account thus made con- clusive is said to be "judicially settled." 9. The expression, "intermediate account," denotes an account filed in the surrogate's office, for the purpose of disclosing the acts of the person account- ing, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement. 10. The expression, "upon the return of a citation," where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation, issued to bring in a party who ought to be, but has not been cited; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited. 11. The expression, "person interested," where it is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or other- wise, except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment, or may apply for an in- ventory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed ; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending. 12. The term, " next of kin," includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the un- bequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. 13. The expression, "real property," includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extinguished by the death of a person seized or pos- sessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word, "inheritance," signifies real prop- erty, as defined in this subdivision, descended as prescribed by law. The ex- pression, "personal property," signifies every kind of property, which survives a decedent, other than real property as defined in this subdivision, and in- cludes a right of action conferred by special statutory provision upon an ex- ecutor or administrator. CHAPTER I SURROGATES AND THEIR COURTS § 1. Definition. — Surrogates' Courts in the State of New York are courts of record, possessing a special and limited jurisdiction, which ex- tends generally over the probate of wills, the administration and distri- bution of decedents' estates, and the protection of the interests of infants. Matter of Thompson, 184 N. Y. 36, 41. Jurisdiction over this latter subject is not exclusive, and its limited character must be emphasized (see § 4 below), e. g., while they have the " like power and authority to appoint a general guardian .... of an in- fant which the chancellor had" (§ 2821, Code Civ. Proc.) they have the power to "direct and control" his conduct only in cases specially prescribed by law. Matter of Bolton, 159 N. Y. 129, 135. Surrogates have also been given jurisdiction over the transfer tax procedure, to determine what is taxable, the amount of the tax, and its collection. In spite of this very substantial addition to the business of the Court, the State has made no provision for any additional compensa- tion to the Surrogate, even in the counties whence the bulk of this tax is collected. The Surrogate is the judge or judicial officer presiding over such a court. § 2. Surrogates' Courts in the State of New York date back to the act of March 16, 1778 (Laws of N. Y. [Jones & Varick's ed.] 23). "Be- fore the Revolution, the power of granting letters testamentary and let- ters of administration resided, in New York, in the Colonial Governor, as judge of the Prerogative Court, or Court of Probates of the colony. It was afterward vested in the Court of Probates, consisting of a single judge, and so continued until 1787, when Surrogates were authorized to grant letters testamentary, and letters of administration of the estates of persons dying within their respective counties. If the person died out of the State, or within the State not being an inhabitant thereof, the granting of administration was still reserved to the Court of Probates (L. N. Y, sess. 1, chap. 12, and sess. 10, chap. 38; Goodrich v. Pendleton, 4 Johns. Ch. 552). This practice continued until the act of March 21, 1823, when the Court of Probates was abolished, and all the original powers of that court were transferred to the Surrogates." (2 Kent's Commentaries, 410.) The act of March 16, 1778, established a tribunal known as the "Court of Probates " vested with the powers, authority and jurisdiction in testamentary matters which the governor of the colony of New York, while it was subject to the Crown of Great Britain, had and exercised as judge of the Prerogative 3 4 SURROGATES COURTS Court, or the Court of Probates of the colony, except, however, the power of appointing Surrogates. § 3. They are courts of record expressly enumerated as such by the Code. Code Civ. Proc. § 2, subd. 14. Prior to 1877 they were not deemed courts of record {People v. Carr, 100 N. Y. 236, 241), although they exercised powers only incident to and characteristic of such tribunals (see table below; Matter of Latson, 1 Duer, 696), such, for example, as the power to punish by fine and imprisonment, which power, says Blackstone (III, 24), cannot be exercised by any other court than a Court of Record, adding: "The very creation of a new juris- diction with the power of fine and imprisonment makes it instantly a court of record." But in 1877, by amendment to the Code, "a Surro- gate's Court in each County" was added to the statutory list of courts of record. Like all courts of record a Surrogate's Court has a seal, of which the Surrogate has charge (Code Civ. Proc. § 2507); it can fine and imprison for contempt (Code Civ. Proc. § 2481, subd. 7); its acts and judicial pro- ceedings are "enrolled for a perpetual memorial and testimony" in books of record; and it has even been held that, as a Court of Record, it falls within the language of the Federal statute, and has common-law jurisdic- tion to grant naturalization. Matter of Harstrom, 7 Abb. N. C. 391. § 4. Their jurisdiction is special and limited. — It has always been held that the Surrogates' Court are tribunals of limited jurisdiction. Those claiming under a decree of the Surrogate must show affirmatively his authority to make it. Farmers' L. & T. Co. v. Hill, 4 Dem 41; Mat- ter of Hawley, 104 N. Y. 250, 262; Matter of Randall, 152 N. Y. 508, 516, and cases cited; Matter of Bolton, 159 N. Y. 129, 136. The subjoined table exhibits this in detail. And the facts necessary to confer jurisdiction must always be alleged in the initial papers. Potter v. Ogden, 136 N. Y. 384, 396. It is well settled that, where a court has only a special limited jurisdic- tion, which jurisdiction depends upon certain specific facts, a total defect of evidence as to any one of these essential facts will make its action void. Id. See also Hewitt v. Newberger, 141 N. Y. 538, at page 543, citing Curry v. Pringle, 11 Johns. 444; Bigelow v. Sterns, 19 Johns. 39; Murphy v. Kron, 20 Abb. N. C. 259. This case was a criminal case and related to the jurisdiction of the re- corder, but the principle is applicable to the Surrogate's Court. The higher courts at first jealously restricted the jurisdiction of this inferior court {Harris v. Meyer, 3 Redf. 450; Sipperly v. Baucus, 24 N. Y. 46) to its statutory powers. As time went on certain implied powers were claimed and exercised; but in 1830, the Revised Statutes (2 R. S. 220. sec. 1) denied them this reasonable extension of their powers. After specifically enumerating the powers of Surrogates' Courts (see table) the statute provided that these powers should be exercised in the manner prescribed in the statutes, "and in no other;" and no "Surrogate shall, under pre- SURROGATES AND THEIR COURTS 5 text of incidental power, or constructive authority, exercise any jurisdic- tion whatever not expressly given by the statutes of this State." This part of the law was short-lived, as might have been expected. It soon became necessary to repeal it (Laws of 1837, chap. 460, sec. 71; Sipperly v. Baucus, 24 N. Y. 46; Campbell v. Thatcher, 54 Barb. 382), be- cause the courts found that the exercise of certain incidental powers ''was absolutely essential to a due administration of justice." Pew v. HastingSj 1 Barb. Ch. R. 452. The following table sets forth in compara- tive form the growth of the powers of the Surrogates' Courts up to the present time. See also post, chap. II, Jurisdiction. Before Revised Statutes To- take proof of the execu- tion of last wills and testa- ments, and to admit them to probate. 2 Laws of N. Y. (1787) Jones & Varick's ed. 71. To grant letters _ testamen- tary and of administration. Ibid. To swear executors or ad- ministrators to the truth of the inventories and accounts exhibited by them. Ibid. To call administrators to account; to decree the just and equal order of distribu- tion after the payment of debts and expenses; to com- pel administrators to observe and pay the same; and to en- force it by execution against the person. Ibid. 1 Web- ster's Laws, 317, 325; Sey- mour V. Seymour, 4 Johns. Ch. 409; Foster v. Wilbur, 1 Paige, 537; Dakin v. Hudson, 6 Cow. 221. To order the sale of real es- tate for the payment of debts when the personal estate was insufficient, and, when the real estate proved insufiScient, to divide the proceeds after the payment of expenses propor- tionally among the creditors; to conhrm 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 when infants are interested. Laws of N. Y. (1799) Andrew's ed. 724. Covered by "incidental pow- ers." See Brick '8 Estate, 1 5 Abb. Pr. 12, 33. Under Revised Statutes of 182&- 1830 To take the proof of wills of real and personal estate in the cases prescribed by law; and also to take the proof of any will relating to real estate situated within the county of such surrogate, when the testa- tor in such will shall have died out of this state; not being an inhabitant thereof and not leaving any assets therein. To grant letters testamen- tary and of administration. To direct and control the con- duct, and settle the accounts of executors and administrators. To enforce the payment of debts and legacies, and the distribution of the estates of intestates. To order the sale and dis- position of the real estate of deceased persons. To administer justice in all matters relating to the affairs of deceased persons, according to the provisions of the statutes of this state. Under Code of Civil Procedure, §2472 To take the proof of wills; to admit wills to probate; to revoke the probate thereof; and to take and revoke probate of heirship. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a person whose letters have been revoked. To direct and control the conduct, and settle the ac- counts, of executors, administra- tors and testamentary trustees; to remove testamentary trustees and to appoint a successor in place of a testamentary trustee so removed. They may now also administer oaths. Laws of 1884, chap. 309. To enforce the payment of debts and legacies; the distri- bution of estates of decedents; and the payment or delivery by executors, administrators and testamentary trustees, of money or other property, in their possession belonging to the estate. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. To administer justice in all matters relating to the affairs of decedents, according to the provisions of the statutes re- lating thereto. SURROGATES COURTS Before Revised Statutes To appoint guardians for infants as fully as the chancellor might do. 3 Webster (1802), 158. To order the admeasurement of dower upon the application of the widow, of any heir, or of the guardian of a minor. 3 Webster (1806), 315. To hear and determine any cause touching a legacy or bequest in any last will and testament; to decree the pay- ment of it, and to enforce it by execution against the per- son. 2 Laws of N. Y. {supra) 71. To record all wills proved before them with the proof thereof, letters testamentary and of administration granted by them with all things con- cerning the same, all orders or decrees made by them for the sale of real estate, and all in- struments, writings or docu- ments of a like nature left un- recorded by their predecessors, and to complete the unfinished business of their predecessors. Laws of 1813, 139; Laws of 1828, 130. To institute inquiry respect- ing the personal estate of in- testates not delivered to ,the public admiinistrator or ac- counted for lawfully by persons into whose hands it was sup- posed to have fallen. This was in 1821. They had authority to com- pel the attendance of witnesses, the production of wills, docu- ments or writings and for dis- obedience in such cases to commit the party offending for contempt; and, lastly^ in all matters submitted to their cognizance, they were author- ized 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 stat- ute, and they had such inci- dental powers as were necessary to carry those which were granted into effect. Laws of 1813, 139; Brick's Estate, 15 Abb. Pr. 12, 33. Under Revised Statutes of 1828- Under Code of Civil Procedure. 1830 § 2472 To appoint guardians for minors, to remove them, to direct and control their conduct, and to settle their accounts as prescribed by law. To cause the admeasure- ment of dower to widows. 2 R. S. 220, § 1, tit. 1, c. II, part III. Every Surrogate had power to issue subpoenas, to compel attendance of witnesses, or production of any paper ma- terial to any inquiry pending in the court, and to punish for disobedience just as a court of record could. To issue citations and com- pel appearance of parties; to enforce all lawful orders, pro- cess and decrees of his court by attachment against the persons of those neglecting or refusing to comply with them. To exemplify under seal all transcripts of records, papers or proceedings. To preserve order by pun- ishing for contempt. But all the powers above enumerated were to be exer- cised (1830-1837) in no manner other than that prescribed by the statute, and incidental powers were denied. After 1837 they held the same incidental powers con- ceded them before the adop- tion of the Revised Statutes. To appoint and remove guardians for infants; to com- pel the payment and delivery by them of money or other property belonging to their wards; and in the cases specially prescribed by law, to direct and control their conduct and set- tle their accounts. Under the Code of Civil Procedure provision is made for an ' ' action for dower " §§1596-1625, which is a civil action, local and triable by jury (§ 968) and Surrogates' Courts have no longer juris- diction of it. See 3 Rum- sey's Practice, p. 89. And by ch. 407, L. 1903, there was added subd. 8: "To settle the accounts of a father, mother, or other relative having the rights, powers and duties of a guardian in socage, and to compel the payment and de- livery of money or other prop- erty belonging to the ward. Corresponding to this enu- meration of powers is § 2481 of the Code which provides that a Surrogate in court or out of court as the case re- quires, has power. 1. To issue citations to part- ies, in any matter within the jurisdiction of his court; and in a case prescribed by law, to compel the attendance of a party. 2. To adjourn, from time to time, a hearing or other proceeding in his court; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation or require the petitioner to give an additional notice, as may be necessary. 3. To issue, under the seal of the court, a subpoena, re- quiring the attendance of a witness, residing or being in any part of the State; or a subpcena diices tecum, requir- ing such attendance, and the production of a book or paper material to an inquiry pending in the fcourt. 4. To enjoin, by order, an executor, administrator, tes- tamentary trustee, or guardian, to whom a citation or other process has been duly issued from his court from acting as such, until the further order of the court. 5. To require by order, an executor, administrator, tes- tamentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon nim by statute, or by the Surrogate's Court, un- der authority of a statute, 6. To open, vacate, modify, or set aside or to enter as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, der- SURROGATES AND THEIR COURTS Under Code of Civil Procedure, ical error or other sufficient cause. (The powers conferred by this subdivision, must be exercised only in a like case, and in the same manner, as a court of record and of general juris- diction exercises the same powers). Upon an appeal from a determination of the Surro- gate, made upon an application pursuant to this subdivision , the appellate division of the Supreme Court has the same Sower as the Surrogate; and is determination must be reviewed, as if an original ap- plication was made to that term. 7. To punish any person for a contempt of his Court, civil or criminal, in any case where it is expressly pre- scribed by law that a court of record may punish a person for a similar contempt, and in like manner. Under Code of Civil Procedure, 8. Subject to the provisions of law, relating to the dis- qualification of a judge in certain cases, to complete any unfinished business, pending before his predecessor in the office, including proofs, ac- countings, and examina- tions. 9. To complete, and certify and sign in his own name, adding to his signatxire the date of so doing, all records of papers, left uncompleted or unsigned by any of his pred- ecessors. 10. To exemplify and cer- tify transcripts of all records of his court, or other papers remaining therein. 11. With respect to any matter not expressly provided for in the foregoing subdivision of this section, to proceed, in all matters subject to the Under Code of Civil Procedure, cognizance of his court, ac- cording to the course and prac- tice ot a court having, by the common law, jurisdiction of such matters, except as other- wise prescribed by statute; and to exercise such incidental powers^ as are necessary to carry into effect the powers ex- pressly conferred. See Matter of Underhill, 117 N. Y. 471, 473, citing Riggs v. Cragg, 89 N. Y. 480, "A Sxurrogate can exercise only such jurisdiction as has been specially conferred by statute, together with those incidental powers which may be requisite to effectually carry out the jurisdiction actually granted." See also Sipperly v. Baucus, 24 N. Y. 46; Stillwell V. Carpenter, 52 N. Y. 414; Sevan v. Cooper, 72 N. Y. 317; Alatter of Camp, 126 N. Y. 377, 390. By Laws 1909, eh. 65, a new subdivision is added: 12. A Surrogate or a clerk of the Surrogates^ Court has power to administer oaths, to take affidavits and the proof and acknowledgment of deeds and all other instruments in writing, and certify the same with the same force and effect as if taken and certified by a County Judge. As illustrative of the table the following summary statement is interest- ing (but see, post, separate topics): The courts have sustained the power and jurisdiction of Surrogates^ Courts in the following cases: To revoke probate upon discovery of a later will. Campbell v. Logan, 2 Bradf. 90, 93. To inquire into legitimacy of children, by virtue of its power to deter- mine and direct the distribution of an estate. Matter of Laramie, 6 N. Y. Supp. 175. Matter of Schmidt, 42 Misc. 463. And, similarly, to pass on the vaHdity of a marriage, or of a divorce. Matter of Hall, 61. App. Div. 266; Matter of McGarren, 112 App. Div. 503. Matter of Garner, 59 Misc. 116. To determine whether one is an "adopted child," in compliance with statute; or is entitled to a child's share, under agreement with decedent. See, post, Adoption. To set aside an irregular or unauthorized order. Vredenhurgh v. Calf, 9 Paige, 128; Skidmore v. Dames, 10 Paige, 316, also Proctor v. Wanamaker, 1 Barb. Ch. R. 302, holding that independently of the statute of 1837, the Surrogate had power to revoke letters of administration which had been improperly obtained upon false suggestion of matters of fact, citing Cornish v. Cornish, 1 Lee's Ecc. Rep. 14; Burgis v. Burgis, Id. 121; Ogilvie V. Hamilton, Id. 418; Lord Trimbleston v. Lady T,, 3 Hagg. Ecc. Rep. 243. To prove a foreign will (Isham v. Gibbons, 1 Bradf. 69, 79, and act of 1837, § 77), and hereunder a will of a foreigner executed in this State ac- cording to its forms (Catherine Robert's Will, 8 Paige, 519), and a will of a 8 SURROGATES COURTS foreigner, dying in the county, leaving no assets, but where assets come into the county afterwards. Kohler v. Knapp, 1 Bradf. *41, 246. To open default on an accounting and allow a contest. Pew v. Hast- ings, 1 Barb. Ch. R. 452. To approve, or disapprove, upon an accounting, a settlement made by the one accounting with his decedent's partners. Matter of Meyer, 95 App. Div. 443. To enter an order nunc pro tunc. Butler v.- Emmett, 8 Paige, 12, 21 (dic- tum). See now § 2481, C. C. P. subd. 6. To relieve parties, in a proper case, from a stipulation. Matter of Richardson, 118 App. Div. 164. To entertain proceedings for probate of an unattested will although it is not produced and offered, when a foreign court declines to surrender the document. Matter of Delaplaine, 5 Dem. 398, and see Russell v. Hartt, 87 N. Y. 18. This is not such a case as is contemplated by section 1861 of the Code providing for an action to establish a will. To issue a commission to take testimony in foreign countries. Russell v. Hartt, 87 N. Y. 18. It seems it may grant naturalization. Matter of Harstrom, 7 Abb. N. C. 391. To direct executors to pay counsel for services. Oilman v. Oilman, 63 N. Y. 41 (but see Devin v. Patchen, 26 N. Y. 4Al);Reed v. Reed, 52 N. Y. 651; In re Bailey, 14 N. Y. S. R. 325; Clock v. Chadeagne, 10 Hun, 97. See under section 2730, Matter of O'Brien, 145 N. Y. 379, 384. To compel a purchaser of real estate to take, or relieve him from taking. Matter of Lynch, 33 Hun, 309. To approve or disapprove investments by executors or testamentary trustees. Jones v. Hooper, 2 Dem. 14. To pass on the validity of an antenuptial agreement (In re Jones's Est., 3 Misc. 586), and enforce it (Young v. Hicks, 92 N. Y.,235) of course where it is necessary to determine the rights of the parties. Matter of Davenport, 37 Misc. 169; Matter of Bostvnck, 49 Misc. 186. Where the contract was that A should have his wife's personalty if he survived her, it was held that his right was subject to due administration. Foehner v. Huber, 42 App. Div. 439. To take an accounting by an executor of proceeds of real estate sold under a testamentary power. Baldwin v. Smith, 3 App. Div. 350. But not if power be void. Matter of Meyer, Ketcham, Surr., N. Y. Law J., June 10, 1909. To try the question of a decedent's inhabitancy. People v. Waldrm, 52 How. Pr. 221; Bolton v. Schriever, 26 Abb. N. C. 230. To dismiss or discontinue suits. Heermans v. Hill, 2 Hun, 409; Matter of Friedell, 20 App. Div. 382, 384. To hear and determine upon a final accounting a disputed claim of an executor against the estate although the claim be equitable in its nature. Boughton v. Flint, 74 N. Y. 476. But see Claims against Estate. To judicially construe a will of real and personal estate in some cases. SURROGATES AND THEIR COURTS 9 but of course the Surrogate's action only affects the personal estate. (See post.) Matter of Marcial, 37 St. Rep, 569; Matter of French, 52 Hun, 303; Purdy V. Hayt, 92 N. Y. 445, 450. To determine whether an applicant for a revocation of probate is a "person interested" in the estate. Matter of Peaslee, 73 Hun, 113. To grant a purchaser on partition sale leave to pay into court money to pay creditors when there has already been a Surrogate's decree directing sale of real property to pay decedent's debts. Matter of Stumpf, 4 App. Div. 282. To determine if a woman is " lawful widow " of testator. Matter of Ham- ilton, 76 Hun, 200; Matter of McGarren, 112 App. Div. 503. And to that end he may examine the judgment roll in a Supreme Court annulment action. Ibid. To ascertain whether a person is an heir or belongs to any class des- ignated in the will — such as next of kin, devisee, etc. Matter of Verplanck, 91 N. Y. 439, 450; Purdy v. Hayt, 92 N. Y. 445; Riggs v. Cragg, 89 N. Y. 480; Grouse v. Wilson, 73 Hun, 353, 356. For example: to determine whether a certain grandchild is capable of taking a given legacy, and inci- dentally of passing on question of residence of such grandchild. Gar- lock v. Vandevort, 128 N. Y. 374, 377. To determine whether a savings bank account belongs as assets to a decedents' estate, and, incidentally, to decide whether decedent, in life, made a gift thereof. See post. Assets. But Surrogates cannot acquire jurisdiction where not conferred by statute, although the parties all appear, assent and submit the questions at issue. Dakinv. Demming, 6 Paige, 95; Tucker v. Tucker, 4 Keyes, 136; Matter of Smith; 'H N. Y. St. Rep. 337; Matter of Walker, 136 N. Y. 20, 29, citing Chemung Canal Bank v. Judson, 8 N. Y. 254; Beardslee v. Dolge, 143 N. Y. 160, 165; Matter of Zerega, 58 Hun, 505; Matter of Redfield, 71 Hun, 344, 348; Bevan v. Cooper, 72 N. Y. 317; 329; Matter of Under- hill, 117 N. Y. 471, 479. Nor can jurisdiction be acquired by consent of attorneys. Duryea v. Mackey, 151 N. Y. 204. It seems the rule is different as to jurisdiction of the person. Matter of Bingham, 127 N. Y. 296. They have no power to deal with certain insurance proceeds in excess of that purchased with $500 a year of premiums. Domestic Relations Law § 22. See Ascertaining the Estate. They cannot set aside for fraud a release given by a party interested in an estate to the executors. Saunders v. Soutter, 126 N. Y. 193; Matter of Randall, 152 N. Y. 508; which reviews the whole subject. Matter of Irvin, 24 Misc. 353. Nor have they power to compel an administrator to bring an action in another court. Matter of McCabe, 18 N. Y. Supp. 715. Nor to entertain a motion for a new trial of issues after jurisdiction has been divested by an appeal to the Supreme Court and specified issues have been sent to a jury for trial in that court. Matter of Patterson, 63 Hun, 529, 531. Nor to pass on questions of title raised between a claimant 10 surrogates' courts and a representative of testator's estate. Matter of Walker, 136 N. Y. 20, 29. He cannot pass on validity of assignment to representative of mort- gages of testatrix. But he can, on accounting, require the executor to account for such mortgages as an asset. Matter of Ammarell, 38 Misc. 399. But he cannot direct an executor or administrator to deliver up to a claimant property in the representative's hands which claimant asserts is his. Case v. Spencer 86 App. Div. 454, and cases reviewed. Nor to decide whether a decedents' transfer of property was made in fraud of creditors. Matter of Bunting, 98 App. Div. 122. Nor to decree the payment of a claim rejected by the executor. Matter of Perry, 5 Misc. 149; Lambert v. Craft, 98 N. Y. 342; McNulty v. Hurd, 72 N. Y. 518; Glasius v. Fogel, 88 N. Y. 434; Fiester v. Shepard, 92 N. Y. 251; Matter of Callahan, 152 N. Y. 320; Matter of Stevens, 20 Misc. 157. (See post.) Nor to direct a satis- faction of record of a mortgage belonging to an infant, although its estate is within its jurisdiction. Cromwell v. Kirk, 1 Dem. 599. Nor have they any jurisdiction over realty left by a decedent or its avails, unless brought within their jurisdiction by a will or by a statute for the purpose of be- ing dealt with for some special purpose (like the payment of debts in case the personalty is inadequate for the purpose). Sweeney v. Warren, 127 N. Y. 426, 435. When confronted by an act or instrument he is powerless to pass upon he must take it at its face or remit the parties to the proper forum. For example. A petitions that B account. B produces a full release by A, the validity or effect of which A disputes. The Surrogate will treat it as a bar. Matter of Wagner, 119 N. Y. 28. See also Sanders v. Soutter, 126 N. Y. 193; Matter of U. S. Trust Co., 175 N. Y. 304. See cases in dissenting opinion of Vann, J., p. 312. The foregoing is merely illustrative. The rule in specific cases can be found under the chapters dealing with these cases (g. v.). § 5. They are constitutional courts, under the new constitution of 1894, which provides (art. VI, § 15): "The existing Surrogates' Courts are continued, and the Surrogates now in office shall hold their office until the expiration of their terms. . . . Surrogates and Surrogates' Courts shall have the jurisdiction and powers which the Surrogates and existing Surrogates' Courts now possess, until otherwise provided by the legisla- ture." See Matter of Bolton, 159 N. Y. 129, 134. Thus the legislature has, as before, the power to deal as it will with the jurisdiction and powers of these courts, but it may not abolish the courts. See People v. Carr, 86 N. Y. 512, 514. § 6. The terms of office of all Surrogates are regulated also by the constitution. First. Those in oflEice January 1, 1895, are to hold their unexpired terms. Second. ThoSe hereafter elected to serve for six years in all counties save the county of New York. In that county the term is fixed at fourteen years. SURROGATES AND THEIR COURTS 11 Third. But no Surrogate is to serve longer than until and including the last day of December next after he shall be seventy years of age. This last provision is not to be taken as abridging the term of any Sur- rogate elected prior to the time when the new constitution went into effect who may become seventy years of age before his six or fourteen years expire. People ex rel. Davis v. Gardner, 45 N. Y. 812. This case is di- rectly in point. This provision as to the Surrogates is new. For it has been expressly held that the provision in the old constitution fixing an age limit did not apply to Surrogates. People ex rel. Lent v. Carr, 100 N. Y. 236. So in People v. Gardner, the provision was new as to county judges, and a county judge chosen prior to the time when the new article of the constitution was to go into effect (that is, at the November election pre- ceding January 1, 1870), and who Jiad taken the oath of office, was held to be "in office at the adoption of this article" and entitled to hold his office for the full term of four years although he became seventy years of age on February 9, 1870. It is true that the new constitution does not lengthen the term of office as was the case before, and, therefore, possibly the reasoning of Folger, J., might not be applicable that the insertion of an age limit was clearly called for by the new and longer term, and could not be made to apply to the old and shorter term which was in express words "continued." How- ever, the express provision "shall hold their offices until the expiration of their terms" is unambiguous. What follows refers to other officers, to wit: their "successors" who are to be elected. As to these an age limit is fixed. It is thought that People v. Gardner would still be an authority in the case of any Surrogate in office January 1, 1895, who may be near seventy. His term would not be abridged thereby. § 7. Enumeration of courts. — The "existing Surrogates' Courts" and the "Surrogates in office" when the new constitution became opera- tive were as follows: In thirty-one of the sixty counties of the State the county judge was also Surrogate for his county, under § 15, art. VI of former constitution. [This article was an amendment to the constitu- tion of 1846, prepared by delegates, elected pursuant to chapter 194, Laws of 1867, who met in convention in Albany, June 4, 1867. This article was submitted to the people in November, 1869, and adopted by a very narrow majority of less than 7,000. The article provided (§ 15): "The county judge shall also be Surrogate of his county; but in counties having a population exceeding 40,000 the legislature may provide for the election of a separate officer to be Surrogate, whose term of office shall be the same as that of the county judge."] In one of the remaining thirty, Sullivan County, there was also a special Surrogate [see County Law, Laws of 1892, chap. 686; 5 R. S. (8th ed.) 3957], the regular Surrogate being also county judge. In twenty-eight of the remaining counties, to wit: In Albany, Cattarau- gus, Cayuga, Chatauqua, Clinton, Columbia, Dutchess, Erie, Jefferson, Kings, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, 12 surrogates' courts Orange, Oswego, Otsego, Queens, Rensselaer, Saratoga, St. Lawrence, Steuben, Suffolk, Ulster, Washington and Westchester, there were sep- arate Surrogates, who had been elected by virtue of the provisions of the constitutional amendment above referred to. In the county of New York there were two separate Surrogates elected under the provisions of chapter 642, Laws of 1892, either of whom is en- titled to exercise all the powers conferred by law upon the Surrogate of the city and county of New York. Laws of 1843, chap. 9, Code Civ. Proc. § 2504. In eight of the twenty-eight counties where separate Surrogates had been elected, to wit: Cayuga, Chautauqua, Jefferson, Oneida, Orange, Os- wego, St. Lawrence and Washington, there were also special Surrogates as well. So we find on January 1, 1896, thirty Surrogates (two in New York), thirty-one county judges acting as Surrogates and nine special Surrogates. This leads us to note the distinction between Surrogates proper and other Surrogates. § 8. The law provides for five kinds of Surrogates. I. Surrogates proper. II. County judges sitting as Surrogates. III. Special Surrogates. IV. Acting Surrogates. V. Temporary Surrogates. § 9. Surrogates proper are those Surrogates who are elected in coun- ties of over 40,000 population to sit in the Surrogates' Courts of those counties. Each of the Surrogates of New York is a Surrogate proper. Where the county judge is also surrogate, he may be designated, in any paper or proceeding relating to the office of surrogate, as the surrogate of the county, without any addition referring to his office as county judge. A local officer elected, as prescribed in the constitution, to discharge the duties of surrogate, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated, as the special "surrogate" of his county. Where an officer, other than the surrogate, acts as surrogate in a case prescribed by law, he must be designated by his official title, with the addition of the words, "and acting surrogate." § 2483, Code Civil Proc. § 10. County judges when sitting as Surrogates are entitled to the designation of "the Surrogate of the county, without any addition refer- ring to his office as county judge." Code Civ. Proc. § 2483. The distinc- tion between Surrogates proper and county judges sitting as Surrogates was formerly fiurther emphasized by the fact that under the old constitu- tion a Surrogate was not a judge, but merely a judicial officer (see Peopk ex rel. Lent v. Carr, 100 N. Y. 236); but the distinction cannot longer be made now that the court is a court of record and a constitutional court as well. Code Civ. Proc. § 3343, subd. 3, says the word "judge" includes a Surrogate. Still, this was only for purposes of construction in interpreting SURROGATES AND THEIR COURTS 13 the provisions of the Code itself. To preside, by right, over a Court of Record constitutes the one so presiding a judge. § 11. Special Surrogates are local officers whose election may be or- dered on application of the board of supervisors "to discharge the duties of county judge and of Surrogates in cases of their inability, or of a vacancy, and in such other cases as may be provided by law, and to exercise such other powers as are or may be provided by law." Const, art. VI, § 16 (new matter being indicated by italics). The Code distinctly designates these officers as "Special Surrogates." Code Civ. Proc. §2483. The Code is not to be taken as repealing the prior provisions of the law giving Special Surrogates their powers. Laws of 1849, chap. 306, and Laws of 1851, chap. 108; Aldinger v. Pugh, 132 N. Y. 403; Ross v. Wigg, 101 N. Y. 640. § 12. Acting Surrogates are officers other than the Surrogate who act as Surrogate in the cases prescribed by law. They must be designated by their regular official title, with the addition of the words "and Acting Surrogate." Code Civ. Proc. § 2483. The Code provides: Where, in any county, except New York, the office of surrogate is vacant; or the surrogate is disabled by reason of sickness, absence or lunacy, and spe- cial provision is not made by law for the discharge of the duties of his office in that contingency ; the duties of his office must be discharged untill the va- cancy is filled or the disability ceases, as follows : 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disquahfied, by the special county judge. 3. If there is no special county judge, or he is in like manner disabled, or is precluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or pre- cluded or disqualified, by the district attorney. But before an officer is entitled to act, as prescribed in this section, proof of his authority to act as prescribed in section twenty-four hundred and eighty- seven of this act must be made. In any proceeding in the surrogate's court of the county of Kings, before either of the officers authorized in this section to discharge the duties of the office of surrogate of such county for the time be- ing, if an issue is joined or a contest arises either on the facts or the law, such officer, in his discretion, may, by order transfer such cause to the supreme court to be heard and decided at a special term thereof, held in such county, which order shall be recorded in the surrogate's office. A certified copy of such order, together with the appropriate certificate or certificates of the authority of the officer to act as surrogate, shall be sufficient and conclusive evidence of the jurisdiction and authority of the supreme court in such matter or cause. After a final order or decree is made in the matter or cause so transferred to the su- preme court, the court shall direct the papers to be returned and filed, and transcripts of aU orders and decrees made therein to be recorded in the sur- rogate's office of such county; and when so filed and recorded, they shall have the same effect as if they were filed and recorded in a case pending in the surrogate's court of such county. § 2484, Code Civil Proc. In the county of Kings, however, a special provision of law (chap. 490, 14 surrogates' courts Laws of 1884) is made for a certificate by the Surrogate that he is disabled; in which case first the county judge, and then the district attorney are named as the proper officers to discharge the duties of the disabled Sur- rogate. If neither of them can act, then the Surrogate must file the cer- tificate required by section 2485 of the Code designating the Surrogate of an adjoining county, other than New York. That section provides as follows: Where the surrogate of any county, except New York, is precluded or dis- qualified from acting with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several officers designated in the last section, in the order therein provided for. If there is no such of- ficer qualified to act therein, the surrogate may file in his ofiice a certificate, stating the fact; specifying the reason why he is disqualified or precluded; and designating the surrogate of an adjoining county, other than New York, to act in his case in the particular matter. The surrogate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county. § 2486, Code Civil Froc. In the county of New York the supreme court, at a special term thereof, on the presentation of proof of its authority, as prescribed in the next section, must exercise all the powers and jurisdiction of the surrogate's court, as fol- lows: 1. Where the surrogate is precluded or disquaUfied from acting, with respect to a particular matter, it must exercise all the powers and jurisdiction of that court with respect to that matter. 2. Where the office of surrogate of the county is vacant, or the swrogate is disabled by reason of sickness, absence or lunacy it must exercise all the powers and jurisdiction of that court, until the vacancy is filled or the dis- ability ceases, as the case may be. § 2486, Code Civil Proc. Prior to the adoption of the new constitution the Code provided that if the Surrogate were precluded or disqualified from acting, or where the office of Surrogate was vacant, or the Surrogate disabled by reason of sickness, absence or lunacy, the Court of Common Pleas should exercise all the powers and jurisdiction of the Surrogates' Courts with respect to the matter regarding which the Surrogate is precluded or disqualified, or until the vacancy is filled or the disability ceases. But as by the new constitution, the Court of Common Pleas is abolished, the Code has been amended (chap. 946 of Laws of 1895, taking effect January 1, 1896), by substituting the words "Supreme Court" for the Court of Common Pleas, which, together with the Superior Court of the city of New York is now merged in the Supreme Court. The surrogate's court, in a county where the county judge is also surrogate, may be held at the time and place at which the county court is held; and, in that case, the order of business of the county court, the court of sessions, and the surrogate's court, is under the direction of the county judge. §2506, Code Civil Proc. SURROGATES AND THEIR COURTS 15 § 13. Proof of authority. — Before any one may act as Surrogate, or another court assume jurisdiction in lieu of the Surrogate's Court proof of authority is required to be made. And the practitioner should be careful to see that the statutory requirement is complied with. Where the surrogate is disqualified or precluded from acting in a particular matter, that fact may be proved by the surrogate's certificate thereof, or, except as otherwise prescribed in section 2485, by afiidavit or oral testimony. That is to say, except in case there be no officer capable of acting as desig- nated in § 2484, i. e.. Special Surrogate, special county judge, county judge, or district attorney; for in such case the certificate of the Surrogate is requisite together with a designation by him of the Surrogate of an adjoin- ing county. The fact that the surrogate is so disqualified or precluded, or that he is disabled, or that the office is vacant; and also the authority of the officer of the court, as the case may be, to act in his place, may be proved, and are deemed conclusively established by an order of a justice of a supreme court of the judicial district embracing the county. After such an order is made, the surrogate shall not make the certificate specified in section 2485 of this act, and if such a certificate has-been theretofore filed, the powers and juris- diction of the surrogate therein designated as specified in that section, thence- forth cease. § 2487, Code Civil Proc. This proof of authority is an indispensable prerequisite to assuming jurisdiction. The Acting Surrogate himself is likewise interested in having such proof of authority duly filed, as his right to compensation depends upon it. Code Civ. Proc. § 2493; Matter of Tyler, 60 Hun, 566. The Code prescribes with great detail how the proof by order of a Supreme Court justice is to be made. Code Civ. Proc. § 2488. An order may be made, as prescribed in subdivision second of the last sec- tion, upon or without notice, as a justice of the supreme court of the judicial district embracing the county thinks proper. It must recite the cause of the making thereof, it must designate the officer or court, empowered to discharge the duties of the office of surrogate; and, if it relates to a particular matter only, it must designate that matter. It may, in the discretion of the justice, require an officer to give security for the due discharge of his duties therein. Where the office of surrogate is vacant, or the surrogate is disabled by reason of lunacy, the attorney general if directed by the governor, must, or the dis- trict attorney, upon his own motion, may, apply for the order, and a justice of the supreme court of the judicial district embracing the county must grant it upon his application. A justice of the supreme court of the judicial district embracing the county may also grant the order upon the application of a party, or a person about to become a party to any special proceeding in the surrogate's court. Where the surrogate is sick or absent, the granting of the order rests in the direction of the justice, and its effect may be quaUfied as the justice thinks proper. § 2483, Code Civil Proc. 16 surrogates' courts The order of the Supreme Court justice may be made upon or without notice. If the Surrogate is merely sick or absent the justice has full dis- cretion to refuse to grant the order. He may qualify its effect as he deems right. He may require security to be given by the officer designated. The order must recite the cause of the making thereof; it must designate the officer or court empowered to discharge the duties of Surrogate. If made in relation to a particular matter only, that fact must appear in the order, which should designate the matter. Where the office of Surrogate is vacant, or should he be disabled by lunacy the attorney general, if directed by the governor, must apply for the order. Or the district attorney may do so, upon his own motion. Upon either application the justice to whom the application is made, that is, a Supreme Court justice of the judicial district embracing the county, must grant it. It is proper for a party to any special proceeding in the court of a Sur- rogate disabled by lunacy or whose office is vacant, or for a person about to become a party, to make application for the order. If the application is thus made the granting of the order is discretionary. The justice may grant it on such application. Where there is no special Surrogate in a county, but there is a special county judge, it is proper to designate the latter where the Surrogate is temporarily absent and unable to act. See § 2483, Code Civ. Proc; Matter of Frye, 48 N. Y. St. Rep. 572. The following precedents are suggested: In Surrogate's Court, County of Certificate under Title. section 2486. I Surrogate of the County of hereby cer- tify, that I am precluded, (or disqualified) from acting with respect to the above entitled matter by reason of (here state the reason why he is disqualified or precliLded). And I further certify that there is no officer designated in section 2484 of the Code of Civil Procedure, within this county, qualified to act therein, and I do accordingly pur- suant to the provisions of section 2485 of the Code of Civil Note. The Surro- Procedure designate the Hon. the Surrogate of gate of New York the adjoining County of (note) to act in my place County cannot be and stead, in the above entitled proceeding. (Dated.) (Signature.) SURROGATES AND THEIR COURTS 17 Supreme Court, County of, Proof of authority In the matter of the application " under section 2487 of for ah order establishing the of the Code of Civil authority of (here insert name of officer or court to be designated) to act in }■ the place and stead of Hon. Sur- rogate of the County of in (give title of proceeding). To the Supreme Court of the State of New York : The petition of of respectfully shows to this court : I. That late of and County of in the State of New York departed this Ufe on the day of 190 leaving his last will and testament. II. That your petitioner is named as executor in said last will and testament, and has accordingly begun a proceeding Note. Or describe fQj. ^jjg probate of said will (note), in the Surrogate's Court particular matter. • ,, ., ri x r j i. ci j x-x- m the said County of and has filed a petition pray- ing that the necessary parties be cited; that said will be proved ; and that letters testamentary be granted thereon. III. Your petitioner is informed and verily beUeves that the Hon. Surrogate of the County of is pre- cluded or disquaUfied from acting with respect to the probate of the said will (here state cause of disqualification, whether general or special under section 2496, and, in a proper case, add, as further appears from the certificate of said Surrogate hereto annexed) (or is disabled by reason of ) (or that the office of Surrogate in said County is vacant) . IV. And your petitioner further shows (here state, in the order required by section 2484, what officer in the County is qualified to be designated or to act in the place of the Surrogate except in New York County; see section 2486). Wherefore your petitioner prays an order of this court, estabUshing the fact that the said Surrogate of the County of is dis- qualified (or precluded, or that he is disabled, or that the of- fice is vacant) and further establishing the authority of the Hon. (Specifying the proper officer under section 2484, or in the County of New York specify merely "the Supreme Court") to exercise the jurisdiction and powers of the said Surrogate (or where the Surrogate is disabled, or his office is vacant, to discharge the duties of the said Surrogate's office) with respect to the said proceedings for the probate of said will (or until the vacancy is filled, or until the disability of the said Surrogate ceases). (In cases of the Supreme Court "to exercise all the powers and jurisdiction of said Surrogate's Note. Since there _ ^ ,, j., ^, • %ii j ^t. j- u-vx o X Court until the vacancy is filled or the disabihty ceases, are two Surrogates ■' ■' in New York County "■"'«•) it is not probable (Where the application is for the designation of a special of- that the contingen- ficer to act as Surrogate, add, and that said order fix the se- 2 18 SURROGATES COURTS cies provided against curity to be given by said for the due discharge of in section 2486 are his duties in said matter,) or for the exercise of the powers likely to occur ^nd jurisdiction of said Surrogate.) (Dated.) (Signature.) Note. Where the Justice of the Su- preme Court requires notice of the appli- cation to be given this may be done by notice of motion or by order to show cause. The petition may be used as an affidavit upon which the order to show cause may be ob- tained, in which case, however, an additional aflSdavit should be presented stating the reason why an order to show cause is asked for. State of New York County of being duly sworn says : that he is the petitioner above named; that he has read the foregoing petition, by him subscribed; and that the same is true to his own knowledge except as to the matters therein stated to be alleged on information and belief and that as to those matters he believes it to be true. Sworn to before me this day of 190 (Signature.) Order under sec- tion 2487. At a Special Term of the Supreme Court, held in and for the County of at the County Court House in on the day of 190 . Present : Title. Hon. Justice. On reading and filling the annexed petition of duly verified the day of 190 , {and where the certificate is annexed to the petition add, together with the certificate of Hon. Surrogate of the County of the day of 190 ) by which it appears to the satisfaction of this Court that a proceeding has been instituted in the Surrogate's Court of the County of for (here state nature of proceeding) and it further appears that the Hon. the Surrogate of said County is disabled by reason of (or that the office of said Surrogate is va- cant; or that the said Surrogate is disqualified or precluded from acting in the said proceeding, by reason of) (here state oeneral or sneciaJ. rKoxnn nt rUsmmliiirfitinny SURROGATES AND THEIR COURTS 19 Now, on motion of attorney for the petitioner, it is hereby Ordered, that {here designate the special officer in- dicated hy the petition under section 2484 or in the County of New York the Supreme Court) be and he {or it) is hereby desig- nated and empowered to discharge the duties of the office of said Surrogate in the matter of {here specify extent of the officer's authority) {or where the office is vacant, or the Surrogate is disabled say "designated and empowered to ex- ercise the powers and jurisdiction of the said Surrogate's Court until " (here specify the fiUing of the vacancy, or the ceasing of the disabihty, see section 2486) . Where an officer is designated add a further clause. And it is Further Ordered that the said {desig- nating the officer) before exerdsing any of the powers or performing any of the duties of said Surrogate execute and file a bond {here describe the character and amount of bond) (Signature of Judge). § 14. Termination of authority of Acting Surrogate. — Where the Act- ing Surrogate was appointed for any reason, except a vacancy in the office of Surrogate, his authority to act may be revoked by a justice of the Supreme Court of the judicial district embracing the county; such an order may be made on proof either that the cause for designating or ap- pointing the Acting Surrogate no longer is operative or that the order or appointment was improvidently made in the first instance. When the cause of the making of the order or appointment was that the office of Surrogate was vacant, the filling of the vacancy supersedes the appoint- ment and terminates the authority of the Acting Surrogate without any formal order of revocation. But however terminated it is without prejudice to the proceedings theretofore taken by virtue of the original designation; and when ter- minated the unfinished proceeding must be transferred to, and may be completed by the Surrogate in the same manner, and with like effect as when a new Surrogate completes the unfinished business of his predecessor. The language of the Code is as follows: Where an order is made by a justice of the supreme court of the judicial district embracing the county as prescribed in the last two sections or an ap- pointment is made by the board of supervisors, as prescribed in section 2492 of this act, for any cause except a vacancy in the office of surrogate, it may be revoked, without prejudice to any proceedings theretofore taken by virtue thereof, by a justice of the supreme court of the judicial district, embracing the surrogate's county, upon proof that it was improvidently made, or that the cause of making it has become inoperative. Such an order or appoint- ment, made upon the ground that the surrogate's office is vacant, is superseded without any formal revocation, by the filhng of the vacancy. After the order 20 surrogates' courts or appointment is revoked, or the vacancy is filled, as the case may be, the un- finished business in any proceedings taken by virtue of the order or appoint- ment, must be transferred to, and may be completed by the surrogate in the same manner and with like effect as where a new surrogate completes the unfinished business of his predecessor. § 2489, Code Civil Proc. § 15. Transfer from Supreme Court. — Similarly, if the Supreme Court has been entertaining proceedings, cognizable before a Surrogate, it may, in its discretion, and at any time, transfer the proceeding by its order back to the Surrogate's Court. This will usually be done if the Su- preme Court is satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate. See Code Civ. Proc. § 2491, which is as follows: « The court may, at any time, in its discretion, upon being satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the surrogate's court, any matter then pending before* it. Such an order operates to transfer the same accordingly. Im- mediately after such a transfer, or after the revocation of the order of the general term, as prescribed in the last section but one, the surrogate must cause entries to be made in the proper book in his office, referring to all the papers filed, and orders entered, or other proceedings taken, in the supreme court; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his office, at the expense of the county. Supreme Court Caption. Present : Hon. Order remitting ) Justice, proceedings to Sur- Title. I rogate's Court tinder -phis proceeding having been transferred to me (or, to this section 2491. ^^^^^-^ ^^^^ ^^le Surrogate's Court of the County of by order of the Supreme Court dated the day of 19 for the reason that {state reason recited in Note. " Such an order) , and it appearing to my satisfaction that the reason for order operates to ^j^^ exercise of the powers and jurisdiction of said Surrogate's ,. , „ .g. Court by this court has ceased to operate, now, pursuant to anVlu subsequent ^e^'*'"" ^491 of the Code of Civil Procedure, it is proceedings must be Ordered that the above entitled proceeding be and the entitled in and acted same is hereby transferred back to the said Surrogate's Court on by the Surro- of the County of gate's Court. (Signature.) So long as the proceedings remain out of the Surrogate's Court provi- sion is made, as to New York and Kings counties, that they be entitled, sealed and signed as if originally cognizable in the court to which they are transferred. They are filed in the office of the clerk of that court, who performs the duties in relation thereto that the Surrogate or his clerk SURROGATES AND THEIR COURTS 21 would, had they remained in his court. And the issues raised in the proceedings are tried according to .the rules prevailing in the court to which it has been transferred. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made, by a judge of that court. This is by virtue of the following provision of the Code : In a special proceeding cognizable before a surrogate, taken in the supreme court as prescribed in this article, the seal of the court in which it is taken, must be used, where a seal is necessary. The special proceeding must be enti- tled in that court; and the papers therein must be filed or recorded, as the case may be, and issues therein must be tried, as in an action brought in that court. The clerk of that court must sign each record, which is required to be signed by the surrogate or the clerk of the surrogate's court. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made by a judge of the court. § 2490, Code Civil Proc. § 16. Temporary Surrogates are special ofHcers, appointed under special circumstances, to perform the duties of a Surrogate for a limited time. If the Surrogate is disabled by reason of sickness and there is no Special Surrogate, or special county judge {Matter of Frye, 48 N. Y. St. Rep. 572) of the county, the board of supervisors (this applies to any county except New York) may, in its discretion, appoint a suitable per- son to act as Surrogate until the Surrogate's disability ceases; or until a Special Surrogate or a special county judge is elected or appointed. The Supreme Court also possesses the power to appoint such temporary officer, by virtue of its succeeding to all the powers of the chancellor Matter of Hathaway, 71 N. Y. 238, 245. The chancellor had this power under chap. 320 of the Laws of 1830, § 20. Held, In re Hathaway, supra, that this power was not divested by the constitution of 1846 which prohibited the justices of the Supreme Court from making appointments to public office. This case reviews the rule as to Temporary Surrogates under the old practice. As to New York County, its Surrogate's Court was established prior to the constitution of 1846 (see art. 14) and was merely continued thereby (§ 12). The term of office was left under the control of the legislature. (It is now fourteen years.) When Surrogate Van Schaick died in 1876 leaving five years of his term of six years unexpired, Delano C. Calvin was appointed Temporary Surrogate until the general election next ensuing. At such election he was elected "in place of Delano C. Calvin, appointed in place of S. D. Van Schaick, deceased." Held {People v. Carr, 25 Hun, 325, and 86 N. Y. 512) that his election was for the unexpired term, i. e., to 1881, and not for a full term to 1882. See opinions of Davis, P. J., and of Rapallo, J. This seems to be the proper rule as to terms of Surrogates elected to succeed a Surrogate upon the occurrence of a vacancy. As to New York County we have alr^dy noted under section 2486 that there would be no 22 surrogates' courts Temporary Surrogate, as the Supreme Court is directed to act until the vacancy is filled. (This is unlikely now to occur as there are two Sur- rogates.) Moreover, these decisions would probably govern in view of the manifest intention of the new constitution as to uniformity of terms in county offices. Acting and Temporary Surrogates must not . be confounded. The one is usually an existing officer — the other need not be. The Acting Sur- rogate unless directed so to do by the Supreme Court need not give ad- ditional security for the performance of his duties. Code Civ. Proc. § 2488. The Temporary Surrogate cannot enter upon his duties until he has given an official bond, such as is prescribed by law with respect to a person elected to the office of Surrogate (Code Civ. Proc. § 2492), and must file an oath of office. The Code expressly differentiates between them — for in provid- ing for their compensation it mentions "an officer" (meaning Special Sur- rogate, special county judge, county judge or district attorney) " or a per- son" (meaning the suitable person mentioned in section 2492) "appointed by the board of supervisors, who acts as Surrogate of any county during a vacancy in the office, or in consequence of disability." Code Civ. Proc. § 2493. In any county, except New York, if the surrogate is disabled, by reason of sickness, and there is no special surrogate, or special county judge of the county, the board of supervisors may, in its discretion, appoint a suitable per- son to act as surrogate, until the surrogate's disability ceases; or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering on the execution of the duties of his office, take and file an oath of office, and give an official bond as prescribed by law, with respect to a person elected to the office of surrogate. § 2492, Code Civil Proc. § 17. The compensation of Acting and Temporary Surrogates equals, pro rata, the salary of the Surrogate (or of the county judge in counties where that officer is also Surrogate), and the amount must be audited and paid in like manner as that of the regular incumbent. Code Civ. Proc. § 2493, is as follows: An officer, or a person appointed by the board of supervisors, who acts as surrogate of any county diuing a vacancy in the office, or in consequence of disability, as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal, pro rata, to the salary of the surrogate; or, in a county where the county judge is also surrogate, to the salary of the county judge. The amount of his compensation must be au- dited and paid, in hke manner as the salary of the surrogate, or of the county judge as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or precluded from acting, the supervisors of the county must allow him a just compensation for his services therein, to be audited and collected in the same manner. This section applied to Kings County, L. 1884, clmp. 390. SURROGATES AND THEIR COURTS 23 But this refers only to work actually done and time actually occujned in discharging the duties of a Surrogate (Matter of Tyler, 60 Hun, 566), and not to the time elapsing from the day he first begins his duties until he is relieved therefrom. For time when he is not engaged as Surrogate he may not receive compensation. Where there is a Special Surrogate, under sec- tion 1 of chapter 306 of the Laws of 1849 (covering eight counties) his election contemplates his discharging the duties of Surrogate in his county in case of vacancy or of the disability of the Surrogate proper. Conse- quently his salary is in anticipation of his being called upon so to act — and when he is so called upon he has no right to additional compensation under section 2493. His compensation is fixed by the board of supervisors, and does not necessarily correspond to that of the Surrogate. See People v. Sup. Oneida Co., 82 Hun, 105. The Code further provides: Where an act is done, or a proceeding is taken by, before, or by authority, of an officer, or a person appointed by the board of supervisors, temporarily acting as surrogate of any county, as prescribed in this article, the same must be recorded, or the proper minutes thereof must be entered, in the books of the surrogate's court, in like manner as if the same was done or taken by, before, or by authority of the surrogate of the county; and the officer or person so acting, or the clerk of the surrogate's court, must sign the certificate of pro- bate and any letters so issued, and must certify the record thereof in the book. § 2494, Code Civil Proc. This section applied to Kings County by L. 1884, chap. 490. This means he must sign the same with his proper official designation. If he omit it, however, the record may subsequently be amended. Monro's Estate, 15 Abb. Pr. 363. § 19. What constitutes disqualification. — The Code defines what causes will operate so to disqualify a Surrogate as to necessitate the appoint- ment or designation of an Acting or Temporary Surrogate. In the first place he is subject to the general disqualifications of a judi- cial officer. Thus he shall not try as Surrogate any proceedings in which he is a party, or interested; but where, by stipulation of the attorneys, moneys were paid in to the Surrogate to await the result of a litigation and the Surrogate took possession accordingly, held this was not an interest to disqualify him (Matter of Hancock, 91 N. Y. 284, reversing 27 Hun, 78; Matter of Newcombe, 63 Hun, 633, see 18 N. Y. Supp. 549) ; nor may he try proceedings in which he has been attorney or counsel (Darling v. Pierce, 15 Hun, 542) (see below); or where he is related by consanguinity or affinity to any party to the controversy within the sixth degree. Code Civ. Proc. § 46. Marriage to a legatee not a party to the proceeding held not to disqualify. Hopkins v. Lane, 6 Dem. 12. In Underhill v. Dennis, 9 Paige, 202, it was held a Surrogate might ap- point a relative guardian ad litem. So in Matter of Van Wagonen, 69 Hun, 365 it was held, following the case in 9 Paige, that, whatever might be 24 surrogates' courts said of the ethical proprieties of such appointment, the fact that such guardian was the Surrogate's brother would not disqualify him from acting. See also Matter of Hopper (a lunatic), 5 Paige, 489. In addition to these general disqualifications: A surrogate is disqualified from acting upon an application for probate, or for letters testamentary, or letters of administration, in each of the following cases : 1 . Where he is or claims to be, an heir or one of the next of kin to the de- cedent, or a devisee or legatee of any part of the estate. 2. Where he is a subscribing witness, or is necessarily examined or to be examined as a witness to any written or nuncupative will. 3. Where he is named as executor, trustee or guardian, in any will, or deed of appointment, involved in the matter. § 2496, Code Civil Proc. But this was held not to disqualify a Surrogate who was warden in a church to which a legacy was given by a will, from entertaining proceed- ings for its probate. Hopkins v. Lane, 6 Dem. 12, aff'd 17 N. Y. St. Rep. 677. Aside from the statutory causes for disqualification, a Surrogate must use his discretion in declining to act in a given case. Matter of Newcomhe, 18 N. Y. Supp. 549. See, as to personal interest. Matter of Bingham, 127 N. Y. 296. An adult party can waive objection to the power of a Surrogate to act unless one of these three disqualifications exists. The objection may be urged at any time before issue is joined by that party; "or, where an issue in writing is not framed, at or before the submission of the matter in question to the Surrogate." See Code Civ. Proc. § 2497, which is as follows: An objection to the power of a surrogate to act, based upon a disqualifica- tion, established by special provision of law, other than one of those enumer- ated in the last section, is waived by an adult party to a special proceeding before him, unless it is taken at or before the joinder of issue by that party; or, where an issue in writing is not framed, at or before the submission of the matter or question to the surrogate. § 2497, Code Civil Proc. As for infants, their rights are not prejudiced. The acts of a disquali- fied Surrogate in proceedings in which their rights are involved are void as to them. The failure of a special guardian to interpose objection cannot be taken as a waiver, nor does it bind the infant. See Wigand v. De Jonge, 8 Abb. N. C. 260. § 20. Terms of court — Attendance by Surrogate. — The following pro- visions of the Code relate to the terms of the court and the Surrogate's duty to attend: The surrogate's court is always open for the transaction of any business, within its powers and jurisdiction. The surrogates of the city and county of New York, from time to time must appoint, and may alter the times of hold- SURROGATES AND THEIR COURTS 25 ing terms of that court for the trial of probate proceedings and for the hearing of motions and other chamber business. They must prescribe the duration of such terms, and assign the surrogate to preside and attend at the terms so ap- pointed. In case of the inabiUty of a surrogate of that county to preside or attend, the other surrogate may preside or attend in his place. Two or more terms of the surrogate's court may be appointed to be held at the same time. The term of that court held at the chambers shall dispose of all business except contested probate proceedings; all contested probate proceedings shall be dis- posed of at the trial term. An appointment must be published in two news- papers published in the city of New York during or before the first week in Jan- uary in each year ; except that the surrogates of that county may, by notice to be published in two newspapers in the city of New York for at least five days, appoint the time for holding chambers and trial terms during the year eighteen hundred and ninety-three. All the powers conferred by law upon the sur- rogate of the city and county of New York may be exercised by either of the surrogates of said city and county. § 2504, Code Civil Proc. (See below.) The surrogate must, unless prevented by sickness or other imavoidable cas- ualty, attend at his office on Monday of each week, except during the month of August, or where Monday is a pubhc holiday, on the following Tuesday, to execute the powers conferred and the duties imposed upon him. But the surrogate of any county, may, by an instrument in writing, under his hand, filed in the office of the clerk of the county at least twenty days before the first day of January in any year, designate a day of the week, other than Monday, on which he will attend at his office, or a month other than August, during which he will be absent therefrom, or both during that year; and where the county judge is also surrogate, he is not required to attend at his office on any day when the county court or the court of sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience requires. The surrogate may sign decrees, letters testamentary, of administration and guardianship, and orders during the month of August or such other month as he shall designate for his vacation wherever he shall be passing such vacation within the state. § 2505, Code Civil Proc. Abuses were discovered by the committee of the assembly which in- vestigated the Surrogate's Court and office in the county of New York in 1889, which indicated the value of putting some check upon the appoint- ments made by Surrogates in that county, and the amendment was en- acted by chapter 605 of the Laws of 1899 to § 2504, at the end thereof, which reads as follows: " And there shall be published in the official law paper published in said county, upon Monday of every week, under the name of the Surrogate making the several appointments, a full and true list of the names of all appraisers, transfer tax appraisers, special guardians, referees and tem- porary administrators, which either Surrogate shall have designated or ap- pointed during the preceding week, together with the names of the proceed- ings in which they were appointed and the dates of said appointments." § 21. When Surrogate not to practice. — The constitution of 1894, art. 6, § 20, prohibits any Surrogate thereafter elected, in a county having 26 SURROGATES COURTS a population exceeding 120,000, from practicing as an attorney or coun- sellor in any court of record in this State, and from acting as a referee. The Surrogate of Westchester, taking office January 1, 1901, acted as referee, and a motion was made on the ground he was without power to act. The Appellate Division refused to pass on the question because the order appealed from was made on consent in order to the appeal. But it was queried whether the state census of 1892 or the Federal census of 1900 would govern; it being claimed that under the state census there could be a deduction made for the population annexed to New York County in 1895. Brovm v. Brown, 64 App. Div. 544. See also Matter of Silkman, 88 App. Div. 102, where a second application was made to disbar the then Sur- rogate from practice during his term. Three opinions were written. The motion was denied on the ground that if he had offended the consti- tution he had offended as Surrogate and not as a lawyer; and on the fur- ther ground that in the court's opinion of what the word "population" meant it did not appear the county had a population exceeding 120,000, ■See opinion of Woodward, J., pp. 106-123. Further prohibitive provisions are contained in the Code itself: A surrogate shall not be counsel, solicitor or attorney in a civil action or special proceeding for or against any executor, administrator, temporary ad- ministrator, testamentary trustee, guardian or infant, over whom, or whose estate or accounts, he could have any jurisdiction by law. The surrogate of the county of Monroe shall not act as referee or practice as attorney or counsellor in any comi; of record in the state. § 2495, Code Civil Proc. If a Surrogate has been acting as counsel or attorney before his election and undertakes to pass on proceedings initiated by him as counsel or attor- ney, as for example in making an order of sale based on a judgment re- covered by him, or in passing an executor's accounts, prepared under his personal advice, his acts are void. Darling v. Pierce, 15 Hun, 542; Fi- gand v. De Jonge, 8 Abb. N. C. 260. CHAPTER II JUEDISDICTION OF SUEEOGATES' COURTS — ITS NATURE AND EXTENT § 22. The Code is somewhat explicit as to the general jurisdiction of Surrogates, and has defined carefully their incidental powers in sections 2472 and 2481. (See also table under § 4, ante.) § 2472. General jurisdiction of surrogate's court. Each surrogate must hold, within his county, a court, which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision of law, jurisdiction, as follows : 1. To take the proof of wills; to admit wills to probate; to revoke the pro- bate thereof; and to take and revoke probate of heirship. 2. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a person whose letters have been revoked. 3. To direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees; to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. 4. To enforce the payment of debts and legacies; the distribution of the estates of decedents; and the payment or delivery, by executors, administra- tors, and testamentary trustees, of money or other property in their possession, belonging to the estate. 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. 6. To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. Note. This does not, however, give such powers as to apply surplus in- come of a trust to payment of the beneficiary's creditors. Matter of Widmayer, 28 Misc. 362. This can only be done by a court of equity. Wetmore v. Wetmore, 149 N. Y. 520, 527; Tolles v. Wood, 99 N. Y. 616. 7. To appoint and remove guardians for infants; to compel the payment and delivery by them of money or other property belonging to their wards; .and in the cases specially prescribed by law, to direct and control their con- duct, and settle their accounts. 8. (Added 1903.) To settle the accounts of a father, mother, or other rel- ative having the rights, powers and duties of a guardian in socage, and to compel the payment and dehvery of money or other property belonging to the ward. This jurisdiction must be exercised in the cases, and in the manner pre- scribed by statue. § 2481 is given in this connection (as well as in the table in chap. I) as mecessary to a full view of the Surrogate's jurisdiction. 27 28 SURROGATES COURTS § 2481. Incidental powers of the surrogate. A surrogate, in court or out of court, as the case requires, has power: 1. To issue citations to parties, in any matter within the jurisdiction of his court; and, in a case prescribed by law, to compel the attendance of a party. 2 To adjourn, from time to time, a hearing or other proceeding in his court ; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give an additional notice, as may be necessary. _ . t ^^ j 3 To issue, under the seal of the court, a subpoena, requiring the attendance of a witness, residing or being in any part of the state; or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court. 4 To enjoin by order, an executor, administrator, testamentary trustee, or guardian, to whom a citation or other process has been duly issued from his court, from acting as such, until the further order of the court. 5 To require by order, an executor, administrator, testamentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon him, by statute, or by the surrogate's court, under authority of a statute. 6 To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be exercised only in a like case and m the same manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an appUcation pursuant to this subdivision, the appellate division of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original apphcation was made to that division. 7 To punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner. 8. Subject to the provisions of law, relating to the disqualification of a judge in certain cases, to complete any unfinished business, pending before his predecessor in the office, including proofs, accountings, and examinations. See Matter of Johnson, 27 Misc. 167, Varnum, S. 9. To complete, and certify and sign in his own name, adding to his signa- ture the date of so doing, all records or papers, left uncompleted or unsigned by any of his predecessors. 10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein. 11. With respect to any matter not expressly provided for in the fore- going subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, hav- ing, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred. 12. A surrogate or a clerk of the surrogate's court has power to administer oaths, to take affidavits and the proof and acknowledgment of deeds and all JURISDICTION OF SURROGATES' COURTS, ETC. 29 other instruments in writing, and certify the same with the same force and effect as if taken and certified by a county judge. Added L. 1909, ch. 65. § 23. The provisions of the new constitution are as follows: Art. VI, § 15. Surrogates' Courts ; Surrogates, their power and jurisdic- tion; vacancies. The existing surrogates' courts are continued, and the surrogates now in ofiBce shall hold their offices until the expiration of their terms. Their suc- cessors shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be fourteen years. Surrogates and surrogates' courts shall have the jurisdiction and powers which the surrogates and existing surrogates' courts now possess, until otherwise provided by the legislature. The county judge shall be surrogate of his county, except where a separate surrogate has been or shall be elected. In counties having a population ex- ceeding forty thousand, wherein there is no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall be elected as a separate •officer, his salary shall be established by law, payable out of the county treasury. No county judge or surrogate shall hold office longer than until and including the last day of December next after he shall be seventy years of age. Vacancies occurring in the office of county judge or surrogate shall be filled in the same manner as hke vacancies occurring in the supreme court. The compensation of any county judge or surrogate shall not be increased or diminished during his term of office. For the relief of surrogates' courts the legislature may confer upon the supreme court in any county having a popu- lation exceeding four hundred thousand, the powers and jurisdiction of surro- gates, with authority to try issues of fact by jury in probate cases. Id. § 15. § 24. Powers specially conferred by statute. — Among the powers spe- cially conferred by statute referred to in section 2472, was the power to administer oaths and take acknowledgments. This was given by Laws, 1900, ch. 510, § 1. It is now embodied as subd. 12, swpra in § 2481. He may also direct an executor or administrator, having letters from his court to become a "consenting creditor," in proceedings to discharge an insolvent from his debts. Code Civ. Proc. § 2153. See Matter of P. Sherryd, 2 Paige, 602 where the chancellor held, prior to the statute, he had no power to permit a trustee to petition for such discharge. He has also concurrent jurisdiction with the county courts in adoption proceedings, under the Domestic Relations Law. Laws, 1896, chap. 272, §§ 60-68. These proceedings are simple, and fall under two general heads: ^' Voluntary adoption " and " Adoption from charitable institutions." Both proceedings are cognizable before a Surrogate. See post, part V, chap. I. Jurisdiction is also given, by the Tax Law, chap. 24 of the General Laws (Laws, 1896, chap. 908) article X, over taxable transfers. See part VI, chap. V, post. 30 subrogates' courts A Surrogate has also power to give leave to issue execution against an executor or administrator in his representative capacity, upon a judgment for a sum of money. In fact no such execution can issue without such per- mission by order of the Surrogate from whose court the letters issued specifying the sum to be collected, and indorsed with a direction to collect that sum. Code Civ. Proc. §§ 1825 et seq. See post. He may also authorize an executor or administrator to prefer certain debts (see Code Civ. Proc. § 2719 and post, part VI, chap. Ill), and to com- promise or compound claims, on application, for good and sufficient cause. Id. He may decree payment by an executor or administrator personally of an amount equal to the value of exempt property negligently omitted to be set apart by him for a surviving husband, wife or child as prescribed by law, or equal to the amount of injury thereto in proper case. See Code Civ. Proc. § 2724, and post, part VIII. He has power in certain cases (see discussion under §§ 2798 et seq. and § 2537, and § 2793, post), to receive surplus moneys and distribute the same. See Matter of Gedney, 30 .Misc. 18. He may, under § 1380 of the Code, q. v., make a decree granting leave to issue an execution against the property of a deceased judgment debtor on whose estate he may have granted letters. See § 1381 as to procedure in securing such decree. With this general survey of the extent of a Surro- gate's jurisdiction, and the illustrations under § 4, ante, we pass to the ex- amination of the nature of that jurisdiction. § 25. Nature of jtirisdiction — ^The jurisdiction of a Surrogate's Court may be I. Exclusive of all other courts. II. Exclusive of other Surrogates' Courts. III. Concurrent with other courts. § 26. Exclusive jurisdiction is vested in Surrogates' Courts in the State of New York, over the probate of wills and the issuance of letters testamentary or letters of administration. See Delabarre v. McAlpin, 71 App. Div. 591. Note hereafter "action to establish a will," and 2 R. S. 126, § 46; Burger v. Hill, 1 Bradford, 360, 371. See 1 R. S. of 1813, 365, § 7, as to probate prior to Revised Statutes; Brick's Estate, 15_ Abb. Pr. 12, for historical sketch of jurisdiction of Surrogates and their courts. Those provisions of the Code, §§ 1861-1867, under which an action may be brought to establish a will, constitute an exception to the general rule that wills are proved by and letters issued pursuant to a decree of a Sur- rogate's Court only. The exception is, however, rather apparent than real. For in those cases where an action to estabhsh a will is allowed by the Code [see also Re- vised Statutes (2d ed.), 2 R. S. §§ 67-68], the judgment of the court in which the action is brought must be supplemented by the action of the Sur- rogate. He must record in his office an exemplified copy of the judgment; after which recording letters testamentary, or letters of administration JURISDICTION OF SURROGATES' COURTS, ETC. 31 with the will annexed, are issued from the Surrogate's Court, as if the judg- ment of the other court were the very decree of the Surrogate. The letters issue in the same manner, and with like effect, as upon a will duly proved in the Surrogate's Court. Code Civ. Proc. § 1863. The Surrogate must (Code Civ. Proc. § 1864) record the will, and issue letters thereupon, but the court under whose judgment he has to act cannot do so. Subject to this apparent exception the Surrogate's jurisdiction over pro- bates is exclusive. But as all his jurisdiction is a limited one, so this ex- clusive jurisdiction is limited. It may depend upon and be conditioned by : 1. Mode of execution; 2. Place of execution; 3. Residence of testator; 4. Locus (or situs) of property willed. § 27. Mode of execution.— Surrogates may grant probate of wills, (a) When executed as prescribed by the laws of the State, whether they be wills of real or personal property. (b) Also wills of personal property, executed in other States, or in Canada, or in Great Britain or Ireland, as prescribed by their respective laws. (c) Also wills of personal property of non-residents, executed according to the law of testator's residence. This appears (a) from the Decedents' Estates Law, §§ 23-25, formerly § 2611 of the Code. § 23. A will of real or personal property, executed as prescribed by the laws of the state, or a will of personal property executed without the state, and within the United States, the dominion of Canada, or the kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be admitted to probate in this state. [This is a material amendment. It used to read " may be proved as prescribed in this article."] § 24. The right to have a will admitted to probate, the validity of the exe- cution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execution of the will. § 25. The last two sections apply only to a will executed by a person dying after April eleven, eighteen hundred and seventy-six, and they do not in- validate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is. revoked or altered by a will which those sections rendered valid, or capable of being proved as prescribed in article first of title third of chapter eighteenth of the Code of Civil Procedure. See Matter of Rubens, 128 App. Div. 626 (1st Dep. 2 dissents) [will of one residing in France executed not according to French law but ours, property in this State.] ■ It appears (6) from § 2705 of the Code formerly chap. 731, Laws 1894,, which is as follows: 32 SURROGATES COURTS Admission of will of non-residents to probate, etc. The last will and testament of any person being a citizen of the United States, or, if female, whose father or husband previously shall have declared his inteption to become such citizen, who shall have died, or hereafter shall die, while domiciled or resident within the United Kingdom of Great Britain and Ireland, or any of its dependencies, which shall affect property within this State and which shall have been duly proven within such foreign jurisdic- tion, and there admitted to probate, shall be admitted to probate in any county of this State wherein shall be any property affected thereby, upon filing in the office of the surrogate of such county, and there recording, a copy of such last will and testament, certified under the hand and seal of a consul- general of the United States resident within such foreign jurisdiction, to- gether with the proofs of the said last will and testament, made and accepted within such foreign jurisdiction, certified in like manner; and letters testa- mentary of such last will and testament shall be issued to the persons named therein to be the executors and trustees, or either, thereof, or to those of them who, prior to the issuance of such letters, by formal renunciation, duly ac- knowledged or proven in the manner prescribed by law, shall not have re- nounced the trust therein devolved upon them; provided, that before any such will shall be admitted to probate in any county in this State, the same proceedings shall be had in the surrogate's court of the proper county as are required by law upon the proof of the last will and testament of a resident of this State who shall have died therein ; except that there need be cited upon such probate proceedings only the beneficiaries named in such will. L. 1894, chap. 731. § 28. Same. — Under the first subdivision in the last section (a), any will is entitled to probate, wheresoever and by whomsoever executed, whatever the nature of the property whose disposition it seeks to effect, and wher- ever such property may be situated, -provided it be shown to have been exe- cuted in conformity with the laws of this State. Matter of M'Mulkin, 5 Dem. 295, 297. Thus, where testatrix died in Glasgow, Scotland, where she resided at the time of making her last will and testament, which will was executed in conformity with the laws of this State, though fatally defec- tive under Scotch law, it was (in the case just cited) admitted to probate. See also Matter of Rubens, supra. (See dissent by Ingraham.) The second subdivision (6), adds to the list of provable wills wills not of realty, executed in any other State in the Union, or in the Dominion of Canada, or in the Kingdom of Great Britain and Ireland, provided they be shown to have been executed in conformity with the laws of the place of execution. The provision is explicit— " laws of the State or country where it is or was executed" regardless of testator's residence, or the place of his death. Formerly this was not so; but if, after executing a will valid under the laws of the place in which it was made, the testator changed his domicile it might result in intestacy. Thus in 1856 a will was offered in New York County for probate, made by a man who at the date of execution of the will was a citizen of South Carolina. The will was executed according to JURISDICTION OP surrogates' COURTS, ETC. 33 the requirement of the laws of that State. Subsequently the testator re- moved to this State, where he became domiciled and died. It was held that he died intestate in New York. Moultrie v. Hunt, 23 N. Y. 394. This decision was followed until the amendment of 1893 to § 2611 Code Civ. Proc. above quoted. This section was a consolidation of old sections 2611- 2613, and is again divided up in the Decedents' Estates Law. The third subdivision (c), covers wills (also not of realty) executed by any non-resident of the State according to the laws of testator's residence. This means residence at time of execution, and is not affected by change of residence subsequently. Under this subdivision it has been held that a New York Surrogate has jurisdiction and may proceed with the probate of a non-resident's will of personal property executed according to the laws of such testator's residence, without awaiting action by the corresponding tribunals of the other State or country. Booth v. Timoney, 3 Dem. 416; Matter of Dela- plaine, 45 Hun, 225. So, a holographic will of one dying in France with no witnesses, valid under the Civil Code of France, section 970, was ad- mitted to probate in New York County as a will of personal property. Matter of Cruger, 36 Misc. 477. But this section gives no jurisdiction to a Surrogate over the probate of wills of real property unless executed accord- ing to the New York laws. Matter of Gaines, 84 Hun, 520. Note that no will executed under either (b) or (c) of real property is provable here. A will of realty to be effectual to pass lands here must have been executed in conformity with the New York statute; prior to the amendment of 1893 to § 2611 the validity of execution of a will made by a non-resident without the State depended on his residence at the time of his death. Thus in Moultrie v. Hunt, 23 N. Y. 394, 403 (see extract from Story on pp. 404, 405), the court said: " It would be plainly absurd to fix upon any prior domi- cile in another country. The one which attaches to him at the instant when the devolution of property takes place, is manifestly the only one which can have anything to do with the question." The amended sec- tion applies " only to a will executed by a person dying after April 11, 1876, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter 118 of the Laws of 1876, except where such a will is revoked or altered by a will which those sections rendered valid or capable of being proved as prescribed in this article." Code Civ. Proc. § 2611, amended 1893. § 29. The place of execution may also determine the question of ju- risdiction — this appears partly from the foregoing sections. If the will pre- sented to the Surrogate was executed in this State it must have been ex- ecuted in conformity with the laws of this State. If executed without the State by a resident of the State it must have been executed in conformity with the laws of this State if it devises real property; if it deals only with personal property it is covered by the provisions of the preceding section. If executed without the State by a non-resident then it must have been 3 34 SURROGATES COURTS executed in conformity with the laws of the place of testator's residence when he executed it. § 30. Residence of testator.— Conceding the will to have been exe- cuted so as to be provable in this State under either of the foregoing sec- tions the Surrogate's jurisdiction is further conditioned by the residence of testator. If he was, at the time of his decease, a non-resident of the State the rule is that laid down above (and see section 31, infra, as to effect of locus of property willed) . If he was, however, a resident of the State then the jurisdiction of the Surrogate's Court depends on the county of which he was a resident. Code Civ. Proc. § 2476. See James v. Adams, 22 How. Practice, 409, to effect that it is not the process under which parties come before the Surrogate that gives him jurisdiction; but the residence of the decedent. § 31. Locus of property willed is a most important element in deter- mining jurisdiction, but it is more properly to be treated under the next subtopic. It may be here remarked, however, that a properly executed will of a non-resident can be proved in this State only in one of three cases : (1) Where the decedent died within a county of the State, leaving per- sonal property in the State either at his death, or which after his death comes into the State and remains unadministered. Or, (2) where the decedent died without the State, but leaving personal property in a county of the State, or which after his death comes into the State, and remains unadministered. Or, (3) where decedent leaves real property to which the will relates, or which is subject to disposition for the payment of his debts, and which is situated within a county of the State, provided no petition has been pre- sented under either of the two just mentioned cases in any other Surro- gate's Court. Code Civ. Proc. § 2476, subd. 4. § 31a. Other questions exclusively within Surrogate's jurisdiction. — It may be added that the Surrogate's Court has further exclusive jurisdic- tion to determine all questions of fraud, imposition, undue influence, mis- take and other circumstances relating to the factum of the instrument as well as to avoid the will or set aside its probate on the ground of fraud, mistake or forgery. Case of Broderick's Will, 21 Wallace, 503. See opin- ion Clark V. Fisher, 1 Paige, 176, and cases cited; Colton v. Ross, 2 Id. 398; Muir V. L. & W. Orphan Home, 3 Barb. Ch. 477. So also mistakes and va- riances between the will as prepared and the instructions given for prepar- ing it can only be reformed in this court. Story's Equity, § 179; Burger v. Hill, 1 Bradf. 360, 372. § 32. Jurisdiction exclusive of other Surrogates' Courts.— Section 2476 of the Code provides that: The surrogate's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to erant letters testa- JURISDICTION OF surrogates' COURTS, ETC. 35 mentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases : 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the state, died within that county, leaving personal property within the state, or leaving personal prop- erty which has, since his death, come into the state, and remains unadminis- tered. Note. Thus, the surrogate first issuing letters ancillary, on a non-resident's estate, acquires exclusive jurisdiction to appoint transfer tax appraisers. Mat- ter of Hathaway, 27 Misc. 474. 3. Where the decedent, not being a resident of the state, died without the state, leaving personal property within that county and no other; or leav- ing personal property which has, since his death, come into that county, and no other, and remains unadministered. Note. This gives jurisdiction not only to issue letters; but, even if none be issued, the surrogate may assume jurisdiction to assess the transfer tax, if the property, so within the county, be taxable. Matter of Fitch, 160 N. Y. 87, 93. 4. Where the decedent was not, at the time of his death, a resident of the state, and a petition for probate of his will, or for a grant of administration, under subdivision second or third of this section, has not been filed in any surrogate's court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter (Code Civ. Proc. §§ 2749-2801, relating to disposition of decedent's real property for the payment of debts and funeral expenses), is situated within that county and no other. See Matter of Buckley, 41 Hun, 106; Matter of Taylor, 13 N. Y. St. Rep. 176. § 2476, Code Civil Proc. Consequently in any case covered by the four subdivisions of this sec- tion, the petition must be presented to the Surrogate of the county hav- ing this exclusive jurisdiction. Subdivisions 3 and 4, however, suggest the possibility of a case where personal property comes or real property is found to be situated in another county or counties. In such case, while the Surrogates of such counties have concurrent jurisdiction, exclusive of all others than themselves, the one first assuming jurisdiction of the probate proceedings has a jurisdiction exclusive of every other Surrogate. This is by virtue of section 2477. Where personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in subdivision third of the last section ; or real property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section; the surrogates' courts of those counties have concurrent jurisdiction, exclusive of every other surrogate's court, to take the proof of the will and grant letters testamentary thereupon, or to grant letters of administration, as the case requires. But where a petition for probate of a will, or for letters of adminis- tration, has been duly filed in either of the courts so possessing concurrent jurisdiction, the jurisdiction of that court excludes that of the other. § 2477, Code Civil Proc. 36 surrogates' courts § 33. Jurisdiction of Surrogates over wills of residents.— The primary distinction indicated by section 2476 is between resident and non-resident decedents. Jurisdiction to take proof of the will of a decedent, who was a resident of the county at the time of his death, is wholly independent of as- sets. Matter of Taylor, 13 N. Y. St. Rep. 176. But it may be necessary for the Surrogate to determine the fact of residence, which he has power and which it is in fact his duty, to do. Bolton v. Schriever, 135 N. Y. 65. Where decedent was a lunatic, and her committee removed her from Put- nam County, her former place of residence, to his own residence in West- chester County, where she lived till she died, Surrogate Coffin held that her residence at death was in the latter county. Hill v. Horton, 4 Dem. 88, 92. While the domicile of the father is that of the child (Von Hoffman v. Ward, 4 Redf. 244, 259; Kennedy v. Ryall, 69 N. Y. 379, 386), it is not changed by a mere separation of the father and mother, there being no legal dissolution of the relation of husband and wife, yet the domicile of the husband is not necessarily that of the wife, if they have separated. Mat- ter of Florence, 54 Hun, 328. The original domicile will be presumed to con- tinue until a new one is acquired (Von Hoffman v. Ward, supra; Depuy v. Wurtz, 53 N. Y. 556), and a new one can be acquired only by actual resi- dence coupled with the intent there to abide. Grafiam v. Public Admin- istrator, 4 Bradf. 127; Matter of Thompson, 1 Wend. 43. Their intention to change is not sufficient. Von Hoffman v. Ward, supra; Graham v. Public Administrator, supra; Matter of Clarke, 40 N. Y. St. Rep. 12. Where there is doubt as to the decedent's residence the will may be resorted to, for the words of description may be significant in disputed cases as fixing whether at the time of its execution his domicile of origin had changed. Matter of Stover, 4 Redf. 82, 87. Where the petition contains distinct allegations as to testator's resi- dence, and the allegations are practically substantiated by proof, the decree admitting the will to probate is conclusive, and cannot be collaterally attacked. Bumstead v. Read, 31 Barb. 661. So if a petition is filed containing a distinct allegation of residence in that county, the Surrogate of such county acquires exclusive jurisdiction under section 2475 to try the question of residence. And if a petition is filed in another county alleging residence there, the Surrogate of that county ac- quires no jurisdiction unless the Surrogate first acquiring jurisdiction deter- mines the residence of decedent not to have been in his own county. Mat- ter of Buckley, 41 Hun, 106. § 34. County residence not state residence the test of jurisdiction.— Section 2476 expressly hinges the Surrogate's jurisdiction in case of resi- dents upon the residence of the decedent at the time of his death within the county of the Surrogate. Consequently a mere allegation in the petition that the testator at the time of his death was a resident of the State of New York is not sufficient to give jurisdiction. Oviedo v. Duffie, 5 Redf. 137. Not even where all the parties to the proceeding consent. Matter of Zerega, 58 Jiun, 505. Where JURISDICTION OF SURROGATES' COURTS, ETC. 37 testator's home was in Westchester County where he voted and paid taxes, but spent the winter months in New York City at his daughter's house, paying board to her, it was held by the General Term, reversing the Surro- gate of New York, that he was a resident of Westchester County, and that the New York Surrogate had no jurisdiction. Matter of Zerega, supra. See Matter of Walker, 54 Misc. 177, as to separate residence of wife for pro- bate purposes, citing Matter of Florence Will, 7 N. Y. Supp. 578. § 35. Same. — The decedent must have been a resident of the county in which the Surrogate had his court, even though insane when removed thereto from his former domicile in another county. Hill v. Horton, 4 Dem. 88. Thus when a petition showed that testator was United States consul at Cadiz, Spain, where he died, leaving a will, executed there; that he was a citizen of the United States, an inhabitant of the State of New York, temporarily resident at Cadiz, it was held that probate could not be granted as it did not appear when the petition was filed, on the papers, that the testator resided in New York County. Oviedo v. Duffle, 5 Redf . 137, 139. And this is because the court being one of special and limited jurisdiction its right must be shown and not be presumed. The facts giving jurisdiction not only to the court as a Surrogate's Court, but also to the court as the Surrogate's Court of a particular county must be averred in the petition; Matter of Hawley, 104 N. Y. 250, 262, and cases cited; Riggs v. Cragg, 89 N. Y. 480, 489, and cases cited; and a petition for probate, omitting such averments is defective. Estate of Duffie, 3 Law Bull. 49. As this question of inhabitancy is a jurisdictional one by statute, the Surrogate must deter- mine it when the application for probate is made. Such determination is conclusive when made, unless reversed on appeal. It, certainly, is not to be attacked collaterally. Bolton v. Schriever, 58 Super. Ct. 520, aff'd in 135 N. Y. 65. The Court of Appeals in the case just cited says (p. 73): "The actual death of an individual who, at the time of his death, was an in- habitant of the State is the jurisdictional fact. . . . Whether one or the other of the Surrogates' Courts in the various counties shall administer upon the estate .... is a question which the legislature has provided for, and it depends, among other things, upon the fact of inhabitancy. This fact the Surrogate to whom it is presented must decide, and if he decides that it exists, and upon evidence which legally tends to support his decision, under such circumstances we think it ought to stand until reversed. . . . The decision of the Surrogate of one county, after a hear- ing of the parties upon the question whether the case calling for the ex- ercise of the jurisdiction of his court, or the Surrogate's Court of some other county, exists or not, should be conclusive in all collateral proceed- ings." And see Harrison v. Clark, 87 N. Y. 572; Power v. Speckman, 126 N. Y. 354; Bumstead v. Read, 31 Barb. 661, citing many cases; Matter of Hathaway, 27 Misc. 474. The Code itself provides (§ 2473) after declaring the general jurisdiction of the Surrogate's Court, that where its decree is drawn in question collat- erally, and the necessary parties were duly cited or appeared, the jurisdic- 38 SURROGATES COURTS tion is presumptively, and, in absence of fraud or collusion, conclusively established by the allegation of jurisdictional facts in the petition. This relates only to such matters as are jurisdictional. As to these alone is the Surrogate's decision conclusive. Thus where a Surrogate appointed a mi- nor as administrator, the question of age not having been brought to his notice, and the statute forbidding such an appointment, held, in a collat- eral matter, absolutely void (eligibility not being a jurisdictional fact). Knox v. Nobel, 77 Hun, 230, 232. It is the residence at death, not the loca- tion of decedent's assets that conditions jurisdiction in cases of residents of this State dying testate or intestate. Matter of Taylor, 13 N. Y. St. Rep. 176. § 36. As to what constitutes residence sufficient to give the Surrogate of a particular county jurisdiction it is a matter of fact which the Sur- rogate must determine according to the usual rules in such connection. Matter of Cruger, 36 Misc. 477, 479. "Residence" must be equivalent to domicile, and must include both actual residence and intention. Ibid., cit- ing Dupuy V. Wurtz, 53 N. Y. 556. But they are not identical terms — "A person may have two places of residence, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence, as an inhabitant in a given place — while domicile requires bodily presence in that place, and also an intention to make it one's domicile." Opinion of Vann, J., in Matter of Newcomb, 192 N. Y. 238, 250. See whole opinion. "Residence, unless combined with intention, cannot effect a change of domicile." Ibid. Where evidence was contradictory and left Surrogate in doubt it was held that testator's declaration or recital in a will written by himself was conclusive. Matter of Stover, 4 Redi. 82. In Matter of Golden, 40 Misc. 544, there were two wills, and two contradictory recitals. The one was holographic, and recited Saratoga, where there was proof he in- tended to reside the rest of his life. The other, drawn by his attorney, recited Troy as his residence, where he had in fact resided for 40 years. The domicile of the child is that of the parent — as where the father had left England and settled in New York City, and after seven months sent for his wife and child. The child being killed by negligence on its arrival in New York, letters of administration on its estate were granted in New York County and suit brought for damages.. Held that the father's domicile was the child's and the suit properly brought. Ryall v. Kennedy, 67 N. Y. 379, 387. See also Isham v. Gibbons, 1 Bradf . 62 ; Graham v. The Public Admin- istrator, 4 Bradf. 127; Setter v. Straub, 1 Dem. 264, case of an orphan in- fant whose general guardian resided in New Jersey; Von Hoffman v. Ward, 4 Redf. 244. An infant, not being sui juris, cannot change its domicile. Matter of Dawson, 3 Bradf. 130, but her testamentary guardian, acting in good faith, can effect such change. Matter of Kiernan, 38 Misc. 394. Where one parent dies, the child's domicile is that of the sur- viving parent. Rvall v. Kennedy, swnra. Spp ns t.n pffp^t r.n Hom^n^io r.f JURISDICTION OF SURROGATES' COURTS, ETC. 39 intent shown in parent's will. White v. Howard, 52 Barb. 294. So where parents separate, not under decree of a court, the child's domicile is still that of the father, although actually removed by and in custody of the mother elsewhere. Von Hoffman v. Ward, supra. So also as to rule that original domicile continues until a new one is acquired. Same. Also Matter of Stover, 4 Redf. 82; Matter of Clark, 15 N. Y. Supp. 370; Matter of Zerega, 58 Hun, 505. See Dupuy v. Wurtz, 53 N. Y. 556; Hart v. Kip, 148 N. Y. 306; Matter of Brant, 30 Misc. 14. If husband and wife separate, the wife securing a divorce in another State, where she becomes domiciled, she retains such separate domicile. Divorce for Ms wrong makes it possible for her to acquire a new and separate domicile. Matter of Colebrook, 26 Misc. 139. In Matter of Walker, 54 Misc. 177, it was held that, for pro- bate purposes, husband and wife could have separate domiciles, in that in- habitancy at death was the Surrogate's test, citing Matter of Florence Will, 7 N. Y. Supp. 578; Bolton v. Schriever, 135 N. Y. 65. § 37. Indians on reservation. — In Dole v. Irish, 2 Barb. 639, it was held, construing the " Indian Law," that the estates of Indians could not be administered in Surrogates' Courts. It there appeared that there was a custom of distribution having the force of tribal law. In Matter of Jack, 52 Misc. 424, Hickey, Surr., was asked to probate the will of a Tuscarora residing on the reservation in Niagara County. He examined the Indian law, as amended by chap. 679, L. 1892, and followed Dole v. Irish. But in Matter of Printup, 121 App. Div. 322, the court held that letters of admin- istration could issue in the absence of proof that the particular tribe had ample governmental regulations amounting to the custom of distribution proved, in the Dole case, to exist among the Senecas. (See dissent by McLennan, P. J.) See also Peters v. Tall Chief, 121 App. Div. 309, rev'g 52 Misc. 617. § 38. Non-residence. — As to non-residents the provisions of the Code above cited fall under two heads: I. Decedent, non-resident, dies in the Surrogate's county. II. Decedent, non-resident, dies outside the State. The first is again subdivisible under three heads. Decedent, non-resident, dies in Surrogate's county; (a) leaving personal property within the State; (6) Or leaving personal property which has, since his death, come into the State; and remains unadministered; (c) Or where no petition for probate or for letters has been filed under subdivision 2 or 3 of § 2476 [i. e. (a) or (h), supra] but real property of de- cedent to which the will relates, or which is subject to disposition for the payment of decedent's debts is situated solely within the Surrogate's county. Note. See Matter of Fitch, 160 N. Y. 87, 92-95; Matter of Branson, 150 N. Y. 1. The second is also subdivisible under three heads. 40 subrogates' courts II Decedent, non-resident, dies without the State; (this makes the location of the assets within the State the prerequisite of jurisdiction. See Matter of Taylor, 6 Dem. 158) (a) leaving personal property within the Surrogate's county and no other, even though the .will be in the actual possession of the court of another county and cannot be produced before him. Rus- sell V. Hartt, 87 N. Y. 18; Booth v. Timoney, 3 Dem. 416; Matter of Seabra, 18 Wky. Dig. 428. If the property be stock of domestic corporations hav- ing different "principal places of business," the stock is deemed to be, under § 2476, subd. 3, in the county of such "principal place" and the Sur- rogate first acting in either county has jurisdiction. Matter of Arnold, 114 App. Div. 244. (b) Or leaving personal property which has since his death come into the Surrogate's county and no other, and which remains unadministered. See Estate of Duffy, 1 Dem. 202; Matter of Hopper, 5 Dem. 242. Note the words "and remains unadministered." Thus where a foreign executor re- mits funds to be paid under the will to a legatee in one of the counties of this State that is not, it would appear, property of decedent coming into State after his death within the meaning of the Code. See Sedgwick v. Ashburner, 1 Bradf. 105. (c) Same as I (c) above. § 39. Same subject. — The jurisdiction over wills of non-residents de- pends, therefore, under section 2476, upon property being in or being brought into the county of the Surrogate. Subdivision 4 relating to real property is very explicit. But the two prior subdivisions relate to personal property. Many of the decisions use the word "assets," but erroneously. The word " assets " is usually understood to relate only to personal property applicable to the payment of debts. White v. Nelson, 2 Dem. 265. But the words used in section 2476 cover every article of personalty. Consequently, jurisdiction, in a proper case, may be predicated on the existence of a Jap- anese folding chair (White v. Nelson), or a family Bible, or a pair of earrings, or an insurance policy (Johnson v. Smith, 25 Hun, 171), or a promissory note actually in the county. Matter of Hopper, 5 Dem. 242; Code Civ. Proc. § 2478; Beers v. Shannon, 73 N. Y. 292. The location of the property in the Surrogate's county is what gives him jurisdiction (Taylor v. Public Administrator, 6 Dem. 158), and it has been held that the fact that it was improperly brought in the county since decedent's death does not divest such jurisdiction. Matter of Hughes, 95 N. Y. 55; Parsons v. Lyman, 20 N. Y. 103. But, in Hoes v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435, 482, it was held "property brought into the State, for collusive purposes or temporarily, after owner's death, does not confer jurisdiction to grant ad- ministration." See also Matter of McCabe, 84 App. Div. 145. But the mere transmission by a foreign executor of funds into the State in pursu- ance of a decree for distribution by the court which appointed him does not warrant a Surrogate in basing on such funds a claim of jurisdiction here. Such funds cannot be subjected to a second administration. Sedg- JURISDICTION OF SURROGATES' COURTS, ETC. 41 wick V. Ashbumer, 1 Bradf . 105. To acquire jurisdiction under subdivision 4, i. e., on the basis of "real property of the decedent to which the will relates in the Surrogate's county," it is sufficient that the will purports to devise such real property. For purposes of jurisdiction the Surrogate need not try the issues of the testator's title as a preliminary to the proof of the will. Vreeland v. McClelland, 1 Bradf. 393, 415. If the devise is general, and has no sufficient description on its face to show that the property de- vised is within the particular county, it would be competent for the Surro- gate to hear testimony and satisfy himself on that point. Ibid. Finally it is important to note that the property on which the Surrogate bases his jurisdiction must be unadministered. So where an executrix under a Rhode Island will qualified in that State, and coming to New York City reduced to her possession as executrix, all the assets of her testator's es- tate that were in that county, and took them into actual manual custody, collecting in all moneys there held on deposit for his account, it was held there was no property within the county unadministered to sustain juris- diction of a proceeding begun by a petition filed after the executrix had reduced the property to her possession. Townsend v. Pell, 3 Dem. 367, citing Evans v. Schoonmaker, 2 Dem. 249, aff'd 31 Hun, 638. § 40. Jurisdictional facts averred. — When, therefore, a Surrogate's court has presented to it a petition setting forth averments of these jurisdic- tional facts, it may assume jurisdiction. It need not await the institution of probate proceedings in the place of testator's residence; but may act forthwith. Booth v. Timoney, 3 Dem. 416. Nor is any considerable amount of property requisite as a basis for an exercise of jurisdiction. In New York County a "Japanese folding chair" was held sufficient as such a basis, it being brought into the county after decedent's death. White v. Nelson, 2 Dem. 265. In this case the singular objection was made that, under 2 R. S. 83, § 9, six chairs must be excluded in reckoning a decedent's assets — and, further, that under the New Jersey law, in which State dece- dent was domiciled, the chair was also exempted. The Surrogate overruled this objection and exercised his jurisdiction. See also Matter of Hopper, 5 Dem. 242. See also Van Giessen v. Bridgford, 83 N. Y. 348, 355, where the court seems to think that a family Bible and a pair of earrings would be sufficient personal property on which to assume jurisdiction. And so also where, in 1863, A took out a policy of insurance in favor of, among others, B and his personal representatives, and in 1866, B died, and thereafter, in 1868, A moved into this State and died in Broome County, it was held: that the interest of B's representatives in the policy was personal property brought into the county after B's death and warranted the Surrogate of Broome County in assuming jurisdiction. Johnston v. Smith, 25 Hun, 171, 176. In 1850, Surrogate Bradford refused an application for probate (Koh- ler V. Knapp, 1 Bradf. 241, 245), where the decedent, an inhabitant of Ohio, becoming insane while on a visit to New York City, died there. At -that time the case of a non-resident, dying in the county, leaving no assets, but assets coming into the county after his death, was not, in terms, pro- 42 subrogates' cou-rts vided for in the statutes. After reviewing the old practice and holding that even though the Surrogate must exercise his powers in the manner prescribed by statute, yet in a case upon which the statutes were silent he should not decline jurisdiction when it is apparent that a proper occasion to invoke his authority has arisen, the Surrogate, deeming it such a casus omissus, nevertheless declined to exercise jurisdiction because the only assets claimed to have come into the county after decedent's death were (1) an old cloak lent to decedent by a friend by whom it was brought into the State, but subsequently after his death returned to Ohio; and (2) certain debts due the decedent from an estate in Connecticut, the administrator of which estate was in New York City. It was held, first, that the mere tem- porary presence of the cloak on bailment here was not sufficient to warrant jurisdiction, especially as it had since, and before filing the petition, been removed from the county; and second: that the debt mentioned consti- tuted an asset not in New York but in Connecticut. Under the Code, as it now stands, the cloak, though on bailment, would probably be held to constitute sufficient property to act upon, provided, of course, it were still in the county at the time of making application. An application for probate on the will of a non-resident in the State of New York should be denied when it appears that an executor or adminis- trator appointed in a foreign jurisdiction has reduced decedent's assets in the county to actual possession before the petition was filed. Townsend v. Pell, 3 Dem. 367, 369; Evans v. Schoonmaker, 2 Dem. 249, 250 (aff'd in 31 Hun, 638). But, on the other hand, once a New York Surrogate's Court has rightly assumed jurisdiction, no action of foreign courts can disturb it, or divest it of the control it has acquired over the executors or administra- tors it may have appointed, or prevent it from compelling them to account for the assets they are administering. Duffy v. Smith, 1 Dem. 202, 208. Nor, even, will this jurisdiction once assumed be disturbed by proof of the fact that the personal property, which came into the county after de- cedent's death, on the strength of which jurisdiction was exercised, was brought in irregularly and without authority of law. Matter of Accounting of Hughes, 95 N. Y. 55, and cases cited. The Surrogate of Kings County had assumed jurisdiction by virtue of subd. 4, § 23, art. 2, tit. 2, chap. IV, part 2 of the Revised Statutes. This was about 1883. In the case just cited the Court of Appeals held, in the first place, that where there were two administrators of a single estate, one in the place of decedent's domi- cile, and the other in a foreign jurisdiction, "whether the courts of the latter will decree distribution of the assets collected under the ancillary administration, or remit them to the jurisdiction of the domicile, is not a question of jurdisdiction, but of judicial discretion depending upon the circumstances of the particular case." Pages 59, 60, citing Harvey v. Richards, 1 Mason, 380; Parsons v. Lyman, 20 N. Y. 103; Despard v. Chur- chill, 53 N. Y. 192. In the second place, "conceding the illegahty of the removal of the assets from Pennsylvania the assets being in fact here, the Surrogate of Kings County acquired jurisdiction to grant admin- JURISDICTION OF SUBROGATES' COURTS, ETC. 43 istration. He was not deprived of jurisdiction because the assets were irregularly brought here, nor does that fact deprive him of jurisdiction to decree distribution." § 41. Location of debts as affecting jurisdiction. — We have observed above cases where the assets on which jurisdiction by a Surrogate in this State was sought to be based consisted of debts. There is now provision made in the Code in this connection which is important and which reads as follows: For the purpose of conferring jurisdiction upon a surrogate's court, a debt, owing to a decedent by a resident of the state, is regarded as personal property situated within the county where the debtor, or either of two or more joint debt- ors, resides ; and a debt owing to him by a domestic corporation, is regarded as personal property, situated within the county where the principal office of the corporation is situated. But the foregoing provision does not apply to a debt evidenced by a bond, promissory note, or other instrument for the pay- ment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt whether the debtor is a resident or a non-resident of the state, or a foreign or a domestic government, state, county, public officer, association or corporation, is, for the purpose of so conferring jurisdiction, regarded as per- sonal property, at the place where the bond, note, or other instrument is, either within or without the state. § 2478, Code Civil Proc. While this section is new yet the principle contained in the latter part is not. Thus the Court of Appeals in 1878, in Beers v. Shannon, 73 N. Y. 292, held that a debt upon a bond has its situs where the bond is, and not where the obligor resides (citing Laws of 1830, chap. 320, § 16), for purpose of Surrogate's jurisdiction. See also Matter of Hopper, 5 Dem. 242. § 42. Jurisdiction concurrent with other courts. — This topic can be most readily discussed as follows: Jurisdiction may be exercised in certain cases concurrently with a Surrogate's Court by 1. Federal courts. 2. Other state courts. 3. Other Surrogates' Courts. § 43. (1) With Federal courts. — The only jurisdiction a Surrogate's Court can exercise concurrently with the Federal courts is that over naturaliza- tion, which, however, it rarely if ever has used. See Matter of Harstrom, 7 Abb. N. C. 391; chap. 1, § 4. On the other hand, the Federal courts have asserted a right to jurisdiction in certain cases arising between citizens of different States involving the validity and construction of wills. They do not, and cannot, claim a probate jurisdiction, that is to say, an application to prove a will would not be removable to a Federal court. It is not a suit at common law or in equity. It is a proceeding, and, moreover, a proceed- ing in rem, which does not necessarily involve any controversy between parties. In its initiation all persons are cited to appear who are interested, regardless of the State of which they may be citizens. So the United States 44 SUBROGATES COURTS Supreme Court has said in tliis connection: "From its nature, and from the want of parties, .... the proceeding is not within the designation of cases at law or in equity between parties of different States of which the Federal courts have concurrent jurisdiction with the state courts under the Judiciary Act." Gaines v. Fuentes et al, 2 Otto (92 U. S.), 10, 21. And the court continues: "But whenever a controversy in a suit between such par- ties arises respecting the validity or construction of a will, or the enforce- ment of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the par- ties." Ihid., p. 22. It may be noted that Waite, Ch. J., and Bradley and Swayne, JJ., dissented, on the ground that to assume jurisdiction to revoke a probate was to all intents and purposes to assume probate jurisdiction which the Federal courts never had. See Broderick's Will, 21 Wallace, 503; Tracer v. Jennison, 106 U. S. 191, 195; Gaines v. New Orleans, 6 Wallace, 642. " The probate of a will duly received to probate by a state court of competent jurisdiction, is conclusive of the contents and validity of the will in this court." See Fouvergne v. City of New Orleans, 18 How. 470, 473. Mr. Rice in his work on "American Probate Law," p. 21, says: "Jurisdic- tion as to wills, and their probate as such, is neither included (in) nor ex- cepted out of the grant of judicial power to the Federal courts. So far as it is ex parte and merely administrative, it is not conferred, and cannot be exercised at all, until, in a case at law or in equity, its exercise becomes necessary to settle a controversy as to which of those courts have jurisdic- tion by reason of citizenship." But an original bill cannot be sustained in the Federal courts upon an allegation that the probate of a will was contrary to law (Tarver v. Tarver, 9 Pet. 174), because the courts "must receive the sentences of the state courts to which the jurisdiction over testamentary matters is committed as conclusive of the validity and contents of a will." Fouvergne v. New Or- leans, just cited. § 44. (2) With other state courts.— We have already discussed "an ac- tion to establish a will" as the nearest approach to probate jurisdiction which courts, other than Surrogates' Courts, enjoy in this State. LOST WILLS The Supreme Court used to have jurisdiction {the power to take proof of a lost or destroyed will at first resided solely in the Court of Chancery. 2 R. S. chap. VI, tit. 1, §§ 42, 63, 67; Bowen v. Idley, 11 Wend. 227; 6 Paige, 46; Collyer v. Collyer, 4 Dem. 53, 55; Buckley v. Redmond, 2 Bradf. 281, 286; Timon v. Claffy, 45 Barb. 438; Voorhis v. Voorhis, 50 Barb. 119, aff'd 39 N. Y. 463) which the Surrogates' Courts did not have to prove a lost or de- stroyed will. Since 1870 (L. 1870, chap. 359, § 8; also 2 R. S. 58, § 676) a lost or destroyed will can be admitted to probate in a Surrogate's Court (Code Civ. Proc. § 2621) ; but only in a case where a judgment establishing JURISDICTION OF SURROGATES' COURTS, ETC. 45 the will could be rendered by the Supreme Court, as prescribed in section 1865 of the Code, which reads: "But the plaintiff is not entitled to a judg- ment, establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness." (See part III, chap. IX.) ADMINISTRATION Mr. Pomeroy in his treatise on" Equity Jurisdiction " divides the differ- ent States into three classes as regards the question of equitable jurisdiction over administration. The third, in which he includes New York, he says is where the "equitable jurisdiction is not concurrent, but is simply auxil- iary or ancillary and corrective. The Probate Court takes cognizance originally of all administrations, and has powers sufficient for all ordinary purposes. Equity interposes only in special or extraordinary cases, which have either been wholly omitted from the statutory grant of probate juris- diction, or for which its methods and reliefs are imperfect and inadequate, or where its proceedings have miscarried and require correction." Pom- eroy's Eq. Jur. (2d ed.) § 1154, and read note to same on p. 1749. It has been held that the Supreme Court will decline to act where an adminis- trator, being sole next of kin, is claimed to have made a gift causa mortis to another of the entire estate. The estate must first be administered in the Surrogate's Court. Dickinson v. Col. Trust Co., 33 Misc. 668. ACCOUNTINGS See Part VIII, post Any court of equity has jurisdiction concurrent with that of Surrogates' Courts to compel executors, administrators and testamentary trustees to account and to direct and control their actions in relation thereto. Wood V. Brovm, 34 N. Y. 337, 345, citing Rogers v. King, 8 Paige, 210. Thus, where an executor or trustee denies the existence of a trust, a court of equity, which has power to construe a will whenever necessary to control or guide the action of a trustee, can exercise its jurisdiction and call upon him to account. For, so far as the property is effectually disposed of by the will, the executor holds it in trust for the legatees or beneficiaries, and, according to the law of this country, if there is any part of such property or any interest therein not effectually disposed of by the will, he holds it in trust for those who are entitled to it under the statute of distributions. Wager v. Wager, 89 N. Y. 162, 166, citing Bowers v. Smith, 10 Paige, 193; Williams on Executors, 294; 2 Story's Eq. Juris. § 1208; Hays v. Jackson, 6 Mass. 153. The seal of the Court of Probate is conclusive evidence of the factum of a will, but any court of equity has jurisdiction to construe the will for 46 SURROGATES COURTS the purpose of enforcing a proper performance of any trusts arising there- under. However, " where complete relief can be obtained in the Surrogate's Court, a court of equity may, in its discretion, decline, on that ground, to entertain an action for an accounting or other relief against executors." Wager v. Wager, supra, p. 168; Ludwig v. Bungart, 48 App. Div. 613, rev'g 33 Misc. 177; Chipman v. Montgomery, 63 N. Y. 221. ESTABLISHING VALIDITY, CONSTRUCTION OR EFFECT OF WILL This cannot, strictly speaking, be said to be a subject of concurrent jurisdiction of Surrogates' Courts and other courts, although it has been so treated. Under section 2624 of the Code the Surrogate is directed to try an issue, raised as to the validity, construction or effect of any disposi- tion of personal property contained in the will of a resident of this State executed in this State. Under section 1866 of the Code an action may be brought to determine the validity, construction or effect of a testamentary disposition of real property within the State, or of an interest therein which would descend to the heir of an intestate. These sections seem wholly distinct but they are interrelated by reason of a provision that the section " does not apply to a case, where the question in controversy is determined by the decree of a Surrogate's Court, duly rendered upon allegations for that purpose, as prescribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited in the special proceeding in the Surrogate's Court, before the commencement of the action." Code Civ. Pro. § 1866. Now, it will be seen that both these sections refer to the validity not of the will itself but of the testamentary disposition made in the will. The Court of Appeals has expressly denied jurisdiction over the former, except in actions to establish the will as provided in the Code. Anderson v. Ander- son, 112 N. Y. 104, 113. The policy of the court has been to deny juris- diction in equity in matters regarding wills separated from trusts. In Delabarre v. McAlpin, 71 App. Div. 591, it is held (see headnote) that the Supreme Court will not entertain an action, brought by persons claim- ing to be entitled to personal property as beneficiaries under an unpro- bated will, against a person claiming title to such personal property under a subsequent unprobated will of the decedent and also under a transfer executed by the decedent, to obtain an adjudication that the subsequent will and transfer were obtained by fraud and undue influence, and to re- quire the defendant to account to the plaintiff for such personal property, where it does not appear that the testatrix had any real property or that there are any circumstances which would prevent the Surrogate's Court from passing upon the question as to the validity of the two wills. The general policy of this State is and has been to commit to the Surro- gates' Courts the decision of questions upon the due execution of an alleged will. Anderson v. Anderson, 112 N. Y. 113; Higgins v. Union Trust Co., 32 N. Y. St. Rep. 197, aff'd 127 N. Y. 635. JUBISDICTION OF SURROGATES' COURTS, ETC. 47 See as to cases when real property is involved, Norris v. Norris, 32 Hun, 175; Wallace v. Payne, 14 App. Div. 597. It has been held that section 2624 gives no jurisdiction to Surrogates to determine the validity, construction or effect of a testamentary disposition of real property. Prive v. Foucher, 3 Dem. 339, 340; Matter of Fuller, 22 N. Y. St. Rep. 352. Yet the jurisdiction of the court was asserted to give judicial construction to a will of real property under certain circumstances. Matter of Marcial, 37 N. Y. St. Rep. 569. In conclusion it would seem that the concurrent jurisdiction is limited to bequests of personality or such interests in real property as are personal in their nature, the jurisdiction of chancery being asserted by Chancellor Walworth in 1843. Bowers v. Smith, 10 Paige, 193. See Wager v. Wager, 89 N. Y. 162, 167, 168; Read V. WiUiams, 125 N. Y. 560, 566. (See part III, ch. VIII.) See also Lud- wig V. Bungart, 48 App. Div. 613, where it was held the Supreme Court would not refuse jurisdiction merely because the Surrogate's Court had concurrent jurisdiction; but only in case it had already assumed to act in the premises (rev'g 33 Misc. 177). PREVENTING PROBATE We have said that the Surrogates' Courts have exclusive jurisdiction over probate of wills. Nevertheless, where testatrix had made an irrev- ocable will of certain property to one who had given it to her in her life- time in consideration of such will, a complaint was sustained which asked for a judgment restraining an executor named in a later will from proving it, and directing that the former will be adjudged irrevocable and entitled to probate. Cohh v. Hanford, 88 Hun, 21. APPOINTING GUARDIANS There can hardly be said to be concurrent jurisdiction in this regard, although every court of inferior or general jurisdiction has power to ap- point guardians ad litem of minors. Brick's Estate, 15 Abb. 12. Sections 468 to 477 of the Code, relating to infant parties, it is held are not applica- ble to Surrogates' Courts {Matter of Watson, 2 Dem. 642), as are sections 2530 and 2531. See Mattm- of Bolton, 159 N. Y. 129, 134, where the court discusses carefully the limits on the Surrogate's power over infants' in- terests. See § 1, ante. § 45. (3) Concurrent jurisdiction of Surrogates. JURISDICTION ONCE ASSUMED IS EXCLUSIVE Jurisdiction once duly exercised over any matter by a surrogate's court, excludes the subsequent exercise of jurisdiction by another surrogate's court, over the same matter, and all its incidents, except as otherwise specially prescribed by law. Where a guardian has been duly appointed by, or letters testamentary or of administration have been duly issued from, or any other special proceeding has been duly commenced in, a surrogate's court having 48 surrogates' courts jurisdiction, all further proceedings, to be taken in a surrogate's court, with respect to the same estate or matter, must be taken in the same court. § 2475, Code Civil Proc. See also § 2477 quoted, ante, in § 35. § 46. Effect of change in county lines. — Where the boundaries of a county are changed or a new county constituted, the Code provides against the apparent confusion of jurisdiction likely to arise. This is by section 2479, which is as follows: Where a new county has been heretofore, or is hereafter erected, or territory has been heretofore, or is hereafter, transferred from one county to another, the jurisdiction of the surrogate's court of each of the counties affected thereby, to take the proof of a will, or to grant letters, depends upon the locality, when the petition is presented, of the place, where the property of the decedent is situated, or where the event occurred, as the ease may be, which determines jurisdiction. If, before the erection of the new county, or the transfer of the territory, letters have been panted, upon the ground that the decedent died or resided within the county, the surrogate's court from which they were issued has exclusive jurisdiction of the estate, and of all matters incidental thereto; and if the place where the decedent died or re- sided is embraced within another county, certified copies of any papers or proceedings, filed, entered, or recorded in the surrogate's court thereof, must be furnished, on payment of the fees therefor, by the proper officer, to any per- son interested in the estate; and, upon the latter's request and payment of the fees therefor, the proper officer of the court so having jurisdiction must file, enter, or record the same, in like manner and with like effect as the originals. Where the letters were granted upon any ground other than the decedent's death or residence within the county, the jurisdiction of the court from which they were issued, remains unaffected by any change in the territorial limits of its county. § 2479, Code Civil Proc. In regard to this section it has been held that the words, "when the peti- tion is presented," in the first paragraph (which fix the time of the location of the property of the decedent or the occurring of the event which de- termines the jurisdiction of the Surrogate), refer to the time when the pe- tition is presented to the Surrogate upon the return of the citation and not to the time when the petition is filed in his office. Matter of McGinnis, 13 Misc. 714. So that if a new county should be erected or a transfer of ter- ritory be made subsequent to the filing of a petition and before the return day of the citation issued thereon, the matter should be brought on for a hearing before the Surrogate having Jurisdiction under this section and if necessary the proceeding be re-entitled in the proper court. (But see Mat- ter of McKeon, 26 Misc. 464, where, part of Westchester County having been annexed to New York County, Silkman, Surr., held it was annexed for municipal purposes only, and did not affect his judicial right to grant letters on estates of residents of such annexed district.) Accordingly where one of the changes occurs contemplated by section 2479, after the filing of a JURISDICTION OP surrogates' COURTS, ETC. 49 petition, but prior to the return day of the citation, it will be necessary to procure a formal order transferring the proceeding to the Surrogate of the county in which the matter is triable by reason of the change. This need not be on notice, but merely upon an affidavit showing the occurrence of the change of which presumably the Surrogate would take judicial notice, but showing the jurisdictional facts that either the property, the location of which determines the jurisdiction, or the event the occurrence of which de- termines the jurisdiction, is located or occurred in the territory erected into a new county or transferred from one county to the other. The Sur- rogate upon these facts being made satisfactorily to appear, must make an order transferring the proceeding to the court of the other Surrogate. This is by virtue of section 2480, which is as follows: A special proceeding pending in a surrogate's court, whose jurisdiction to entertain the same is taken away by the provisions of the last section, or in consequence of the erection of a new county, or the alteration of the terri- torial limits of a county, after this act takes effect, must be transferred, by order of the court in which it is pending, to the surrogate's court having juris- diction; and the latter court has the same jurisdiction, power, and authority with respect thereto, which the former court would have had, if the territorial limits of its county had not been changed. § 2480, Code Civil Proc. GENEBAL PBOVISIONS § 47. Presumption of jurisdiction. — Section 2473 of the Code pro- vides that "where the jurisdiction of a Surrogate's Court to make" in a case specified in section 2472 "a decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or ap- peared, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate's Court. The fact that the parties were duly cited is presump- tively proved, by a recital to that effect in the decree." Laws of 1870, ch. 359, § 1. See Pow^ v. Speckman, 126 N. Y. 354; Bumstead v. Read, 31 Barb. 661. The presumption of service of citation from such recital may be negatived, especially in case of infancy of one cited. Hood v. Hood, 85 N. Y. 561, 578. JURISDICTION NOT LOST BY DEFECT OF EECOBD The surrogate's court obtains jurisdiction in every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appear- ance of the necessary parties. [Dakin v. Demming, 6 Paige, 95, Matter of Graham, 39 Misc. 226.] An objection to a decree or other determination, founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually ex- isted, or the failure to take any intermediate proceeding, required by law to be taken, is available only upon appeal. But, for the better protection of any 4 50 surrogates' courts party, or other person interested, the surrogate's court may, in its discretion, allow such a defect to be supplied by amendment. § 2474, Code Civil Proc. § 48. Effect of adoption of Code. — Article 1, of title 1, of chapter 18, closes with section 2482, which declares the applicability of the provi- sions of the chapter in matters of jurisdiction to cases where a will was made or the decedent died whether before or after the chapter took effect. The provision is as follows: Each provision of this chapter, relating to the jurisdiction of the surrogate's court, to take the proof of a will, and to grant letters testamentary or letters of administration or regulating the mode of proceeding in any matter con- nected with the estate of a decedent, applies, unless otherwise expressly de- clared therein, whether the will was made, or the decedent died, before or after this chapter takes effect. All acts hitherto of surrogates and officers acting as such in completing by certifying in their own names any uncertified wills, and by signing and certifying in their own names, the unsigned and un- certified records of wills and of other proofs and examinations taken in the proceedings of probate therof, before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pre-existing statutory requirements. § 2482, Code Civil Proc. CHAPTER III CLERKS AND STENOGRAPHERS IN SURROGATES' COURTS §49. The clerk of the court. — The "Clerk of the Court" is distin- guished by the Code from the " Surrogates' Clerks." The latter as will be seen directly have purely clerical functions; the former has certain specific powers and may in certain designated cases act concurrently with the Sur- rogate or even in his place and stead. See also " designated " or " dep- utized" clerks when special power is conferred on them by the Code or statutes in-special counties. The sections are as follows: Clerk of surrogate's court; deputy clerk of surrogate's court; how appointed; their powers. By a written order filed and recorded in his office, which he may in like manner revoke at pleasure, a surrogate may appoint a clerk of the surrogate's court, and in any county containing a city of the second class, and in the county of Monroe, the surrogate may also appoint a deputy clerk of said court. Both said clerk and deputy clerk shall be paid by the county, and the board of supervisors or board of aldermen, as the case requires, must fix the compensation of the clerk and deputy clerk so appointed. The clerk and deputy clerk so appointed may severally exercise, concurrently with the surrogate, the following powers of the surrogate : 1. He may certify and sign as clerk of the court, or as deputy clerk of the coint, as the case may be, any of the records of the court, including the certifi- cate specified in section twenty-six hundred and twenty-nine of this act, and the records and papers specified in subdivision nine of section twenty-four hundred and eighty-one of this act. 2. He may issue any mandate, to which a party is entitled as of course, either unconditionally or on the fifing of any paper; and may sign, as clerk of the court, or as deputy clerk of the court, as the case may be, and affix the seal of the court to any letters or mandate issued from the court. 3. He may certify in the manner prescribed by chapter ninth of this act, a copy of any paper, required or permitted by law to be filed or recorded in the surrogate's office. 4. He may adjourn to a definite time, not exceeding thirty days, any mat- ter, when the surrogate is absent from his office, or unable, by reason of other engagements, to attend to the same. 5. He may take the acknowledgment or proof of any instrmnent, to be used or filed in the court of which he is clerk or deputy clerk. Said deputy clerk shall also act as confidential clerk to the surrogate. 6. The clerk of the surrogate's court of each of the counties of Kings and New York may, with the approval of the sinrogate or surrogates of his county, authorize or deputize one or more of the other clerks, employed in the surro- gate's office of his county, to sign his name, and exercise such of the other 51 52 surrogates' courts powers conferred upon him by this section, as he shall designate. The surro- gate may prohibit the clerk and deputy clerk, or either of them, from exer- cising any powers specified in this section, but the prohibition does not affect the validity of any act of the clerk or deputy clerk done in disregard of the prohibition. The clerk or deputy clerk or other person employed in any capacity in a surrogate's office, shall not act as appraiser, as attorney or coun- sel, or as referee or special guardian, in any matter before the surrogate. 7. The clerk of the surrogate's court, of each of the counties of this state shall immediately upon the filing in the office of the surrogate of any decree or order of such court directing the deposit of money, either actually in the hands of some person or persons or thereafter arising from the sale of real es- tate described in any such decree or order, with the county treasurer of his county, or in the case of the county of New York, with the chamberlain of the city of New York, or upon the filing in the said surrogate's office of any treas- urer's or chamberlain's receipt stating that a sum of money has been deposited with such treasurer or chamberlain, in accordance with a decree or order of any such surrogate's court, enter in a book to be kept in his office for that purpose, to be known as a court and trust fund register, the title of the pro- ceeding or the name of the estate in which such decree or order was made, together with a statement of the amount so deposited, or ordered to be de- posited, if said decree or order contains the amount of same, and the name of the person or persons, if any, to whom said money is ordered to be paid, and the date of the filing of the same or of such receipt as herein mentioned. § 2509, Code Civil Proc. Additional powers of clerks of surrogates' courts. The clerk of the surrogate's court, and in the county of Kings two other clerks to be designated by the surrogate, in addition to the powers emmierated in section twenty-five hundred and nine, may exercise, concurrently with the surrogate of the county, the following powers of the surrogate : On the return of a citation issued from such surrogate's court on a petition for the probate of a will, where no objection to the same is filed, or, where aU the persons entitled to be cited, sign and verify the petition, or personally, or by attorney, appear on the probate thereof, cause the witnesses to the will to be examined before him. Such examination must be reduced to writing, and for such pur- pose, they are hereby authorized to administer and certify oaths and affirma- tions in such cases in the same manner and with the same effect as if admin- istered and certified by the surrogate. § 2510, Code Civil Proc. Under section 2509 it is clear that the clerk of the Surrogate's Court may issue an ordinary citation, as that is a mandate to which a party is entitled as of course. Matter of Hwlhut, 43 Hun, 311 {dictum, but unquestionably correct) . But special citations such as one issued under section 2707 {q. v.), i. e., in proceedings to discover property withheld, are mandates to which a party is not entitled as of course; and section 2509 defines the mandates, which the clerk may issue as those to which a party is entitled as of course, either unconditionally or on the filing of any paper; thus citation for pro- bate is such a mandate but a citation under section 2707, for instance, is one to which the party is not entitled unless in addition to the filing of the paper, the Surrogate be satisfied that there are reasonable grounds for the CLERKS AND STENOGRAPHERS IN SURROGATES' COURTS 53 inquiry, and therefore the courts have held such citation not to be within the power of the clerk of the Surrogate's Court to issue. See Mouran v. Hawley, 2 Dem. 396. The difference between citations which the clerk may issue and those which he may not, appears to hinge on whether the issue of the citation in- volves the exercise of judicial power by the Surrogate; such powers cannot be delegated through any of his subordinates. The word mandate in sec- tion 2509 unquestionably includes a citation (see § 3343, subd. 2, and also § 2515, Code of Civil Procedure, which begins, "A citation or other mandate of a Surrogate's Court," etc.). Fithian's Estate, 3 N. Y. Supp. 193. "The citation is the mandate of the court and is the only foundation of the pro- ceeding. To it and the statute the respondent is bound to look for infor- mation and notice of the nature and scope of the proceeding; and his rights and those of all concerned depend entirely upon the terms of such information and notice." There is nothing in the section just quoted authorizing the clerk of the court to sign Surrogates' decrees. And a decree not signed by the Surro- gate has no validity. Munro's Estate, 15 Abb. 363; McNaughton v. Chave, 5 Abb. N. S. 226. Subsequent filing by the clerk gives no efficiency to such decree. The courts have gone so far as to hold, where the clerk of a Sur- rogate issued letters to an administratrix, using a blank which had been signed by the Surrogate, and it appeared that the Surrogate never saw the petition, or the petitioner, and never exercised any judicial function in respect to the matter, that the mere signature gave no validity to the letters and that their issuance by the clerk was inoperative and that one who had paid a debt to the administratrix under such invalid letters had no protection, and could be made to pay to the representative of the es- tate having valid letters. Roderigas v. E. R. Sav. Inst., 76 N. Y. 316. § 50. Surrogates' clerks. — Clerks as distinguished from "the clerk" are to be appointed in the various counties only as permitted by statute. The number of these Surrogates' clerks is of course dependent upon the volume of business to be transacted. In New York County they are assigned to various departments, such as probate department, administration depart- ment, accounting, guardian, records, etc. The chief clerk is the clerk of the Surrogate's Court, the other clerks including the heads of the departments are merely clerks in the Surrogate's ofjice. Chapter 530 of the Laws of 1884 is entitled, "An act in relation to the office of the Surrogate in the county of New York." By virtue of this act, several of the provisions of the Code already quoted, are made inap- plicable to the Surrogate's Court in the county of New York. The power of the board of aldermen of New York, who corresponded to the board of supervisors, over the court, over the clerks and assistants, over their sal- aries and over the fees in the office was completely abolished, the appoint- ment and removal of clerks is left entirely under the control of the Sur- rogate. He may appoint and at pleasure remove all clerks, officers, attendants and employees in his office or connected with his court, their 54 surrogates' courts number, duties and salaries are such as the Surrogate shall designate and approve, subject, however, to the revision of the board of estimate and ap- portionment, by which board the aggregate expenses of the office is to be fixed; the details of the annual statement are provided in the chapter (q.v.). § 51. Security or bond by clerks.— In New York County by the act just referred to the Surrogate was empowered to require security from his various assistants (section 5) for the faithful performance of their duty which provision is now made applicable to the whole State by section 2511 of the Code, which is as follows: A surrogate hereafter elected or appointed, and the sureties on his official bond, are liable for any act of the clerk or deputy clerk of the surro- gate's court in the discharge of his official duties, during the surrogate's term of office, as if the act was performed by the surrogate. The surrogate may take security from the clerk or deputy clerk, or either of them to in- demnify him against the liability created by this section. § 2511, Code Civil Proc. Chapter 530 of the Laws of 1884 also abolished the charging of fees ex- cepting fees for copies of papers filed or recorded in the office, excepting mileage where the Surrogate in a case prescribed by law or in any case upon the application of a party goes to a place other than his office or court room where he is required to hold court in order to take testimony. See subd. 1 of section 7. § 52. Disabilities of clerks. — By section 2509 already quoted the clerk or any other person employed in any capacity in a Surrogate's office is prohibited from acting as appraiser, attorney or counsel, or referee, or special guardian in any matter before the Surrogate. But it seems that this prohibition can be obviated by consent of all the parties. See decision of Ransom, Surr., In re Shipman Estate, 5 N. Y. Supp. 559, 562, holding that the person who had been appointed referee, an assistant to the Surro- gate, could not properly act except upon written consent of the parties; this case was decided in 1889. Prior to that decision there was a decision by Surrogate Rollins in 1885 (Benedict v. Cooper, 3 Dem. 362), resting upon the decision in the Estate of Thorn, 4 Monthly Law Bulletin, 48. The learned Surrogate construed section 2511 in connection with section 93 of the Code which by section 3355 are declared to have been enacted simul- taneously. Section 90 is as follows: Certain assistants not to be appointed referees, receivers or commission- ers. (Amended, 1977, 1896.) "No person holding the office of clerk, deputy clerk, special deputy clerk or assistant in the clerk's office, of a court of record or Surrogate's Court (nor any person holding a salaried office under the city or county government, or who receives money by virtue of an office which is a county charge), within either the counties of New York or Kings shall hereafter be appointed by any court or judge a referee, receiver, or commissioner, ex- CLERKS AND STENOGRAPHERS IN SURROGATES' COURTS 55 cept by the written consent of all the parties to the action or special pro- ceeding, other than parties in default for failure to appear or to plead." And although certain editions of the Code have an annotation to this sec- tion to the effect that the words, "or a Surrogate's Court" are superfluous, yet the decisions substantially hold that the written consent of all parties appearing does away with the effect of section 2509. The court has even gone further, and held {Benedict v. Cooper, supra^, that a stenographer does not have such a relation to the Surrogate's Court or office as to bring him within the scope of either section 90 or section 2509. It may therefore be stated to be the existing rule, "that upon written consent the prohibi- tion of section 2509 may be waived," and it is submitted that the decision above cited would be a sufficient authority for a special guardian in a proper case to join in the necessary written consent. See discussion, post, under § 2546, part II, chap. III. In probate proceedings in the county of New York on the written consent of all the parties appearing, which may be taken to include infants appearing by special guardian, the Surrogate may appoint a referee to take and report testimony; he is also given power by the same section (2546) in his discretion to direct an assistant to take and report the testimony; neither the referee nor assistant has power to pass upon the issues involved, although either has authority to rule upon the admissibility of evidence, where objection is raised. Matter of Allemann, 1 Connoly, 441. Where the Surrogate in his discretion exercises his author- ity to appoint his assistant to take and report the testimony, the consent of the parties is wholly unnecessary. The object of this amendment was carefully reviewed by Surrogate Ransom in the case just cited in the follow- ing language: "This amendment was prepared by my predecessor. Judge Rollins, and was adopted by the legislature at his instance. Its object was to enable the Surrogate to select an assistant to take such material, competent and relevant evidence, and such only, as pertained to the issues before the court, and thus afford the Surrogate some aid in disposing of the great and con- stantly increasing volume of business with which the court was being over- burdened, and to permit of its being transacted with reasonable expedition. The plain language and import of the amendment show that the selection of the assistant was left to the absolute discretion of the Surrogate. To say, however, that the effect of the enactment is that the person selected is permitted to be chosen to perform the simple clerical service of noting down, without authority to rule thereon, all the evidence which the parties may see fit to produce, with the objection raised thereto, would increase instead of relieving the labor of the court and defeat the very object sought to be accomplished by the amendment. The power now questioned has, with the approval of and in pursuance of the construction given to the provision by Judge Rollins, been invariably exercised by the assistant who was appointed by him to take testimony in probate cases. His construc- tion and practice accord with my own and are warranted by the amendment in question." 56 surrogates' courts § 53. Additional clerks— Section 2508 provides for the subordinate clerks in a Surrogate's office, and is as follows: Each surrogate may appoint, and at pleasure remove, as many clerks for his office, to be paid by the county, as the board of supervisors of his county, ■ or, in the city and county of New York, the board of aldermen, authorize him so to appoint. The board of supervisors or the board of aldermen, as the case requires, must fix the compensation of the clerk or clerks so appointed; and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the office of the surrogate. A surrogate may appoint, and at pleasure remove, as many ad- ditional clerks, to be paid by him, as he thinks proper. This section was repealed so far as said section relates to the county of New York by Laws of 1884, chap. 530, sec. U, which contains express authority for appointments in that county. § 54. Stenographers in Surrogates' Courts.— Provision is made for sten- ographers in Surrogates' Courts by sections 2512 and 2513, which together cover all the counties in the State, and are as follows: § 2512. Stenographer for Surrogates' Courts in New York and Kings. The surrogate of each of the counties of New York and Kings must appoint, and may, for cause, remove, a stenographer for his court, who is entitled to a salary fixed by law, and to be paid as the salaries of clerks in the surrogate's office are paid. The surrogate of Kings county may appoint, and at pleasme remove, all attendants and messengers, and court officers in his court, who must attend, from day to day, the terms and sittings of the court to preserve order, and to perform whatever services may be required of them by the sur- rogate. The surrogate of Erie county may appoint, and at pleasure remove, one court officer to attend his court and to perform such duties in respect thereto as the said surrogate may prescribe. Such officer shall possess al the powers of officers designated by sheriffs to attend upon such courts, and shall each receive a salary not to exceed one thousand two hundred dollars a year to be paid in equal monthly payments by the treasurer of the County of Erie. § 2513. Id.; in other counties. The surrogate of each county, except New York, Kings, Hamilton, Queens and Richmond, may, in his discretion, appoint, and at pleasure remove, a stenographer for his court, who, except in SuUivan county, shall receive a salary to be fixed by such surrogate, not exceeding in counties having a population less than thirty thousand, eight hundred dollars per annum; in counties having a population of thirty thousand and not more than fifty thousand, not exceed- ing one thousand dollars per annum, and in counties having a population exceeding fifty thousand, not exceeding twelve hundred dollars per annum, except that in counties in which are located cities of the second class, or in counties in which are located three cities of the third class, such salary shall not exceed eighteen hundred dollars per annum; and in any county wholly contain- ing a city of the first class, such salaries shall not exceed two thousand dollars per annum. The population of the several counties shall be determined by the last preceding census. If a regular stenographer is appointed in SulUvan county, his salary shall be five hundred dollars per annum. The board of supervisors shall provide for the payment of such salary in the same manner as the other county expenses are paid. Such stenographer shall deliver to the CLERKS AND STENOGRAPHERS IN SURROGATES' COURTS 57 surrogate of the county a full copy of all the minutes taken by him; and on the receipt of his fees, not exceeding three cents per foUo, a like copy to the party, or each of the parties, to the proceeding in which the minutes were taken, except that in the counties of Onondaga and Monroe such fees shall not exceed six cents per folio. When not actually engaged in the discharge of his duties as stenographer, he shall perform such clerical duties in connec- tion with the surrogate's court as the surrogate directs. In counties wherein the surrogate is also county judge, the stenographer so appointed shall be the stenograipher of the county court, and shall perform the duties pertaining to a stenographer of the county court without additional compensation. In counties where, for any cause, a regular stenographer for his court has not been appointed, as provided by this section, the surrogate may, in individual proceedings requiring the services of a stenographer, appoint a stenographer who shall be paid a reasonable compensation, certified by the surrogate in every case in which he takes notes of testimony, from the estate or matter in which such services are rendered. Subd. 2 relates merely to monthly salary in Sullivan County. It will be seen from these sections, which have not been judicially con- strued, except in the Cooper case above referred to, which was in New York County, that in the counties outside the Greater New York the stenog- rapher, when not actually engaged in the discharge of his duties as stenog- rapher, shall perform such clerical duties in connection with the court as the Surrogate shall direct. The reasoning of the Cooper case, therefore, distinguishing a stenographer from clerks or other persons employed, would not be applicable. For purposes of convenience and economy, the practice that has grown up is certainly unobjectionable, and in the absence of in- dependent disqualifications on the part of the persons consented to or designated, the regularity of a reference had thereunder would probably be sustained. § 55. Duties and rights of stenographers. § 2541. Duly of stenographer. The stenographer of a surrogate's court must, under the direction of the surrogate, take full stenographic notes of all proceedings, in which oral proofs are given, except where the surrogate otherwise directs. The testimony must be legibly written out at length by him, from his notes ; and the minutes thereof, as so written out, must, after being authenticated, as prescribed in the next section, be filed in the surrogate's oflace. Stenographers in Surrogates' Courts are subject generally to the same duties as those in other courts of record. Thus it has been held, that, as they are only authorized to charge the prescribed legal rate to counsel for furnishing an official copy of the minutes, an agreement to furnish said copy more expeditiously for an advance in the legal rate cannot be en- forced. M'Carthy v. Bonynge, 12 Daly, 356. See Wright v. Nostrand, 58 How. Pr. 184; Guth v. Dalton, id. 289. See § 3311 as to fees per folio which the stenographer may charge, and as to Surrogate's power to "order that the fees for such record copy be paid out of the estate to which the proceeding relates." And see § 2558, 58 * surrogates' courts subd. 3 as to ordering copy of minutes to be furnished to contestant's counsel and the expense charged to the estate, if contest be in good faith. And a stenographer wrongfully refusing to give a copy of the minutes except on receipt of excessive fees, may be punished for contempt. Cava- nagh v. O'Neill, 20 Misc. 233. The Surrogate may entertain the application of a stenographer, e. g., who has reported an accounting before a referee, for the payment of his fees, and, in a proper case, direct payment thereof out of the estate. Matter of Maritch, 29 Misc. 270. See also Matter of Hurd, 6 Misc. 171; Estate of Maria Smith, Surr. Decs. 1894, p. 329; Estate of Philip McDowell, Surr. Decs. 1896, p. 139; Matter of Henry W. Andress, Surr. Decs. 1898, p. 396. § 56. Stipulations as to fees. — In the Maritch case above cited it was held that parties to such a proceeding may stipulate that stenographer's fees be paid out of the estate. One subsequently intervening is not bound by such stipulation, and cannot be made to contribute to such payment. Ibid. Strictly speaking, the representative and other parties are individually liable, Russell v. Lyth, 66 App. Div. 290; Bottome v. Alberst, 47 Misc. 665, and the position of the representative is that while he cannot bind the estate by his contract yet, in any reasonable case, the payment of the ex- penses of a reference will be allowed. But the legal effect of a stipulation that these fees be taxed and paid out of the estate is not so much to fore- close the Surrogate, as to operate as an agreement not to hold the repre- sentative individually. See Bottome v. Nealy, 54 Misc. 258 (App. Term); 124 App. Div. 600. See also Harry v. Hilton, 11 Abb. N. C. 448; Kesler V. Bell, 48 Misc. 428. The attorney's stipulation binds the client. Bottome v. Nealy, supra. The committee of an incompetent is held to be a "party" in the sense that he may be bound. Bottome v. Alberst, supra. A special guardian should not join in the stipulation for fees; but he may acquiesce therein, by not opposing, and leave the Surrogate, on taxation, to dispose of the matter. PART II CHAPTER I PEOCEEDINGS IN SUEEOGATES' COURTS § 57. No action in Surrogates' Courts. — Surrogates have no juris- diction over civil actions. The Code's distinction is not clearly drawn be- tween actions and special proceedings. It defines civil actions, of which there is but one form (Code Civ. Proc. § 3333; id. § 3339) as "an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement and protection of a right, or the redress or prevention of a wrong." Any other prosecution of a party for either of such purposes above named is a special proceeding. Ibid. § 3334. This appears to make the dis- tinction hinge on the word ordinary. But this is not satisfactory in point of clearness.' Nothing is gained to that end by saying a special proceeding is an extraordinary or unordinary prosecution. A clearer idea of the differ- ence can be had. A civil action must begin with a summons. By its is- suance the court may acquire a divestible jurisdiction for purposes of provisional remedies but by its service on the other party the action is said to be commenced. Code Civ. Proc. § 416. Thus the party seeking relief brings the other into a court of justice by his own act alone. This is not true of a special proceeding. The party seeking relief in such a proceeding applies to the court which by its citation or by its order to show cause brings the other party before it. The only exception is in regard to motions or applications for orders, notice of which may be served by one party upon another, which notice of motion brings the adverse party before the court to oppose the granting of the relief referred to in the notice. But this is more an apparent than a real exception, in that such a proceeding by motion is rarely if ever a primary but only an incidental proceeding, entitled in the primary or original proceeding, and capable of being made only by a party thereto. Lafferty v. Lafferty, 5 Redf. 326, 329, citing Foster v. Foster, 7 Paige, 48, 52. Take the case of an application for the appointment of a temporary administrator pending a long contest. Here a citation issued after petition is not necessary. But the motion for an order making such an appointment must be made by a party to the origi- nal proceeding, that is, the primary probate proceeding, and notice given to every other party thereto. § 58. Proceedings, how commenced. — The Code itself expressly pro- vides (§ 2516): "Except in a case where it is otherwise specially prescribed 59 60 SURROGATES COURTS by law, a special proceeding in a Surrogates' Court must be commenced by the service of a citation issued upon the presentation of a petition. See Matter of Gregory, 13 Misc. 363. But, the presentation of the petition operates as does the issuance of the summons, since thereby the court ac- quires, in the language of the Code (§ 2516) jurisdiction to do any act which may be done before actual service of the citation. There are, of course, proceedings in Surrogates' Courts not begun by citation, but they are not special proceedings. They might be called incidental proceedings, e. g., filing objections to an executor's qualifying. This presents an issue which the Surrogate must try and determine. But his order is not appeal- able to the Court of Appeals. It is a discretionary determination and not a final order in a special proceeding. See Matter of Baldwin, 158 N. Y. 713. But so far as any provisions of the Code are concerned which limit the time for the commencement of a special proceeding, the presentation of the petition and not the service of the citation commences the proceeding, provided the citation is properly served or its publication duly commenced within sixty days after it is issued. The presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act, which limits the time for the commencement thereof. But, in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition, must, within sixty days thereafter, be served, as prescribed in section 2520 of this act, upon the adverse party, or upon one or two or more adverse parties, who are jointly liable, or otherwise united in interest; or, within the same time, the first publication thereof must be made, pursuant to an order made as prescribed in section 2522 of this act. § 2517, Code Civil Proo. Thus, where the statute limits the right of petition for revocation of probate of a will to one year the petition need only be presented on the last day. The citation must be served within sixty days thereafter (Pryer V. Clapp, 1 Bern. 387, 389, where the petition was filed in time, that is, within a year after the recording of the decree admitting the will to pro- bate, but the citation though promptly issued was not served until 100 days later. Held that the Surrogate thereby lost his jurisdiction) or the petitioner loses the benefit of section 2517. By "thereafter" is meant after the issuing of the citation which the Surrogate is directed to issue upon the presentation of the petition. Should this citation prove defective or there be a failure to serve all the necessary parties he may issue a sup- plemental citation, after and in place of the other. If that is served or publication commenced within sixty days after the supplemental citation was issued, the proceeding will be regular. Matter of Will of Bradley, 70 Hun, 104, 110. This case cites Matter of Will of Gouraud, 95 N. Y. 256, and professes to overrule the case of Pryer v. Ch.'pp, above cited. There is, however, a distinction, for in that case it appears that the citation was not served within sixty days of its issuance and that the party had to suffer for his own lack of due vigilance, while in the two cases of Bradley PROCEEDINGS IN SURROGATES' COURTS 61 and Gourand the citation appears to have been served properly, but there was delay in issuing it by the Surrogate, for which delay the petitioner could not well be made answerable. This case further overrules Fountain V. Carter, 2 Dem. 313, which held that section 2517 gave the Surrogate no power to extend by order the sixty days referred to. It further overrules In re Bonnett, 1 Connoly, 294. The Gourand case was decided before sec- tion 2517 was enacted. So the authority of the Bradley case rests not on it but on the provisions of section 2481 of the Code under which the Sur- rogate has power to issue a supplemental citation, which power is by such decision made available in this connection to extend the time limited by statute within which service should be made. § 59. The petition in a special proceeding corresponds to the com- plaint in an action. It contains a plain and concise statement of the facts constituting the claim of the petitioner. The court allows oral petitions, but written pleadings may be required. Thus section 2533 is as follows: The surrogate may, at any time, require a party to file a written petition or answer, containing a plain and cohcise statement of the facts constituting his claim, objection, or defence, and a demand of the decree, order, or other relief, to which he supposes himself to be entitled. The surrogate may require the petition or answer to be verified, and a copy thereof to be served upon any other person interested. A party who fails to comply with such a require- ment may be treated as a party in default. Except where such a requirement is made, or in case where a written petition is expressly required by this act, a petition, or the answer thereto, may be presented orally ; in which case, the substance thereof must be entered in the records of the courts. § 2533, Code Civil Proc. As a matter of ordinary practice, and as a regular rule in the county of New York, the petition is always in writing, and required to be verified. Rule 14, Surr. Ct. Rules. In the absence of a standing rule of the Surro- gate's Court of any county or of the requirement of the Surrogate as pro- vided for in section 2533 an oral petition is sufficient for jurisdictional purposes, only it is required that the substance thereof must be entered in the records of the court. Except in a case of urgency it is suggested that the careful practitioner, even where oral pleadings are allowed, will reduce his to writing. Van Vleck v. Burroughs, 6 Barb. 341. Where a written pleading is required by the Surrogate, a failure to com- ply with such requirement may be treated as a default; as may also a failure to comply with a further requirement that it be verified, and a copy served on any other party in interest. § 60. Formal requisites of petition. — The petition, when made in writ- ing, should conform to the fundamental laws of pleading applicable to complaints. It should be clear and concise. Its allegations should be in form stated to be made by the petitioner, and unless stated to be made on information and belief they will be regarded as being made on the knowledge of the petitioner. Code Civ. Proc. § 524. A petition must not contain inconsistent claims; that is to say, improp- 62 SURROGATES COURTS erly unite causes of action. See Cocks v. Barlow, 5 Redf. 406, where peti- tioner asked to have executors removed for misconduct and also asked that they be directed to invest certain funds as directed in the will. So there must not be a variance between citation and petition as to relief de- manded. Such variance can be cured by amendment. Spencer v. Popham, 5 Redf. 425. The tendency of the courts is to be liberal in allowing reasonable amend- ments. Matter of Rubens, 117 App. Div. 523. The object is to simplify and clarify the issues to be determined. But arbitrary amendments without leave, or those which change the nature of a proceeding to which parties have been brought in by citation are discountenanced. Matter of Sheldon, 118 App. Div. 488. In this case the original petition was for letters c. t. a. It failed to show petitioner's nominee's right to letters, or whether any other had prior right. Objections were accordingly filed. Thereupon petitioner filed an "amended petition," on which, however, no citation issued. A decree of the Surrogate based on this "amended" petition was reversed on the ground the only petition properly in court was insufficient to sustain the decree made. The rules for verification are the same as for pleadings in civil actions. Substantial compliance with the Code requirements is sufficient. Thus a petition where in the verification the affiant says, "she knows the contents thereof and that the same are true," is good. The Court of Appeals held this to be equivalent to saying that "they are true to her knowledge." Matter of Macauley, 94 N. Y. 574, 577. The provisions of sections 523, 524, 525 and 526 of this act apply to a verification made pursuant to this chapter, and to the petition or other paper so verified, where they can be so applied in substance, without regard to the form of the proceeding. § 2534, Code Civil Proc. Thus, where a party to a proceeding in the Surrogate's Court is not within the county where the attorney resides (or, if the attorney is a non- resident, the county where he has his office), the verification may be made under section 525, by the attorney. Moorhouse v. Hutchinson, 2 Dem. 429, 434. When so made it must conform to the requirements of section 526, that is, it must set forth the grounds of his beUef , as to all matters not stated upon knowledge, and the reason why it is not made by the party. When the attorney in verifying a pleading swears that all the allegations are within his personal knowledge, it has been held that his failure to as- sign a reason why the party did not verify it was merely an irregularity. Belts V. Krindell, 20 Abb. N. C. 1; Ross v. Longmuir, 15 Abb. 326. Surro- gate RoUins held (Moorhouse v. Hutchinson, supra), that where "the at- torney of record who signs the petition alleges in his affidavit of verifica- tion that the petition is true, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true, and also swears that he verifies the petition because of the absence of the petitioner from the State, and declares that the grounds PROCEEDINGS IN SURROGATES' COURTS 63 of his belief in the truth of the averments in the petition are the records of the Surrogate's Court, letters of the parties concerned, and conversa- tions with them, it is to be held a substantial compliance with the statute." § 61. The citation. — Instead of preceding the petition, as the summons does the complaint, the citation is prayed to be issued in the petition. Upon the presentation, then, of the petition the Surrogate issues a cita- tion. This citation is a mandate of the court directed to all the necessary parties to the proceeding requiring them to appear and show cause why the relief demanded by petitioner, which should be specified therein, should not be granted. The relief so described should be identical with that claimed in the petition. Should it inadvertently appear otherwise, appli- cation should be made to have it amended so as to conform to the petition or vice versa as the facts may require, which amendment the Surrogate has power to allow. Matter of Soule, 6 Dem. 137, 140; Spencer v. Popham, 5 Redf. 425, 428, under section 2538 which reads: "Except where a con- trary intent is expressed in, or plainly implied from the context of, a pro- vision of this chapter, the following portions of this act; to wit: title first" (i. e., §§ 721-730, entitled "Mistakes, omissions, defects and irregulari- ties") " and articles third and fourth of title sixth of chapter eighth " (i. e., §§ 796-809, entitled "Service of papers") ". . . . apply to Surrogates' Courts and to the proceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form." It is indeed his duty to disregard any error or defect in proceed- ings which does not affect the substantial rights of parties. A citation must be made returnable upon a day certain, designated therein, not more than four months after the date thereof; and must specify whose estate or what subject-matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation. Where the name, or part of the name, of either of them cannot be ascertained, that fact must be stated in the citation. § 2519, Code Civil Proc. § 62. When names are unknown. — In proceedings in Surrogates' Courts, the names of one or some of the parties required to be cited may at the time be wholly or partly unknown to the petitioner. In fact it is sometimes prescribed that a petitioner must pray that creditors, or next of kin or heirs, or devisees, or other persons constituting a class, be cited in the particular proceeding. When this is the case, which will be discussed further on, the Code provides (§ 2518) that "the petitioner must set forth in an afladavit (a petition duly verified, is deemed an affidavit within the meaning of this section, ibid.)," the names of each of them, unless the name or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him; in which case that fact must be set forth, and the Surrogate mtist thereupon inquire into the matter. For the purpose of the inquiry, he may, in his discretion, issue a subpoena, requiring any per- son to attend before him to testify respecting the matter. If he is sat- isfied, upon the allegations of the petitioner, or after making the inquiry 64 surrogates' courts that the name of one or more of the persons to be cited, cannot be ascer- tained with reasonable diligence, the citation may be directed to that per- son, or those persons, hy a general designation, showing his, her or their connection with the decedent, or interest in the property or matter in question; or otherwise sufficiently identifying the person or persons in- tended. A citation, thus directed, has the same force and effect, as if it was directed to the person or persons intended, by their names; and where the person or persons so intended are duly cited, in any manner pre- scribed by law, the decree binds them as if they were named therein. A petition, duly verified, is deemed an affidavit within the meaning of this section. § 63. General formalties of citation. — It is the duty of the practi- tioner to see to it that all necessary names and facts are contained in the citation. This he does by means of the petition, which, when verified, serves as the affidavit above required in cases of unknown names of neces- sary parties, and which contains the statement of the petitioners' claim. But apart from these matters of substance and from the requirements re- ferred to in § 3 {supra), there are still further rules as to form, which must be observed by the Surrogate issuing the citation. And first, technically, the citation issues after the entry of an order, made on the prayer of the petitioner that citation issue, directing its issue. Practically, few Surrogates insist on such procedure. The practice in New York County is to issue the citation forthwith, and later to enter an order in a regular book kept for the purpose. This practice of itself is evidence of the inutility of the order. See opinion of Surrogate Coffin in In re Mer- ritt's Will, 5 Dem. 544, "Although perhaps not strictly necessary an order for the issuing of the citation is usually entered." The issuing of the cita- tion is, after all, not the act of the party, or of his attorney, but the very act of the Surrogate himself, and we fail to see the propriety or purpose of requiring that officer, to whom the prayer of the petitioner is addressed, to make a formal order directing himself to issue a citation when the Code is practically a standing order to him to issue such citation upon the pres- entation of the petition. And, secondly, the citation is prepared by the Surrogate, or by his clerk, and no one else, not even the petitioner's attorney may insert anything therein unless so directed to do by the Surrogate, when it becomes his own act. Thus where, after the issuance of a citation, it was discovered that a necessary party was not named therein, and his name was there- upon inserted, but not by the clerk who had prepared the citation, it was held that the Surrogate acquired no jurisdiction over such party. Boerum V. Betts, 1 Dem. 471. Thirdly. The citation runs in the name of the People, is addressed to the parties required to be cited, by name, or, as before explained, as a class, for example, "to all persons interested in the estate of James Brown, late of the city of New York, deceased, as creditors;" and requires their per- sonal appearance before the Surrogate who issues the mandate (Code Civ. PROCEEDINGS IN SURROGATES' COURTS 65 Proc. § 2515) "A citation or other mandate of the Surrogate's Court must, except where it is otherwise specially prescribed by law, be made returnable before the Surrogate from whose court it was issued, [and may be served or executed in any county]" in his court on a day certain not later than four months from its date, then and there to show cause why the particular relief prayed in the petition should not be granted. It is now customary to add a clause, whenever any of the persons cited are or may be infants, requiring them to appear by their guardians, if they have any, and if not, to appear and ask for the appointment of one ad litem, and further notifying such infants that upon their failure so to do, on or before the return day the Surrogate himself will appoint one to pro- tect such infant's interest. See Price v. Fenn, 3 Dem. 341, 345. The cita- tion must be attested by the seal of the Surrogate's Court and signed by the Surrogate himself or the clerk of the court. § 64. Form of petition, order and citation. Surrogate's Court, County of Title. Petition for Cita- tion; General Form. To the Surrogate's Court of the county of The petition of residing at in and county of respectfully shows: I. That your petitioner is (state in what relation the petitioner stood to the decedent), deceased, and as such is interested in the above-entitled proceeding. Note. Or state II. That letters testamentary (note) on the estate whatever facts are of deceased were granted by the Surrogate of the county of necessary to en- New York to on the day of 19 . title the petitioner jjj rj,-^^^ ^^^^ ^-^^^^ ^la^ elapsed since his ap- to the citation pointmgnt, and the said has (state briefly praye or. ^^^^ ^^^ party to be cited has done or failed to do). Your petitioner therefore prays that a citation may be issued requiring the said to appear in this court, and show cause why he should not (state briefly the relief desired). (Signature) Petitioner. Surrogate's Court Caption. Present : Hon. Surrogate. Order for Citation. Title. | On reading and filing the petition of praying for (describe relief asked briefly). It is Ordered, that a citation issue to (give names gg surrogates' courts of persons mentioned in petition), mentioned in said petition {add, if necessary, being all the persons interested, or all the heirs and next of kin, or whatever description will designate the persons or members of a class who must be cited) returnable the day of 19 at o'clock in the forenoon requiring them and each of them then and there to show cause why the reUef prayed for in said petition should not be granted. (Where there are infants, add and also that said citation contain a notice to said parties who are infants, to then and there show cause why a special guardian should not be appointed by the Surrogate to appear for them and protect their interests in the above-entitled proceeding.) Surrogate. THE PEOPLE OF THE STATE OF NEW YORK, BY THE GRACE OF GOD, FREE AND INDEPENDENT. Citation; General To Form. 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, at the Surrogate's Court of said County, held at the New York County Court House in the City of New York, on the day of at half-past ten o'clock in the forenoon of that day, then and there to and such of you as are hereby cited, as are under the age of twenty-one years, are required to appear by your guardian, if you have one, or if you have none, to appear and apply for one to be appointed, or in the event of your neglect or failure to do so, a guardian will be appointed by the Surrogate to represent and act for you in the proceeding. In Testimony Whereof, We have caused the Seal of the Surrogate's Court of the said County of New York to be hereunto affixed. Witness, Hon. a Surrogate of our said County, at the City of New York, the T S day of in the year of our Lord one -— —' thousand nine hundred and Clerk of the Surrogate's Court. Surrogate's Court, County of New York. Note. The cita- j^ ^j^g matter of the estate of ) Proof of service of citation, tion, with sworn t-> i c ,i.t •. c c ■ Deceased. \ (Note.) proof of service, ' ^ ' or with admission duly acknowledged State of and certified in like County of manner as a deed to be recorded in the County, must be of being duly sworn, says that he is over the age of returned to the twenty-oneyears; that he made personal service of the within PROCEEDINGS IN SUBROGATES' COURTS 67 Clerk of the Sur- citation in the above-entitled special proceeding on the per- rogate's Court be- sons named below, whom deponent knew to be the persons fore one °''^'°*''^ mentioned and described in said citation, by dehvering to p. M. on 6 ay ^^^ leaving with each of them personally a true copy of said i J -D 1 r, citation (note) as follows: On turn day. Rule 2. ^ ' PLACE DATE OF SEKVICB Note. In New name York County, un- less the proceeding he one excepted by ^and where there are infants, add) Rule 3 (see § 866, ^^ deponent further says that the above named post), add, and of the petition (or other papers de- ^'® infants under the age of fourteen years, and that he scribing them) up- served said citation on said infants personally and also by on which it was dehvering to and leaving with the of said issued. infant with whom he resides a copy, thereof on the day of 190 at N. Y. Sworn to before me this day of 190 Surrogate's Court, Affidavit of Mailing Erie County, New York. Citation and Order in the matter of under § 2524. Deceased. State of New York, County of Erie, of the of in the said County of Erie, being duly sworn says that he is of the age of eighteen years and up- wards, that on the day of 190 he deposited in the Post-Office in the of in said County of Erie, copies of the citation issued in the above-entitled proceeding, and of the order for the publication thereof, bearing date the day of 190 made by the Hon. LOUIS W. MARCUS, as Surrogate of said County of Erie in said proceeding, each contained in a securely closed postpaid wrapper directed to the person to be served, at the place specified in said order, to wit : Names. Addresses. And deponent further says, that each wrapper contained a copy of said citation and of said order, and that copies of said citation and order are hereto annexed. Sworn to before me this day of 190 § 64a. Where person required as a party is unknown.— The Code, in its provisions regarding the summons, covers two contingencies as to parties required to be therein named: The first, where the name is unknown, and a fictitious name has to be used; the second, where the person himself 68 surrogates' courts is unknown, when he must be designated as unknown and also described in a manner tending to identify him. Code Civ. Proc. § 451. There is a similar distinction in regard to citations. Section 2518, already quoted, covers cases where there is knowledge by petitioner that persons exist as creditors, or as legatees, or as next of kin, but there is ignorance of their names, in whole or in part. They must be brought in, for section 2518 says they are "necessary" parties. And section 2523 also refers to persons unknown to petitioner, such as one or more unknown creditors, next of kin, legatees, heirs, devisees, etc., but thought to exist as members of a class; such persons must also be designated by a description tending to identify them, as, for example, by including them in a class. To make this clearer, suppose petitioner knows that his intestate had a brother known to be deceased. He may know that such brother left issue, but be igno- rant of their names, or he may not know whether he left any issue at all, or their number if any. If the description be comprehensive and sufficient all persons included therein are precluded by the decree as completely as if duly named in the citation. § 2518, and see Matter of Ellis, 22 N. Y. St. Rep. 77. It seems if the petitioner, for example, decedent's widow, shows to the satisfaction of the Surrogate that testator left no heirs nor next of kin, the issuance of a citation may be dispensed with. See Bailey v. Stewart, 2 Redf. 212. §65. Practice as to return day. — If practicable, the petition should state the ages and places of residence of the parties in order to guide the court in fixing the return day of the citation. So long as it is fixed within the statutory limits the 'Surrogate may consult his convenience and that of the petitioner in fixing it. Matter of Washburn, 12 Misc. 242. If it appear that all of the persons to be cited reside in the county of the Sur- rogate or an adjoining county, a return day will be fixed so that the cita- tion may be served at least eight days prior thereto. A citation must be served, if within the county of the surrogate, or an ad- joining county, at least eight days before the return day thereof; if in any other county, at least fifteen days before the return day; unless, in either case, the person served, being an adult, and not incompetent, assents in writing to a service within a shorter time. Any person, although a party to the special proceeding, may serve a citation. § 2520, Code Civil Proc, in part. Service must be made so as to give eight days' notice and not to be served on the eighth day prior. The way to compute is to count eight days excluding the day of service. See Small v. Edrick, 5 Wend. 138; Matter of Carhart, 2 Dem. 627. If the person to be cited reside in any other county of the State, the return day will be fixed so that the service may be made at least fifteen days before the return day; and if out of the State, such a return day must be fixed as to enable personal service thereof to be made at least thirty days before the return day, or, if service be necessary by publication the return day must be fixed at least six weeks PROCEEDINGS IN SURROGATES COURTS 69 off. See In re Merritt's Will, 5 Bern. 544; Matter of Koch, 19 Civ. Pro. Rep. 165. But it is not necessary that the sixth publication be complete eight days before the return day. Matter of Denton, 86 App. Div. 358. The allegations of the petition are the only guide the Surrogate has by which to fix the return day. If it contains nothing to indicate this he will require an affidavit setting forth the facts for that purpose. It will be found to be an aid to the clerk of the court particularly in probate proceedings, if petitioner will prepare and file with his petition a chart, or family tree, showing all the known relatives of decedent. Where the will relates to personal property only, the next of kin need only be shown. Where it relates to real property also the heirs at law should be shown. Thus: William IV [urdock. Mary (Smith) dead. Susan [Jones] mother of testator grandfather of testator. aunt of testator dead. dead. John Smith Sarah (the testator) (sister) dead no issue. A John Jones, A William M. 1st cousin. A Katharine (Power) 1st cousin unmarried 1st cousin dead. of full age. dead; leaving A' one child Mary an infant 7 years old. A' Susai 1 (Gray) dead. B leaving 4 children i nfa nts under 14. Thus: if John Smith's will is one of real property as well as of personal, the children in class B and the child in class A' are entitled to be made par- ties; whereas if it be a will of personal property alone only class A would be entitled to citation. § 66. Rules for service of citation. — Rule 3 of the Surrogate's Court of the county of New York lays down this preliminary requisite : " No mandate issued out of this court shall be deemed duly served, unless copies of the petition or other papers upon which it shall be issued, and upon which relief is sought, shall be served with it, except the following. ■ "1. Citation to attend probate. "2. Citation to revoke probate. 70 SURROGATES COURTS "3. Citation on application for administration. "4. Citation for intermediate account. "5. Citation to attend judicial settlement. "6. Citation to temporary administrator to account. "7. Citation to principal in a bond to give new sureties in place of sureties who apply to be released. "8. Order to temporary administrator to make deposit. "9. Order to executor to appear and qualify. " 10. Order requiring the executor or administrator to file inventory." Bearing this requirement in mind the next point is mode of service. This may be in one of three ways: personal servjce, substituted service and service by publication. The mode may depend upon the residence of the party, his minority or his lack of legal capacity. § 67. Service of citation within the State. Except where special provision is otherwise made by law, service of a cita- tion, within the state, must be made upon an adult person, or an infant of the age of fourteen years or upwards, by delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns, with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge, in time for him to attend at the return day. § 2620, Code Civil Proc, in part. " Where it appears by affidavit to the satisfaction of the Surrogate from whose court a citation issued that proper and diligent effort had been made to serve it upon a resident of the State, as prescribed in the last section (§ 2520), and that the person to be served cannot be found, or, if found, that he evades service, so that it cannot be made, the Surrogate may make an order directing that service thereof be made, as prescribed in section 436 of the Code:" The order must direct that the serving of the summons be made by leav- ing a copy thereof, and of the order at the residence of the defendant, with a person of proper age, if upon reasonable application, admittance can be ob- tained, and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person be found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof properly enclosed in a postpaid wrapper, addressed to him, at his place of residence, in the post-oiEce at the place where he resides; " and the provisions of that section and of section 437, of this act " The order and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted : otherwise the order becomes inoperative. On filing an affidavit, showing service accord- ing to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication. . . " relating to the service of a summons, apply to the service of a 'citation' made pursuant to such an order." Code Civ. Proc. § 2521. This section confers the same authority upon the Surrogate as is possessed by a judge of PROCEEDINGS IN SURROGATES' COURTS 71 a court of record. Scharmann v. Schoell, 38 App. Div. 528. Therefore, upon proof of service of citation as provided in this section the court ac- quires jurisdiction of the person, and may enter an effectual order. The order so made, if not compHed with, will be a sufficient basis for an action against the surety on the official bond of the disobedient representative. Ibid., citing Hunt v. Hunt, 72 N. Y. 217; Burton v. Burton, 45 Hun, 68; Continental Nat. Bank v. Thurber, 74 Hun, 632. § 68. When service without the State or by publication.— In any one of the four following cases the Surrogate who has issued the citation may make an order directing the citation to be served without the State or by pubhcation: 1. Where it is to be served upon a foreign corporation, or upon a person who is not a resident of the state. 2. Where the person to be served, being a resident of the state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of process. 3. Where the person to be served, whether an adult or an infant, is a resi- dent of the state, but is temporarily absent therefrom. 4. Where the person to be served is a resident of the state, or a domestic corporation, and an attempt was made to serve a citation, issued from the same surrogate's court, upon the presentation of the same petition, before the expiration of the limitation applicable to the enforcement of the claim set forth in the petition, as fixed in chapter fourth of this act; and the limitation would have expired, within sixty days next preceding the application for the order, if the time had not been extended by the attempt to serve' the citation. § 2622, Code Civil Free. § 69. When name or residence unknown. — Service can also be made pursuant to an order directing the service of a citation without the State, or by publication in the two following cases: 1. Upon a party, to whom a citation is directed, either by his full name or part of his name, where the surrogate is satisfied, by affidavit, that the resi- dence of that party cannot, after diligent inquiry, be ascertained by the petitioner. 2. Upon one or more unknown creditors, next of kin, legatees, heirs, devi- sees, or other persons included in a class, to whom a citation has been di- rected, designating them by a general description, as prescribed in this article. § 2523, Code Civil Proc. It will be noted the Surrogate is not bound to make an order for service by pubhcation merely because there are non-residents. These sections give him discretionary power to do so. Matter of Washburn, 12 Misc. 242. But it may be to petitioner's interest to ask for it. For example, in Matter of Killan, 172 N. Y. 547, rev'g 66 App. Div. 312, the settlement of an account was held void against non-cited unknown persons interested, who might have been made parties by proceeding under the foregoing sections. 72 surrogates' courts § 70. Form of order. Surrogate's Court Caption. Present : Hon. Surrogate. Order for Service Title, of Citation under §§ 2622 and 2523. Upon filing the verified petition of the executor named in the will of late of the City of New York, deceased, by which the petitioner has made proof to my satis- faction that are legatees or next of kin {or designate their relation to de- cedent) of said deceased, and that they are not residents of this State, and that personal service of the citation herein, cannot with due diUgence be made upon them within the State; (and by which said petition, the petitioner has also made proof to my satisfaction that there are other leg- atees or next of kin of said deceased, whose names and places of residence are unknown, and cannot after diligent inquiry be ascertained by the petitioner), (and also that are legatees, or next of kin of said deceased, and that their places of residence are unknown, and cannot after diligent inquiry be ascertained by the petitioner). Now, on motion of of counsel for the said petitioner. Ordered : That service of the citation in the above- entitled matter, upon aforesaid persons, viz. be made by publication thereof in two newspapers, to wit: in the published in the City of New York, and in the once a week for six successive weeks; or, at the option of the petitioner, by delivering a copy of the citation to the above-named person, in person without the State; And it is further Ordered and Directed, That on or before the day of the first publication, the petitioner deposit in the post-ofiice at the City of New York sets of a copy of the citation and of this order, each set contained in a securely closed postpaid wrapper, directed to the foUowing persons respectively, at the places designated below: (And it is further Ordered, That service of citation in the above-entitled matter upon those persons whose names and places of residence are unknown, and cannot after dihgent inquiry be ascertained by the petitioner herein, and also upon whose places of residence are unknown, and cannot after diligent inquiry be ascertained by the petitioner herein, be made by publication thereof in two newspapers, to wit: in the pubUshed in the City of New York, and in the PROCEEDINGS IN SURROGATES' COURTS 73 once a week for six successive weeks; or, at the op- tion of the petitioner, by dehvering to and leaving with without the State, a true copy of the said citation. And I being satisfied by the said petition that the petitioner cannot with reasonable dihgence ascertain a place or places where the said legatees or next of kin would probably re- ceive matter transmitted through the post-office, hereby dis- pense with the deposit of any papers therein.) Surrogate's Court, County of Present : Surrogate. Short Form of or- In the matter of Proving the Last' der for Citation and Will and Testament of for Service of same by Publication com- Deceased. °"* • On reading and filling the petition of propounding the Last Will and Testament of late of the of in the County of Westchester, deceased, for probate : It is Ordered, that a citation issue to the proper persons, pursuant to the prayer of said petition, requiring them to appear in this court, on the day of 190 at o'clock in the forenoon of that day, at the Surro- gate's office in the of to attend the probate of said will. It is further Ordered, that service of said citation upon the person hereinafter named of said decedent non-resident of this State, be made by publication thereof in the two newspapers published in said County, called not less than once in each of six successive weeks; or, at the option of the petitioner by delivering a copy of the said citation, without the State, to each of said persons in per- son, at least days before the return day thereof. And it is further Ordered, that on or before the day of the first publication of said citation, the petitioner deposit in the post-office at a copy of said citation and this order, contained in a securely closed postpaid wrapper, directed to the following named person at the place below named and set opposite name to wit: § 71. How to serve by publication. — The provisions of the Code con- tained in § 2524, as amended by chapter 606 of Laws of 1899, now read as follows (the amendment of 1899 is italicized) : Where an order, directing the service of a citation without the state, or by 74 surrogates' courts publication, is made as prescribed in either of the last two sections, the party- applying therefor must produce proof, by affidavit or otherwise, to the satis- faction of the surrogate, that the case is one of those specified in those sections. The order must direct that service of the citation, upon the person named or described in the order, be made by pubUcation of the citation in two news- papers, designated as prescribed in this article, unless from the petition it ap- pears that the estate amounts to less than two thousand dollars, in which case only one newspaper shall be designated, for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks; or, at the option of the petitioner, by dehvering a copy of the citation, without the state, to each person so named or described, in person, and if the person to be served is an infant under the age of fourteen years, also to the person with whom he is sojourning, or, if the service is made upon a corporation, to an officer thereof specified in section four hundred and thirty-one or four hundred and thirty-two of this act. It must also contain either a direction that on or before the day of the first publication, the petitioner deposit, in a specified post-office, a copy of the citation and of the order, contained in a securely closed postpaid wrapper, directed to the person to be served, at a place specified in the order, and if the person to be served is an infant under the age of fourteen years, a further copy, likewise contained in a securely closed postpaid wrapper, directed to the person with whom such infant is sojourning or, a statement that the surro- gate, being satisfied, by the affidavit upon which the order was granted, that the petitioner cannot, with reasonable diligence, ascertain a place or places where the person to be served would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein. § 2524, Code Civil Proc. § 72. What mode of service depends on.— The foregbing section shows clearly when the practitioner may resort to substituted service or service by publication. And, it may be added, in any of the six cases therein set forth the mode of service is thereby covered. But this all relates to adults and infants over fourteen years of age. In the cases of infants under four- teen years and of persons without legal capacity, such as habitual drunk- ards, idiots, lunatics, etc., there are additional requirements to be ob- served, which may also in the discretion of the Surrogate be extended to the case of an infant of fourteen years and upwards. No infant is bound by a decree in a proceeding to which he was not duly made a party. Nor does the decree foreclose the Surrogate himself who made it if and when the infant asserts rights sought to be affected by it. This is the lailgauge of the Code in this regard: Where a person, cited or to be cited, is an infant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, reasonable grounds to beheve that a person, cited or to be cited, is an habitual drunkard, or for any cause mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affiars, the surrogate may, in his discretion (see Matter of Stephen, 2 N. Y. Supp. 36), with or with- out an apphcation therefor, and in the interest of that person, make an order reqmring that a copy of the citation be delivered, in behalf of that person, to PROCEEDINGS IN SURROGATES' COURTS 75 a person designated in the order; and that service of the citation shall not be deemed complete until such delivery. Where the person, cited or to be cited, is an infant under the age of fourteen years, or a person judicially declared to be incompetent to manage his affiairs, by reason of lunacy, idiocy, or habitual drunkenness, and the surrogate has reasonable ground to believe that the in- terest of the person, to whom a copy of the citation was delivered, in behalf of the infant or incompetent person, is adverse to that of the infant or in- competent person, or that, for any reason, he is not a fit person to protect the latter's rights, the surrogate may likewise make such an order; and as a part thereof, or by a separate order, made in like manner at any stage of the pro- ceedings, he may appoint a special guardian ad litem to conduct the proceed- ings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to the same liabiUties, as a committee of the property. § 2527, Code Civil Proc. This section it will at once be seen, provides for an extra service, in ad- dition to the regular service required to be made on infants or incompe- tents. Matter of Cartwright, 3 Dem. 13. Such regular service is made pre- cisely as service of a summons is made in analogous cases. See Code Civ. Proc. § 2526. Service of a citation must be made upon an infant under the age of fourteen years, a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, or a corporation, in the manner prescribed for personal service of a summons upon such a person, or upon a corporation, in article first of title first of chapter fifth of this act. § 2626, Code Civil Proc. Service upon a person non compos not in compliance with this section "will be good ground for reopening the decree entered if the interests of the incompetent person so require (Matter of Toulon, 66 Hun, 199), and the same is true as to an infant. Potter v. Ogden, 136 N. Y. 384. § 73. Who may serve the citation. — Any person, even though a party to the special proceeding, may serve a citation. Code Civ. Proc. § 2520. Thus a service by an executor or legatee has been upheld. Wetmore v. Parker, 7 Lansing, 121, affirmed in 52 N. Y. 450, 456. But Rule 18 of the General Rules of Practice is undoubtedly applicable, to wit; that no ser- vice shall be made by any person who is less than eighteen years of age. § 74. Time of service. — The next requirement is time within which service of citation must be made. See concise discussion by Coffin, Surr., in Matter of Porter, 1 Misc. 489. The object of the citation is to apprise the person cited of the claim which the petitioner makes in time sufficient to enable him to prepare to meet it. What is sufficient or reasonable time is now fixed by law. And the time so limited varies with the mode and place of service. 1. If personal service is made in the Surrogate's county, or an adjoining •county, it must be made at least eight days before the return day named in the citation. Code Civ. Proc. § 2530. 76 surrogates' courts 2. If personal service is made in any other county, it must be made at least fifteen days before such return day. Ibid. Matter of Washburn, 12 Misc. 242, overruling Matter of Porter, 1 Misc. 489. 3. If service is made by delivering a copy of the citation with- out the State, pursuant to the order in such case required, it must be made at least thirty days before such return day provided it is made within the United States, and at least forty days before if made without the United States. Matter of Merritt, 5 Dem. 544; Code Civ. Proc. § 2525. 4. If service is made by pubhcation the notice required is fixed by the order directing publication. For that order requires publication not less than once in each of six successive weeks and must contain a direction that on or before the day of the first publication the petitioner deposit in a specified post office a copy of the citation and of the order addressed to the party cited. This cannot be dispensed with unless the Surrogate is satis- fied by affidavit that the petitioner cannot with reasonable diUgence as- certain a place to which to address such a copy. Code Civ. Proc. § 2524. We can therefore say that in the case of service by pubhcation the time re- quired is six weeks. See Estate of Koch, 12 N. Y. Supp. 94. See Matter of Denton, 86 App. Div. 358. In 40 Misc. 326, the court below pointed out that § 441 did not apply; for a summons requires defendant to appear in so many days, whereas the return day is a fixed date. § 75. Proof of service. — If personal service has been made, proof of such service is made by the affidavit of the person who delivered the cita- tion; and such affidavit should state concisely the important facts, that deponent is over eighteen years of age, that on a given day (not "on or about" a day named, which will be fatally defective, Smythe v. Rowe, 4 Law Bull. 60) he served the within, or annexed, citation on the person to whom it was directed, whom he knew to be such person; then stating mode of service, as, for example, where a copy of the petition is required to be served with it "by delivering to and leaving with him a copy thereof to- gether with a copy of the petition" on which the same was issued. Where the party served is an infant or incompetent, the additional service re- quired must be alleged. Proof of the publication of the citation must be made by the affidavit of the printer or publisher, or his foreman, or princi- pal clerk. Proof of deposit in the post office, of a paper required to be de- posited must be made by the affidavit of the person who deposited it. Code Civ. Proc. §§ 2524, 444. See also § 2532, Code Civil Proc. § 76. Appearance. In a surrogate's court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, prosecute or defend a special proceeding, in person or by attorney regularly admitted to practice in the courts of record, at his election, except in a proceeding to punish him for contempt, or where he is required to appear in person, by special provision of law, or by a special order of the surrogate. . . . The appearance of a party, against whom a citation has been issued, has the same effect, as the ap- PROCEEDINGS IN SURROGATES' COURTS 77 pearance of a defendant, in an action brought in the Supreme Court. § 2628, Code Civil Proc, in part. We omit here portion as to waiver of issuance and service of citation. See also Laws of 1847, chap. 470, § 46, and repeal of same by Laws of 1880, chap. 245, § 1, subd. 24; also Laws of 1870, chap. 359, § 2, applying only to New York County now made general by above section. But there is this difference, that, inasmuch as the jurisdiction of a Surrogate or of his court is statutory a voluntary appearance in a special proceeding is wholly without effect if the jurisdiction has been lost, by lapse of time, or by other cause. Thus "where a Surrogate has lost jurisdiction of a cause by failure to serve a citation within the time prescribed by statute, the error is not cured by a voluntary general appearance, which, by Code Civ. Proc. § 424, is made equivalent to personal service of process, the objection being not that there has been no service, but that service has not been made within the requisite time." From official syllabus, Pryer v. Clapp, 1 Dem. 387. But where there is merely an alleged defect in the petition affecting jurisdiction over the person, his voluntary general appearance has been held to be a waiver of such defect. Peters v. Carr, 2 Dem. 22, citing Hoag V. Lamont, 16 Abb. N. S. 91, 96; Sawmill Co. v. Dock, 3 Dem. 55; Matter of Hitchler, 21 Misc. 417. § 77. Non-resident — ^Appearance for. — An attorney appearing for a non-resident will, in New York County, be required to file written proof of retainer, or authority to appear, or his appearance will be ignored, and service of citation required. Matter of Dusenbury, 33 Misc. 166; Estate of Wdss, Surr. Decs. 1896, p. 597. § 78. Foreigners; Consuls. — Under certain treaty provisions, which can be readily procured from the State Department at Washington for a small fee, the accredited local consul of a foreign nation has a status to represent non-resident subjects of his government. For example, he may petition in probate, or for letters in intestacy, or he may appear and ex- ecute waivers and consents. See Matter of Peterson, 51 Misc. 367; Matter of Davenport, 43 Misc. 573; Matter of Lobrasciano , 38 Misc. 415; Matter of Fattosini, 33 Misc. 18; Matter of Tartaglio, 12 Misc. 245. But if the non-resident foreigner be an infant, the issuance and due service of citation cannot be dispensed with. Matter of Peterson, supra. The consul, petitioning, should allege the treaty, or a treaty to the bene- fit of which his governmental ward is entitled under a "most favored nation" clause. If the allegation is put in issue, the exempUfied record from Washington is adequate proof. § 79. Special appearance. — A party to a special proceeding in a Sur- rogate's Court may of course appear specially, as, for instance, solely for the purpose of objecting to the jurisdiction on appropriate grounds. But it must be remembered that such an appearance must not be encumbered with any plea to the merits, as no protest of limited appearance can in 78 SURROGATES COURTS such case avail to prevent the appearance from being deemed a general one. See Reed v. Chilson, 142 N. Y. 152. Thus where the person served claimed in his answer upon the return of a citation that the order for its service was irregular and jurisdiction had therefore not been acquired, he was held to have waived it because he went further, and raised objections on the merits to petitioner's claim. Matter of Macauley, 27 Hun, 577, 578, and 94 N. Y. 574, citing Barrard v. Burrowes, 2 Robertson, 213. And where a party cited to appear on the probate of a will, appeared by counsel, and his written appearance was filed with the court, and he made no ob- jections on the probate, held that the court had full jurisdiction over him, although the fact that the will was one executed in duplicate, was not stated in the petition. Grossman v. Crossman, 2 Dem. 69, 80, citing Allen V. Malcolm, 12 Abb. N. S. 335, and Morrell v. Dennison, 8 Abb. Pr. 401. A general appearance will cure void service; thus, where persons cited were non-residents, and the citation was served not by publication nor personally without the State, but was served within the State, and there- fore the service was void, it was held that a personal appearance without objection by the non-resident would have obviated this defect. Matter of Porter, 1 Misc. 489, 490. This is overruled in 12 Misc. 242, as to such service being void. § 80. Waiver. — Where there is no contest, and all the parties are willing and competent so to do, they may execute formal waivers of the issuance and service of a citation under § 2528 of the code and consent to the grant- ing of the relief prayed in the petition. If this be done, the fact should be alleged in the petition. See Matter of Gregory, 13 Misc. 363, holding that waiver of service cannot be accepted in lieu of the issuance and service of citation. Infants cannot waive service of the citation although a guardian can by a notice of appearance give the court jurisdiction. Thistle v. Thistle, 5 Civ. Proc. R. 43. By this is meant a general guardian not ineUgible by reason of having any interest adverse to the infant's. For no special guard- ian ad litem is appointed until the citation has actually been served on the infant (see Ingersoll v. Mangam,8i N. Y. 622; Davis v. Crandall, 101 id. 311-321; Croutery. Grouter, 133 id. 56; Potter v. Ogden, 136 N. Y. 384, 392), nor before the return day unless the infant petitions for an appointment. Matter of Leinkauf, 4 Dem. 1, 2. The guardian, whether general or special, can thus never waive service of a citation. It is bad practice to secure waivers before the proceeding is begun. In Matter of Graham, 39 Misc. 226, Silkman, Surr., held that waivers antedating the petition were invalid, and that the Surrogate's jurisdiction depended upon strict compliance with the statute. Such a waiver is nugatory. See § 281, post, as to waiver in probate. § 81. Formalities of publication.— The provisions regarding the cases in which service of the citation by publication may or must be made have been already given. The modus operandi remains to be discussed. If the circumstances exist covered by sections 2522 and 2523 the order directing service by publication is applied for upon affidavits, or such other PROCEEDINGS IN SURROGATES' COURTS 79 proof as may satisfy the Surrogate, stating facts showing the case to he one under one of such sections. The order must direct (see section 2524) that service of the citation upon the person named or described in the order, be made by pubhcation of the citation in two newspapers, designated as prescribed in this article (which includes §§ 2115-2538) .... [see exception of estates less than $2,000] for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks; or, at the option of the petitioner, by deliver- ing a copy of the citation, without the state, to each person so named or de- scribed, in person, and if the person to be served is an infant under the age of fourteen years, also with the person with whqm he is sojourning, or, if the service is made upon a corporation, to an officer thereof specified in sec- tions 431 or 432 of this act. It must also contain either a direction that on or before the day of the first pubhcation the petitioner deposit, in a specified post-office, a copy of the citation and of the order, contained in a securely closed postpaid wrapper directed to the person to be served, at a place specified in the order, and if the person to be served is an infant under the age of fourteen years, a further copy, likewise contained in a securely closed postpaid wrapper, directed to the person with whom such infant is sojourning; or a statement- that the surrogate being satisfied, by the affidavit upon which the order was granted, that the petitioner cannot with reasonable diligence, ascertain a. place or places where the person to be served would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers, therein. § 2524, Code Civil Proc, in part. The whole publication may be vitiated if the order is not correctly framed. Every requirement of the statute must be observed (Sawmill Co. V. Dock, 3 Dem. 55, 56), unless there be a voluntary appearance by adults. As the provisions of the section are very similar to those of section- 440 relating to the order for publication of summons decisions under that section are applicable. Thus see Smith v. Wells, 69 N. Y. 600, where copy summons and complaint was deposited in post office but addressed differ- ently than required in the order. And Brisbane v. Peabody, 3 How. 109, where publication was made in a paper other than one designated in the order, and see generally notes to section 440 in Stover's Code, 6th ed. The directions of the order must be strictly followed. §82. Papers in which publication should be made. — The act "to designate a state paper" (Laws, 1854, chap. 197) is now repealed (see Laws, 1884, chap. 133, and Laws, 1885, chap. 262) and the practitioner is only concerned with the papers designated in the order. Where the Code di- rects publication of a citation, or the service thereof by publication, the publication must be pubhshed in a newspaper published in the county. Code Civ. Proc. § 2535. "^ When the Surrogate thinks that the person or persons intended to be served or notified can be given surer notice, he may, in his discretion, di- rect additional publication in any other newspaper, either in the same or in another county. Ibid. Within ten days after the publication is complete, proof by affidavit of 80 SURROGATES COURTS the publishers, printers, or foreman, or one of them, of the publication in the newspaper in which the publication was made shall be made and ten- dered to the attorney or other person ordering or directing such publicatioi?. But delivery is not compulsory in case of private persons until payment of the bill for the publication. Laws, 1884, chap. 133, § 7. § 83. Time of publication.— The Code provides as a minimum time during which the publication must continue "not less than once in each of six successive weeks." Code Civ. Proc. § 2524. And in section 440 the words used are "not less than once a week for six successive weeks." There is no longer any uncertainty as to just what this means. The pub- lication is not complete until the expiration of forty-two days from the first publication excluding the first day. Richardson v. Bates, 23 How. Prac. 516; Board v. Heyman, 3 Abb. Prac. (N. S.) 396; Matter of Koch, 19 Civ. Proc. Rep. 165. That is, there is required a full six weeks' consecutive publication, and not merely six publications in six different weeks. Market Nat. Bank v. Pacific Nat. Bank, 11 Abb. N. C. 104; 89 N. Y. 397, 400, where the court says, " Section 400 provides for pubUcation for a specified time, " not less than once a week for six successive weeks.' The number of weeks is specified and not the number of times; section 441 declares that the time shall be complete upon the day of the last publication, and section 787 that the period of publication must be completed so as to include the day which completes the full period of publication. It will be perceived that the publication must be made for a specified period of time, and when the statute provides for six weeks it is obvious that this period will not elapse prior to its expiration. It does not provide for a pubUcation six times within six weeks, but 'for a time not less than once a week for six successive weeks.' The publication evidently means rather more than printing the notice. The law intended a full six weeks' publication, and not six times in six different weeks." But the sixth publication need not be eight days before the return day. Matter of Denton, 86 App. Div. 359. An illustration will make this very clear. An attorney under an order for publication publishes a citation Saturday, January 5; Friday, January 11; Thursday, January 17; Wednesday, January 23; Tuesday, January 29, and Monday, February 4, 1895. Here are six publications — once a week and in six successive weeks — and yet under this decision, and all the de- cisions, insufficient, for instead of giving six weeks' or 42 days' notice to the person published against and intended to be thereby notified, it gives him four weeks' and two days' or 30 days' in all, notice, which is a serious •discrepancy. See Waters v. Waters, 7 Misc. 519. However, it is not necessary to show pubhcation on the same day of each week; it is sufficient if made on any day of each week for the requisite num- ber of weeks, provided six weeks' notice be given. See Wood v. Knapp, 100 N. Y. 109, 114, and cases cited, noting distinction in circumstances. If, while the publication is progressing, personal service without the State be made, it would be unnecessary to complete the publication, al- though the service would not be complete until the time prescribed for the PROCEEDINGS IN SURROGATES' COURTS 81 publication has expired; that is to say, personal service without the State, under an order for service by publication, is only equivalent to publication. Fiske V. Anderson, 33 Barb. 71. Where publication must be in two papers, it has been held, under section 440, that publication must be continuous in each, not necessarily concur- rent. Herbert v. Smith, 6 Lans. 493. In case the death of a petitioner abates the proceeding the publication terminates, if incomplete on the day of such death. Reilly v. Hart, 55 Hun, 465, affirmed 130 N. Y. 625. 6 CHAPTER II PARTIES § 84. Infants. — Parties in Surrogates' Courts are differentiated either as adults or as infants. Infants are divided under two classes: infants under 14, and those of or over 14 years of age. All infants must appear by- guardian; this is manifest from the wording of sections 2527 and 2530 of the Code of Civil Procedure. Section 2527 in part provides, that where a per- son cited or to be cited in a proceeding in the Surrogate's Court is an infant, the Surrogate may incidentally in his order for additional precaution in the service of the citation provided for by the section, or by a separate order at any stage of the proceedings, appoint a special guardian ad litem to conduct the proceedings. See also Matter of Watson, 2 Dem. 642. Sec- tion 2530 is as follows: Where a party, who is an infant, does not appear by his general guardian; or where a party, who is a lunatic, idiot, or habitual drunkard, does not appear by his committee, the surrogate must appoint a competent and responsible person, to appear as special guardian for that party. Where an infant appears by his general guardian, or where a lunatic, idiot, or habitual drunkard, appears by his committee, the surrogate must inquire into the facts, and must, in like manner, appoint a special guardian, if there is any ground to suppose that the interest of the committee or general guardian is adverse to that of the infant, or incompetent person; or that, for any other reason the interests of the latter require the appointment of a special guardian. A person cannot be appointed such a special guardian, unless his written consent is filed, at or be- fore the time of entering the order appointing him. § 2530, Code Civil Proc. The general guardian is entitled to represent his wards unless their interests require that they should be represented by a special guardian, or unless there is ground to suppose that the interest of the general guardian is adverse to that of the infant. Farmers' L. & T. Co. v. M'Kenna, 3 Dem. 219. And in New York County Rule 12 provides as follows: " Whenever an infant interested in any proceedings in said Surrogate's Court has a general guardian, no decree will be entered without appointing a special guardian to represent said infant's interest therein, unless such general guardian shall file his appearance in writing and his affidavit of no adverse interest, as required by Rule 10, with the clerk of said Surro- gate's Court." Farmers' L. & T. Co. v. M'Kenna, supra. Where there is a general guardian, therefore, he is primarily entitled to appear and no appointment of a guardian ad litem is in such a case proper unless it be affirmatively shown upon the inquiry by the Surrogate into 82 PARTIES 83 the facts, either, that there is ground to suppose that his interest is adverse to that of the infant, or that for any other reason the interests of the latter require the appointment of a special guardian. If it is intended, therefore, ■where there is a general guardian, to apply for the appointment of a guard- ian ad litem, notice of such application must be first given to the general guardian. Farmers' L. & T. Co. v. M'Kenna, supra. A foreign guardian may petition for appointment of special guardian of his infant. Rogers V. McLean, 34 N. Y. 536; Freund v. Washburn, 17 Hun, 543. If there is no general guardian, or if his right to represent the infant is lost by reason of the causes specified in section 2530, then the Surrogate must appoint a special guardian. In transfer tax proceedings where the infant's interest is not presently involved, the appointment of a special guardian is unnecessary. Matter of Post, 5 App. Div. 113. § 85. Upon whose application special guardian may be appointed. — Where the infant is over the age of 14 years, it is proper that the petition for the appointment of a special guardian be made by the infant. Where the infant is under the age of 14 years, it is customary that the application be made on his behalf by his parent or next friend. Rule 10 of the Surrogate's Court in the county of New York provides: "No special guardian to represent the interests of an infant in any pro- ceeding in said Surrogate's Court will be appointed on the nomination of a proponent or the accounting party, or his attorney. See Matter of Henry, 2 Howd. N. S. 250. The right of the infant to apply for the appointment is undoubted. It is directly inferable from section 2531, which is as follows: Where a person, other than the infant, or the committee of the incompetent person, applies for the appointment of a special guardian, as prescribed in the last section, at least eight days' notice of the application must be personally served upon the infant, or incompetent person, if he is within the state, and also upon the committee, if any, in like manner as a citation is required by law to be served. But, except in a case specified in title fifth of this chapter, the surrogate may, by an order to show cause, prescribe a shorter time, and direct the service of the order to be made in such a manner as he deems proper. The application may be made at the time of presenting the petition, and, in that case, the order to show cause may, in the surrogate's discretion, accom- pany the citation. § 2531, Code Civil Proc. See also Matter of Ludlow, 5 Redf. 391, 392. In the third place the Surrogate has the right to appoint upon his own motion. It is not necessary, where there are infant parties, that any ap- plication should be made for the appointment of a special guardian, either prior to or on the return day. If on the return of the citation no applica- tion for the appointment of such a guardian has been made by any one voluntarily, whether by the infant or by his next friend, or any other person, the Surrogate may of his own motion appoint a person to protect the in- terests of the infant; in such a case it is immaterial whether the infant is 84 surrogates' courts under or over the age of 14, as the consent of the infant is not necessary to the appointment. Brick's Estate, 15 Abb. Pr. 12. See also Matter of Seabra, 38 Hun, 218. Unless the infant is represented by general or special guardian, he is not properly a party to the proceeding. The failure to ap- point the guardian ad litem is an irregularity, if the objection is properly made {Frost v. Frost, 15 Misc. 167), but it does not affect the jurisdiction of the court over the proceeding generally, and therefore upon the discovery of the in-egularity the court may appoint a guardian nunc pro tunc. See Rima v. Rossie Iron Works, 120 N. Y. 433. Matter of Jones, 54 Misc. 202. But this will not avail to prejudice the infaht's rights. Matter of Bowne, 6 Dem. 51. If the Surrogate finds after hearing the matter that one of the parties is an infant he will usually stop the proceeding, appoint the guardian, give him opportunity to go over the testimony and recall, for his cross-examination, if necessary, any witness. It is manifest from the wording of section 2531 above quoted that the notice thereby required to be given, does not apply to cases where the Sur- rogate himself appoints a special guardian of his own motion. Matter of Monell, 19 N. Y. Supp. 361. The object of the service of the notice thereby prescribed is to enable the infant to have some one appear upon the appli- cation and prevent the appointment of a person in any respect unsuitable or having interests in any way adverse to those of the infant. See Pinckney V. Smith, 26 Hun, 524. Where the county judge acts as Surrogate, he has the power to appoint a guardian ad litem in proceedings pending in the Surrogate's Court, and an error by which the order appointing the guardian is entitled in the County Court does not invalidate the appointment, as it will be presumed that he acted in the capacity in which he had a right to make the appoint- ment. See Albrecht v. Canfield, 92 Hun, 240. § 86. When application should be made. — It is manifest in the first place, that no appointment of a special guardian in the Surrogate's Court, can be made for an infant not a party to the proceeding. Surrogate Coffin held {Matter of Watson, 2 Dem. 642) that it was wholly incompetent for him to appoint a special guardian of an infant purposing to initiate a pro- ceeding for the probate of a will. There is no statutory provision requiring an infant to institute a special proceeding in a Surrogate's Court by special guardian. The infant may present his petition upon which the Surrogate issues his citation; when this has been done the petitioner is a party to a proceeding, and, on the return day of the citation, if it appears that the party is an infant, the Surrogate must appoint a special guardian for him. The first rule, therefore, to ob- serve is, that the infant must be a party to the proceeding before the ap- pointment can be made. Therefore if the infant is not the petitioner in the proceeding, an application for the appointment of a special guardian is pre- mature and the appointment wholly irregular if made prior to the service upon the infant of the citation in the proceedings which makes him a party; and if the service is irregular it is not regularized by mere proof that a PAETIES 85 special guardian was actually appointed. See Hogle v. Hogle, 49 Hun 313; Davis v. Crandall, 101 N. Y. 311. And similarly, if service of citation has been had upon the infant unlaw- fully or irregularly it will vitiate the appointment of the special guardian. See Potter v. Ogden, 136 N. Y. 384, where the second headnote concisely states the rule as follows : "The appointment of a special guardian for an infant in proceedings in a Surrogate's Court is void, unless previous to such appointment juris- diction over the infant has been acquired by the service of a citation in the manner prescribed by law." Where the Surrogate makes the appointment of his own motion, it is manifest that he cannot appoint until the return day of the citation. The provisions of sections 468 to 477 of the Code, regulating the mode in which infants may bring and defend actions, do not apply to special proceedings in Surrogates' Courts. One reason why the Surrogate cannot appoint before the return day is, that there may be a general guardian who is not bound to appear for the infant until the return day; and where at the time the petition is made and the citations issued there is no general guardian of the infant yet non constat but that a general guardian may be appointed before the return day, even by the Surrogate of another county, and Surrogate Coffin accordingly held, that an application by an infant party for an appointment of a special guardian, made before the return day, was premature for this reason. Matter of Leinkauf, 4 Dem. 1. This decision, however, should not be extended so far as to prevent the making of the application by the infant or by some person other than the infant before the return day. In the latter case under section 2531, it is dis- tinctly provided, that the application may be made at the time of present- ing the petition. And where the infant is over fourteen years of age, and desires to nominate his guardian; or where the parent or next friend de- sires to nominate a guardian for an infant under 14 years of age it is proper to file the petition looking to such appointment after the infant shall have been duly served with the citation. The proposed order should be submitted with the petition, and will usually be signed by the Surrogate upon the return day. Similarly where it proves necessary to serve the infant with the citation by publication an appointment of a special guard- ian prior to the expiration of the time during which publication must be made, is premature and irregular. Darrow v. Calkins, 154 N. Y. 503. The person who is entitled to appear as general guardian of the infant, must be one actually and legally such general guardian. The parent of the child as guardian in socage, by nature, or otherwise has no right to appear in the capacity of general guardian; and where through oversight a parent has so appeared for infant parties, in a probate proceeding, even in good faith, the rights of the infant are in no respect concluded, nor can the Sur- rogate subsequently to the making of the decree attempt to regularize the proceedings by appointing the parent special guardian nunc pro tunc. Matter of Bowne, 6 Dem. 51. The power to appoint nunc pro tunc must 36 SURROGATES COURTS be exercised during the life of the proceeding (see Saltus's Estate, 1 Tucker, 230), and has been exercised almost uniformly only in cases where the in- fant was actually served and a party to the proceeding, and never it is believed has it been exercised for the purpose of attempting to make the infant a party of record to proceedings in which jurisdiction of the person of such infant was not in fact had by the Surrogate. § 87. Formalities of appointment. — Where the infant or some one upon his behalf applies for the appointment of a guardian ad litem, the ap- plication is made by petition duly verified substantially as follows: Surrogate's Court, County of Petition by infant Title. | fTth'ap'poLtoent ^o the Surrogate's Court of the County of of Special Guardian. The petition of respectfully shows: I. That he is an infant over 14 years of age, and was years of age on the day of 19 II. On information and belief that on the day of 19 [Here state the nature of the proceeding, as, for example, the last will and testament of late of de- ceased, was duly filed in the office of the Surrogate in the county of for probate, which said will is a will of real (or of personal) property (or of real and personal prop- erty) and proceedings for the proof of such will are now pend- ing before said Surrogate.] III. That your petitioner is one of the parties named in the citation issued in said proceeding (or that your petitioner was made a party to the above proceedings by an order of this court, made the day of 19 ) and that the citation (or supplementary citation) in such proceeding was duly served on your petitioner on the day of 19 ; that he has no general guardian in the State of New York (note), that your petitioner's parents are Note. Where the liyjug (^j ^YibA, your petitioner's father or mother is the only petitioning infant ^^ ^.^^^^ ^^^ ^., ^ petitioner resides at in the has a general guard- ox j. r .,i r+ +1, f J. State of with lan state the facts . . in reference to such "'^'^ petitioner therefore prays the appointment of guardian. Esq., counsellor at law of as his special guardian in the above entitled proceeding, to appear for the petitioner and to protect his interests therein (add, in New York County, and he has not been influenced in making this ap- plication for the appointment of such special guardian by any person) . V. That no previous application for this relief has been PARTIES 87 made (or if previous application has been made, state the facts and the action of the Surrogate) . Wherbfoke the petitioner prays that an order of this court may be made appointing the said Esq., counsellor at law, as special guardian of the petitioner, to appear for him and protect his interests herein. (Verification.) (Signature.) „ . . . . Surrogate's Court, Petition where in- n *. e fant is under the age ^, of 14 years. Note. Title. I Note ^Vtisr© tli6 application for the To the Surrogate's Court of the County of appointment of spe- cial guardian is on The petition of respectfully shows : behalf of an infant I- That is an infant under the age of years under 14, the ap- and was years of age on the day of plication should be 19 ; that said infant is a necessary party in the above en- made by one of the titled proceedings being a {legatee, or devisee or next child's parents or gf j.^^ ^^ ^^^^^ relationship) of late of the if an orphan by g^ynty of deceased, and was duly served with the its general guardian, ■. .• i • ,■, j j ir. ,° .. , . citation herein on the day oi 19 general guardian, its ^^- ^^^^ ^^^^ petitioner is (here state relationship next friend or any °^ petitioner to the infant on whose behalf application is made) party to the proceed- oi the said infant and that said infant resides with ing not excluded by at the rule may petition III. That said infant has no general guardian (or for the appointment, if H has a general guardian state the particulars) . Note. Note. Under jy. The petitioner on behalf of said infant alleges that it § 2530 the infant mai/ jg necessary that a special guardian of said infant, be appear by general appointed in the above entitled proceedings, to appear for guardian w^thout^ac- ^^^^ .^^^^^ ^^^ ^^ protect his interests therein. i^T -f ^th 1 ^- '^^^* ^° previous or other application for this rehef has guardian petitions been made. for appointment of Wherefore this petitioner prays that an order of this third person state court may be made appointing Esq., counsellor at any reason, such as law, of as a special guardian to appear for said in- adverse interest, why fant and to protect his interests herein, appointment of spe- (Verification.) cial guardian is nee- (Signature.) essary. § 88. Special rules in New York County. — In the county of New York the Rules of the Surrogate's- Court carefully define the precautions in favor of infants and are as follows: Rule X "No special guardian to represent the interests of an infant in any pro- ceeding in said Surrogate's Court, will be appointed on the nomination gg SURROGATES COURTS of a proponent or the accounting party, or his attorney, or upon the ap- plication of a person having an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the applica- tion of an infant or otherwise in a proceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person, or such general guardian, is compe- tent to protect the rights of the infant, and that he has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of or any party to the proceeding. " where the application for the appointment of a special guardian is made by another than the infant, or where the general guardian appears in be- half of the infant, it must appear that such applicant or general guardian has no interest adverse to that of the infant. Note. Where mother of an infant under 14 is disqualified by adversity of interest from applying, the Surrogate may impute the same adversity of interest to a sister of the infant. Estate of Conrad Stein, Law Journal, June 17, 1902, citing Estate of S. Shethar, Surr. Decs. 1898, p. 387; Estate of F. Schaeffer, Law Journal, March 10, 1900; Estate of I. Meyer, Surr. Decs. 1901, p. 18. "No party to a proceeding will be appointed special guardian of any other party thereto. If such applicant or general guardian is entitled to share in the distribution of the estate or fund in which the infant is interested, the nature of the interest of such applicant or general guardian must be disclosed. The application for the appointment of a special guardian as well as the appearance filed by a general guardian of a minor must, in every instance, disclose the name and residence and relationship to the infant of the person with whom the infant is residing, whether or not he has a parent living, and, if a parent is living, whether or not such parent has knowledge of and approves such application and appearance; and such knowledge and approval must be shown by the affidavit of such parent. If the infant has no parent living, like knowledge and approval of such application or appearance by the person with whom the infant resides must be shown in like manner. Where such application is made by an infant over the age of 14 years, his petition must show and be accompanied by the affidavit of the parent (in case the latter has an interest adverse to" that of the infant), showing, in addition to such knowledge afore- said, that such parent has not influenced the infant in the choice of the guardian." Rule XI "In any proceeding for a judicial settlement of the account, wherein a special guardian shall be appointed or a general guardian shall appear to protect the interests of an infant party to such accounting no decree will be entered as upon default against such infant, but such decree shall be so entered only on the written report of the guardian appearing for such PARTIES 89- infant that he has carefully examined the account and finds it correct, and upon two days' notice to the guardian of the settlement thereof." Rule XII "Whenever an infant interested in any proceeding in said Surrogate's Court has a general guardian, no decree will be entered without appoint- ing a special guardian to represent said infant's interest therein, unless such general guardian shall file his appearance in writing and his affidavit of no adverse interest, as required by Rule X, with the Clerk of said Sur- rogate's Court." § 89. Qualification by nominee. — The competency of the person sought to be appointed as special guardian is shown by means of the consent and affidavit required of the person nominated to be filed with the application or at or before the time of entering the order appointing him. See section 2530. The following forms are suggested : Surrogate's Court, County of Title. Consent of spe- cial guardian. I counsellor at law, hereby consent to be appointed by the Surrogate of the County of the special guard- ian of an infant, for the sole purpose of appearing for and taking care of his interests in the above entitled pro- ceedings, and I hereby state that I have no interest in said proceedings adverse to that of said infant and am not con- nected in business with the attorney or counsel of or any party hereto. (Dated.) (Signature.) (Acknowledgment.) This consent of the special guardian ought to be acknowledged, but a failure to properly acknowledge it has been held not to be a jurisdictional defect but an irregularity. Sheel v. Cohen, 55 Hun, 207, 210, citing Tobin V. Carey, 34 Hun, 432. In the case cited the General Term held, that an order made on consent of all the parties who had appeared permitting the proper acknowledgment to be filed nunc fro tunc validated the appoint- ment, having been timely made. This was in an action involving rights in real property and would probably be held applicable in a Surrogate's Court, but not to the extent of cutting off rights of an infant party. Surrogate's Court, County of Affidavit of spe- Title. | cial guardian. f State of New York County of being duly sworn deposes and says: I am a counsellor at law in having an office at ^ 90 SURROGATES COURTS reside at I am perfectly able and competent to pro- tect the interests of an infant party to the above en- titled proceedings; I have no interest adverse to that of said infant ; I am not connected in business with the attorneys or counsel for the proponent {or where proceeding is other than far the probate of a will, describe the petitioner) ; I am of sufficient ability to answer to said infant for any damages which may be sustained by reason of my negligence or mis- conduct in this proceeding; and am worth the sum of dollars, over and above all debts and liabilities, besides prop- erty exempt by law from levy and execution. (Jurat.) (Signature.) Where the application is made by an infant over 14 years of age it is proper to submit also the affidavit of parent or person with whom the in- fant resides indicating the relationship of such infant, and whether or no the parent or other person has knowledge of and approves the application. This affidavit may be substantially as follows: Surrogate's Court County of Affidavit of par- Title / cnt or person with ' I whom infant resides. state of New York County of being duly sworn deposes and says : I reside in I am [state whether father or mother, or what relation deponent sustains to the infant) of an in- fant party to the above entitled proceedings; the said infant resides with me and is now years of age; I have no interest in the above entitled proceedings in any manner or form (or if affiant has an interest state what it is) ; I have not influenced my in any way as to the appointment of a special guardian or in this appUcation ; but he has made such appUcation of his own volition and without any influence from me; I have knowledge of this application now being made by my said for the appointment of Esq., as his special guardian, and approve of such application as I am well acquainted with said and believe him in every respect competent to protect the interest of my said in the proceedings pending. ^J"''^*-) (Signature.) § 90. The order.— Upon the return day the Surrogate may make the order appomtmg the special guardian substantially in the following form: Present : Hon. Order appointing special guardian. PARTIES 91 Surrogate's Court Caption. Surrogate. Title. It appearing to my satisfaction by the verified petition herein of an infant over the age of 14 years (or of the father or mother or next friend of an infant un- der the age of 14 years), verified the day of 19 that said one of the heirs at law (or next of kin) of the above named decedent is an infant having no gen- eral guardian (or is an infant having a general guardian, whose interests are adverse to those of his said ward by reason of here state facts constituting adverse interest or any other reasons making it inexpedient that the general guardian should appear for and represent the infant) (and has been duly served with the citation herein and is a party to the above entitled proceedings). Now on reading and filing the affidavit and consent of Esq., counsellor at law in to become special guardian for the said infant for the sole purpose of taking care of his interests in the above entitled proceedings. It is hereby Ordered that the said be and hereby is appointed the guardian of the said infant, to appear and protect his interests in this matter. Surrogate. § 91. Qualification of a special guardian. — It has been held that special guardians are the most important officers in a Surrogate's Court, their re- sponsibility being greater even than that of a referee. Estate of Wadsworth, 24 N. Y. St. Rep. 416. The person appointed should be a lawyer (see Spicer's Will, 1 Tucker, 80), as he must be competent to protect the rights of the infant; he must have no rights adverse to those of the infant and he should not be connected in business with the attorney or counsel of any party to the proceeding. See Ex parte Tillotson, 2 Edwards' Ch. 113; Ex parte Lansing, 3 Paige, 264. Rule X in New York County provides that no party to a proceeding will be appointed special guardian of any other party thereof. The Code in section 2530 merely requires that he be a "competent and responsible person." The statute thus fails to prescribe definite qual- ifications, but it has been held: "It is good practice to require the same qualifications as are required of a guardian ad litem for an infant defendant in the Supreme Court." Story v. Dayton, 22 Hun, 450. See also Matter of Henry, 2 Howd. Pr. N. S. 250. The word "responsible" means that he should be of sufficient abiUty pecuniarily to answer to the infant for any damage which may besus- 92 SURROGATES COURTS tained by his negligence or misconduct. See Spell-man v. Terry, 74 N. Y. 448. It was formerly held that the appointment of a special guardian in the Surrogate's Court terminated with the proceeding in that court, and that if an appeal was necessary and the infant's interest required further pro- tection it was the province of the Appellate Court to appoint a guardian ad litem for that purpose. Schell v. Hewitt, 1 Dem. 249, 250, Rollins, Surr., citing Kellinger v. Roe, 7 Paige, 364; Underhill v. Dennis, 9 Paige, 209; Chaffee v. Baptist Miss. Conv., 10 Paige, 85; Moody v. Gleason, 7 Cowen, 482; Fish v. Ferris, 3 E. D. Smith, 567. The better rule, however, seems to have been established by the Appellate Division, 2d Department, in a recent case {Matter of Stewart, 23 App. Div. 17), where the court denied an application for the appointment of a special guardian ad litem to take, perfect, and prosecute an appeal from a final decree of the Surrogate of Westchester County. The court by Goodrich, P. J., denied the application, on the ground that the special guardian appointed by the Surrogate is not functus officio by the rendition of the decree. The Code of Civil Procedure, section 2573, provides that where an appeal shall be taken from such a decree, "Each party to the special proceeding in the Surrogate's Court, and each person not a party who is or claims to have, in the subject-matter of the decree or order, a right or interest which is directly affected thereby .... must be made a party to the appeal." And the court held that as the time to appeal could be set run- ning only by service of due notice of the entry of the decree upon the special guardian, it was manifest that the mere entry of the decree did not make him functus officio and that he would therefore be a party respondent to an appeal taken by another party, and that he had the undoubted right to take and prosecute an appeal as guardian and that his duties and office continued until the final determination of any appeal from the Surrogate's decree. § 92. The position of the special guardian. — The special guardian as a party to the proceeding is answerable to the court as well as to the infant; he is an officer of the court and he must report to the court his performance of the duties imposed upon him by virtue of his appointment. This report should give a full account of the matters in his charge, and where he is appointed upon an accounting or any proceeding involving the examina- tion of papers or the performance of specific acts, his report should contain a specific statement in regard to such examination and his conclusions as to the rights of his infant ad litem. Estate of Wadsworth, 24 N. Y. St. Rep. 416. He is more than an attorney. He is a sort of trustee ad Zi^em. Hence he must err on the side of caution, e. g., on an accounting, while he should not lightly increase the cost of the proceeding by meticulous objection, yet if he is in doubt he should put questionable items in issue, if they affect the infant's share, regardless of the desire of adult parties to accelerate a decree. The Referee or Surrogate can always overrule his objections, but PAETIES 93 his affidavit of qualification is a sort of bond or undertaking of responsi- bility. See Matter of Parr, 45 Misc. 564; Edsall v. Vandemark, 39 Barb. 589. So, again, in probate, he may safely contest a will even though it has a clause recalling bequests to a beneficiary contesting the same. Such a provision will not be enforced against an infant. It would be against pubhc poHcy. Bryant v. Thompson, 59 Hun, 545. The Surrogate's decree will only be made upon all the papers and (in the absence of mistake) it may be said as a general rule that there is no de- fault as to infants in a Surrogate's Court, and that no decree will usually be made affecting an infant party, except upon prima facie proof that that infant's interests have been conserved. In New York County Rule XI, already quoted, emphasizes this by providing that in proceedings for the judicial settlement of an account no decree will be entered as upon default against an infant party, but only on the written report of the guardian (special or general as the case may be) who appeared for the infant, "that he has carefully examined the account and finds it correct." Under the head of stenographers' fees, ante, it is noted that special guard- ians may acquiesce in but should not consent to stipulations as to fees on references. § 93. Adult parties — Necessary and proper parties. — There are no pe- culiar rules covering adult parties as such, in Surrogates' Courts, but it is proper to observe that in such courts all parties whether infant or adult fall under two designations, those who must be and those who may become parties to a proceeding, i. e., necessary, and proper parties. Necessary par- ties in Surrogates' Courts are those whom the statute authorizes to initiate a proceeding, or requires to be cited by the one initiating the proceeding. Reference must be had to the discussion of the various proceedings, q. v.; but an illustration is not here amiss. Upon a proceeding to probate a will the statute, to which reference must always be made, provides (Code Civ. Proc. § 2614) that any person designated in the will as executor, devisee, or legatee, or "any other person interested in the estate," or a creditor of the decedent, may petition for its probate. That is, any person falling within any one of the foregoing designations may become the petitioner, or proponent. The persons who must be cited upon such petition are, if the will relates, for example, to both real and personal property "the hus- band, or wife, if any, and all the heirs, and all the next of kin of the tes- tator." See Code Civ. Proc. § 2615. The first noticeable point is that "necessary" parties often, if this example be a proper criterion, are des- ignated by a general term as members of a class, as creditors, heirs, next of kin, "persons interested," legatees and devisees. These terms must be clearly understood at the outset. Some of them the Code itself defines. Thus, "the expression 'persons interested' where it is is used in connec- tion with an estate, or a fund, includes every person entitled, either ab- solutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise, except as a creditor." Code Civ. Proc. § 2514, subd. 94 SURROGATES COURTS 11. See Matter of Brown, 60 Misc. 628. So also "next of kin" is defined as including "all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife." Id. subd. 12. But even these definitions are not sufficient of themselves without further reference. An examination, of the authorities covering each class will be of great assistance. § 94. Heirs. — The word heirs is intended to include those persons in whom the title to real property vests upon the death of another person called the ancestor (heirs are the persons related to one by blood, who would take his real estate if he died intestate), and the word embraces no one not thus related. Tilman v. Davis, 95 N. Y. 17, 24. Nemo est hares viventis.. An heir acquires property not by his own act (so one who willfully murders, his decedent forfeits his rights as heir ipso facto. Riggs v. Palmer, 115 N. Y. 506), nor by the act of the ancestor (for he would in such event take not. as an heir but as an assignee, that is, by purchase), but by operation of th& law, which in this State sets forth in the Statute of Descents [Decedent Estate Law, Article III], the persons or classes of persons on whom upon the death of an owner of property, the inheritance would be cast. These persons are thus designated: 1. Lineal descendants. 2. Father. 3. Mother. 4. Collateral relatives. This may be summarized by saying that heirs-at-law are either lineal or collateral. § 95. Children. — Among lineal heirs must now be reckoned: First,, adopted children; and second, illegitimates, duly legitimatized. I Adopted children. (See post, Adoption.) "A child when adopted shall take the name of the person adopting, and the two henceforth shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, including the right of inheritance," (See Laws, 1873, chap. 830, § 10, as amended by Laws, 1887, chap. 703, and see note in 29 Abb.. N. C. p. 49, on the effect of this.) II Illegitimate children in default of lawful issue [Laws, 1855, chap. 547, IV Rev. Stat. (8th ed.) 2468]. See Descent and Distribution, post.. " § 1. (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." See Ferris v. Pub. Admin'r, 3 Bradf. 249, held, "not to affect right to admin- ister" of next of kin). The first act in this State making legitimate the illegitimate children of parents who married after the birth of such ille- gitimate children, was chapter 531, Laws of 1895, which act legitimatized all illegitimate children whose parents had before that time, or might PARTIES 95 thereafter, intermarry. This act provided that vested interests or estates should not be divested or affected by that act. It continued in force until it was repealed by the Domestic Relations Law (chap. 272, Laws of 1896), section 18 of which declared that "an ille- gitimate child whose parents have heretofore intermarried, or shall here- after intermarry, shall thereby become legitimate and shall be considered legitimate for all purposes, entitled to all the rights and privileges of a legitimate child; but an estate or interest vested before the marriage of the parents of such child shall not be divested or affected by reason of such child being legitimatized." Section 18 of the Domestic Relations Law was amended by chapter 725, Laws of 1899, the amendment protect- ing trusts created at the time of the remarriage, as well as estates or in- terests then vested. Matter of Barringer, 29 Misc. 457, 459. The act of 1895 and that of 1896 are retroactive, so far as they change the status of illegitimates born before the acts in question went into effect. But while all such previous illegitimates are from May 3, 1895, to be re- garded as legitimates, with full capacity to take by descent or under the Statute of Distributions, the legislature did not intend by such legitima- tion to divest interests vested before the act of 1895, or during the ille- gitimacy of any child who may be under either of the acts restored by them to a state of legitimacy. Both the act of 1895 and that of 1896 contain clauses which, in terms, purport to save interests vested in the one case at the passage of the act, and in the other at the time of the intermarriage of the illegitimate's parents. Ibid. Where there is lawful issue, illegitimates (unless legally adopted) are not entitled to citation. Matter of Losee, 119 App. Div. 107, aff'g 46 Misc. 363. § 96. Surrogate to determine status. — It may be said in this con- nection that should any uncertainty exist as to whether a certain party in any proceeding in a Surrogate's Court is within this or any class to whom a devise or bequest is made, that court is competent to pass upon the ques- tion. The Surrogate, accordingly, may take as evidence declarations as to pedigree to determine status of one claiming to be an heir, or next of kin. Matter of Fail, 56 Misc. 217, citing Eisenlord v. Clum, 126 N. Y. 564. It certainly creates no occasion for appealing to the equity jurisdiction of the Supreme or any other court. See Crouse v. Wilson, 73 Hun, 353, 356, where residuary estate was willed to testator's " heirs and next of kin, in the same proportion that is provided by the laws of the State of New York in cases of intestacy," citing Garlock v. Vandevort, 128 N. Y. 374; Riggs V. Cragg, 89 N. Y. 480; In the Matter of Verplanck, 91 N. Y. 439. If the word " heirs " is used by a testator to indicate the beneficiaries of a bequest of personal property, it will be interpreted as equivalent to "next of kin," the court seeking not so much for exact definitions as to carry out the in- tention of the testator. Tilman v. Dams, 95 N. Y. 17; Matter of Sinz- heimer, 5 Dem . 32 1 , 322 . See post," Construction of Wills . " In the Matter of McGarren, 112 App. Div. 503, it was held that a Surrogate of whom a woman petitioned for letters as "widow," could examine the record of an 96 surrogates' courts annulment action, in the Supreme Court, to determine whether the decree therein, annulling her marriage to decedent, and set up in the answer to the petition, was based on summons duly served upon her. The Appellate Division held that if a judgment depends upon a fact litigated in the action, the Surrogate could not examine it, but is bound by it so long as it stands unreversed. Hence, in either event whether he finds the decree valid, as duly entered or is bound by it as it stands, in the case cited he was bound to deny petitioner's status as widow. But the Surrogate has no jurisdiction to inquire into or settle the rights of heirs-at-law in real estate or its proceeds, or to divide the proceeds ac- cording to the laws of descent. Matter of McKay, 37 Misc. 590, and cases discussed; Matter of Woodworth, 5 Dem. 156, 160; Shumway v. Cooper, 16 Barb. 556. If an administrator receive such proceeds he will not be allowed to include them in his account to the Surrogate's Court. Matter of McKay, supra. Nor can he be allowed commissions thereon. Ibid. Of course in proceedings to sell decedent's real estate to pay debts, the Surrogate's decree will distribute surplus to heirs. See post, under, §§ 2793, C. C. P. ■ei seq. § 97. Next of kin. — The Code definition has been given in full in sec- tion 93. By its terms reference is necessary to the Statute of Distribu- tions which governs every case. [See Decedent Estates Law, Article, III, and see post, under "Administration" and "Distribution of Es- tate." The proper primary significance of the words is "those related by blood who would take personal estate of one who dies intestate." Til- man V. Davis, 95 N. Y. 17, 25.] The term "next of kin" is unfortunately not used with exactness. "It has been considerably discussed whether these words used simpliciter, mean the nearest blood relations, or mean the next of kin according to the Statute of Distributions, including those claim- ing per stirpes or by representation." Church, Ch. J., in Murdock v. Ward, 67 N. Y. 387, 389. The latter has been held to be the correct meaning. Slosson V. Lynch, 28 How. Prac. R. 417. The English rule was different (Fettiplace v. Gorges, 1 Ves. Jr. 46) i. e., that the husband succeeds to the wife's personal estate as her next of kin. Commenting on this Chancellor Kent says: "It would seem to be more proper to say that he takes under the statute of distribution as husband, with a right in that capacity to ad- minister for his own benefit." 2 Kent's Com. 136, and see cases cited. It ought to mean " nearest of kin," but that idea is expressed by saying " next of kin in equal degree," so that the practitioner must not be unprepared to find that by next of kin is often included more than one degree of relation- ship such as brothers and sisters, together with children of a deceased brother or sister, included by "representation." See amended subd. 12 of § 2732, C. C. P. See Matter ofHealy, 27 Misc. 352. " Next of kin " standing alone never means heirs-at-law (N. Y. L. I. & Trust Co. v. Hoyt, 161 N. Y. 1, 9), though "heirs" has sometimes been held to be equivalent to "next of kin." Armstrong v. Galusha, 43 App. Div. 248, 256, citing Tilman v. Dams, 95 N. Y. 17. PARTIES 97 For purposes of citation, and of making them parties to proceedings, the nearest of kin are to be ascertained. A surviving husband or wife is not within this designation. Bouv. Diet, sub. "Next of Kin;" Redfield on Wills, 78, § 13, vol. 2; 2 Kent's Com. 136; Murdoch v. Ward, 67 N. Y. 387, 389; Piatt v. Mickle, 137 id. 106; Luce v. Dunham, 69 id. 36; Matter of Devoe, 66 App. Div. 1, 6, aff'd 171 N. Y. 281. It includes only 1. Children and their descendants. 2. Father. 3. Mother and brothers and sisters and the legal representatives of deceased brothers or sisters. 4. Collateral relatives. But such husband or wife should be cited in the proceeding, for the Statute of Distributions makes them distributees in certain cases. The statute provides in subdivision 5: "In case there is no widow, no children and no representatives of a child, then the whole surplus shall be distributed to the next of kin, in equal degree to the deceased and their legal repre- sentatives." Who are the "next of kin in equal degree" to the deceased is to be decided by the rule of the ecclesiastical law, which has always con- trolled in such matters, as a part of the common law. Sweezy v. Willis, 1 Bradf. 495-497. Consanguinity is the connection or relation of persons descended from the stock or common ancestor. Lineal consanguinity is reckoned in the same way in the canon and common law, the rule being: to begin at the common ancestor, and reckon downwards, and in whatever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. The civil law, on the other hand, computes by counting upwards from either of the per- sons related, to the common ancestor, and then downwards again to the other, reckoning a degree to each person, both ascending and descending. In other words, the former start from the ancestor, the latter from the in- testate, in computing the degree of consanguinity. The spiritual courts adopted the rule of the civil law in reckoning propinquity of degree (Bl. Com. II, chap. 32; Co. Litt. 23; Williams on Exrs. 344 et seq.) and while the Statute of Distributions altered in several particulars the mode of distribution consequent upon the computation of the civil law, neverthe- less when the statute directs distribution to the next of kin, the rule of the civil law prevails for the purpose of reckoning propinquity of consanguinity. See Sweezy v. Willis, supra; Hurtin v. Proal, 3 Bradf. 414, 419. See opinion of Surrogate. Thus, the accompanying diagrams show: I. By either common or civil law, the grandfather in I is two degrees removed from the intestate. In II, reckoning by the civil law, the intestate and aunt are three degrees apart, reckoning one degree, ascending, to the mother, two, still ascending to the grandfather, and three, descending to the aunt. By the common law, the most remote from the common an- cestor is the intestate, who is therefore two degrees only removed from the 7 gg SURROGATES COURTS aunt. The importance of this is great, as under the common law aunt or grandfather are within the same degree of nearness, while under the civil law the aunt is one degree further removed, which is very important when questions of rights to administration, or to a distributive share, are con- cerned. Grandfather Grandfather Mother Mother Mother's sister, i. e., aunt Intestate Intestate I II The words "next of kin" may be extended by judicial construction. Thus when a statute gave a creditor who had neglected to present his claims right to recover the same of the " next of kin of the deceased to whom any assets shall have been paid or distributed" it was held that it was not used in its strict sense, but included every relation of the deceased to whom any assets had been paid. Merchants' Insurance Co. v. Hinman et al., 15 How. Prac. R. 182. § 98. Persons interested. — In addition to the definition quoted in sec- tion 93 of this phrase, there are several adjudications as to who is and who is not a person interested in the sense of the statute. Thus legatees of a deceased legatee of a testator have been held to be "persons interested" in that testator's estate. Fisher v. Banta, 66 N. Y. 468, 481. So also a residuary legatee under the will of a nephew of an intestate. Matter of Prout, 52 Hun, 109. A debtor to an estate is not a person interested in it within the meaning of the statute. Estate of Berney, 2 McCarthy, 455. One to whom a share in a trust legacy has been assigned has been held to come under subdivision 11. In re Rogers's Estate, 16 N. Y. Supp. 197. Where the Code provides that a " person interested " may " object to an ap- pointment or may apply for an inventory, an account or increased security, an allegation of his interest duly verified, suffices, although his interest is disputed; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending." Code Civ. Proe. § 2514, subd. 11 ; Bonfanti v. Deguerre, 3 Bradf. 429. The sworn statement of interest gives the person making it a prima facie standing. The Surro- gate may require further proof of interest if the claim is disputed. But in the case just cited where an administrator with a will annexed, being called upon to account, claimed that the petitioner had assigned all his rights in the estate, the Surrogate held that if the interest was sworn to, and the de- nial of such interest raised an issue, such as the vaUdity of the assignment, which was beyond the Surrogate's jurisdiction to try, the Surrogate would PAKTIES 99 not try it, and would entertain the petition on the frima facie standing of the petitioner. See also Matter of Clute, 37 Misc. 710, 714; Matter of Ran- dall, 152 N. Y. 508. If, in answer to one petitioning for relief, a release is alleged or produced of all petitioner's rights in the estate, it is conclusive on the Surrogate, and bars the petitioner until set aside in a court having jurisdiction. Matter of Wagner, 119 N. Y. 28; Matter of U. S. Trust Co., 175 N. Y. 304, aff'g 80 App. Div. 77 (opinion of Hatch, J.). If a question as to a person's interest in a proceeding is raised the Surrogate will deter- mine the disputed point unless it raises an issue he is without jurisdiction to try, such as the validity of an assignment of interest. Ibid. But he may decide whether, as a matter of fact, an assignment was made. Ibid.; Matter of Geis, 27 Misc. 490. In that event (see Bonfanti v. Deguerre, supra), the application will be rejected if the lack of interest appear on the face of the petition (Woodruff v. Woodruff, 3 Dem. 505, and Matter of De Pierris, 79 Hun, 279); but not if allowed by the respondent, or party required to be cited, and the verified allegation of petitioner gives him a prima facie standing {Bonfanti v. Deguerre, supra); but the words "person interested" may be limited by the context in which they are found. Thus in § 2653a of the Code relating to an action to determine the "validity" of a will, under which the proofs are limited to the factum of the will, the words used are "any person interested in a will or codicil offered for probate." This has been held not to include any one who does not take under the will, not even a child. Levns v. Cook, 150 N. Y. 163; Whitney v. Brition, 16 App. Div. 457. § 99. Creditors. — Creditors are often necessary parties to proceedings and their interest as such is alleged and proved substantially as is that of "persons interested" although the Code distinctly excludes creditors from the definition of "persons interested." Code Civ. Proc. § 2514, subd. 11. But see Rafferty v. Scott, 4 App. Div. 429; Wever v. Marvin, 14 Barb. 376; Burwell v. Shaw, 2 Bradf. 322; Thomson v. Thomson, 1 Bradf. 24; Cot- terell v. Brock, 1 Bradf. 148; cf. Matter of Stevenson, 77 Hun, 203. See Gove V. Harris, 4 Dem. 293, where Rolhns, Surr., says: "I have repeatedly held, in applications by persons claiming to be creditors, for orders direct- ing the filing of inventories or accounts, that a mere allegation that such applicants were 'creditors' would entitle them to the relief asked, unless that allegation were denied, but that in the event of such denial, the ap- plicant should be required to set forth facts which if undisputed would show that his claim to be a creditor was well founded. It seems to me that the practice should be the same in a proceeding like the present" (which was an application for subpoena commanding production of will, with a view to propounding same for probate). "The petitioner's claim to be a creditor is here denied. Before his right to further prosecute the proceed- ing is recognized he must make a more definite statement of the nature of his claim by setting forth the facts upon which it is founded," citing Crea- mer V. Waller, 2 Dem. 351. Creditors may be petitioners or respondents as the case may be. The IQQ surrogates' courts statute must control every case. Thus, the statute permits a creditor to be ■ proponent of a will, but nowhere is there provision made for his being respondent on the probate. That being the case, a creditor cannot come in afterwards and move to revoke probate. Hdlman v. Jones, 5 Redf. 398, 400. The word " creditor " has a wide significance under the Code. Section 2514, subdivision 3, provides: "The word 'debts' includes every claim and demand, upon which a judgment for a sum of money, or directing the pay- ment of'money, could be recovered in an action; and the word 'creditor' includes every person having such a claim or demand." But this means only " having such a claim or demand" against the deceased only. Matter of Underhill, 117 N. Y. 471; Matter of Redfield, 71 Hun, 344, 346; Duman V. Guest, 5 Redf. 440. It does not mean a creditor of a creditor, or a creditor of one of the next of kin, or of a legatee. The Surrogate has no power to inquire into the merits of such a one's claim. Section 2743 provides: Where an account is judicially settled as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so en- titled according to their respective rights. In case of whole or partial intestacy, the decree must direct immediate payment .... to creditors. ... If any person who is a necessary party for that purpose has not been cited, or has not appeared, a supplemental citation must be issued as prescribed in sec- tion 2727. . . . Where the validity of the debt, claim, or distributive share is admitted, or has been established upon the accounting or other proceeding in the surrogate's court, or other court of competent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same. ... § 2743, Code Civil Proc. in part. Chap. 595 of the Laws of 1895, by which the foregoing section was originally amended to read as above, also amended section 1822 of the Code by providing for the filing of a written consent, signed by the claim- ant against a decedent's estate and the executor or administrator, with the Surrogate, consenting that a disputed claim may be heard and determined by the Surrogate upon the judicial settlement of the account. {Post, sub. Accountings.) With the exception of claims so stipulated over the necessary implication from section 2743 is or has been held to be (Marline's Estate, 11 Abb. N. C. 50; McNulty v. Hurd, 72 N. Y. 518, 520; Glacius v. Fogel, 88 N. Y. 434; Fiester v. Sheppard, 92 N. Y. 251; Giles v. De Tallyrand, 1 Dem. 97; Lambert v. Crcift, 98 N. Y. 342, 347; Matter of Will of Walker, 136 N. Y. 20, 27) that the Surrogate has no authority to determine respective rights of contending parties nor pass on disputed claims. See Greene v. Day, 1 Dem. 45 (official syllabus). "The rule still prevails, under the Code of Civil Procedure (§ 2743) which must be deemed to have been substantially deduced, by the adjudications, from the former statute (R. S. part 2, chap. PARTIES I0i' \ ■; ' 6, tit. 3, § 71) viz.: 1st. That the delegation, to Surrogates, of authority to decree, upon the final accounting of an executor or administrator, a distribution to claimants ' according to their respective rights, ' gave them no power to ascertain and determine what those rights were, except in cases where they were conceded to exist. 2d. That the imposition, upon the Surrogate, of the duty ' to settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share' empowered him to settle and determine such question, and such only, as were not a matter of dispute between the parties, or in simpler phrase, such questions as there was no question about. The Surrogate's Court being utterly devoid of jurisdiction to adjudicate finally upon the validity of an alleged creditor's disputed claim against a decedent's estate, an allegation by any person, that he is a creditor of the estate is conclusive for the purpose of entitling him, under Code Civ. Proc. § 2731, to become a party to a contest over the correctness of its executor's account." Both creditors, or persons interested in an estate, may, under proper circumstances and although not cited, appear {Martine's Estate, 11 Abb. N. C. 50. Thus creditors whose claims are not barred by the statute of limitations may come in and object to claims which are barred, if assets are insufficient to pay both. Matter of Kendrick, 107 N. Y. 104) and make themselves parties to a given proceed- ing, such as for example a proceeding for judicial settlement of an executor's account initiated by an executor under section 2728. Nor is this right lost by omitting to present creditor's claim pursuant to executor's notice. Greene v. Daij, 1 Dem. 45, and see cases chronologically arranged in de- cision. But, it seems, they can appear only "upon the hearing." Estate of Wood, 7 N. Y. St. Rep. 721. See " Accounting " for effect of recent amendments of Code. § 100. Devisees and legatees. — These terms have strictly distinct meanings. A devisee is one who takes realty, and a legatee one who takes personalty under a will. See Weeks v. Cornwell, 104 N. Y. 325, 343, where Court of Appeals included, by reason of the context and in order to carry out testator's intentions, devisees under legatees. They are certainly "interested" in the estate, but are not necessarily to be cited, although they may usually intervene in proceedings in which their interests are involved. They may propound the will for probate. And a legatee named in a will prior in date to that offered for probate may come in and oppose probate of the subsequent will. § 2617, C. C. P. McClellan's Practice in Probate Courts, p. 55, citing Matter of Will of James Malcolm, Dayton's Sur. 3d ed. 159. § 101. Assignees. — If a devisee or legatee assigns his interest he loses his right to be a party, and while the assignee or receiver of a legatee or de- visee is not entitled to stand in his shoes and become a party to the pro- ceedings at the same stages, yet he is amply protected by the provision that he may come in on the distribution, and the Surrogate is empowered to decree payment to him of his share, or he may even be allowed to peti- 102 surrogates' courts tion for an accounting. See Code Civ. Proc. § 2743. It has been held that such an assignee should be cited to attend the proceedings on accounting and distribution. Estate of Gilligan, 1 Con. 137. ■ In the case cited the petitioner for the accounting was one who had been appointed receiver of the administrator called to account. Held, the receiver was the assignee of the administrator's share in his intestate's (wife's) estate, and as such entitled to petition, or to be cited, or to inter- vene, citing Gihhons v. Shepard, 2 Dem. 247. In Matter of Losee, 119 App. Div. 107, B assigned his distributive share and died. In a subsequent proceeding it was held (a) his representative had no standing; (&) that as the proceeding was an application for letters involving question of priority of right the assignee had no standing, since the validity of the assignment was disputed, and the Surrogate could not pass oh such an issue. Attention must be called to chapter 6.92, Laws 1904, which affects the Page 102: The third paragraph calling attention to Chap. 692 of the Laws of 1904 requires this additional note: "This act was repealed by the Consolidated Laws, but its provisions are re-enacted in Personal Property Law in § 32, and in Real Property Law in § 274." merex-anaer ueceuciTtro name, § 102. Interest of individuals not of a class; surviving husband or wife. — Persons may be necessary or proper parties to proceedings in Surrogates' Courts, not only because they belong to one of the classes just enumerated, such as heirs, next of kin, persons interested, creditors, devisees, or legatees, but by reason of the relations they may sustain to the decedent or to one already a party to the proceeding, as a surviving husband, a widow, one named as executor, or chosen as administrator, one who becomes surety for an executor, administrator or trustee, a guardian, a posthumous or illegitimate child. A surviving husband or wife require particular mention in this connection. By subdivision 12 of section 2514, they are both dis- tinctly excepted from the definition of "next of kin." By subdivision 11, however, they are declared to be persons interested. Under sections 2614- 2615 either may petition for probate, and is entitled to citation, being named before heirs or next of kin. A widow, when entitled to be a party, is so de sui juris, and not as heir or next of kin. Wright v. Trustees of M. E. Church, Hoff . Ch. 202 ; Drake v. Pell, 3 Edw. Ch. 251; Slosson v. Lynch, 43 Barb. 147; Murdoch v. Ward, 67 N. Y. 387; Lme v. Dunham, 69 N. Y. 36. But where the court is sa,t- isfied that, though those terms were used the testator intended to include the surviving husband or wife, such intention will be carried into effect. Murdoch v. Ward, 67 N. Y. 387; Betsinger v. Chapman, 24 Hun, 15, 18, affirmed 88 N. Y. 487, and cases discussed. If there is nothing in the context to show that the widow was intended to be included, the words will be given their primary meaning (Id.; Keteltas V. Keteltas, 72 N. Y. 312, 316. See the numerous cases cited by appellant herein on pp. 313-314. For what is primary meaning see preceding sections, and Tilman v. Davis, 95 N. Y. 17, 24, whereunder see examina- PAETIES ] 03 tion of English decisions by Earl, J., on p. 27), for neither term is likely to be used by any testator to designate persons who were not related to him by blood. Id. In the case of statutes also the intention of the legislature is the thing to be discovered, and, once known, words of description may be extended accordingly to include subjects to which they are not directly applicable. Betsinger v. Chapman, 88 N. Y. 488, 494, where object of Revised Statutes (p. 2, ch. 6, title 5, §§ 9-10) being to give a remedy by action against executors and administrators to "any legatee or any of the next of kin entitled to share in the distribution of the estate," held, to include widow as a distributee under the statute of distributions. The rights of a sur- viving husband or wife and their status as parties may be materially affected by the fact of a divorce formerly granted to or from the decedent. The Code provides (§ 1759, subdivision 3, as amended by ch. 891, Laws of 1895), "If when final judgment is rendered, dissolving the marriage, the plaintiff — which under this section is the wife — is the owner of any real property; or has, in her possession, or under her control, any personal property, or thing in action, which was left with her by the defendant, or acquired by her own industry, or given to her by bequest or otherwise; or if she is or may thereafter become entitled to any property by the de- cease of a relative intestate, the defendant shall not have any interest therein, absolute or contingent, before or after her death. 4. Where final judgment is rendered dissolving the marriage, the plaintiff's inchoate right of dower, in any real property, of which the defendant then is or was theretofore seized, is not affected by the judgment." And per contra section 1760 (action brought by husband), provides: "A judgment dissolving the marriage does not impair or otherwise affect, the plaintiff's rights and interests, in and to any real or personal property which the defendant owns or possesses, when the judgment is rendered. 3. "Where judgment is rendered dissolving the marriage, the defendant (i. e., the wife) is not entitled to dower in any of the plaintiff's real property, or to a distributive share in his real property." The rights of a surviving husband or wife who was divorced may also be affected by the guilt or innocence of the survivor. Thus a woman divorced from decedent for her adultery is, under the provisions of the Code just quoted, not entitled to dower nor to a distributive share. If she had obtained the divorce, how- ever, from decedent for his guilt, her dower rights are not divested from real property owned by him at or prior to the judgment of divorce. But the divorce, whether in her favor, or against her, disentitles her to administer upon his estate, for she is not his widow in the eyes of the law, as well as to any distributive share in his personal estate, since her rights quoad hoc were determined by the judgment which has this very matter id view allowing and fixing her alimony. Matter of Estate of Ensign, 103 N. Y. 284; Kade v. Lauber, 16 Abb. Prac. N. S. 288. Although blameless, no dower attaches in her favor to lands acquired by him after the divorce. Her coverture, as to him, ended with the judgment. Under the provisions lOJ: SUREOGATES COURTS of law it is possible that he may marry again, in which case his last wife if she survive him is his "widow." Any other doctrine would tend to pro- duce confusion, and is shown to be fallacious in Matter of Estate of Ensign, 103 N. Y. 284, where Finch, J., grimly asks, admitting the possibility of a man's legally marrying in another State, or even in this by consent of the court: "Suppose that, with unusual activity, he should leave four (such 'widows') how would each one get one-third of the personalty?" See, for exhaustive opinion on effect of divorce, right to remarry in another State, and validity of new marriage, and effect of rule "straining after legitimatization of offspring," opinion of Beckett, Surr., in Matter of Garner, 59 Misc. 116. § 103. Executors or administrators, whether one or several, are looked upon as one, so far as being parties is concerned. Code Civ. Proc. § 1817. "In an action or special proceeding against two or more executors and administrators, representing the same decedent, all are considered as one person." But this relates only to such as have received letters testamen- tary. One to whom letters have not been issued is not a necessary party to an action or special proceeding, in favor of or against the executors, in their representative capacity. Code Civ. Proc. § 1818; Moore v. Millett, 2 Hilt. 522. But see Hunter v. Hunter, 19 Barb. 631. And this means one to whom letters have not been issued in this State. Thus if there are two coexecutors of a non-resident testator in another State, and only one takes out letters in this State, such one is the only one necessary as a party to proceedings in this State. Lawrence v. Townsend, 88 N. Y. 24, 32. When executors are necessary parties all must join or be joined. Matter of Slingerland, 36 Hun, 575, 577; Scranton as Ex'r v. Farmers' & Me- chanics' Bank, etc., 24 N. Y. 424. § 104. Intervening. — Upon the probate of a will, any person, although not cited, who is named as a devisee or legatee in the will, or as executor, trustee, devisee or legatee in any other paper purporting to be a will of the decedent or who is otherwise interested in sustaining or defeating the will, may appear, and, at his election support or oppose the application. A person so appearing becomes a party to the special proceeding. Code Civ. Proc. § 2617. See Lajferty v. Lafferty, 5 Redf. 326, 329, citing Booth v. Kitchen, 7 Hun, 255, 259, 260, 264; Walsh v. Ryan, 1 Bradf. 433; Mar- vin V. Marvin, 11 Abb. N. S. 97; Children's Aid Society v. Loveridge, 70 N. Y. 387, 391; Terhune v. Brookfield, 1 Redf. 220. This rule applies in cases other than probates. In any case the party, having the necessary mterest, must petition the Surrogate for leave to come in, and in every proper case such leave will be given; otherwise he may become a mere "interloper" and his claim of rights disregarded. Matter of Garner, 59 Misc. 116; Matter of Hamilton, 76 Hun, 200. No motion, or any other steps, can be taken by such person in the proceeding until after he becomes a party. Foster v. Foster, 7 Paige, 48, 52; Lafferty v. Lafferty, 5 Redf. 326, 329. It is no answer to his application that as to him the Statute of Limitations has run if the court has jurisdiction of the rem. Matter of PARTIES 105 Ibert, 48 App. Div. 510; Matter of Bingham, 127 N. Y. 296. If any one already a party to a proceeding in a Surrogate's Court dies, his represen- tative is entitled to come in and protect his interest in his decedent's place and stead. Van Alen v. Hewins, 5 Hun, 44. A proceeding for probate of a will, being a proceeding qvusi in rem, does not abate by the death of a party, whether proponent or contestant or even of all the par- ties. Lajferty v. Lafferty, 5 Redf. 326. The proceeding lives, and must continue unabated, until the will be either admitted to or refused probate. Van Alen v. Hewins, 5 Hun, 44; Brick v. Brick, 66 N. Y. 144. The right of a representative of a party to intervene upon such party's decease is thus an essential right. Merritt v. Jackson, 2 Dem. 214, Rolhns, Surr.: "It seems eminently proper, even if it is not essential, that one who is the acknowledged representative of a party deceased, and who asks as such to intervene, should be allowed to do so." Whatever the proceeding, the party petitioning for leave to intervene must allege the facts constituting his interest or title to be brought in; such as, that he is a " person interested in the estate" (see § 98 and cases cited) or a creditor who desires, for ex- ample, to come in upon an accounting; or that he "has in the subject- matter of the decree or order, a right or interest, which is directly affected thereby (thus counsel for contestant of a will to whom the Surrogate had made an allowance were held to be properly parties to an appeal taken by the executrix. Peck v. Peck, 23 Hun, 312. See also Wilcox v. Smith, 26 Barb. 316; Matter of Thompson, 11 Paige, 453; Jauncey v. Rutherford, 9 Paige, 273) and which appears on the face of the papers presented in the Surrogate's Court, or has become manifest in the course of the proceed- ings" in case he desires to become a party upon an appeal. Code Civ. Proc. § 2573. § 105. Mode of intervention. — The ordinary manner of intervention is by order of the Surrogate upon the applicant's petition, or upon his ap- pearance in open court, on the return day, and filing a sworn claim of interest. The evidence on the question of interest is taken pari passu with that relating to the will, in case of probate, and is not deemed a separate proceeding. Norton v. Lawrence, 1 Redf. 473, 475. But under Rule 4 of the court in the county of New York, the Surrogate first hears and passes upon the question of the status of the contestant, if it has been drawn in question, "unless for the convenience of the parties or the court, the Surrogate shall order otherwise." A claimant, not entitled to be cited as heir-at-law or next of kin, may become a party to an accounting pro- ceeding by presenting his claim and filing a consent. Matter of Ingraham, 35 Misc. 577. In case a person becomes a necessary party on appeal under § 2573, supra, he may be brought in by an order of the Appellate Court, made after the appeal is taken. Or the Appellate Court may prescribe the mode of bringing him in, as by publication, by personal service, "or otherwise." And it has been held that when the appeal is pending the Surrogate's Court has no longer power to make an order allowing a party to intervene 106 surrogates' courts but that he may only apply to the Appellate Court. Matter of Dunn, 1 Dem. 294, citing the following: Foster v. Foster, 7 Paige, 48; Marvin v. Marvin, 11 Abb. Pr. 97; Matter of Wood, 5 Dem. 345. But a creditor of, or person interested in the estate or fund affected by any decree or order, who was not a party to the special proceeding, but who was entitled by law to be heard therein upon his application, or who has acquired since the decree or order was made a right or interest which would have entitled him to be heard, if it had been previously acquired, may intervene and appeal. The facts which entitle such a person to appeal must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal. Code Civ. Proc. § 2569. See Foster v. Foster, 7 Paige, 48; Marvin v. Marvin, 11 Abb. N. S. 97; Delaplaine v. Lawrence, 10 Paige, 602. § 106. Practice on intervention. — The following precedents used upon a proceeding for the probate of a will, sufficiently indicate the forms to be followed where a party desires to intervene: Surrogate's Court, County of Title. =•1 Petition of an To the Surrogate's Court of the county of heir-at-law for leave to intervene. The petition of _ respectfully shows: I. That he is (e. g.', an infant over 14 years of age, and was years of age on the day of 19 ), that he resides in (with his ). II. On information and belief, that on the day of one departed this fife leaving his last will and testament, which on the day of was duly filed in the office of the Surrogate of the coimty of for probate; and that proceedings for the probate of said will are now pending before said Surrogate; and that said will is a will of real and personal property (or of real, or of personal property). III. That your petitioner is one of the heirs-at-law of said decedent {or one of the next of kin, or state relationship in fuU if necessary by showing kinship through common ancestor in case of collaterals, or by specifying that the decedent was an uncle, aunt, or brother or sister, or whatever the relationship may have been.) Note. IV. Your petitioner further says, that he is interested in the said will [state briefly the facts showing whether the petitioner IS interested in sustaining m defeating- the will, and if the peti- tioner desires to defeat the will, state briefly the facts on which the petitioner intends to rely. For example, as follows: That your petitioner is informed and verily beUeves that said will was procured by undue influence, or, that at the time it was made, the petitioner was without testamentary capacity to make PARTIES 107 such a will ; and your petitioner is advised and verily believes that said will is not in fact the last will and testament of said testator, but that probate should be denied the same; and he is further advised that if probate is denied the same, your peti- tioner will be entitled to share in the real or in the personal, or in the real and personal estate of said decedent {or if peti- tioner claims by representation say, entitled to that share in the realty, or personalty, or in the real and personal estate of said decedent, which his mother, or father, would have been en- titled to if living, as one of the heirs, or next of kin of said al- leged testator)]. Wheeefoee, your petitioner prays that an order of this court may be made adjudging your petitioner to be a neces- sary party to the above entitled proceeding and directing a supplemental citation to issue directed to him and to be served upon him according to law. ' (Signature.) (Verification.) Present : Order allowing party to intervene. Note. Note. These prec- edents are only nec- essary where the proponent's attorney puts in issue the right of the petitioner to be made a party. If this right to inter- vene is not put in issue, the supple- mental citation may issue on consent, without the formal- ity of an application to the court. Note. Where the petitioner who is permitted to in- tervene is an infant he should petition for the appointment Surrogate's Court Caption. Hon. Surrogate. Title. On reading and filing the petition of (if necessary say an infant over the age of 14 years or where infant is under the age of 14 years and petition is made by parent or general guardian or next friend state the fact), verified the day of 19 from which it appears that the peti- tioner, (if necessary an infant as aforesaid) is inter- ested in the probate of the will of deceased, proceed- ings for which are now pending in this court, and that the said petitioner desires to intervene in such proceedings that his interests therein may be protected. Now after hearing counsel for said petitioner and for the proponent respectively, and on motion of of counsel for the petitioner, It is Ordered that the said (an infant over or under the age of 14 years) be and he hereby is adjudged to be a necessary party to the above entitled proceeding and should be cited therein ; and it is Further Ordered that a supplemental citation issue forth- with directed to the said be served upon him ac- cording to law. Note. 108 surrogates' courts of the special guard- ian directly upon the order permitting him to intervene. If no application is made by him or on his be- half, the Surrogate will appoint a special guardian upon his own motion. § 107. Order not necessary. — It is not necessary but it is better practice that an order be entered on the intervenor's petition, granting his request. The same result is secured by issuing a citation to him and proof of service of such citation upon him is sufficient proof of his regular standing as a party to the proceeding. For the Surrogate, of his own motion, if he dis- cover that any one is a necessary par^y to a pending proceeding, will bring him in, and if such a party be a minor, will appoint a special guard- ian. It is quite immaterial how he ascertains that such a one is a nec- essary party. The affidavit of an attorney is quite sufficient. Russell v. Hartt, 87 N. Y. 18, 23. So, in a case before the Surrogate of New York, the omission of a minor as a party to the proceeding was discovered by the Surrogate himself, after twelve years of litigation, and a special guard- ian appointed. Saltus's Estate, 1 Tucker, 230. § 108. Effect of death of a party. — At common law when a sole party to a legal action died before trial, the action abated, and there was no way to revive or continue it. Matter of Palmer, 115 N. Y. 493-495; Evans v. Cleveland, 72 N. Y. 486. The right to revive and continue such actions in the names of the administrators or executors of a deceased party always depends upon statutes. AfaWer o/ Camp, 81 Hun, 387, 388. Prior to 1891, the provisions of the Code upon this subject related only to actions. They were then amended so as to apply also to special proceedings, but not in Surrogates' Courts, except as expressly made applicable. Sections 765 and 785, are such sections made applicable by § 3347, subd. 6. They provide, 1. That no judgment may be entered against a party who dies before a verdict, report, or decision is actually rendered against him. 2. Where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion is to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. This indicates that certain special proceed- ings in Surrogates' Courts abate on the death of a party, and that others may not. And, first, if the proceeding be in rem the jurisdiction of the Surrogate, once acquired, is not divested by the death of one of the par- ties, or even of all the parties. Lafferty v. Lafferty, 5 Redf. 326. Thus a probate proceeding, which is of this description, or, speaking exactly, a proceeding quasi in rem, is one in which the Surrogate's function is not to PARTIES 109 determine issues or rights between parties, and if the will is contested the issues then raised are deemed incidental to the general inquiry as to its probate, but whether or not the instrument propounded as the last will and testament of the decedent is a valid will, and is in very fact his last will. This inquiry is not affected by the death of a party to the proceed- ing and does not abate by reason thereof. Brick v. Brick, 66 N. Y. 144. The interests of the deceased party can if they survive, be represented by his legal representatives, whose application to be made parties should be granted. Van Alen v. Hewins, 5 Hun, 44, 47, citing Brick's Estate, 15 Abb. Pr. 12; Campbell v. Thatcher, 54 Barb. 382; Campbell v. Logan, 2 Bradf. 90; Pew v. Hastings, 1 Barb. Ch. 452; Kerr v. Kerr, 41 N. Y. 272- 277, and see Merrick v. Jackson, 2 Dem. 214; Lafferty v. Lafferty, 5 Redf. 326. If no application is so made by them and the Surrogate proceeds with the probate, his decree is binding on all the surviving parties to the proceeding. Brick v. Brick, 66 N. Y. 144. So, also, in a proceeding in rem, such as a probate proceeding, the relation in which the party dying stands to the proceeding does not affect this question of abatement. Thus where a proponent died it was held the proceeding did not abate, but could be revived and continued {Matter of Covers, 5 Dem. 40) ; and similarly in a case where a contestant died. Van Alen v. Hewins, 5 Hun, 44. Where a proponent dies, who is also a beneficiary under the will, his executor or administrator should make an ex parte application to be made a party to the original proceeding, and when made a party he should then apply, on notice, for a revival in his name as proponent. It seems that this is better practice than that heirs or next of kin of the testator, other than the original proponent, if any there be, should apply to be substi- tuted as proponents. In re Covers, 5 Dem. 40. The theory being that the proponent's executor is under the duty of seeking to reduce to possession that which his testator is entitled to under the will he had propounded and, to that end, to proceed with its probate. If, however, the proponent have no beneficial interest under the will, and die, his executor is not bound to come in. So if one is named an ex- ecutor in a will and in that capacity offers it for probate, and dies, pfending the proceeding his estate can have no possible interest in intervening. In such a case any other person who would have been originally qualified to offer the will may come in and apply for a revival of the proceeding in his own name as proponent; of course first intervening if he be not already a party. Such an application should not be ex parte but upon notice to all other parties to the proceeding. § 109. Same, continued. — But if the proceeding be in personam then the death of a party may materially change the situation. Thus a pro- ceeding to compel the judicial settlement of an executor's account cannot survive the executor's death. Boerum v. Betts, 1 Dem. 471, 474, citing Leavy v. Cardner, 63 N. Y. 624; Matter of Grove, 64 Barb. 526; Baking v. Demming, 6 Paige, 95; Montross v. Wheeler, 4 Lans. 99; Farnsworth v. , 110 surrogates' courts OKphant, 19 Barb. 30. And where an administrator himself instituted proceedings to settle his own account and died pending the Surrogate's decision it was held the proceeding abated and could not be revived. Herbert v. Stevenson, 3 Dem. 236. But this is without prejudice to the right given by the amendments of 1884 and 1891 to the Code (see § 2606) under which an executor or administrator of a deceased executor, ad- ministrator, guardian, or testamentary trustee, may be compelled to ac- count for property for which his decedent could have been compelled to ac- count (see Accountings) which is a new remedy, pursued in an independ- ent proceeding. See Matter of Tredwell, 85 App. Div. 570, where executor died pending his accounting, and his representative being required to account for his decedent's acts sought to revive original proceeding. (See, post, Accountings.) It is also important that the distinction be kept in mind which the Code now draws between special proceedings in general and special proceedings in Surrogates' Courts. Thus when in § 755 it was enacted that "a special proceeding does not abate by any event if the right to the relief sought in such special proceeding survives or continues," etc., it must be remem- bered that in § 3347 in subd. 6 it is provided that that section applies to proceedings only in the Supreme Court, the city court of the city of New York, or a county court. Matter of Camp, 81 Hun, 387, 388. See all of title IV, ch. 8, §§ 755-766, also § 785 in connection with subd. 6 of § 3347. The fact that the §§ 755, etc., were amended in 1891 does not make them applicable to all special proceedings. They are still subject to the limi- tations of § 3347. But if the party seeking to compel the executor or ad- ministrator to account dies while the proceeding is pending, the person succeeding to his interest may on proof of his interest intervene and con- tinue the proceeding (Matter of Fortune, 14 Abb. N. C. 415) whether he be his personal representative or merely his assignee. Section 766 of the Code provides that where .... a special proceeding is authorized or directed by law, to be brought by or in the name of a public officer, or by a receiver or other trustee, appointed by virtue of a statute, his death or removal does not abate it, but the same may be continued by his successor, etc. By § 3347 of the Code, subd. 6, it appears that § 766 of the Code does not apply to Surrogates' Courts. But in the case of an executor or ad- ministrator or other person directed by a decree in proceedings for the sale of a decedent's real estate to sell such real estate, it is provided by § 2760 of the Code that, "The death, removal, or disqualification before the complete execution of a decree of all the executors, or administrators, does not suspend or affect the execution thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters as his predecessors might have completed the same. . . ," See also Matter of Camp, 81 Hun, 387. CHAPTER III HEARINGS AND TRIALS § 110. Practice similar to that in all courts of record. — Practice in Sur- rogate's Courts conforms substantially to that in other courts of record. Goulburn v. Sayre, 2 Redf. 310. Of course this general statement is sub- ject to the limitation that the whole jurisdiction of the court is statutory. The general rule as to practice in Surrogates' Courts is defined by subd. 11 of § 2481 (supra) which provides, in effect, that where jurisdiction is given in any matter to the Surrogate's Court and the practice is not prescribed it shall proceed, "According to the course and practice of a court having by common law jurisdiction of such matters." Consequently, Surrogates' Courts have been accustomed to allow the resort to the ordinary machinery of practice. So, for example, the right to shorten the time of notice of a motion by an order to show cause has been very generally exercised. See Filley's Estate, 20 N. Y. Supp. 427; Clujf v. Tower, 3 Dem. 253, where Judge Rollins held (under subd. 6 of § 2481) that a proceeding to open, vacate, etc., a decree or order of his court (the power to do which by this section is directed to be exercised only in like case and in the same manner as a court of record and of general jurisdiction would exercise the same power) might be begun either by a notice of motion or by an order to show cause, but while, generally speaking, the rule is as above stated, yet, where practice in the other courts of record in special cases or in particular re- spects is changed, it will not be deemed to extend to Surrogates' Courts unless clearly made applicable thereto, or unless it clearly comes under one of the subdivisions of § 2481 as aforesaid. So, in Matter of Tilden, 98 N. Y. 434, it is held that a proceeding to open or vacate a decree is a special pro- ceeding, and itself terminates in a final order. So, where the relief sought is in personam, such special proceeding must be begun by citation, or no jurisdiction of the person could be acquired, that is against nonresidents. See Bullowa v. Provident Life, etc., 125 App. Div. 545. See Havemeyer's Estate, 35 N. Y. Supp. 480, making inapplicable to Surrogate's referees the amendment of § 1022, Code Civ. Proc, as to separate statement of facts found and conclusions of law. This was so held in spite of § 2546 of the Code, which makes applicable to references in the Surrogate's Court all the provisions of the Code ap- plicable to references in the Supreme Court, "so far as that can be applied in substance, without regard to the form of proceeding." This, however, was in view of § 2545 which remained unamended, and under which the Surrogate, upon the trial by him of an issue of fact, is required to file in his office his decision in writing, which must state separately the facts 111 1]^2 surrogates' courts found and the conclusions of law. Surrogate Fitzgerald held, that it would be highly improbable to suppose that the legislature intended to create the anomalous condition of relieving referees appointed by the Sur- rogate's Court from making the findings which are exacted from the court itself. But, while we believe he was technically right, in a later case [Matter of Woodward, 69 App. Div. 286, 290 (2d Dept.)], the contrary de- cision of the Surrogate of Kings County was affirmed, holding that § 1022 was applicable (in references in special proceedings under § 2546), as its provisions could be "applied in substance." The Appellate Court went further and held that when a referee filed a short decision, the Surrogate himself was relieved of the duty imposed by § 2545 of stating separately the facts found and the conclusions of law. But by ch. 85, Laws 1903, § 1022, was subsequently changed again to re- quire findings by court or referee. This is, therefore, merely discussed to indicate the attitude of the courts on the assimilation of practice. § 111. Same.— Similarly the rules which are applicable in other courts of record in the conduct of trials will be enforced in Surrogates' Courts. The examination and cross-examination of witnesses, the compelling of the attendance of witnesses, the privilege to which witnesses are entitled, the admissibility of the evidence adduced and the competency of the wit- nesses examined are to be regulated by the generic rules. We have already seen that among the powers of the Surrogates is the power to issue sub- pcenas, or subpoenas duces tecum, and to punish for contempt in like case and in like manner as any court of record. So he may under § 2008, C. C. P., issue a writ of habeas corpus "for the purpose of bringing before the court a prisoner, detained in a jail or prison within the State, to testify as a witness in the .... special proceeding, in behalf of the applicant." All statutory provisions as to proceedings in Surrogates' Courts must of course be carefully observed, but amendments of the Code prescribing new methods of practice or procedure can have no ex post facto operation (see ,subd. 11 of § 3347, excluding all proceedings pending in Surrogates' Courts upon the first day of September, 1880, when the act went into effect), that is to say {Mills v. Hoffman, 92 N. Y. 182) , if the amendments relate to a matter of substantial right they ought to be construed as inapplicable to proceedings pending before they went into effect; but as regards mere in- cidental details of procedure they may properly be deemed operative as to all motions or applications made in proceedings after the amendment goes into operation. This would seem to be the rule deducible from the decisions. § 112. Attorneys. — In regard to parties the Surrogate's power has already been discussed. Over attorneys he, undoubtedly, has powers similar to those of any court of record, such as the power to direct sub- stitution of one attorney for another {Chatfield v. Hewlett, 2 Dem. 191); and as incidental thereto to determine the terms and conditions upon which the substitution should be made. Surrogate Coffin in 1883 {Hoes v. Halsey, 2 Dem. 577), doubted the power of the Surrogate to prescribe the HEARINGS AND TRIALS 113 terms on which a change of attorneys could be effected. The better rule, however, had been laid down by Surrogate Rollins the year before {Chat- field V. Hewlett, swpra) , in a well reasoned opinion basing the power claimed upon the Code of Civil Procedure generally and in particular upon § 17 which authorized the general term justices of the Supreme Court with certain chief justices of the Superior City Courts to establish rules of prac- tice to be binding upon all courts of record. The learned Surrogate pointed out that it was doubtful whether the Surrogate could lawfully have ex- ercised such power, prior to the Code, citing Coates v. Cheever, 1 Cow. 463, 475; Cullen v. Miller, 9 N. Y. Leg. Obs. 62, 66; Petition of Hunt, 1 Tuck. 55; Matter of Sommerville, id. 76. But among the rules of practice com- monly known as the "Court Rules" was the following: Rule 10. "An attorney may be changed by consent, or upon appUcation of the client upon cause shown, and upon such terms as shall be just, by order of the court or a judge thereof, and not otherwise." By one of the statutes amending the Code, making the Surrogates' Courts courts of record, the procedure in such courts was made subject to these rules. Laws 1887, ch. 416. Section 17 of the Code above referred to went into operation on September 1, 1877. There can be no question, therefore, that since that time Surrogates have had authority to direct substitution of attorneys in proceedings pending before them upon such terms as to compensation of the retiring attorney as seem reasonable and just. See also Matter of Fernbacher, 18 Abb. N. C. 1; Eisner v. Avery, 2 Dem. 466. In Matter of Caldwell, 188 N. Y. 116, the executors employed attorneys designated by the testator in his will. But they also employed other counsel. The court held that while the designation in the will could only be treated as the expression of a wish, yet having employed them the executors could pay them out of the estate, whereas they must personally pay the additional counsel retained. § 113. Lien of attorneys — How enforced. — Since a court of record has undoubtedly the power to determine the amount of an attorney's lien for services by direct inquiry or by reference, the Surrogate may do the same (Barber v. Case, 12 How. Pr. 351; Gillespie v. Mulholland, Daly, Ch. J., 12 Misc. 40, 43, dist'g McKibbel v. Nafis, 27 N. Y. Supp. 723); and if the matter is referred by the Surrogate the reference will be subject to the usual rules governing references in Surrogates' Courts. See below; also Matter of Smith, 111 App. Div. 23 (opinion of Chase, J.) The lien was sustained as a charge against the estate, and execution against the repre- sentative personally was refused. Section 66 of the Code was amended (L. 1899, ch. 61) just after decision in Matter of Lex'n Ave., No. 1, 157 N. Y. 678, aff'g 30 App. Div. 602, by including special proceedings and protecting the lien of attorneys therein upon the cUent's cause of action, claim or counterclaim. The section now reads: § 66. [Am'd, 1879, 1899.] Compensation of attorney or counsellor. — The compensation of an attorney or counsellor for his services is governed by agree- ment, express or implied, which is not restrained by law. From the com- 8 114 surrogates' courts mencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his cUent's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his ohent's favor, and the proceeds thereof in whosoever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the chent or attorney may deter- mine and enforce the lien. Note. Now in Judiciary Law, §§474-475. But the lien must be upon something over which the Surrogate has jurisdiction. So in Matter of Robinson, 59 Misc. 323, Ketcham, Surr., refused to proceed under § 66 to pass on the lien of former attorneys for a trustee upon books and papers which the trustee alleged belonged to him, and to be necessary in order to preparing and settling his account. There was no proceeding pending to which a decree as to the lien could have been made an incident. § 114. Protection of lien by Surrogate. — Accordingly, it is now held that the power of the Surrogate's Court to protect the lien of an attorney has been assimilated to that of the Supreme Court and other courts of record. Matter of Regan, 167 N. Y. 338, 343, rev'g 58 App. Div. 1, and aff 'g 29 Misc. 527. (See opinion of Surrogate.) See Matter of Robinson, 125 App. Div. 424 (no lien on estate). The decision in Matter of Krakauer, 33 Misc. 674, is not in conflict. It was there held only that there was no proceeding pending in which this incidental power of protection could be exercised. No order for substitu- tion of attorneys can be made, and the lien of the first attorneys protected when no proceeding is pending to which the order can relate. Ibid., citing Matter of Hoy t, 5 Dem. 432, 445; Estate of Aaron,. 7 N. Y. Supp. 735. So, in the Regan case the power of the Surrogate was upheld to vacate the satisfaction of a decree to let in attorneys who had a liquidated claim, which attached by way of lien to the decree in their client's favor under §66. The question was not squarely before the court whether the case would be different if, first, the claim was unliquidated, or second, the client was able to respond pecuniarily apart from the proceeds of the attorney's industry. The Surrogate has power, pending his determination of the merits of the question of substitution or of lien to order the attorney to deposit the moneys of the estate or client in a trust company to abide his decision. Oraindi's Estate, 9 N. Y. Supp. 873; Matter of Regan, 29 Misc. 527, 531; Matter of Rowland, 55 App. Div. 66. See Matter of Fitzsimmons, 174 N. Y. 15, and cases cited at p. 20. In this case the attorney had an agreement with a party (who contested the administratrix' account) for his fees. The administratrix collusively settled with the client behind the attorney's back. The client executed withdrawal of objections and consent to a decree. The Surrogate continued the proceeding on the attorney's petition HEARINGS AND TRIALS 115 for the purpose of determining the lien. The Appellate Division reversed and denied the petition and ordered the decree to be entered. The Court of Appeals sustained the Surrogate, and held the order of the Appellate Division to be a final order and appealable to that court. This case also involved the questions whether the agreement in question was champertous or unconscionable, under §§ 73-74 of the Code. See opinion Martin, J., pp. 21-25. [These sections are now in Penal Code.] On latter point see also Morehouse v. B. H. R. R. Co., 185 N. Y. 520. See also Matter of Williams, 187 N. Y. 286. This was a case where the attorney's lien was impressed in proceedings under § 66 upon income from a trust fund which the trustee refused to pay, and which the attorney compelled payment of by proceedings in the Surrogate's Court. Held that while exempt from claims of creditors so far as not needed for beneficiary's support it was not exempt from the attorney's lien. Three judges dissented (see p. 293). In Matter of Tyndall, 117 App. Div. 294, it is held that where an at- torney brought suit in the Federal court in forma pauperis under an agree- ment with the special guardian of infant plaintiff for 50% of the recovery, the Surrogate properly remitted him to the Federal court for his remedy. The attorney in this case had been appointed general guardian of his infant plaintiff and secured an ex parte order of the Surrogate approving his 50% share. After getting the money he accounted in the Surrogate's Court. But the citation was not served on the infant in person. The decree provided for his retention of the 50%. Another general guardian having been appointed a supplementary accounting was had in which a special guardian objected to this 50% payment. Whereupon his objection was sustained, the former decree held not binding as jurisdictionally de- fective, and that under the state law the 50% agreement was not enforce- able, as made for one suing in forma pauperis. § 115. Miscellaneous provisions as to trials in Surrogates' Courts. — Section 2545 of the Code was a new provision prescribing the practice in Surrogates' Courts, with regard to exceptions on a trial in such court. The section is as follows: § 2646. Exceptions upon trial. An exception may be taken to a ruling by a surrogate, upon the trial by him of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case where such an exception may be taken to a ruling of the court upon a trial, without a jury, of an issue of fact, as prescribed in article third of title first of chapter tenth of this act. The provisions of that article, relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to such a trial before a surrogate; for which purpose, the decree is regarded as a judgment, and notice of an excep- tion may be filed in the surrogate's office. Upon such a trial, the surrogate must file in his oflSce his decision in writing, which must state, separately, the facts found and the conclusions of law. Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law; and an exception may be taken to such a finding or ruling, or 116 SURROGATES COURTS to a refusal to find or rule accordingly. An appeal from a decree of an order of a surrogate's court brings up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appellant, as prescribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appel- late court that the exceptant was necessarily prejudiced thereby. § 116. The practice hereunder.— The foregoing section has been very largely discussed in the courts. In the first place it is to be observed that the particular procedure prescribed by it for Surrogates' Courts is un- affected by amendments to the Code covering the practice in this regard in other courts of record, unless the legislative intent is clear as noted in § 110. It is to be observed, in the next place, that § 2545 refers to §§ 992 et seq., with regard to the cases in which exceptions may be taken as upon trials before other courts of record without a jury of an issue of fact; but the first two paragraphs of the section are limited by the subsequent para- graphs which are specific and limit the practice in the Surrogate's Court. Thus, the findings of fact must be requested upon the settlement of the case, and at no other stage of the proceedings. Hartwell v. McMaster, 4 Redf. 389; Matter of Hoy t, 5 Dem. 432; Matter of Dodge, 105 N. Y. 585, aff'g 40 Hun, 443; Matter of Prout, 11 N. Y. Supp. 160. And a Surrogate cannot be required to determine particular questions before rendering his decision. Tilby v. Tilby, 3 Dem. 258, citing Hartwell v. McMaster, 4 Redf. 389; Matter of Chauncey, 32 Hun, 430. It is to be noted further that this section regulates specifically the method by which a review of errors on a trial before a Surrogate may be had by the Appellate Court. This method is exclusive. See post, ch. VI on Appeals. In this connection the Court of Appeals (Ruger, Ch. J., in Matter of Hawley, 100 N. Y. 206, 210) uses the following language: "The provision of the Code of Civil Procedure regulating the method by which a review of the errors occurring upon a trial before a Surrogate can be secured .... also furnishes the strongest implications that such errors are not remediable by any other proceeding." § 117. When section 998 is applicable.— Since § 2545 prescribes that the decree of the Surrogate is to be regarded as a judgment and makes applicable to trials in Surrogates' Courts those provisions of ch. 10, title 1, article 3 (§§ 992 e« seq.) which relate to the manner and effect of taking exceptions to rulings of the Surrogate both upon the trial of an issue of fact and in finding or refusing to find a question of fact and also relating to the settlement of a case containing the exceptions, the practice may be assumed to be substantially assimilated to the proceedings on and after the trial of an action by the Supreme Court. Waldo v. Waldo, 32 Hun, 251; Hewlett v. Elmer, 103 N. Y. 156. This is manifest, not only by implication from the provision of § 2545, but also from the wording of §§ 2575 and 2576 (see ch. YI on Appeals, post), which provides for a case on appeal to be made and settled by the Surrogate in the manner prescribed by law, for the making and settling of a case upon an appeal in an action. See post. Ibid. It must be borne in mind, in view of what has already HEAEINGS AND TRIALS 117 been said, that these provisions of § 2545, and those incidental thereto which are about to be discussed, being specific, do not apply to any other trial except a trial by the Surrogate of an issue of fact. Where the decree appealed from is not made upon the trial by a Surrogate of such an issue, it is not within the practice prescribed by § 2545 or § 2576. For example: Where the decree of a Surrogate charges a trustee with interest and denies him commissions upon the settlement of his account and the trustee ap- peals, there is no provision in this section of the Code, for the making or settlement of a case, consequently, it has been held in such a case that § 998 of the Code controls. Matter of Jackson, 32 Hun, 200. Section 998 is as follows: § 998. When appeals, etc., may he heard without a case. It is not necessary to make a case, for the purpose of moving for a new trial, upon the minutes of the judge, who presided at a trial by a jury; or upon an allegation of irregularity, or surprise ; or where a party intends to appeal from a judgment entered upon a referee's report, or a decision of the court upon a trial, without a jury, and to rely only upon exceptions, taken as prescribed in section 994 of this act. § 118. Surrogate's duty as to findings. — When the practice was yet undefined by judicial decisions the case arose of an appeal from a Surro- gate's decree confirming a referee's report. In view of the fact that the referee had already separately stated his findings of fac1> and of law, the Surrogate refused to make additional findings and on appeal to the Fourth Department, General Term, his decree was reversed. Matter of Keef, 43 Hun, 98. This is overruled in Matter of Yetter, 44 App. Div. 404, 408, where the court approved the contrary rule laid down in Matter of Niles, 47 Hun, 348, namely, that under § 2546, where a reference has been ordered, it is not necessary where exceptions taken to the report of the referee are overruled by the Surrogate, to file exceptions again to the Surrogate's decree in order to entitle the aggrieved party to review the error complained of on an appeal from that decree. So, in Matter of Bettman, 65 App. Div. 229, it was similarly held, the court saying: " When the Surrogate con- firmed the report, he adopted the findings of fact and conclusions of law reported by the referee as his own, and in all respects compUed with the law. The same rule holds where the Surrogate sustains exceptions, on the coming in of the report, to the referee's conclusions of law. Matter of McAleenan, 53 App. Div. 193, 198. In Matter of Barefield, 177 N. Y. 387, the referee made the usual findings and conclusions. The Surrogate, on the motion to confirm came, however, to entirely different conclusions. He made a decree, containing no findings of fact. Whereupon the Ap- pellate Division reversed him (82 App. Div. 463) . But the Court of Ap- peals reversed the Appellate Division. Unfortunately, instead of explicitly asserting the rule in the Bettman case, the Court of Appeals merely held that the effect of the absence of separate findings by the Surrogate, coupled with the reversal of the Appellate Division not being stated to be 118 surrogates' courts on the facts, was to compel the presumption that all facts necessary to sustain the decree had been duly found. But when the*Surrogate determines a proceeding after the trial by him of an issue of fact, under § 2545, he is required to "file in his office his de- cision in writing, which must state, separately, the facts found and the conclusions of law." Matter of Widmayer, 52 App. Div. 301. And if he does not do so the case may be remitted to him for that purpose. Matter of Sherwood, 75 App. Div. 342; Matter of Daymon, 47 App. Div. 315 citing Hall v. Beston, 13 App. Div. 116; Shaffer v. Martin, 20 App. Div. 304. See also Matter ofSprague, 125 N. Y. 732; Hewlett v. Elmer, 103 N. Y. 156, 164; Matter of Kellogg, 104 N. Y. 648; Angevine v. Jackson, 103 N. Y. 470; Burger v. Burger, 111 N. Y. 523; Matter of Bradway, 74 Hun, 630; Matter of Marsh, 45 Hun, 108; In re Falls' Estate, 10 N. Y. Supp. 41- Matter of Otis, 6 N. Y. St. Rep. 631; Matter of Peck, 39 N. Y. St. Rep. 234,' Matter of Hood, 104 N. Y. 103, 106; Matter of Kaufman, 39 St. Rep. 236. The Court of Appeals has summarized the practice in the following language: "Those provisions (§ 2545) point out the practice, to be followed with care and precision. The Surrogate is required to file in his office his de- cision stating separately the facts found, and the conclusions of law. Either party may except to the findings of fact or of law, and upon the settlement of the case may request findings, and take exceptions to a refusal, and the appeal brings up for review in the Appellate Court any question of fact or law thus raised by exceptions taken. The purpose was to assimilate the practice upon appeals from a Surrogate's decree in the prescribed cases to that which regulated appeals from a judgment ren- dered by the court or a referee, and to substitute a system which would pomt out specific errors, and evolve the exact questions intended to be re- viewed. Angevine V. Jackson, mN.Y.m,m." In Matter of Schroeder, No. 2, 113 App. Div. 221, it was held that a failure to request findings con- stituted a waiver, and the court denied a motion to recommit the report m order to findings. (But, see opinion of Clarke, J., showing pecuUar facts m the case.) § 119. Exceptions must be made as prescribed in the Code.-The ap- pellant cannot secure a review of the Surrogate's decision by a mere ex- ception to the decree and each and every part of it; " such an exception is use ess. Angennne v. Jackson, supra; Ward v. Craig, 87 N. Y. 550; Hepburn y. Montgomery, 97 id. 617. See also Matter of Falls, 10 N Y Supp 41- Matter of Peck, 39 N. Y. St. Rep. 234. The only exception to Sle is' where as has occasionally happened, the Surrogate, although expressly requested to make findings, refused to do so or to make a record of his re- Zt I "'^ fw'^n "'^ *° '"'^ ''^""'^^ '' ^"ly *^ken it will raise a question il\Q^ri ooT'. ^""^ '^' ^''''' ^"'" b^ ^^^^r^^d matter of Kauf- Tpne'llfnt mI- ^?u'':' 'PP'^'^ *'^* *^^^ '''^'^' '^ prejudicial to the cf^tL.^Tf.'^'fl '' ®'- ^^P- ^20- While the language of the Code makes it the duty of the Surrogate to make these findings, the omis- HEARINGS AND TRIALS 119 sion to do so is a mere irregularity, and will not avail the appellant if he has not procured to be made, or attempted to procure to be made such findings or refusals and had his exceptions duly noted. Matter of Hood, 104 N. Y. 103. See also In re Hesdra's Estate, 4 Misc. 37; Matter of O'Brien, 5 Misc. 136, 138. § 120. Procedure defined by the Court of Appeals. — The opinion of the Court of Appeals in Burger v. Burger, 111 N. Y. 523, at page 528, is most instructive. "We think the true rule under the Code is, that an appeal on the facts from the decree of a Surrogate, admitting or refusing to admit a will to probate, brings up for review in the Supreme Court the question of sufficiency, weight, or preponderance of evidence, and the general merits of the decision; and that it is not necessary that any exception should have been taken to the findings of fact, or that there should have been any request for findings in order to give the general term jurisdiction to review the facts, and reverse or affirm the decision of the Surrogate thereon. But where the appeal is also upon the law, only such questions of law can be considered as have been properly raised by exception. If the excep- tion was taken to the conclusion of law of the Surrogate, it raises the question whether it was justified by the facts found. If taken to a finding of fact, it presents the question whether there was any evidence to sustain the finding. So, where the Surrogate refuses to make any finding whatever on a question of fact, or where he makes or refuses to make a ruling upon any question of law, an exception lies, and his decision may be reviewed in the Appellate Court. But an exception to facts found, or to a refusal to find upon a question of fact, is only important to entitle the appellant to have a review, first in the Supreme Court, and afterwards in this court, of the strictly legal question which it is the office of an exception to present. But in the Supreme Court the facts are open for review without any ex- ception. An application to a court for a new trial on the facts in no proper sense presents a question of law. It is an appeal to the conscience of the court, and it is asked to consider whether, on the whole facts, a new trial ought not to be had. The review on the facts by the Supreme Court, of a decision of a Surrogate admitting a will to probate, still retains, in many features, the character of a rehearing in equity. This is quite clear from § 2586 of the Code, which permits the general term, on appeal from the Surrogate on the facts, to receive further testimony or documentary evi- dence and appoint a referee, and declares the Appellate Court has the same power to decide the questions of fact which the Surrogate had." As a matter of a minor detail it has been held that it is the Surrogate's duty to note on the margin of each request to find his assent or refusal to find the same. Matter of Wheeler, 28 N. Y. St. Rep. 638. This serves a double purpose; it enables the exception to his findings or refusals to find to be noted in an orderly way; and also enables the Appellate Court to ascertain without laborious inquiry and careful comparison whether a failure to find has or has not wrought injustice. § 121. Witnesses. — Such statutory rules as are prescribed in particular 120 surrogates' courts proceedings as to competency, etc., of witnesses will be found in the dis- cussion of the appropriate topics, post. But in view of the attempt to follow the order of the sections in the Code it is necessary here to take up the provisions of § 2544, which is as follows: § 2544. Bequest, etc., does not disqualify, etc., witness. A person is not disqualified or excused, from testifying respecting the ex- ecution of a will, by a provision therein, whether it is beneficial to him or otherwise. It is stated in the note to this section, in Throop's edition of the Code of Civil Procedure, that it was substituted for § 6, and a part of § 50 of part 2, ch. 6, title 1 of the Revised Statutes. Those sections were, substantially, as follows: Section 6 provided that the creditor being a subscribing wit- ness whose debt is by the will made a charge upon lands devised, should notwithstanding such interest, be a competent witness to prove the will. Section 50 provided that: " If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest, or appointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest or appointment 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." Section 51, referring to the same subject, provided: " In case such witness would have been entitled, as heir or next of kin, to a share in the estate of such testator if he had died intestate, that he might recover from the devisees and legatees in the will, if established, his proportion of such estate, not exceeding, however, the amount devised to him by the will." Section 6 of the Revised Statutes was expressly repealed by ch. 245 of the laws of 1880, and thereby rendered all interested witnesses, save those mentioned in § 50, which was expressly excepted from the repeal, incom- petent to testify as subscribing witnesses. Section 2544 was, therefore, adopted as a substitute for § 6, and was intended to enlarge the former exception and embrace not only the special case provided for by the re- pealed section, but all other possible cases where an interest in the event of a controversy over the probate of a will, might, under the existing stat- ute, disqualify a subscribing witness from testifying to its execution. Although it may not be easy to specify such cases the legislature, probably out of abundant caution, deemed it prudent by general words to embrace all subscribing witnesses by a comprehensive exception from disqualifica- tion by reason of interest. The language of the enactment seems to sup- port this view. The evidence authorized to be given by § 2544 refers to that given in Surrogates' Courts alone, and relates solely to the subject of the execution of the will. It was clearly intended to operate as a sub- stitute for prior statutes that related to subscribing witnesses alone, and there was no reason for including other persons in its provisions. HEARINGS AND TRIALS 121 The reason for exempting such witnesses from the application of the gen- eral rule of exclusion, made by § 829, is obvious, as their testimony is made indispensable, if obtainable, to the probate of a will. Sections 2618, 2619. Otherwise numerous wills to which legatees and others interested, who had, through ignorance, carelessness or inadvertence become attest- ing witnesses, would fail in their probate, and the wishes of their makers in respect to the disposition of their property be altogether defeated. To obviate these consequences the provisions of the various statutes referred to were adopted. To carry the effect of § 2544 beyond the object alluded to would make interested witnesses competent to testify to facts no more essential to the establishment of wills than many other transactions re- specting which they are obviously, under § 829, incompetent now to testify. Matter of Eysaman, 113 N. Y. 62, pages 75, 76, 77, opinion of Ruger, Ch. J., and cases cited; Matter of Brown, 31 Hun, 166. No disqualification is imposed by this section, except upon persons who could be called to testify respecting the execution of the will, that is, the subscribing witnesses. Matter of Eysaman, supra; Estate of Voorhis, 1 How. N. S. 261. It does not apply to an executor as such. Children's Aid Society v. Loveridge, 70 N. Y. 387. Surrogate Tucker held in 1867, that there could be no doubt but that a person named in a will as executor, who is also a subscribing witness, could be examined as a witness on the probate. Section 2544 in no re- spect alters this rule. Riogg v. Rugg, 83 N. Y. 592; McDonough v. Lough- lin, 20 Barb. 238. The section contemplates by the words, "A provision therein .... beneficial .... or otherwise," a legacy, or a bequest. Consequently, not only is an appointment as executor not deemed to be a provision beneficial or otherwise, within the meaning of this section, but a gift by will of a sum of money as compensation for his services, even where it is provided that it shall be over and above his commissions, has been distinctly held not to be such a devise or legacy as would be forfeited, in case the executor so provided for, was also a subscribing witness and necessary to the probate of the will. Pruyn v. Brinkerhoff, 57 Barb. 176; Matter of Chase, 41 Hun, 203; Rugg v. Rugg, 83 N. Y. 592; In re Will of Huestis, 23 N. Y. Weekly Dig. 224; Reece v. Crosby, 3 Redf. 74; Mc- Donough v. Loughlin, supra; Children's Aid Society v. Loveridge, 70 N. Y. 387; Matter of Folts, 71 Hun, 492. But, of course, where the executor who witnesses a will is the principal legatee in addition to the interest above described, that fact brings him within the statute avoiding his legacy, if the will cannot be proved without his testimony. Matter of Smith, 95 N. Y. 516, explained by Ruger, Ch. J., in Matter of Wilson, 103 N. Y. 374, and see Lane v. Lane, 95 N. Y. 494. § 122. When witness can take. — Section 2544 refers to every witness whose testimony is essential to the proof of the will containing the pro- vision constituting him a person interested. Where there are but two witnesses and both reside within the State, the evidence of neither can be dispensed with, and consequently any "beneficial devise, legacy, interest, 122 SURROGATES COURTS ■or appointment made to either in the will is void under the statute." Matter of Will of Orson, 18 Weekly Dig. 306; Matter of Brown, 65 How. 461. Where, however, of two witnesses, one is a non-resident and the will is proved without the testimony of the non-resident witness, he is not disqualified from taking under the will. Cornwell v. Wooley, 43 How. 475. So, where there are more than two witnesses, and the will is sufficiently proved by two of them without the testimony of the witness interested in any provision of the will, there is no disqualification under the statute. Cornwell v. Wooley, supra; Caw v. Robertson, 5 N. Y. 125. See also Matter of Beck, 26 Misc. 179, afi'd 6 App. Div. 211, and 154 N. Y. 750. The ques- tion whether the subscribing witness will, by testifying, forfeit his legacy is not material on the probate proceedings. Matter of Beck, supra; 6 App. Div. 211, 214. It comes up when he seeks to retain his legacy, as on ac- counting. Ibid., citing Caw v. Robertson, supra; Cornwell V. Wooley, 1 Abb. Ct. App. 441; Matter of Brown, 31 Hun, 166. If his testimony is given, he cannot be allowed to withdraw it on the ground that he will imperil his legacy or devise. Ibid. If later, at the proper stage, he can demonstrate that the probate proof was sufficient, apart from his testimony, he may be allowed to have his legacy.-, So where there were three subscribing witnesses to a will, and it appeared from the Surrogate's record, that is to say, the record of the will and of the proceed- ings and the examination taken by the Surrogate, that the will was proved by the testimony of two of the subscribing witnesses, and that the third had been sworn "to testify as to the questions which should be put to him by the Surrogate touching the circumstances of executing the said will, and how his name came to be attached to said will as a witness," and it further appeared that his examination did not elicit the material facts ordinarily shown by a subscribing witness, his legacy would not be avoided. Caw V. Robertson, supra. See also Matter of Owen, 48 App. Div. 507. When legatees under a will are subscribing witnesses to a codicil to that will, it is held that their testimony on probate of such codicil does not preclude them from taking under the will, where it alone is proved, and the codicil is not necessary to the proof of the will. Matter of Johnson, 37 Misc. 334. § 123. Taking evidence. — Except where a contrary intent is expressed in, or plainly implied from the context of, a provision of ch. 18 of the Code, which relates to Surrogates' Courts, the following sections apply to such courts and to proceedings therein: §§ 870-886, q. v., relating to dep- ositions taken and to be used within the State; §§ 887-913, q. v., relating to depositions taken without the State for use within the State. Code Civ. Proc. § 2538. It is added, that they shall apply "so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form." In this connection, therefore, we now turn to the subject of taking testimony, by deposition, before the Surrogate, and be- fore referees appointed by the Surrogate. § 124. Commissions.— Section 888 of the Code, which prescribes the HEARINGS AND TRIALS 123 cases in which a commission may issue, is, as we have just noted, made applicable to Surrogates' Courts by § 2538. See In re Plumb, 64 Hun, 317, affirmed in 135 N. Y. 661. He had such power, originally, under ch. 460 of the Laws of 1837, § 77, but it was repealed in 1880 (ch. 245, § 1), and the Code provisions thereafter governed. By amendment to § 888 in 1894, a subdivision (6), was added reading, "In special proceedings." Standing alone this would seem to cover proceedings in Surrogates' Courts, but in fact does not except by virtue of § 2538. Attention is called to this somewhat confusing method of enactment in the Code which compels the practitioner to search carefully for modifying provisions before he dare rely on the prima facie meaning of any section^ (This is one of the features of the Code which call for special attention in the event of a revision.) The amendment of 1894 to § 888, was probably passed in view of a de- cision {In re Plumb), above cited, where the express language of the sec- tion making its provisions applicable only to actions had been relied on in opposing the granting of a commission in a Surrogate's Court. There being now no question as to the Surrogate's power to issue a commission {Bristed v. Weeks, 5 Redf. 529; Cadmus v. Oakley, 2 Dem. 298; Henry v. Henry, 4 Dem. 253; Bull v. Kendrick, 4 Dem. 330), it is first to be stated that the same procedure is followed as is required in civil actions. And the decision of the courts in relation thereto will also be applicable so far as the substance and subject-matter of the proceeding admits. Thus, the party applying for the issuance of the commission must show by affidavit that the testimony of the witness is material, that he is with- out the State, and, since the right is altogether dependent on statute (Matter of an Attorney, 83 N. Y. 164; McColl v. Sun Mutual Ins. Co., 50 N. Y. 332) that the case is one in which the proceeding is properly to be allowed. See Matter of Neiding, 56 Misc. 216, rev'd 123 App. Div. 894. (See opinions in both courts.) The administrator moved for a commission to take testimony abroad as to his legitimacy, which involved impugning a foreign decree of bastardy in a proceeding "for reimbursement for spoliation of the virgin honor" of his mother. The Surrogate denied it on the ground he could not attack a decree under which he had accepted benefits. The Appellate Division reversed on the ground the judgment was in the matter of a police regulation having no extraterritorial effect. The commission must name the commissioner and the witnesses. Wal- lace V. Blake, 4 N. Y. Supp. 438. The latter should be specifically des- ignated. If not named, the order is irregular, unless the unnamed witnesses are described as of a class, or are designated as about to be pro- duced to testify to a particular distinct fact. Matter of Anderson, 84 App. Div. 268. If the witnesses are unknown but sufficiently described, the order is not irregular. Usually, the commission issues upon interrogatories, direct and cross (see Code Civ. Proc. §§ 891 et seq.), to be proposed by the parties and set- tled by the court. These interrogatories must be pertinent and material to the issues raised. Walton v. Godwin, 54 Hun, 387; Thorp v. Riley, 3 N. Y. 124 surrogates' courts Supp. 547; mine v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 175; McDonald v. Garrison, 9 Abb. 178; Blaisdell v. Raymond, 9 Abb. 178n. If the Surrogate in settling interrogatories allows an improper inter- rogatory, the remedy is by objection, on the hearing when the testimony is read. If, however, he disallows a pertinent interrogatory, the remedy is by appeal from the order. Uline v. iV. Y. C. & H. R. R. R. Co., 79 N. Y. 175. § 125. The order. — An order must be entered, for a commission on stipulation cannot issue except an order, on consent, be first entered. Interrogatories are to be annexed unless the order provide for an open commission to examine wholly or partly upon oral questions. But it seems an open commission should not issue except in cases where it clearly appears to be necessary for the purposes of justice (Beadleston v. Beadles- ton, 2 N. Y. Supp. 814; Clark v. Sullivan, 8 N. Y. Supp. 565; Purdy v. Webster, 3 How. N. S. 263; Hmey v. Mead, 4 Law Bull. 10; Dickinson v. Bush, 17 Week. Dig. 17), and never when the adverse party is an infant, or the committee of a person judicially declared to be incapable of manag- ing his affairs, by reason of lunacy, idiocy, or habitual drunkenness; or where the testimony is to be taken elsewhere than in the United States, or in Canada. Code Civ. Proc. § 895; Bull v. Kendrick, 4 Dem. 330. If an open commission be ordered the witnesses should be named. Matter of Anderson, 84 App. Div. 268. If written interrogatories are in the discretion of the court dispensed with it may be on terms. So, in Deery v. Byrne, 120 App. Div. 6, the condition was imposed that the reasonable expense of the other side in traveling to the foreign place and attending the hearing should be paid in advance. (See opinion.) This was in an action under § 2718 on a claim against a decedent's estate. See bAso Paddock y. Kirkham, 102 'N.Y. 597. In Matter of Sentell, 53 Misc. 165, however, an open commission having been ordered, the guardian ad litem moved for an allowance to cover his expenses in attend- ing on its execution. The Surrogate held he had no power to provide for it and instead vacated his order and made a new one directing a commis- sion on written interrogatories. The Surrogate has discretion to grant or refuse the order. Jones v. Hoyt, 10 Abb. N. C. 324. But the order is ap- pealable {Jemison v. Bank, 85 N. Y. 546) and will be reversed if it appear the discretion was unwisely or improperly exercised. Jones v. Hoyt, supra. If it appear that the party asking for the commission relies largely upon the testimony which it is claimed the witness to be examined will give, the order should be granted. Smith v. Talmadge, 3 Law Bull. 97. And if a commission is issued to take testimony without written interrogatories, as prescribed in § 893 or § 894, notice of time and place of examination of any witnesses thereunder (in which notice the witness must be named), must be served by tlie party on whose behalf the witness is to be examined on the attorney for the adverse party at least five judicial days before the deposition is taken; which time must be lengthened by one judicial day HEARINGS AND TRIALS 125 for each fifty miles by the usual route of travel, between such attorney's residence and the place where the deposition is to be taken. Code Civ. Proc. §§ 896, 899; Matter of Kendall, 2 Law Bull. 51. § 126. Same. — The commissioner must be named in the commission. Spurr &c. V. Empire State Surety Co., 117 App. Div. 816. He is held to be an officer of the court and in executing the commission to stand in the place of and to represent the court. So where a commissioner was ap- pointed under the act of 1837, to take the testimony of the witnesses to a will in Scotland it was held that the production of the original will before him in Scotland was substantially a production of the will before the court. Russell v. Hartt, 87 N. Y. 18, 25; Matter of Delaplaine, 45 Hun, 225; Matter of Cameron, 47 App. Div. 123, 125. See post. Probate. On the other hand, the Surrogate is not bound to wait indefinitely for the execution of the commission. So where a hearing closed before the return of a commission to take testimony in a foreign country, and it ap- peared that by the exercise of diligence it could have been executed in time, the Surrogate in his discretion refused to open the hearing to receive it. Leslie v. Leslie, 15 Week. Dig. 56. The Surrogate's power to issue a commission, was, at first, sought to be limited to probate proceedings, but the courts held that it was not the legislative intent so to limit it but that it could be exercised in any proceeding. See Matter of Plumb, 64 Hun, 317. See also Estate of Voorhis, 5 Civ. Pro. Rep. 444. The power to issue a commission in an appropriate case should be exercised before the trial or hearing. In re Plumb, 135 N. Y. 661. For when the application is postponed until a large amount of testimony has been taken, the Surro- gate may exercise his discretion in regard to issuing the commission. Matter of Hodgman, 11 App. Div. 344. This case, however, was compli- cated by the fact that the term of the Surrogate before whom the proceed- ing was pending was about to expire, and the delay which the execution of the commission would have occasioned, would have been prejudicial. § 127. Precedents. Surrogate's Court, County of Application for com- „>• . , mission tmder sec- tion 888 of the Code State of New York , } ss. County of being duly sworn, deposes and says: that he is the petitioner in {or one of the parties to or attorney for one of the parties to, etc.) the above entitled pro- ceeding which is now pending in the Surrogate's Court of the County of That is a resident of ; that the deponent requires the testimony of said witness upon the trial of the issues involved in the above entitled proceeding; that said is a necessary and material witness on behalf of the deponent who is a party to the above entitled proceeding; and J2Q surrogates' courts the deponent further says: that it is necessary in order to protect the rights of said upon the hearing and deter- mination of the issues in this proceeding that an order be made by the Surrogate authorizing the issuance of a commission to one or more competent persons named therein (or specify such person or persons by name as may he desired by applicant) authorizing them or any one of them to examine the said , the witness named therein, under oath, upon the in- terrogatories to be annexed to such commission, to take and certify the deposition of such witness and to return the same with the commission according to the directions given in (or with) said commission. (Jurat.) Siirrogate's Court Caption. Present : Hon. Surrogate. Order for com- Title. | mission. ^^ reading and filing the affidavit of verified the day of 19 by which it appears to the satisfaction of the Surrogate, that the testimony of therein named, is material to the applicant, and that said is not within the State of New York, and that the issuance of a commission in the above entitled proceeding is. necessary {and if application has been opposed, and on reading and filing— spea/2/ opposing papers) after hearing Esq., in support of said appUcation (and Esq., in opposition thereto) and on motion of It is Ordered, that a commission issue in the above entitled proceeding directed to (and ) of m the State of {or specify if it is a foreign country) to examine of the witness named in the above affidavit, under oath, upon the interrogatories to be annexed to such commission, to take and certify the deposition of such witness and to return the same with the commission accord- ing to the directions given in (or with) the commission. And it is further Ordered, that {here specify other parties to the proceeding) be at liberty to join in such commis- sion. And it is further Ordered, that the hearing of the issues in the above entitled proceedings be and they hereby are stayed imtil the further order of this court. Note. Note. The Sur- rogate is at liberty to proceed with the hearing if the execu- tion of the com- mission is unreason- ably delayed. HEARINGS AND TRIALS 127 Unless the interrogatories to be annexed to the commission are settled by consent of the parties, they must be settled upon notice by the Surro- gate as prescribed by the general rules of practice. (§ 891, Code Civ Proc.) The interrogatories when settled must be annexed to the commission. Either party must be allowed to insert therein any question pertinent to the issue which he proposes. The Surrogate, in settling them, can exclude questions clearly not pertinent. But unless so he will usually allow them subject to objection at the trial. See Irving v. Royal Exch. Assurance of London, 122 App. Div. 56. Unless the parties stipulate in writing, or the order granting the commission prescribes how it shall be returned, the Surrogate must indorse upon the commission the proper direction for that purpose. (§ 892, Code Civ. Proc). The usual practice is to return the commission through the post ofHce. § 128. Aged, sick or infirm witnesses.— The Code provides explicitly for the examination of witnesses suffering from physical disability. Testimony of aged, sick, or infirm witness. Upon the application of a party to a special proceeding, and upon proof, by affidavit, to the satisfaction of the surrogate, that the testimony of a witness. in his county, who is so aged, sick, or infirm, as to be unable to attend before him to be examined, is material and necessary to the applicant, the surrogate must, where the special proceeding was instituted to procure the probate or revocation of probate of a will, and, in any other case, may, in his discretion, proceed to the place where the witness is, and there, as in open court, take his examination. Such a notice of the time and place of taking the examination, as the surrogate prescribes, must be given, by the party applying therefor, to each other party, except a party who has failed to appear as required by the citation. The surrogate may also, in his discretion, require notice to be given to any other person interested. § 2639, Code Civil Proc. The above provisions, being special, apply in Surrogates '^Courts rather than the general provisions of §§ 870 et seq., and such an examination as they relate to must be taken under § 2539, and not under the other. Estate of M'Coskry, 5 Dem. 256. § 129. Same. Testimony of aged, sick, or infirm witness in another county. In a case specified in the last section, except that the witness is in another county, where the witness is a subscribing witness to a will, if the surrogate has good reason to believe that the witness cannot attend before him, within a reasonable time, to which the hearing may be adjourned, he may make an order, directing that the witness be examined before the surrogate of the county in which he is; specifying a day, on or before which a certified copy of the order must be delivered to the latter surrogate; and directing notice of the examination to be given to such persons, and in such manner, as he thinks proper. A copy of the order, attested by the seal of the surrogate's court, must be transmitted by him to the surrogate designated in the order, together j^28 surrogates' courts with the original will, where the testimony relates to the execution of a written will. The latter surrogate must, thereupon, on the day specified in the order, or on another day to which he may adjourn the examination, take the ex- amination of the witnesses, as if he possessed original jurisdiction of the special proceeding. The examination, after it is reduced to writing, and subscribed by the witness, or otherwise duly authenticated, together with a statement of the proceedings upon the execution of. the order, must be certified by the surrogate taking the examination, attested by the seal of his court, and re- turned without delay, with the original will, if any, to the surrogate who directed the examination, by whom all those papers must be filed. And in other cases named in said section 2539, he may appoint a referee to take the testimony, who shall report the same to the said surrogate. An examina- tion so taken has the same effect, as if it was taken before the latter surrogate. § 2640, Code Civil Proc. § 130. Analysis of sections 2S39 and 2540. — These two sections have "been but seldom construed. From their provisions it will be seen that several cases are contemplated capable of arising. A. Proceedings for probate or revocation of probate of a will. In these proceedings, if the aged, sick or infirm witness is in the Surrogate's county, the Surrogate must, upon satisfactory proof of the facts, by affidavit, go in person and examine such witness. If the witness is in another county, then the Surrogate of that county may be designated, who in turn must upon receipt of the authorization provided by § 2540 go in person and examine such witness. Matter of McCloskey, 10 Civ. Pr. R. 178. But, while I find no case in point, I am of opinion that the power which, in New York County, the Surrogate possesses in probate cases to appoint a referee on consent, or to direct his assistant, to take and report the testi- mony (see § 52, ante) would give the Surrogate of that county power un- der § 2539 to use the same agencies to secure the testimony of an aged, sick or infirm witness in that county in a probate case. B. Proceedings other than probate or revocation of probate. In other proceedings the Surrogate is not required to go in person, or to designate another Surrogate to go in person; but may, whether the witness be in his county or in that of another Surrogate, appoint a referee to examine him and report, with the same effect as if he personally had taken the testimony. Section 2540 is loosely drawn, and must be carefully read. The last two sentences really form a separate section, referring to both §§ 2539 and 2540. The first Surrogate referred to in § 2540 is, of course, the Sur- rogate before whom the proceeding is pending, who makes the order designating another Surrogate "where the witness is a subscribing witness to a will." The rest of the section, except these last two sentences, refers to the examination of such a witness, and no other. HEARINGS AND TRIALS 129 § 131. Precedents. Af&davit to pro- cure examination of aged, sick or infirm witness under § 2639 of the Code. Order for exam- ination of aged, in- firm or sick witness, under §§ 2639-40 of the Code. Surrogate's Court, County of Title. ss.: State of New York County of being duly sworn, says, that he is the at- torney for the proponent or {other -party herein or specify the proceeding) ; that is one of the subscribing witnesses {or, is a material and necessary witness in support of, or, in opposition to, the petition therein) ; that said is past years of age, and is confined to his house, No. street, in by age and inibmity (or, sickness), and is unable to attend before the Surrogate, to be examined in this matter. Sworn to before me this | day of 19 ) (Signature.) A physician's certificate duly verified may also reasonably be required by the Surrogate. Surrogate's Court, County of Title. On reading and filing the affidavit of verified the day of from which it appears to the satis- faction of the Surrogate, that the testimony of of No. street, in the city of is material and neces- sary to prove the due execution of said will {or specify proceed- ing and issue) and that the said is aged and infirm {or sick), and the Surrogate having good reason to believe that the witness cannot attend before the Surrogate within a reasonable time : Now, on motion of the attorney for the proponent of said will {or the petitioner, or a party, etc.) It is ordered, that the said be examined before * me {or, counsellor at law, who is hereby appointed referee for that purpose) at the residence of said No. street, in the city of New York, on the day of 19 or on an adjourned day to be fixed by me. {Where witness resides in another county, continue from * above,) the Hon. Surrogate of the county of on the day of 19 or on an adjourned day to be fixed by him; and that a copy of this order attested by the seal of this court be transmitted to said Surrogate, on or before the day of 19 {In wUl cases add, together with the original will.) 130 SURROGATES COURTS {In any case add:) That day's written notice be given personally (or specify manner of giving notice) to the attorney of (adverse and other interested parties) of such exam- ination. That all proceedings herein stand adjourned till the day of 19 at o'clock m. But "in the other cases named in section 2539, i. e., other than probate or revocation of probate, he, i. e., the Surrogate before whom the proceed- ing is pending, may appoint a referee," etc. Matter of Gee, 33 N. Y. Supp. 425, Arnold, Surr. Unless this be kept clearly in mind, much needless confusion and delay might be caused the practitioner. It is clear from these sections that in probate proceedings the testimony of an aged, sick or infirm witness who is in another county cannot legally be taken before a referee. Matter of McCoskry, 5 Dem. 256, except, qucere as above, in New York County. Notice of examin- Surrogate's Court, ation of aged, sick County of or infirm witness. Title. Please take notice, that (note) the Surrogate of ■Note. When ex- county, will take, in this matter, the examination of amination is to be (gjjg ^f ^jjg subscribing witnesses to the will of late of had be/ore Ref^^ deceased), at the residence of said No. say, a s a g^jgg^ jjj ^jjg ^.^y ^f county of on the bnng on the exam- ' -' , i i • iu ination of at ^^^ °^ ^^ ^* ° "'""'^ '"^ *^« "°°"- before Hon. (Dated.) (Signature.) the Referee desig- Attorney (etc.), nated for that pur- To (names of those to whom notice is required.) pose by order of the Surrogate of the Note. Add, either on face of notice or by indorsement: county of xhis notice is served upon you pursuant to an order of Hon. made and entered Surrogate of the county of made and en- the day of ^^^^^ ^^^ ^ ^^ ^^ 19 at o clock i , M. of that day. Attorney for Record of exami- nation. Surrogate's Court, County of note. Title. coor,, „„^^, +V. Examination of a witness sworn and examined seem under the • .i v ,•,,■, last sentence of ''^ ''°® ^°°"*'^-^'^titled special proceedmg, before Hon. § 2540 as it the pa^ Surrogate of the county of pursuant to an order of pars should be *^® Surrogate of the county of made on the entitled before the day of 19 Surrogate of orig- State of New York ) inal jurisdiction. County of ( ^^' ' The said being duly sworn and examined on be- HEARINGS AND TRIALS 131 half of says (the testimony may by consent be taken in narrative form, both as to direct and cross-examination, otherwise it should be set forth in question and answer). Note. The tes- Note. timony must be sub- scribed by the wit- ness (§ 2540). Surrogate's Court, County of Title. Certificate of Sur- rogate to examin- **'°°' I, Surrogate of the county of hereby certify that, pursuant to the annexed order of Hon. Surrogate of the county of directing that an aged and infirm {or sick) witness be examined before me on the day of 19 I attended on said day, at No. street, in the {city) of the resi- dence of said {here state any adjournment or other proceeding), and there took the examination of said witness, and that I caused the examination of said witness to be re- duced to writing, as above, and the same was subscribed by said witness in my presence {also other authentication under section 2542 should he recited) and is hereby annexed. In testimony whereof, I have hereunto set my hand, and have affixed the seal of^y court, the day of 19 in attestation thereof. (Seal.) (Signature.) Surrogate. § 132. The testimony. How minutes of testimony authenticated. The minutes of testimony, written out as prescribed in the last section, or taken by the surrogate, or under his direction, while the witness is testifying, must, before being filed he authenticated hy the signature of the stenographer, referee, the surrogate, or the clerk of the surrogate's court, to the effect that they are correct. § 2542, Code Civil Proc. Minutes of testimony; to he hound in volumes, etc. In the city and county of New York, in the county of Kings, and in any other county where the supervisors so direct, the minutes of testimony written out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorsed "Stenographic minutes," and numbered consecutively. Upon the record of a decree made in any contested matter, the surrogate must cause to be made a minute, referring to each volume of the stenographic minutes, and to the pages thereof containing any testimony relating to the matter. § 2643, Code Civil Proc. § 133. References in Surrogates' Courts. — We now pass to the discus- sion of references by a Surrogate. Notwithstanding the provision below noted as to the similarity of such references to references in the Supreme Court, they have nevertheless been made the subject of particular dis- 132 SUBROGATES COURTS cussion which requires to be carefully noted. The Surrogate's power to refer is based upon § 2546, which is as follows: Surrogate may refer question of fact or account. In a special proceeding other than one instituted for probate or revocation of probate of a will, the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine; and to make a report thereon; subject, however, to confirmation or modification by the surrogate. But no referee to examine an account rendered, whether intermediate or final, or to hear and determine all questions arising upon the settlement of such an ac- count, shall be appointed, where the estate or fund does not exceed one thousand dollars in value, or in any case where the item or items in such account to which objections have been made do not aggregate more than two hundred dollars. Such a referee has the same power, and is entitled to the same compensation as a referee appointed by the Supreme Court, for the trial of an issue of fact in an action; and the provisions of this act, apphcable to a j'eference by the Supreme Court, apply to a reference made as prescribed in this section, so far as they can be apphed in substance without regard to the form of proceeding. The Surrogate of the County of New York, may, on the written consent of all parties appearing in a probate case, appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony, but without authority to pass upon the issues involved therein. Unless a referee's report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice. § 2546, Code Civil Proc, as am'd by L. 1908, Chap. 128. (Amendment of 1908 italicized.) § 134. Development of Surrogate's power to refer. — ^The Surrogate's power to refer was originally limited to accountings, but on the adoption of the Code his power was amplified and now in virtue of frequent amend- ments may be summarized as follows: As to the examination of an account rendered if the estate exceed $1,000 in value, and the objections affect items aggregating more than $200, the Surrogate may appoint a referee to hear and determine; in addition to this he may appoint a referee to take and report evidence on any specific issue or upon all the issues in any other proceeding in his court except one instituted for probate or revocation of probate of a will. But in addition to this it is provided that in New York County the Surrogate may, even in probate cases, appoint a referee to take and report the testimony, provided written consent of all the parties appearing on the probate is filed. Such referee is without authority to pass upon the issues involved. In proceedings to remove an administra- trix the Surrogate ordered a reference "to take testimony and report with his opinion thereon." Held valid. Matter of Ferrigan, 42 App. Div. 1, 4, aff'd 160 N. Y. 689; Matter of Hale, 45 App. Div. 578. So, also, to take HEARINGS AND TRIALS 133 testimony as to whether a disputed claim had been rejected, and whether the Statute of Limitations had run. Matter of Hoes, 54 App. Div. 281. So, also, in a proceeding to sell decedent's realty. Matter of Walker, 43 Misc. 475. The Surrogate it will be noted has also power without the consent of the parties, and of his own motion, to direct one of his assistants to take and report the testimony in a similar case and he is subject to this same limitation as to passing on the issues. With this summary analysis of the section we pass to the powers of Sur- rogates' referees: § 135. Practice on references in Surrogate's Court. — The order of ref- erence should be exact in defining the extent of the referee's functions. It is customary to use the language of the Code, where the reference is to hear and determine. The person named as referee should of course be free from the disqualifications which would prevent the Surrogate himself from trying the cause or hearing the evidence. A referee to hear and determine must be sworn, although where there are no infants, or parties not repre- sented, the omission to take the oath will be deemed a mere irregularity in case the hearing proceeds without objection. Mason v. Luddington, 56 How. Pr. 172. The referee has power to rule on all questions of the ad- missibility or exclusion of evidence. Matter of Walker, 43 Misc. 475. The general rules of practice cover references in Surrogates' Courts. Matter of Russell, 3 Dem. 377; Matter of Lefjingwell, 30 Hun, 528. Reasonable no- tice of intention to proceed with the hearing is sufficient. The fourteen days' notice is not requisite. Matter of Ferrigan, 42 App. Div. 1, 4. The testimony, therefore, taken before such a referee must be signed by the witnesses, except where the reference is one for the trial of the issues; that is, a reference to hear and determine. As such a reference in a Surrogate's Court can only be had upon an accounting, under § 2546, it may be stated as the rule that the testimony of the witnesses before Surrogates' referees, except on accountings, must be signed by them. See Rule 30 of General Rules of Practice; Matter of Russell, 3 Dem. 377, Rollins, Surr. But this may be waived, by express stipulation or by failure to exact it. See Mat- ter ofHirsch, 116 App. Div. 367, 373. If the referee, after final submission, delays over 60 days his determination, it was held that either party may, under § 1019, Code Civ. Proc, elect to, terminate the reference. Matter of Santos, 31 Misc. 76, citing Patterson v. Knapp, 83 Hun, 492. If the party duly serve a notice of such election, and nevertheless the report is subse- quently made and filed, his right to raise this objection of invalidity is not affected by his filing exceptions to such report. The two positions are supplementary to, and not inconsistent with, each other. Ibid. But, in a recent case. Matter of Robinson, 53 Misc. 171, Church, Surr., held § 1019 to be inapplicable, certainly not to a reference to hear and report. He cited Matter of Bennett, 21 Abb. N. C. 238; Doyle v. Mayor, 26 Misc. 61; Bennett v. Pitman, 48 Hun, 612; Godding v. Porter, 17 Abb. Pr. 374. These cases certainly apply only to such references, styled references "under the approval of the Surrogate." But under the language of § 2546, referring 134 surrogates' courts to references in the Supreme Court the rule in the Santos case seems cor- rect in regard to Surrogate's references to hear and determine. The effect of § 1019 can be waived by formal stipulation or by conduct estopping a party from raising the objection. See Gill v. Clark, 31 Misc. 337. The referee's power over the proceedings is similar to that of any referee; he may compel the parties to proceed promptly, and where vexatious or unreasonable delays are attempted by counsel, or frivolous objections interposed, it has been held that the referee should close the reference and report to the appointing Surrogate the exact facts, and if the Surrogate find the objection to be frivolous, idle or dilatory, he may charge the en- tire costs of the proceedings personally upon the offending parties. Matter of Williams, 17 N. Y. St. Rep. 839, Ransom, Surr. See also Matter of Odell, 1 Connoly, 94; Matter of Niles, 47 Hun, 348. So he has power to make an order extending the time to file briefs. Matter of Santos, 31 Misc. 76; Morrison v. Lawrence, 2 How. Pr. (N. S.) 72; Matter of Robinson, supra. He controls the examination of witnesses, and his rulings upon evidence will not be reviewed until the hearing upon his report. Estate ofF.W. Mer- tens, N. Y. Law Jour., November 26, 1901. And the Surrogate's Court will enforce his mandates. Ibid., citing § 856, C. C. P. and Est. of Benj. Webb, N. Y. Law Jour., May 18, 1901. As, e. g., by directing a warrant for com- mitment to issue if witness refuses to obey direction of referee. Ibid. So, where a referee is appointed to take the account of executors he has power to allow them to file a supplemental account and doubtless to amend the account already filed where all the parties are before him. Matter of Frank, 1 App. Div. 39. The dubious language of the Court of Appeals in the Matter of Clark, 119 N. Y. 427, "that section 2546 seems to open everything and settle nothing," is quite immaterial in view of the fact that in that case these powers of referees were not directly under discussion. In Matter of Schneider also {sub nom. Matter of Frank) , 1 App. Div. 39, Bartlett, J., passes directly on the question of the power of a referee to allow executors to file a supplemental account, showing payments made subsequent to the time when they were compelled to file their account. It is to be noted that in this case all the parties were before the court and the disposal of any objections to the supplemental account could thus be had in the same reference, thus economizing both time and money to the estate. The other point as to the power to allow an amendment of an account has been sustained in the Matter of Munzor, 4 Misc. 374, Ransom, Surr., where, when a contested account was pending before a referee, and counsel for the accountant moved before the Surrogate for leave to file an amended account, the learned Surrogate denied the motion on the ground that it should be made before the referee who was the proper one to fix the terms upon which the application should be granted, if at all, and in his opinion the Surrogate said: "There can be no question as to the power of the referee to grant such an amendment as the Surrogate himself might grant upon a trial," citing Estate of Odell, supra; Estate of Williams, HEAHINGS AND TRIALS 135. supra. ..." In an accounting before a Surrogate the accounting itself is the subject-matter of the proceeding and any amendment may be al- lowed which does not include a transaction subsequent to the return day of the citation," citing Price v. Brovm, 112 N. Y. 677. From this opinion, which is carefully reasoned, it may be stated first that a Surrogate or his referee may allow an amendment of such an account provided no items are included of a date subsequent to the original return day of the citation; second, that if it is desired to include such subsequent items a supplemen- tal account must be filed which may be done if all the parties are before the court; third, it would seem, if the subsequent item is of such a char- g,cter as to involve the right of some one not before the referee, who would, if a party, be entitled to object, that in such event a supplemental citation would have to issue. § 136. Requests to find. — With regard to findings of fact and conclu- sions of law, the same rules applicable to trials by Surrogates apply to references in Surrogates' Courts (see discussion under § 2544, ante, and the referee when requested to make such findings must do so. Matter of Mellen, 56 Hun, 553. It was, however, held that where a referee neglected to respond to requests to find, although they were properly submitted to him, a judgment based upon his report would not be for that reason re- versed unless his refusal was clearly prejudicial to the appellant. Matter of Hicks, 14 N. Y. St. Rep. 320. In giving the Surrogate power to refer questions of fact or account, the plain intent of the legislature was to cast upon the referee judicial powers and responsibilities, and thus relieve the Surrogate from any duty in the proceeding except to review his conclusions of law from facts established by the evidence. It was not contemplated that the referee should be an assistant to the Surrogate acting simply ministerially. The referee's findings of fact should be regarded as the verdict of a jury, and, unless clearly against the weight of evidence, so as to amount to a finding with- out evidence, they should be sustained. Matter of Odell, 1 Connoly, 94. § 137. The report, filing. — The report of the referee must be filed to- gether with the testimony, and the practice in regard thereto is covered by the general rules in the absence of special rules in the particular coun- ties. In New York County, Rule 8 is as follows: " When a referee's report shall be filed, together with the testimony taken before him, said report shall be confirmed as of course, unless exceptions thereto shall be filed by any party interested in the accounting or proceeding within 8 days after a written notice of such filing and a copy of such report shall have been served upon the opposing party; and in case exceptions shall be so filed, any party may bring on the hearing of said exceptions on 8 days' notice on any stated motion day of said Surrogate's Court." This rule needs no particular interpretation. It is concise and clear. See post, § 140, as to time within which the Surrogate must act on the report under § 2546, Code Civ. Proc, as amended by L. 1899, ch. 607, and Matter of Clark, 168 N. Y. 427. 136 SURROGATES COURTS § 138. Confirmation or modification of the report. — The Surrogate may confirm or modify the referee's report. The term "modification," of course, includes the refusal to confirm, confirmation with modification, or a remitting of the report to the referee with directions to proceed anew. Matter of Post, 19 N. Y. Supp. 18; Ex parte Pollock, 3 Redf. 100; Matter of Bayer, 54 Hun, 189. When the report comes up before the Surrogate and exceptions have been filed, the Surrogate is bound to consider such exceptions and the questions thereby raised. Matter of Bedford, 30 Hun, 551. Should he confirm the report in such case without passing on these exceptions it will be held error, but where no exceptions are filed, then by operation of the rules of practice, the Surrogate has power as would a supreme court justice to direct an order for confirmation to be entered (Matter of Lefjingwell, 30 Hun, 528, 530) ; and exceptions filed after the Surrogate has so acted upon the report are unavailing, provided of course the eight days, within which exceptions may be filed, shall have expired before the making of the decree. The Surrogate must consider the ref- eree's findings of fact which, as has been already observed, he should sustain, unless they be clearly against the weight of evidence (Matter of Odell, 1 Connoly, 94), or without any evidence to support them. Estate of Brady, 17 N. Y. St. Rep. 836. § 139. The Surrogate's duty regarding the report. — However, what has been said in regard to the confirmation of a referee's report as of course, "unless exceptions thereto are filed and served within 8 days after a writ- ten notice of its filing and a copy of the report shall have been served upon the opposing party" is not to be taken as depriving the Surrogate of his discretionary power over the referee's report; for example, he is not lim- ited to the conclusions of law drawn by the referee from his findings of fact. In two recent cases the Court of Appeals has so held. Matter of Clark, 168 N. Y. 427, and Matter of Barefield, 177 N. Y. 387, 391. In the latter case the Surrogate drew absolutely contrary conclusions of law from the referee's findings of fact. The Court of Appeals held the last clause of § 2546 was not, explicit as it is, self-executing. The Surrogate has the right, and it is even his duty to act upon it, even if the specified period has expired. Ibid. And see Matter of Shaefer, 65 App. Div. 378, 382, so, although no exceptions be filed, and the findings of fact remain undisturbed, a Surrogate may modify the report in regard to the relief suggested and as modified confirm it; so, also, in the absence of exceptions where the report is not accompanied by the testimony as required by the Code, the Surrogate may set aside the report of his own motion as he cer- tainly would upon motion of an objecting party. It was so held where the referee only returned imperfect notes of the testimony with his report (Matter of Azzeli's Estate, 4 N. Y. Supp. 462), where Ransom, Surr., used the following language: "The requisites of the statute and the rules of practice have not been regarded by the referee in any substantial respect. There is no testimony returned; simply notes here and there of something sworn to. The attorneys on both sides should have requested the referee HEARINGS AND TRIALS 137 to take all the testimony and caused it to be signed by each witness. If he neglected or refused to do this, application should have been made to the court for his removal." § 140. Time within which report must be acted on. — Where exceptions are filed to the referee's report in time, it must be acted upon, that is, con- firmed, approved, modified, sent back or rejected within ninety days after it has been submitted to the Surrogate. If this be not done, then under § 2546 (ante, § 133) "it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice." But, as just noted, in spite of the intent of those who framed this amendment, the Court of Appeals has held, four to three, that there is no confirmation by operation of the stat- ute, until and unless a party interested notices a decree thereunder for entry, and in the meantime the Surrogate is not ousted of jurisdiction, and may, even after the ninety days, act on the report, and set it aside pro- viding he acts before any party moves. Matter of Clark, 168 N. Y. 427, rev'g 61 App. Div. 337. Unfortunately the party entitled to confirmation of the decree in this case was guilty of laches and acts amounting to ac- quiescence in the Surrogate's decree made after the ninety days.* The Clark case is followed and reasserted in Matter of Barefield, 177 N. Y. 387, 391. The effect of these decisions is that the report of a Surrogate's referee is never final of itself. There must be a decision and decree by the Surrogate. His decree is the "first binding adjudication," from which alone can an appeal be taken. The Surrogate must consider the exceptions in detail (Ex parte Bedford, 30 Hun, 551), and if he is left in doubt as to the validity of the exceptions by a lack of evidence, he may reserve the exceptions and send the matter back for further testimony. Ex parte Pollock, 3 Redf. 100; Matter of Bayer, 54 Hun, 189. The provision of § 1023 of the Code prohibiting a referee from making additional findings of fact or ruling on questions of law after he has ren- dered his decision, are not applicable to special proceedings, and therefore do not apply to Surrogates' Courts. Matter of Bayer, supra, Barker, P. J. But a matter will not be sent back to a referee for a rehearing for an im- material cause or where no fraud or clerical error is claimed to exist, or where it is clear that no injustice has been done. Matter of Kranz, 41 Hun, 463. Nor will the report be sent back merely because there is a con- flict of evidence in the testimony taken before the referee; in such a case the Surrogate will support the finding of the referee unless it clearly amounts to a finding unsupported by evidence. Matter of Odell, 1 Connoly, 94. A Surrogate may send a matter back for additional report where there has been some accidental omission rendering the report incomplete or unintelligible. Abercrombie v. Holder, 63 N. Y. 628. * Parker, J., in his dissenting opinion correctly states the intent of this amend- ment, drawn by the author as counsel to the committee of the Assembly that in- vestigated the Surrogate's Court in New York County. X38 SURROGATES COURTS § 141. Filing new objections to account before referee. — It is to be noted that where a disputed account is referred, the issues raised before the referee are determined by the objections filed in the Surrogate's Court. Prior to the Code, when it was the practice to send such accounts to an auditor, it was held by the Court of Appeals {Boughton v. Flint, 74 N. Y. 476), that the auditor had no judicial powers but was employed simply to aid the Surrogate, and that it was not within his power to allow further objections to be filed before him, and that the proper practice in case additional objections are desired to be filed would be by application to the Surrogate, by whom they could then be referred to the auditor. It is submitted that the reasoning on which this decision was based is not ap- plicable to referees under the Code in Surrogates' Courts in view of the decisions conceding judicial powers to such referees, and even holding that a referee has power to allow an objection to be amended, and even to allow new objections to be interposed {Matter of Fithian, 3 N. Y. Supp. 193, Ransom, Surr.), although in this case leave to file the new objection was in fact granted by the Surrogate. See part VIII, Accountings. See Matter of Gearns, 27 Misc. 76, and cases cited. § 142. Compensation of referee. — With regard to his fees a referee in a Surrogate's Court stands substantially upon the same basis as a referee in the Supreme Court. This is expressly provided by § 2566 of the Code, which is as follows: § 2566. Fees of other officers, and loitnesses. Each other officer, including a referee, and each witness, is entitled to the same fees, for his services and for traveling, as he is allowed for like services in the supreme court. 2 R. S. 69, § 19. The statutory compensation of referees in the Supreme Court was in- creased by ch. 90 of the Laws of 1896, amending § 3296 of the Code to $10.00 a day. There is no question, however, but that the parties to a reference in the Surrogate's Court may stipulate that the referee shall not be limited to the statutory fees for his services; but, to make such stipula- tion valid, it must, first, be entered upon the minutes, and, second, it must fix the rate of compensation. First National Bank v. Tamajo, 77 N. Y. 476; Griggs v. Guinn, 29 Abb. N. C. 144; Griggs v. Day, 18 N. Y. Supp. 796, aff'd 135 N. Y. 469. If the parties particularly agree at the commencement of the reference that the referee shall not be limited to the statutory fee, and also agree what he shall be entitled to charge, a subsequent entry upon the minutes of the terms of their agreement will be deemed to have been made in com- pliance with the statute, "at or before the commencement of the trial." Griggs v. Day, 135 N. Y. 469; Philbin v. Patrick, 22 How. Pr. 1. A stipu- lation that the referee may charge such fees for his services as he deems proper is insufficient, and if such stipulation is subsequently repudiated, the court is limited to allowing only the statutory fees. Matter of Hurd, HEARINGS AND TRIALS 139 6 Misc. 171. The referee is entitled to charge for every day occupied in the hearings, and also for the time spent in the investigation and consid- eration of the case after its submission. Berg v. Rottek, Daily Register, Dec. 28, 1889. This of course means a reasonable time and must be de- termined by the nature of the case or the character of the questions before him. Fay v. Muhlker, 13 Daly, 314. The amount of time spent, when the fees are to be taxed, should be proved by affidavit. Such affidavit should not only show the time actually used, but should also contain a specific allegation that the time used was necessarily required. But if the parties omit to require such proof of time occupied, and an allowance is incorpo- rated in the decree and the executor directed to pay the referee a specific sum, an Appellate Court will not disturb the Surrogate's allowance; for no question as to its propriety is in such case presented. Hancock v Meeker, 95 N. Y. 528; Kearney v. McKeon, 85 N. Y. 136; Brown v. Wind- muller, 4 J. & S. 75; Shultz v. Whitney, 17 How. Pr. 471. In the absence of a stipulation, the statutory provision is mandatory upon the Surrogate in fixing the referee's compensation. Matter of Willett, 6 Dem. 435. So, also, if a stipulatio;i be made upon the referee's minutes that the referee shall be paid such sum as shall be fixed by the Surrogate upon the coming in of his report, the Surrogate has no power to give him more than the statutory compensation. Matter of Gillman, 12 Civ. Proc. R. 179. In New York County, under Rule 22, in view of the expenses of a ref- erence being taxable on the entry of the decree, it is required that the referee's bill (and the stenographer's) be sustained "by their affidavits or detailed proof." It seems infra dig. for a referee who is the alter ego of the Surrogate to have to swear to the amount of his service in hours or days, but it is quite proper his bill should be fully itemized as to every ele- ment of his charge particularly if the parties stipulate to pay "for each and every hour." § 143. Same subject. — The cases discussed, ante, under stenographers' fees are germane to those of referees. See Bottome v. Neeley, 124 App. Div. 600; Austin v. Monro, 47 N. Y. 360; O'Brien v. Jackson, 167 N. Y. 31; Shaffer v. Bacon, 35 App. Div. 248. § 144. How to collect referee's fees. — Before the Code it was held that an auditor could not withhold his report until his fees were paid, but that it was proper that the fixing of his compensation should be deferred until the confirmation of his report, at which time the Surrogate should fix it. Ex parte Foster, 3 Redf. 532. Since the Code, however, it appears that a referee may refuse to file his report until his fees are paid, although he runs a risk of the termination of the reference in case he fails to file or deliver his report within sixty days, as prescribed by § 1019 of the Code. See Matter of Santos, 31 Misc. 76. Nevertheless even though he have not filed his report within the sixty days, he will not be precluded from re- covering his compensation in the absence of proof that either party ac- tually elected to terminate the reference. Nealis v. Meyer, 21 Misc. 344. 140 surrogates' courts See Hierman v. Hapgood, 1 Den. 188; O'Neil v. Howe, 16 Daly, 181. To avoid the termination of the reference the requirement of § 1019 must be literally complied with. Phipps v. Carman, 84 N. Y. 650. For if not, the right to fees may be forfeited. Bottome v. Neeley, supra. And if the referee, by his own fault, forfeits his fees under a stipulation which in- cludes his and the stenographer's he may become personally liable to the stenographer himself, since he has destroyed his right against the parties. Ibid. Where within the sixty days, a referee, having completed his re- port, gave written notice to the attorney for the prevailing party that his report was ready for delivery upon payment of his fees, but it was not filed or delivered until after the sixty days, and after a notice of termina- tion had been served, the tender of the report was held not to be a de- livery within the intent of the Code. Little v. Lynch, 99 N. Y. 112. There is a peculiarity regarding references in the Surrogates' Courts, due to the fact, that on the one hand the Surrogate is powerless to direct the referee to file his report in advance of receiving his fees, and on the other hand powerless to direct any one of the parties to the proceeding to pay the referee before the report is filed. Geib v. Topping, 83 N. Y. 46; Perkins v. Taylor, 19 Abb. Pr. 146; Matter of Kraus, 4 Dem. 217. In the case last cited Surrogate Rollins used the following language: "If the referee shall see fit to file his report without exacting his fees, provision can be made, in the final decree or order that may hereafter be entered in this proceed- ing, for the payment of those fees by such of the parties hereto as may be found justly chargeable therefor. And if any one of the parties shall pay the referee, and it shall, at the termination of the proceeding, appear that such party ought not, under all the circumstances, to be charged with the expenses of the reference, a direction may be given for his reimbursement, and for payment of costs of reference, either out of the assets of the estate or by some one of the parties hereto as may seem just and proper." Orig- inally, a referee must look for his fees to the party who takes up the re- port. Attorney General v. Continental Life Ins. Co., 93 N. Y. 45, 47. But the Court of Appeals held that while ordinarily, the court could not direct the parties to action to pay the fees and take up a report, yet, where the party was a receiver appointed by the court, whose legal expenses are properly payable out of the fund involved, the court has power to order the referee's fees to be paid out of the fund. So it has been held by anal- ogy, that where a reference in a Surrogate's Court is necessary, as for ex- ample, upon the accounting of an executor or administrator who is an officer of the court over whom it has general supervision and control in directing the distribution of the estate or fund, the Surrogate's Court will have power to direct the payment of the referee's fees in a proper case out of such fund. Matter of Hurd, 6 Misc. 171, Abbott, Surr. The Appellate Division recently held that the referee has the right to exact as a condition of the delivery of the report the payment of his fees, and the court will sustain the attorney of the successful party in paying the same in order to secure the report; and lays down the rule, that the attorney in the event HEARINGS AND TRIALS 141 that the amount paid shall prove to be greater than the court will allow, is not personally to be chargeable with the excess paid; but the payment to the referee will be deemed to be made upon the implied condition that they shall be adjusted at the time of taxation of costs exactly as they might have been fixed by the court, if an application for that purpose had been made, and an understanding between the parties must be implied, that if, for any reason the amount paid to the referee shall prove to be greater than the court thinks is a proper allowance, the excess will be returned. Duhrkop v. White, 13 App. Div. 293, opinion by Rumsey, all concurred. See also Matter of Kenny, N. Y. Law Journal, October 24, 1890. Rule 22, of the Surrogate's Rules in the county of New York, pro- vides explicitly, that where a party to a decree shall deem himself entitled to tax disbursements for referees' and stenographers' fees, such disburse- ments should be sustained by affidavit or detailed proof by the referee or stenographer. This is exclusive of the certificate required of such referee when services of counsel upon the reference is made the basis of a claim for an allowance. If the case is not one where the Surrogate may properly direct the referee's fees to be paid out of the fund or estate, the referee is remitted, in case he be not paid his fees when the report is taken up, or filed, to a common-law action to recover them. Ldttle v. Lynch, 99 N. Y. 112, 114. § 145. Trial by jury. — It has been stated that Surrogates have no jurisdiction over civil actions. See ante, part 2, ch. 1. Nevertheless provision is made by the Code under which the verdict of a jury can be had in certain specific cases on specific issues of fact arising in proceedings in the Surrogate's Court. The provisions of the Code are contained in § 2547, which is partly as follows: Trial hy jury; when ordered. The surrogate may, in his discretion, make an order directing the trial by jury, at a trial term of the supreme court to be held within the county, or in the county court of the county, of any controverted question of fact arising in a special proceeding for the disposition of real property of a decedent, as pre- scribed in title fifth of this chapter. The order must state distinctly and plainly each question of fact to be tried, and it is the only authority needed for the trial. Either of the surrogates of the county of New York may, in his dis- cretion, make an order transferring to the supreme court any special proceed- ing for the probate of a wiU pending before him, or in the court over which he presides, and thereupon the issues of fact arising in such proceeding shall be heard and determined by the supreme court. The order transferring such proceeding is the only authority necessary for the trial in the supreme court of such issues of fact. Such issues of fact shall be tried by jury. . . . If a motion to set aside the verdict be not made, or if at the termination of the proceed- ings for its review, the verdict is sustained, the supreme court shall certify to the surrogate's court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate's court. The original will shall be returned to the surrogate's court at the time 142 SURROGATES COURTS the verdict is certified thereto. The costs shall be taxed in the surrogate's court, and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate. § 2547, Code Civil Proc, in part. (It will be noted that a portion of § 2547 has been omitted above; it relates entirely to appeals from the verdict of such a jury and will be in- cluded and discussed in ch. VI, post, under Appeals.) From the section just quoted it appears that there are only two pro- ceedings in which the Surrogate may direct a trial by jury of specific issues. The one a special proceeding for the disposition of real property of a decedent, the other a special proceeding for the probate of a will. Any controverted question of fact arising in the first proceeding may be so dealt with by any Surrogate in the State. But issues of fact arising in a probate proceeding can only be transferred by either of the Surrogates of the county of New York. A further distinction is to be noted, that in the first case, that is, of a proceeding for the disposition of a decedent's real property, the proceeding itself is not transferred to the Supreme Court but the Surrogate's order specifies the controverted question or questions of fact, which in his discretion he determines should be tried by a jury and only those issues (which must be plainly and distinctly stated) will be so tried. But the second case, that is a special proceeding for the pro- bate of a will pending in the county of New York, it is provided shall be transferred as a proceeding to the Supreme Court and thereupon the issues of fact arising in such proceeding shall be heard and determined by the Supreme Court. Various puzzling questions have arisen as to the Surro- gate's power in the premises when the order directing the trial of a specific issue or transferring a probate proceeding has once been made and while the proceedings or issues are before the Supreme Court. The intent of the Code is, in the first place, very clear that when the Surrogate Tias directed such a trial by jury and the verdict has been certified back to him (whether immediately in case of no appeal, or finally after appeal and afiirmation or otherwise as the case may be) , the verdict shall be final and conclusive upon the parties to the litigation and their privies. By reason of this explicit language confusion is likely to be caused, if the distinction is not kept in mind between this trial by jury which the Surrogate may direct and the trial by jury herein below discussed which the Appellate Court may award where a decree admitting a will to probate, or revoking the probate of a will is reversed or modified by such Appellate Court. In the latter case the Surrogate's Court has no jurisdiction to grant a new trial, for until the final judgment is entered upon the verdict of the jury and finally certified to the Surrogate's Court, the matter is deemed to be still pending in the Supreme Court. Matter of Patterson, 63 Hun, 529; Matter of Clark, 40 Hun, 233. The reason for this is that the probate proceeding in case of an appeal from the Surrogate's decree is removed into the Su- preme Court, which becomes a court of original jurisdiction and as such, has power to decide any question of fact which the Surrogate could have HEARINGS AND TRIALS 143 decided and may even in its discretion receive further or documentary- evidence, or appoint a referee. Code Civil Proc. § 2586. But in regard to a case where the trial by jury is ordered by the Surrogate, a motion for a new trial may be entertained either by the Surrogate or the Supreme Court. Code Civ. Proc. § 2548. See Matter of Booth, 24 N. Y. St. Rep. 647. Where the whole proceeding is removed into the Supreme Court it would doubtless be improper for the Surrogate to make any order in the premises. Thus, before the abolition of the Court of Common Pleas in the city of New York, when the Surrogate had transferred a proceeding to that court, it appeared that a witness was about to leave the State, who was a necessary and important witness, the petitioner for probate at once moved in the Court of Common Pleas f6r an order for the examination of the witness before trial, but this order was vacated on the ground that the Code provisions upon which it was founded had no appUcation to special proceedings but only to actions, and consequently could not refer to any matter removed from the Surrogate's Court. The proponents promptly moved in the Surrogate's Court for an order vacating the order for transfer so as to vest the Surrogate again with jurisdiction over the proceeding, with a view to his granting an order for the examination of the witness. Surrogate Rollins held, that he had no power to vacate the order of trans- fer, but intimated that as he was about to leave the county and as until his return the powers and jurisdiction of his court were to be exercised by the Court of Common Pleas, the application could be renewed in that court during the time it was possessed of his powers, although under the mere order of transfer it had no such poWer. Matter of Delaplaine, 6 Dem. 269. It is submitted that if the Court of Common Pleas had power to make this order for examination in the proceeding pending before it, only by virtue of its temporary exercise of the powers and jurisdiction of the Sur- rogate's Court, it is clear that the Surrogate could, in the exercise of the same power, have made the order for the examination of the witness, him- self, and if such power should be exercised in a given case it would doubt- less be sustained in the absence of any other provision by law, as other- wise a party might be materially prejudiced. And it has been expressly held (Matter of Blair, 60 Hun, 523, 525), that where a Surrogate trans- ferred certain probate proceedings to the Court of Common Pleas he was not divested thereby of any of the powers conferred upon him by the statute, except the specific powers expressly conferred upon the Court of Common Pleas by force of the transfer. The General Term, Bartlett, J., held that, "he could doubtless no longer try the issues of fact arising in the special proceeding for the probate of a will; that power by force of this transfer at once became vested in the Court of Common Pleas. But that power alone was transferred and that power alone became so vested. The transfer of such other powers as are vested by law in the Surrogate's Court, and are not necessary to the due execution of the power transferred cannot be implied." So it was held in that case that an application to 144 surrogates' courts the Surrogate's Court while the probate proceedings were still in the Court of Common Pleas, for the appointment of a temporary administrator was proper and should be granted. And it was moreover held that the pro- vision in § 2547, "Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the Surrogate's Court," were not to be taken- as meaning, that during the transfer, jurisdiction over such proceedings was in the court to which the specific matter was trans- ferred, but that the words were inserted in the section plainly for abundant caution. § 146. Precedents. Surrogate's Court Caption. Present : Hon. Surrogate. Order directing In the matter of the disposition" trial of issues by of the real estate of j'"'y- deceased, for the payment of his debts. By virtue of the authority vested in this court and in the Surrogate of this county by section 2547 of the Code of Civil Procedure, it is hereby Ordered, that the below specified controverted questions of fact arising in the above entitled proceeding be tried by jury at a trial term of the Supreme Court, to be held within this county (or in the County Court of this county). Statement of issues to be tried: e. 8 w 10 [Here specify the issues distinctly and plainly, such as the it seems the Sur- ,.,, . ,, ^\ , ,, ,. ,. , , ,. ... rogate may direct testator or the validity of the creditor's claim, the framing of an ^^°^^-'^ . ^^^^ ^ach issue interrogatively.] issue. See Mead v. ^^^ '* '® further Ordered, that the verdict of said jury be Jenkins, 4 Eedf. 369; certified back to this court according to law. reversed on another (Signature.) point, 27 Hun, S70. Surrogate's Court Caption. Present : Hon. Surrogate. Order by New In the matter of the probate' York Surrogate for of a paper propounded as fecl?9Rr Tfr ^^^ 1^^* ^'11 ^°d testament section 2547 of the c , Code. Note. °f . deceased. By virtue of the authority vested in the Surrogates of the Note. This order County of New York by section 2547 of the Code of Civil IS the only aAithority Procedure, it is hereby, on motion of the above Surrogate necessary for the Ordered, that the above entitled proceeding now pending HEAKINGS AND TRIALS 145 trial in the Supreme in this court for the probate of the alleged last will and testa- Court of the issues ment of late of the county of New York, deceased, of fact which must j^g ^^^ ^jjg game hereby is transferred to the Supreme Court be tried by jury, ^^ ^^^ f^j. ^j^g county of New York for the trial of the issues the subsequent pro- ^^ j^^^ .^ ^^j^ proceeding by a jury. ceedmgs bemg fully <= ^ •, ^ zo- . \ ■ J- fj • i- (Signature.) mdicated m section ° ' 2547. Note. It seems to be the practice for the calendar clerk to notify the parties of the removal of the proceedings by virtue of this order. It should be further noted that the verdict of the jury is certified back to the Surrogate's Court by the Su- preme Court and that no order retransferring the proceedings to the Surrogate's Court is necessary, as after the said verdict is certified back all proceedings relating to the will and to the estate of the decedent must be had in the Surrogate's Court by operation of law. See section 2547. An order, a form for which has already been given, remit- ting proceedings to the Surrogate's Court, is necessary only where proceedings have been transferred to the Supreme Court by reason of some vacancy or disability of the Surrogate discussed under that head. 10 CHAPTER IV DECREES AND ORDERS § 147. Surrogates' decrees. — Section 2550 is as follows: "The final determination of the rights of a party to a special proceeding in the Sur- rogate's Court is styled indifferently a final order, or a decree." Such determination of course presupposes a proceeding before the Surrogate initiated by petition and citation. This final order or decree contains the adjudication which the Surrogate is required to make fixing the rights of the parties before him. The validity of the decree hinges on, first, the power of the Surrogate to make it, which of course involves the regularity of the proceeding with regard to the jurisdictional facts. Sec- ondly, it hinges upon its formal regularity. With regard to the first ques- tion it is merely necessary to restate the proposition that one claiming under a decree of the Surrogate must show affirmatively his authority to make it. Matter of Hawley, 104 N. Y. 250, 262; Farmers' L. & T. Co. v. Hill, 4 Dem. 41. As to its formal character the decree must be signed by the Surrogate. Roderigas v. E. R. Sav. Inst., 76 N. Y. 316. Should an unsigned decree be filed by the clerk, it can have no validity from the mere fact of filing, and can be disregarded without liability to proceedings for contempt. McNaughton v. Chave, 5 Abb. N. C. 225. One of the tests of whether an order made by a Surrogate is a final order, that is, a decree within the meaning of § 2550, is whether a party can be punished, as for contempt for disregarding it or disobeying it. See discussion under § 2555. The best rule for determining, however, is the ordinary test of common sense as to whether the order in question is a final determination of a special proceeding or not. Thus, where, after proceedings by a judgment creditor against an ex- ecutor in the Surrogate's Court, petition is made that the executor be punished for contempt for failure to pay the judgment claim, and upon such petition the Surrogate makes an order directing the executor to pay, such an order is a final order within the meaning of the section. There is no further order in the premises which the Surrogate need make in thie proceeding. It is a final determination as between the judgment creditor and the legal representative of the estate; it is in effect a decree for the payment of the money. See Matter of McMaster, 14 Civ. Proc. 195. § 148. Effect of Surrogate's decree.— There are certain specific statu- tory provisions. See section infra, defining the conclusiveness of certain decrees of a Surrogate. Of course a party obtaining a decree is estopped thereby from attacking it. This conclusiveness is irrespective of any 146 DECREES AND ORDERS 147 Code provision. Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425. This does not mean he may not move to resettle it, or to open it, but that so long as it stands it is binding on him. Generally speaking, however, the conclusiveness of a decree depends upon the regularity of the proceedings before the Surrogate, the citation of all necessary parties upon such pro- ceeding, and its jurisdictional validity. No consent of parties as has been already noted can give validity to the decree if he has not jurisdiction to make it, but his decree upon a question within his jurisdiction is, generally speaking, conclusive upon the parties to the proceeding. Frethey v. Durant, 24 App. Div. 58, 62; Graham v. Linden, 50 N. Y. 547. Except as to particular decrees, the effect of which is limited by the statute, a Sur- rogate's decree is a decree in rem and, therefore, is conclusive upon the question covered by it. Thus, where a Surrogate has jurisdiction to pass upon a claim, and decides adversely, his decree bars a subsequent suit upon such claim. Baldwin v. Smith, 91 Hun, 230. The right to appeal from a decree is always to be taken into account, but apart from this the cases are uniform with reference to the conclusiveness of the Surrogate's decrees. See Stiles v. Burch, 5 Paige, 132, where the Court of Chancery expressly declared in its own decree that the decree of the Surrogate in- volved in the case at bar was binding and conclusive between the parties to the proceeding as to the facts upon which the Surrogate had power to adjudicate. See also Wright v. M. E. Church, Hoff. Ch. 202, holding that the Surrogate's decree, his jurisdiction being conceded, was final as to all who were legally competent and were cited; that it was pleadable in every court and the only remedy was by appeal. See Bo,ll v. Miller, 17 How. Pr. 300, holding that a Surrogate's decree upon a final accounting is conclusive as to balance therein stated to be due the representative of the egtate. See opinion in Kirk v. McCann, 117 App. Div. 56, discussing binding effect of unreversed decrees, whether the decision was right or wrong, or the parties adult or infant. In that case the decree had directed an erroneous disposition of surplus income. It was held to conclude the parties to its date, though not to prevent a subsequent decree on a correct theory disposing of subsequently accruing income. Such a decree is also conclusive upon the sureties in the administration bond; and this regard- less of their being cited. See Official Bonds, post. See also Johnson v. Smith, 25 Hun, 171. Such a decree has been held wholly conclusive against one of the parties interested in the fund, duly cited upon the account- ing. Bushnell v. Drinker, 5 Redf. 581; Brown v. Wheeler, 53 App. Div. 6, 8, citing Oarlock v. Vandevort, 128 N. Y. 374; Riggs v. Cragg, 89 N. Y. 480; Matter of Verplanck, 91 N. Y. 439; Purdy v. Hayt, 92 N. Y. 446. One not thus a party may, however, move in a proper case to re- open the decree and proceeding. It was held in Matter of Killan, 66 App. Div. 312, that this is the proper remedy, and if he tries to compel an account de novo, his application may be denied, and costs imposed on him personally. lUd. But this ruling was reversed, 172 N. Y. 547, holding the applicant's right to an accounting was a substantial right, not so to 148 SURROGATES COURTS be divested except as provided in the Code, whereunder the one accounting could have secured a citation to unknown parties. (But see dissenting opinion, the reasoning of which is persuasive.) And in a later case, Matter of Gill, 183 N. Y. 347, a creditor was held absolutely entitled to petition for an accounting, although he had omitted to present his claim pursuant to the published notice. And in Matter of Gall, 182 N. Y. 270, a creditor was allowed to move to open and modify a decree eight years after its entry, having presented his claim, which was ignored, and the decree made without citing him, settling an account in which his claim was not specified. These decisions are somewhat puzzling in view of the explicit language of the Code as to opening decrees where appeal is not an available remedy. But they certainly hold that a creditor not a party to an accounting can either move to reopen the proceeding or petition for a new accounting. Of course this does not revive his rights if they have been barred under the short statute, or increase them if by his laches his action is taken after distribution, and the representative has as such no further assets. § 149. Same subject. — However, every decree must be viewed in the light of the subject-matter with which it has to deal. Its conclusiveness is determined thereby. For example: A decree made by the Surrogate in the final settlement of an executor's accounts is an adjudication merely as to amounts received and paid out by him, and, therefore, as to the balance due to or from such executor. Johnson v. Richards, 3 Hun, 454. But it conclusively establishes the propriety of his acts up to that time (Matter of Union Trust Co., 65 App. Div. 449), in the capacity in which he accounts. For it has been held (Matter of Doheny, 70 App. Div. 370), that where A and B accounted as temporary administrators, the decree was inconclusive when later they accounted for the same estate as trustees. See § 2742, C. C. P., discussed, post. But where the Surrogate has jurisdiction of the parties and of the subject-matter, his decree has the same force and effect as the judgment of any other competent court. Garlock v. Vande- vort, 128 N. Y. 374; Shimmel v. Morse, 57 App. Div. 434; Mutual Life v. Schwaner, 36 Hun, 373, aff'd 101 N. Y. %9>\; Baldwin v. Smith, 91 Hun, 230. As to infant parties, the court, having duly appointed a guardian ad litem, has full jurisdiction of the person, and its decree binds the infant. Matter of Hawley, 100 N. Y. 206; Matter of Wood, 70 App. Div. 321, 324. So future remainder-men, not in being, may be bound. Rhodes v. Caswell, 41 App. Div. 229. But the decree cannot have any conclusive effect or operate as a bar as to property not involved in it. Frethey v. Durant, 24 App. Div. 58. § 150. Collateral conclusiveness.— With regard to the collateral con- clusiveness of such a decree it is to be borne in mind that as the court is one of special and limited jurisdiction those claiming collaterally under such a decree must prove the jurisdictional facts from which it derives its validity. Corwin v. Merrit, 3 Barb. 341. But see People v. Harman, 2 Sw. 576. It follows from the general rules of estoppel, that the proceed- DECREES AND ORDERS 149 ings of a Surrogate having jurisdiction cannot be questioned collaterally. Jenkins v. Robinson, 4 Wend. 436; Bensen v. Manhattan R. Co., 14 App. Div. 442. In this case the Appellate Division of the First Department (opinions by O'Brien and Ingraham, J J.) passed upon the power of the Surrogate of New York County in probate proceedings to determine in certain cases the validity of testamentary dispositions affecting real estate, as defined by § 11 of ch. 359 of the Laws of 1870. The question before the court was whether under a fair construction of that act the Surrogate had jurisdiction to make a binding decree in reference to such testamentary dispositions. It appeared that the Surrogate under the act was requested by the heirs-at-law to determine the validity of certain devises or bequests under the will of the testatrix. The court held first, that the language of the act was broad enough to show a legislative intent to confer upon the Surrogate jurisdiction upon the probate of the will to determine the validity of the devises or bequests which were assailed by the heirs-at-law. Second, that by submitting to the Surrogate the determination of these questions the heirs-at-law should be held to have waived their constitu- tional right to have the question of title tried by a jury. And in the third place, although it might appear, that had the decree of the Surrogate been appealed from it might have been modified or reversed, nevertheless having been made in a proceeding to which the heirs-at-law were parties, it was binding and could not be collaterally attacked. To same effect Brown v. Landen, 30 Hun, 57, affirmed in 98 N. Y. 634; Roderigas v. E. R. Sav. Inst, 63 N. Y. 460; Same v. Same, 76 N. Y. 316; Parhan v. Moran,A Hun, 717. The general rule in this regard was stated by Marcy, J., in Johnson v. Robinson, 4 Wend. 437, 441. "However extraordinary or erroneous be the determination and proceedings of a court of limited au- thority, if it acts within its proper jurisdiction as to the subject-matter, place and person, its judgment or decree cannot be impeached or' invali- dated in a collateral action." So also if a decree be acquiesced in by the parties for a long time (as four years) it will not be disturbed in the ab- sence of fraud. Matter v. Waack, 5 N. Y. Supp. 522. § 151. The statutory provisions. — The rule is now defined by statute. Where the jurisdiction of a surrogate's court to make, in a case specified in the last section, a decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or appeared, the juris- diction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the surrogate's court. The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree. § 2473, Code Civil Proc. (People V. Harman, 2 Sw. 576, holding that recital of jurisdictional facts in the decree raised no presumption was before the enactment of this section.) Attack in collateral proceedings is limited to the jurisdiction of the Surrogate to make the decree. See Dakin v. Hudson, 6 Cowen, 221. 150 SURROGATES COURTS Statutory changes in the power of the Surrogate have no ex post facto operation; so, where a Surrogate in New York County prior to 1880 ad- judicated in his decree admitting a will to probate upon the validity of a disposition of real estate in said will, acting under authority of § 11 of ch. 359 of the Laws of 1870, the Appellate Division held that such a decree could not be attacked collaterally. Bensen v. Manhattan R. Co., 14 App. Div. 442. See also as to conclusiveness of a decree. People v. Townsend, 37 Barb. 520; Curtis v. Williams, 3 Dem. 63; Matter of Kranz, 41 Hun, 463; Newcome v. ,S^ Peters Church, 2 Sand. Ch. 636; Scofjield v. Churchill, 72 N. Y. 565; Gerould v. Wilson, 81 N. Y. 573; Wetmore v. Parker, 52 N. Y. 450; Matter of Harvey, 3 Redf. 214; Leonard v. Columbia S. N. Co., 84 N. Y. 48, 55. In Shaw v. N. Y. Central, 101 App. Div. 246, the administrator's right to sue was attacked on the ground that his petition for letters was verified before a New York notary under a Columbia County venue. Held, the effect was merely to make the petition an unverified one; but the letters having been issued were prima facie sufficient proof of his rep- resentative status. The court cited Belden v. Meeker, 2 Lans. 473, 47 N. Y. 307; Farley v. McConnell, 52 N. Y. 630; Welch v. N. Y. Central, 53 N. Y. 610. In O'Connor v. Huggins, 113 N. Y. 511, the Court of Appeals summarizes the rule as to the conclusiveness of Surrogates' decrees in the following language : "The record shows that the necessary facts were alleged upon which the Surrogate acted in granting them. His determination upon the proof cannot be disturbed by an attack upon its correctness, in a collateral pro- ceeding. Surrogates' Courts, though established as courts of special and limited jurisdiction, have possessed the general and exclusive jurisdiction to order the administration upon the estates of deceased persons, and, where jurisdiction to act exists, their orders and decrees are made con- clusive until they are revoked, or reversed on appeal. 2 R. S. 80, § 56. That conclusiveness attaches in a case where a jurisdictional fact is in question, and it then appears that there was proof with respect to its ex- istence, upon which the Surrogate decided. His adjudication, in the ex- ercise of his general and conclusive jurisdiction, where jurisdictional facts, necessary to the possession of that jurisdiction, appear to have been al- leged, and when the necessary parties have been duly cited to appear be- fore him, is not thereafter open to collateral attack. Power to affect the adjudication resides in the court which made it, and in the court to which it may be appealed; but otherwise it is not open for question. This prin- ciple, of course, in its application to other parties affected, implies the absence of fraud, or collusion. (See Fulton v. Whitney, 66 N. Y. 548.) It is not material how the decision was reached, provided the facts, which confer power to act, were alleged. The Surrogate was not confined to any form of procedure, or to any mode of proof, in acting upon an apphcation for letters. The defect in the allegations of the petition was supplied by allegations in a subsequent deposition, and we are bound to presume that, DECREES AND ORDERS 151 prior to issuing the letters, the Surrogate deUberated and decided upon the right of the petitioner." The plea, when urged collaterally, that the decision was erroneous, must always be unavailing. For its errors the remedy is by a direct proceeding for their correction, and subsequent proceedings which rest upon the de- cree, will not be affected, however erroneous the adjudication may be urged to have been. Porter v. Purdy, 29 N. Y. 106. The dictum in the foregoing opinion, with regard to the absence of fraud or collusion is in conflict with a decision in Stillwell v. Carpenter, 2 Abb. N. C. 238, which held that not even fraud in securing a decree would be sufficient grounds for attack; for that the party prejudiced had his remedy by an action in equity to be relieved against the fraud. But see Hoes v. N. Y., N. H. & H. R. R., 173 N. Y. 435, rev'g 73 App. Div. 363, which settles the point. In this case the right of the public administrator to sue for damages for death of intestate was attacked because of the manner in which his letters were issued. It appeared that legal fraud had been committed in that the only assets here on which jurisdiction to grant letters could be based were a watch and chain brought into the State solely for that purpose. Held the status of the plaintiff under such letters could be attacked col- laterally. (See opinion.) The cause of action, negligently causing death, it must be noted, did not arise here, but in the State from which the "assets" were imported. If it appears, however, that the Surrogate had no jurisdiction to make the decree in question it will have no conclusiveness. Ziemer v. Crucible Steel Co., 99 App. Div. 169. So, where the decree purports to adjudicate upon a contested claim of a creditor over which the Surrogate has no jurisdiction (Matter of Walker, 136 N. Y. 20, 27), the decree is not binding (Tucker v. Tucker, 4 Keyes, 136), although it would be otherwise if it passed upon the claim of an executor against the estate. Kyle v. Kyle, 67 N. Y. 400; Shakespeare V. Markham, 72 N. Y. 400; Boughton v. Flint, 74 N. Y. 476. See also Mott v. Fort Edward &c. Co., 79 App. Div. 179, where recital, in decree for sale of decedent's realty, of due service of cita- tion was held to prove presumptively the fact of due service, as against collateral attack. In Matter of Welch, 61 Misc. 5, Ketcham, Surr., held conclusive on ac- counting, a former decree, in a proceeding to remove an executor for im- proper dealings with bonds, and holding they belonged to him; it being claimed again on the accounting that they should be accounted for as of the estate, citing Shearer v. Field, 6 Misc. 189, and Matter of McGoughran, 124 App. Div. 312. § 152. Conclusiveness specially. — The effect of certain specific decrees has been defined by the Code, and the various sections are here collated to avoid confusion. First, as to decrees on probate, § 2626 provides as fol- lows: o. Probate; how far conclusive as to 'personalty. A decree admitting to probate a will of personal property, made as pre- 152 SURROGATES COURTS scribed in this article, is conclusive, as an adjudication, upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal, or revoked by the surrogate, except in an action brought under section twenty-six hundred and fifty-three-a of this act to determine the validity or invalidity of such will ; and except that a determination, made under section twenty-six hundred and twenty-four of this act, is conclusive, only upon the petitioner, and each party who was duly cited or appeared, and every person claiming from, through, or under either of them. § 2626, Code Civil Proc. And § 2627 relates to the conclusiveness of a probate decree as to real property. b. Probate how far conclusive as to realty. A decree, admitting to probate a will of real property, made as prescribed in this article, estabhshes, presumptively only, all the matters determined by the surrogate, pursuant to this article, as against a party who was duly cited, or a person claiming from, through, or under him; or upon the trial of an ac- tion, or hearing of a special proceeding, in which controversy arises concerning the will, or where the decree is produced in evidence, in favor of or against a person, or in a case, specified in this section, the testimony taken in the special proceeding, wherein it was made, may be read in evidence, with the same force and effect, as if it was taken upon the trial of the action, or the hearing of the special proceeding, wherein the decree is so produced. § 2627, Code Civil Proc. The primary distinction between the two sections, is that as to the per- sonal estate the decree is conclusive and as to real estate it is merely pre- sumptive. Smith V. Hilton, 19 N. Y. S. R. 340. It is also provided, in respect to a decree for payment and distribution, where an account is judicially settled: c. With respect to the matters enumerated in this section the decree is con- clusive as a judgment upon each party to the special proceeding who was duly cited, or appeared, and upon every person deriving title from such party. § 2743, Code Civil Proc, in part. See Accounting for the Estate, post, and discussion by Thomas, Surr., in Matter of Halstead, 41 Misc. 606. § 153. Same. — Under § 2626 we note first, that if the decree contains an adjudication construing any disposition of personal property, that adjudication is binding only upon the Umited class defined in the section, q. V. We note, second, that whatever the character of the decree, it is conclusive only as to the questions properly coming before the Surrogate or in the language of the section "determined by the Surrogate pursuant to this article." That is to say, if he adjudicates upon some disposition of the will, this determination is only conclusive so far as it relates to the personal estate. If the will is one of real and personal property, his decree will not be conclusive in an action to construe the will, so far as it relates to real estate thereby devised. Corse v. Chapman, 153 N. Y. 466, 475. But the mere fact that the will relates both to real and personal property as has DECREES AND ORDERS 153 been pointed out, does not affect its conclusiveness as to the personal property. Post v. Mason, 26 Hun, 187, affirmed, 91 N. Y. 539. In this case the court used the following language: "Since the enactment of these provisions of the statute, it has been held that the decree of the Surrogate cannot be impeached collaterally in respect to a will which relates to personal property. Vanderpoel v. Van Valkenburgh, 6 N. Y. (2 Seld.) 190. These provisions apply to a will so far as it relates to personal property, even though it be a will relating, as the one before us, to both real and personal property. Matter of Last Will of John Kellum, 50 N. Y. 298. So far as it affects the disposition of the personal property of the testator, the probate of one year becomes conclusive, and equity has not jurisdiction in a collateral action to set aside the probate in the absence of fraud in respect to the probate;" citing Collier v. Idley's Executors, 1 Bradf. 94, and cases cited; Burger v. Hill, 4 Bradf. Sur. 360; Brady v. McCosker, 1 Comst. 217; Dayton's Surr. 168; Pemberton v. Pemberton, 13 Yesey, 290; 1 Story's Eq. Jur., § 184; Gould v. Gould, 3 Story, 537; Tarver v. Tarver, 9 Pet. 180; Gaines v. Chew, 2 How. (U. S.) 245, and cases cited; Armstrong v. Lear, 12 Wheat. 175, Story, J.; Colton v. Ross, 2 Paige, 398; Bogardus v. Clark, 4 Paige, 623; Muir v. Trustees of Leaks and Watts Orphan House, 3 Barb. Ch. 480. We note further that if there is no determination as to the validity of the will but the decree simply admits the will to probate, it is conclusive only as to the sufficiency of its execution, that is to say, its formal validity. Matter of Gillman, 38 Barb. 364. Thus while we have seen that among the incidental powers of a Surro- gate he has a right to determine upon a probate whether a person is an heir or belongs to any class designated in the will (see ch. I) , nevertheless the decree admitting to probate is not conclusive as to this incidental inquiry. Nor would it be conclusive as to any incidental question, or by reason of mere obiter dicta. Washbon v. Cope, 144 N. Y. 287. Thus, where a will offered for probate was contested on the ground, that after its ex- ecution the testatrix gave birth to an illegitimate child whose rights were sought to be asserted and the Surrogate's decree merely admitted the will to probate, it was held (Patterson, J.) that the decree was not conclusive nor would the proceeding constitute an estoppel against the child when subsequently asserting its rights against the estate of the testatrix. Bunce V. Bunce, 20 Civ. Proc. Rep. 332. Where probate was denied, held (semble), a person not a party to the proceeding could again present the instrument for probate and have the question of its proper execution and validity determined. Matter of Tilden, 56 App. Div. 277, rev'g 32 Misc. 118. § 154. Same. — We note further as to the formal validity of the decree, the statute makes it conclusive without limitation, that is to say, against all the world, as opposed to the determination in the decree of the validity of any particular testamentary disposition which is made conclusive only upon the petitioner and each party who was duly cited, or appeared, and 154 SURROGATES COURTS every person claiming from, through, or under either of them (Matter of Dates, 35 N. Y. S. R. 338. See as to parties not cited. Matter of Patterson, 146 N. Y. 327); or as the court says in Hoyt v. Hoyt, 112 N. Y. 493, 504, "as to the personal property if the person interested is not under disa- bility or the Surrogate's discretion is not invoked for a sufficient cause under subdivision six of § 2481, the probate concludes all mankind after the lapse of one year; in such event the disposition and distribution of the personalty by the executor are beyond question or recall and a finality. The proceeding for the probate is in the nature of a proceeding in rem which is binding upon all parties who are entitled to participate and are brought in by due process of law." We note further that the section limits the rule as to conclusiveness thereby defined to a decree admitting a will to probate; consequently de- crees refusing probate have been distinguished under this section, and the conclusiveness of such a decree is determined by the general rules herein- above laid down. Thus, in Matter of Goldsticker, 192 N. Y. 35 (disting. Corley v. McEmeel, infra) the court held that a decree refusing probate for improper execution and for lack of capacity was in those respects conclusive on the parties in subsequent controversies as to the personal estate. Sec- tion 2625 provides for the decision to be made by the Surrogate refusing probate of a will, and is as follows: Where the surrogate decides against the sufficiency of the proof, or against the validity of a will, or upon the construction, validity, or legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision. § 2626, Code Civil Proc. Where a will related to real property, and the Surrogate decided ad- versely to its sufficiency, his decree refusing probate was held not to be conclusive upon the devisees in a subsequent action. But it was also held that such decree was admissible in evidence in an action brought to estab- lish the will under § 1866 of the Code, and further that so far as the right to have it probated was concerned it was res adjudicata. Corley v. Mc- Emeel, 31 Abb. N. C. 113. But see Matter of Tilden, 56 App. Div. 277, as to parties not cited. This discussion amounts, therefore, to this: that in Surrogate's Courts, as in any court of record the principle of res judicata will be applied. The same issue is not to be settled between the same parties on the same grounds, once it has been properly litigated and decided. See Matter of McGoughran, 124 App. Div. 312. Section 1866 provides for an action in the Supreme Court brought to determine the validity, construction or effect of a testamentary disposition of real property situated within the State, but the section provides that it "does not apply to a case where the question in controversy is determined by the decree of a Surrogate's Court, duly rendered upon allegations for that purpose as described in article first, of title third, of chapter eighteenth of this act, where the DECREES AND ORDERS 155 plaintiff was duly cited in the special proceeding in the Surrogate's Court before the commencement of the action." § 155. Same. — With regard to the conclusiveness of a decree admitting to probate a will of real property, we have already distinguished it as being presumptive only, against parties who were duly cited, or parties claiming from, through or under such parties. The manner in which probate of a will covering real property can come up in other courts or in proceedings other than for probate, is either in the form of the decree itself, which under § 2627 may be produced in evidence, in which case the testimony taken in the probate proceeding, may be read in evidence, subject to all the objections or rebuttal which would be available if it had been taken upon the trial or hearing in which it is sought to be used. Secondly, the certified will or record thereof may be read in evidence as provided in § 2629, which is as follows: The Surrogate must cause to be endorsed upon, or annexed to, the original will admitted to probate, or the exemplified copy, or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under his hand, or the hand of the clerk of his court, and his seal of office, stating that it has, upon due proof, been admitted to probate, as a will valid to pass real or personal property, or both, as the case may be. The will, or the copy or statement, so authenticated, the record thereof, or an ex- emplified copy of the record, may be read in evidence, as proof of the original will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last three sections. § 2629, Code Civil Proc. The record of the will is thus presumptive evidence only of its due ex- ecution and of the mental competency and freedom from restraint of the testator and not of the validity of the devises contained in it, in any tribu- nal where the title to the real propierty of the testator may be in issue. Matter of Merriam, 136 N. Y. 58, 61 ; Hoyt v. Hoyt, 112 N. Y. 493, 504. So it is held that under the statutory provisions, the probate of a will is never conclusive as to real property, and amounts upon the trial of an action, or in a special proceeding in which a controversy arises concerning the will, only to presumptive evidence. § 156 Same. — The distinction between the conclusiveness of decrees admitting to probate wills of real or personal property, is carefully drawn by Judge Rapallo, in Matter of Kellum, 50 N. Y.' 298, where he construes that section of the Revised Statutes, which gave conclusive effect to the probate of a will of personal property. 2 R. S. 61, § 29. His reasoning is still applicable, because the section of the present Code in question is the re-enactment of former provisions of the Revised Statutes on the subject, and was in effect a legislative recognition of the pre-existing law. See Matter of Gouraud, 95 N. Y. 256. The subsequent provisions, which were adopted, by which the next of kin were permitted, within one year after probate, to contest the same by filing allegations against the validity of the will or the competency of the proof thereof, were " an important safe- guard against imposition or mistake and afford the next of kin a whole year 156 surrogates' courts after the probate to investigate the circumstances attending the execution of the will." But no such provisions are necessary as to wills of real es- tate, as the probate thereof may be repelled at any time by contrary proof. A will may be a will of real and personal property, but if offered for probate merely as a will of personal property, the decree admitting it to probate is utterly without validity as regards the real estate and would have no presumptive or evidential force whatever. The will would have to be proved and recorded anew as a will of real property. Smith's Estate, 1 Tucker, 108. Therefore the proof of the will as a will of real estate simply relieves a claimant under the will, of the burden of establishing it in a subsequent action or proceeding. Corley v. McEmeel, 31 Abb. N. C. 113. See also Baxter v. Baxter, 76 Hun, 98, as to the conclusiveness of decree of Surrogate. The peculiar situation may exist, however, of a will being valid as to realty, so that the decree admitting it to probate has the presumptive and evidential force above specified, while as a will of personalty it may turn out to be invalid. This is due to the rule of law that the question of testacy or intestacy as to personalty is governed by the law of domicile of the testator, whereas its validity as to real estate may be governed by the lex loci. Thus where a will was proved as a will of real and personal property in the county of New York and letters testamentary issued, it developed on the final accounting that the domicile of the testator at the time of his death was in the State of Connecticut. It also appeared that a court of competent jurisdiction in Connecticut had adjudged the will re- voked by the subsequent birth of a child to the testator. The New York Surrogate's Court held the will invalid as to personalty, but as to realty in regard to which the will contained a direction for sale and distribution of proceeds, the Surrogate asserted his jurisdiction to order distribution as to all real estate situated in New York. Bloomer v. Bloomer, 2 Bradf . 339. In conclusion it may be stated that the object of the statute, by which is meant both the original provisions of the Revised Statutes as well as the present section of the Code, was to make the certificate of the Surrogate or the record of the will or exemplification thereof so far as real estate was concerned, prima facie evidence only. See Vanderpoel v. Van Valkenburgh, 6 N. Y. 190, 199; Carroll v. Carroll, 60 N. Y. 121, 123, citing 2 Greenleaf's Evidence, § 239. This was a case where in an action of ejectment brought by a widow to recover her dower, the Code held that the probate of the will and the proceedings thereon were not competent evidence to prove the fact of the testator's death. This fact being the very basis and the foundation of the widow's action, without proof of which it could not be maintained, it was held that as the probate of the will could not in any respect affect the widow's right of dower, nor the final adjudication by the Surrogate in any way strengthen or injure her claim, the probate decree and the proceedings on which it was based were incompetent and entirely immaterial. § 157. Preservation of decrees of Surrogates' Courts.— Originally Surro- DECREES AND ORDERS 157 gates' decrees were merely entered in the office of the Surrogate and re- corded by the clerk in one of the books required to be kept by him. These books were covered by §§ 2498 and 2499 of the Code, which are as follows: § 2498. Books to be kept by surrogate. Each surrogate must provide and keep the following books : 1. A record-book of wills, in which must be recorded, at length, every will, required by law to be recorded in his office, with the decree admitting it to probate, and also, if the probate is not contested, the proof taken thereupon. 2. A record-book of letters testamentary and letters of administration, in which must be recorded all such letters, issued out of his court. 3. A record-book, in which must be recorded every decree, whereby the account of an executor, administrator, trustee, or guardian is settled. 4. A book, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order or decree, made thereupon ; with a memorandum of every report made, and other proceeding taken, founded upon a decree for such a disposition. 5. A book, containing a record of every decree or order, the record of which is not required by this section to be kept elsewhere; together with a memoran- dum of each execution issued, and of the satisfaction of each decree recorded therein. 6. A book, in which must be recorded all letters of guardianship, issued out of his court. 7. A book of fees and disbursements, in which must be entered, by items, all fees charged or received by him for services or expenses, and all disburse- ments made or incurred by him, which are chargeable against those fees, or the county. The expense of providing the books specified in this section is a county charge. To this should be added the book in which must be recorded assignments of legacies or beneficial interests under L. 1904, ch. 692. § 2499. Books to be kept by Surrogate. To each of the books, kept as prescribed in the last section, must be attached an alphabetical index, referring to the page of the book, where each subject may be found. The surrogate may keep two or more books, for a further divi- sion of the subjects specified in either subdivision of the last section; in which case, he must keep a separate index to each set of books. Each decree, re- voking the probate of a will, or revoking or otherwise affecting letters testa- mentary, letters of administration, or letters of guardianship, or suspending or removing a testamentary trustee, or modifying or otherwise affecting any other decree, must be plainly noted at the end or in the margin of the record of the will, letters, or original decree, with a reference to the book and page where the subsequent decree is recorded. The books, kept as prescribed in the last section, appertain to the surrogate's office, and must be open, at all reasonable times, to the inspection of any person. § 158. Surrogate's duty to preserve papers.— And by § 2500 it is pro- vided that: 158 surrogates' courts The surrogate must carefully file and preserve in his office, every deposition, affidavit, petition, report, account, voucher, or other paper relating to any proceeding in his court; and deliver to his successor all the papers and books kept by him. All bonds required to be filed with the surrogate or in his office must be proved or acknowledged as deeds are required by law to be proved or acknowledged. Papers which have not been copied, such as exhibits consisting of books and writings, cannot be removed from the files of the court. Matter of Smith, 15 N. Y. St. Rep. 734. § 159. Docketing decrees. — Although the entry and record of a decree is sufficient for all purposes of its conclusiveness and indeed of its enforce- ment, yet, in order to give a Surrogate's decree the force and effect of a judgment of the Supreme Court (which it is provided can be done where a Surrogate makes a decree directing the payment of money), it may be docketed as provided for in § 2553. § 2553. Decree for money; how docketed. Where a decree directs the payment of a sum of money into court, or to one or more persons therein designated, the surrogate, or the clerk of the siu'rogate's court, must, upon payment of his fees, furnish to any person applying therefor, one or more transcripts, duly attested, stating all the particulars, with respect to the decree, which are required by law to be entered in the clerk's docket- book, where a judgment for a sum of money is rendered in the supreme court, so far as the provisions of law, directing such entries, are appUcable to such a decree. Each county clerk, to whom such a transcript is presented, must, upon payment of his fees, immediately file it, and docket the decree in the appropriate docket-book, kept in his office, as prescribed by law for docketing a judgment of the supreme court. The docketing of such a decree has the same force and effect, the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied as if it was sucih a judgment. The Court of Appeals held (Townsend v. Whitney, 75 N. Y. 425) that the docketing of a surrogate's decree (as provided for by eh. 460 of the Laws of 1837, as amended by eh. 104 of the Laws of 1844, the provi- sions of which Laws were replaced by § 2553 of the Code) did not merge the decree. That is to say, the docketing did not make it a judgment, but simply gave it the force and effect of a judgment, so that after a decree is thus docketed the person or persons in whose favor it is dock- eted have two remedies to enforce payment of the money due them. The one upon the Surrogate's decree in the Surrogate's Court; the other by issuing an execution to enforce the docketed decree just as any judgment recovered in the Supreme Court. The two remedies are not inconsistent but concurrent or cumulative, and they may both be pursued until the decree has been complied with. See opinion of Earl, J., at p. 428. Where a decree directs payment of money by one or more persons, the decree may be docketed separately as against each or any of such persons, and separate executions issued with respect to each person. Bramley v. Far- man, 15 Hun, 144. The lien of such a decree is the same as if the judgment. DECREES AND ORDERS 159 to which, by docketing, the decree is assimilated, had been entered against the person directed by the decree to make payment. It in no sense con- stitutes a hen against the property of the decedent, and, if execution is issued thereunder (to enforce payment of money) against the executor, it issues against his property and not that of the estate. Matter of Waring, 7 Misc. 502; Bennett v. Crain, 41 Hun, 185. The provision of §2553 that the lien thereof may be suspended or discharged as if it were a judg- ment of the Supreme Court distinctly divests the Surrogate of personal jurisdiction to suspend or discharge the docketed decree; whatever action he may take in regard to the proceedings in his own court. It can only be suspended or discharged by a judge of the court in whose office it is dock- eted. Underhill's Estate, 9 N. Y. Supp. 457, Coffin, Surr. In Sackett v. Woodbury, 70 App. Div. 416, it was held, however, that the Surrogate, or his clerk, alone has power to enforce the decree though docketed. § 160. Enforcement of decrees. — Under the Code, Surrogates' Courts are given greater power to enforce their decrees than is vested in other courts of records. See Code Civ. Proc. §§ 14, 1241, 2481, 2554, 2555, 3347. Generally speaking the Code provides for enforcement of a decree, either by execution or by punishment for contempt. The following sections de- fine the power of the Surrogate: Enforcement of decree by execution. A decree directing the payment of a sum of money into court, or to one or more parties, may be enforced by an execution against the property of the party directed to make the pajonent. The execution must be issued by the surrogate, or the clerk of the surrogate's court, under the seal of the court, and must be made returnable to the court. In all other respects, the pro- visions of this act, relating to an execution against the property of a judgment- debtor, issued upon a judgment of the supreme court, and the proceedings to collect it, apply to an execution issued from the surrogate's court and the collection thereof, the decree being, for that purpose, regarded as a judgment; except that the proceedings prescribed in title twelfth of chapter seventeenth of this act if founded upon such a decree must be taken, as if the decree was a judgment of the county court, or, in the city of New York of the supreme court. § 2664, Code Civil Proc. Enforcement of decree by "punishment for contempt. In either of the following cases, a decree of a surrogate's court, directing the payment of money, or requiring the performance of any other act, may be enforced, by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby, or by law, to obey it; and if he refuses or wilfully neglects to obey it, by punishing him for a con- tempt of court: 1. Where it cannot be enforced by execution, as prescribed in the last section. 2. Where part of it cannot be so enforced by execution; in which case, the part or parts, which cannot be so enforced, may be enforced as prescribed in this section. 3. Where an execution, issued as prescribed in the last section, to the 160 SURROGATES COURTS sheriff of the surrogate's county, has been returned by him wholly or partly unsatisfied. 4. Where the deUnquent is an executor, administrator, guardian, or testa^ mentary trustee, and the decree relates to the fund or estate, in which case the surrogate may enforce the decree as prescribed in this section, either with- out issuing an execution, or after the return of an execution, as he thinks proper. If the deUnquent has given an official bond, his imprisonment, by virtue of proceedings to punish him for a contempt, as prescribed in this section, or a levy upon his property by virtue of an execution, issued as prescribed in the last section, does not bar, suspend, or otherwise affect an action against the sureties in his official bond. § 2555, Code Civil Proc. § 161. Discussion of sections 2SS4 and 2555. — The distinction between these two sections just quoted is, first, that an execution is the proper remedy to be resorted to where a decree merely directs the payment of a sum of money into court, or to one or more parties; but second, that where such a decree directing the payment of money cannot be enforced wholly or in part by execution, or where execution has been issued and returned unsatisfied in whole or in part, or where the decree relates to a fund or estate of which the delinquent is an executor, administrator, guardian, or testamentary trustee, in such case a decree for the payment of money can be enforced by contempt proceedings under § 2555; and in the third place, where the decree does not direct the payment of money but the perform- ance of some other specific act, it must be enforced by contempt pro- ceedings under § 2555. In Koenig v. Wagenen, 126 App. Div. 772 (1st Dept., 3 dissents) it was held competent for the representative of one to whom a share had been decreed payable to sue on the Surrogate's decree in the Supreme Court without using the remedial procedure of the Surrogate's Court. § 162. And first then as to enforcing decrees for the payment of money by an execution against the property. — The execution under § 2554 is is- sued by the Surrogate or the clerk of his court, under the seal of that court, and is made returnable to that court. If the decree directs A, as executor, to pay a certain sum of money, the execution under § 2554 must run against A's property. Matter of Quackenbos, 38 Misc. 66. Section 1825 of the Code as to obtaining leave to issue execution against an executor or ad- ministrator in his representative capacity is not applicable. Section 1371 of the Code applies, q. v. The execution issues as of course (Joel v. Ritter- man, 2 Dem. 242). It was held no notice need be given to the executor as under § 1826, Peyser v. Wendt, 2 Dem. 221. But in Matter of Quackenbos it was held the notice required by §§ 1825-26 was necessary. See Felt v. Dorr, 29 Hun, 14; Olmsted v. Vredenburgh, 10 How. Pr. 215. But the Surrogate may, under proper circumstances, require that such notice be given, irrespective of any statutory authority. People v. Woodbury, 70 App. Div. 416. This case held also that §§ 1377 and 1378, which provide that notice of an application to the court for leave to issue execution on a DECREES AND ORDERS 161 final judgment, after the lapse of five years from its entry, must be served personally upon the adverse party, if a resident, apply to a Surrogate's de- cree; and that the five years run from the entry of the decree in the Sur- rogate's Court. It has been held where a Surrogate's decree was docketed in the office of the clerk of the county, and the execution issued upon said decree so docketed, was tested in the name of one of the justices of the court and not by the Surrogate, that the execution was invalid. Bingham v. Burlingame, 33 Hun, 211. This seems to be in conflict with the decision of the Court of Appeals in Townsend v. Whitney, 75 N. Y. 425, where Judge Earl held after the docketing of the decree the party in whose favor it was docketed had two remedies, one by an execution based upon the docket and one by attachment or contempt proceedings in the Surrogate's Court. But in view of the language of the court in another case (Power v. Speck- man, 126 N. Y. 354), where the court remarks, that all such decrees for the payment of money may be docketed and become a general lien and be enforced by execution, the apparent conflict is reconciled and the practice may be said to be, that upon the entry of such a decree in the Surrogate's Court, if it be intended to enforce it by execution, the party in whose favor it is made should apply for a transcript under § 2553, duly attested, stating all the particulars with respect to the decree which are required by law to be entered in the clerk's docket-book, and to present such tran- script to the county clerk so that his decree may be docketed; this decree so docketed can then be enforced as if it were a judgment of record, but the execution enforcing that decree, although by the docketing it has the same force and effect as if it were a judgment of the Supreme Court, must nevertheless be issued by the Surrogate as provided by § 2554, and not by a judge of the court in the office of which the judgment has been docketed. See Matter of Dissosway, 91 N. Y. 235; Wilcox's Estate, 1 Misc. 55; Union Trust Co. V. Gage, 6 Dem. 358; Estate of Kellinger, 2 McCarty, 68. The decree remains a decree of the Surrogate's Court {Townsend v. Whitney, supra), and the five years after which execution can issue only by consent of court runs from time of its entry, and not from time the transcript is docketed. People v. Woodbury, 70 App. Div. 416. § 163. Disobeying the decree — A decree may be reversible on appeal and yet be enforceable by execution until reversed. Such a decree can- not safely be disregarded or disobeyed. Ferguson v. Cummings, 1 Dem. 433; People v. Bergen, 53 N. Y. 404; Matter of Humfreville, 19 App. Div. 381, 384; Erie R. Co. v. Ramsey, 45 N. Y. 644. But if the decree is fatally defective so that a motion to vacate it could properly be made, disobe- dience of the decree will not render one liable to punishment for contempt, nor can it be enforced by execution. Eisner v. Avery, 2 Dem. 466, where Judge Rollins held, that a decree directing all the executors of a certain es- tate to pay a certain sum as costs to one of their number was unenforceable, and an execution issued under such a decree must be vacated, although if the decree had ordered two of them to pay costs to the third, it would have been enforceable. So an order directing an administrator to pay 11 162 SURROGATES COURTS costs to a special guardian in excess of statutory amount, and not out of the infant's estate cannot be enforced in contempt proceedings. Matter of Monell, 28 Misc. 308. So a sheriff was excused from contempt in dis- regarding an order of commitment " void upon its face." Matter of Leggatt, 47 App. Div. 381; Roderigas v. East R. S. I., 63 N. Y. 460, 474; Porter v. Purdy, 29 N. Y. 106, 113; Bovee v. King, 11 Hun, 250; Chegaray v. Jenkins, 5 N. Y. 376; Field v. Parker, 4 Hun, 342. § 164. Enforcement of decrees by punishment for contempt. — Sec- tion 2555 gives the Surrogate what have well been termed extraordinary powers. These powers, however, should not be intolerantly used but should be exercised in conformity to the liberal spirit of our legislation. Ferguson v. Cummings, 1 Dem. 433, citing Doran v. Dempsey, 1 Bradf. 490; Matter of Latson, 1 Duer, 696; Hosack v. Rogers, 11 Paige, 603; Mat- ter of Callahan, 1 Tucker, 62. In Matter of Holmes, No. 2, 79 App. Div. 267, a decree ordered an executrix to pay certain legacies. She appealed, but failed to file .the second undertaking under § 2578 to stay execution. The Surrogate, in proceedings under § 2555 fined her the amount of the legacies ordered to be paid. Held, a proper exercise of his power, citing Matter of Snyder, 103 N.Y. 178. See also Matter ofRyer, 120 App. Div. 154. Analyzing § 2555, it appears that the punishment of a person refusing to obey a Surrogate's decree whether it direct the payment of money or requires the performance of some specific act, is carefully defined. In the first place the spirit of the whole section appears from subd. 1. The legis- lature evidently contemplated, that the first resort of the practitioner should be to enforce the decree by execution as prescribed in § 2554. And if the decree cannot be enforced as a whole, that is to say, so as to realize the full amount directed thereby to be paid, it is contemplated that the practitioner shall if possible realize partially under his decree before re- sorting to the remedy provided by § 2554. Where, however, the execution has been returned unsatisfied, proceedings for contempt may be at once instituted, or when it has been satisfied only in part, proceedings to pun- ish for contempt for failure to pay the residue may be instituted. Sub- division 4, however, gives the Surrogate discretion to proceed directly by proceedings for contempt without the delay incident to docketing the judg- ment and the issuance and return of the execution, where the party dis- obeying the decree directing him to make a payment or do a particular act is an executor, administrator, guardian, or testamentary trustee di- rected to pay from the fund in his hand or do some particular act in regard to the estate held or represented by him. Nevertheless, Surrogates will not use this extraordinary power unless it is made to appear to their sat- isfaction that there is some necessity or propriety in resorting in the first instance to this severe measure of punishing the representative for con- tempt of court; therefore when the practitioner moves under § 2555 against an executor, administrator, guardian, or testamentary trustee, it is well that the moving papers should indicate that the rights of the applicant would be prejudiced by the delay incident to execution, or that the per- DECREES AND ORDERS 163 son sought to be punished has no property out of which an execution if issued could be satisfied. Ferguson v. Cumndngs, 1 Dem. 433. § 165. What judgment may be so enforced. — It is obvious the Surro- gate's power relates^ to the enforcement of his mandates. But his power may be invoked though the original judgment obligation arose in another court. Thus, in Matter of Mahoney, 88 App. Div. 140, the original judgment was a Supreme Court judgment against an administratrix. Application was made to the Surrogate for leave to issue execution. In the "inquiry" thereupon had, and accounting, he held she was in possession of a certain sum applicable to the judgment and to that extent execution might issue. It was issued and returned unsatisfied. Thereupon, the Surrogate, treating this as a wrongful or fraudulent concealment of estate assets made a decree directing her to pay the sum already found in default of which she was to be punished as for contempt. § 166. Limitation on the Surrogate's power. — The Surrogate's Court can only enforce otfldience by attachment to its lawful orders and decrees, that is, to such orders and decrees as it is empowered by statute to make; so, where an order had been made upon consent of all parties directing the deposit of the property of an estate in a trust company, but not under the circumstances contemplated by § 2602 of the Code, and the executor deposited only a part of the funds of the estate and refused to deposit the balance. Surrogate Coffin held that he was without power to enforce the order. Guion v. Underhill, 1 Dem. 302. But where the court has power to make the order or decree, which is disregarded or disobeyed, all that is prehminarily requisite to the exercise of the Surrogate's jurisdiction to punish, is proof of compliance with the provisions of the section that is, of the following facts: (a) The making of a decree directing the payment of money or the per- formance of some particular act. (6) That a certified copy thereof has been served upon the party against whom it is rendered, or upon the person or officer who is required thereby, or by law, to obey it. Sudlow v. Pinckney, 1 Dem. 158; Woodhouse v. Woodhouse, 5 Redf. 131. (c) That said party, officer, or person has refused or wilfully neglected to obey it. Dunford v. Weaver, 84 N. Y. 445. There is no necessity for a preliminary citation to show cause why the party, officer, or person should not be punished for contempt. Guion v. Underhill, supra. The refusal to obey the decree must be clearly shown. Thus where a decree directed the payment of a balance to A, and A alleged a demand for such balance and costs, the executor's failure to comply with such de- mand was held not to lay foundation for a proceeding to punish him for contempt. Matter of Feehan, 36 Misc. 614. See also Matter of Hum- freville, 154 N. Y. 115; Estate of Lenihan, Surr. Decs. 1901, 470; Estate of E. Broderick, id. 1899, 189. § 167. Costs, as well as estate funds, are covered, and payment may be 164 SURROGATES' COURTS enforced. — It is also to be remarked that while the language of the Code, "A decree directing the payment of money," has no Umitation as to the kind or nature of the money to be paid, and seems to include, therefore, not only moneys held in trust in a representative or trust capacity, but also costs or disbursements, or any sum of money which in a final decree is directed to be paid, nevertheless, where the decree directs payment of costs only, it cannot be enforced by imprisonment for nonpayment. Matter of Banning, 108 App. Div. 12. In such case § 15 of the Code con- trols. Matter of Humfreville, 154 N. Y. 115, rev'g on this point. Matter of Humfreville, 19 App. Div. 381, 383. See Matter of Kurtzman, 2 N. Y. St. Rep. 655; Richardson v. Van Voorhis, 3 N. Y. Supp. 396. So much of a decree as charges an executor personally with costs is a money judgment and enforceable by execution only. Matter of Feehan, 36 Misc. 614. By final decree is meant one that determines the particular matter in controversy, and which is therefore appealable. Matter of Van Houten, 18 App. Div. 301. Where the jurisdictional facts above enumerated appear in the record, the discretion of the Surrogate will not usually be interfered with by the Appellate Court. If it appear that the decree has been made, properly certified, duly served, and disobeyed, the power of the Surrogate to punish is clear; it is only in the cases above hinted at where that power may have been abused that his order in the premises will be interfered with; for ex- ample, where an executor was required by a final decree to pay the balance adjudged to be in his hands upon the judicial settlement of his account to the parties beneficially interested, and he failed to do so, and opposed proceedings to punish him for contempt by affidavits showing insolvency on his part, and consequent inability to comply with the decree, which affidavits the Surrogate held insufficient, the Court of Appeals declined to review his decision. Matter of Snyder, 103 N. Y. 178, 181, citing Coch- rane's Exr. v. Ingersoll, 73 N. Y. 613. § 168. Distinction between nonpayment of debt and refusal to pay estate moneys. — The courts have drawn a distinction in the cases where it is an executor or administrator who is directed to pay, between mere debts due by such executor or administrator personally to the estate, and refusals to pay money which by an accounting or otherwise they are ad- judged to distribute or pay over. The Code cannot be said to have con- templated the punishment by the extreme measures provided for in § 2555 of a mere inability to pay a contract debt. In such latter case, where by some misfortune the debtor is unable to pay his debt to the next of kin or the legatees of his creditor, the bare fact of his assumption of the duties of executor will not make him amenable to the harsh and drastic contempt process. Rugg v. Jenks, 4 Dem. 105; Baucus v. Stover, 89 N. Y. 1; Matter of Snyder, 34 Hun, 302, 308, 309; Watson v. Nelson, 69 N. Y. 537. See Matter of David, 44 Misc. 337; Matter of Ockerhausm, 59 Hun, 200; Joel v. Ritterman, 5 Redf. 136. DECREES AND ORDERS 165 In Matter of Strong, 111 App. Div. 281, it is said that the decree, treating the debt as an asset, is prima facie conclusive. But the representative may allege insolvency, which he must affirmatively prove. If the Surro- gate is satisfied he cannot pay he may decline to punish him, unless as in the David case, supra, its appears he was solvent at or since decedent's death. In the Strong case the court hints that the order punishing him may be entered and then relieved against under § 2286 which empowers a court to release an offender imprisoned for contempt. And so where an executor has been adjudged to pay a specified sum to a person named, as costs or disbursements in a proceeding, it is quite com- petent for the executor to set up want of assets as a reason why he should not be punished for disobeying the decree. Matter of Davidson, 5 Dem. 224. § 169. The practice. — It has already been pointed out that an order to show cause is not necessary, and it has been stated that it is unnecessary to give notice of an apphcation to enforce a decree by execution which remedy issues as of course; but it is the customary practice to initiate proceedings to punish for contempt for disobedience of an order or decree by service of an order to show cause based upon affidavits reciting substan- tially the jurisdictional facts. It is not necessary that all the facts and proceedings should be set forth at length, but if on the face of the process of attachment subsequently issued it appears to have been issued in a proceeding of which the Surrogate had jurisdiction and the disobedience complained of is set out with substantial particularity it will be sufficient. Dunford v. Weaver, 84 N. Y. 445. The order to show cause is intended to give notice to the party whom it is intended to punish, first, of the appli- cation, and second, of the act of disobedience charged. If such an order contains some erroneous statement of fact, it may be amended, provided the respondent is not misled or prejudiced thereby; or where the mistake is quite immaterial the Surrogate may disregard it and proceed on the origi- nal order. Gillies v. Kreuder, 1 Dem. 349. But while it is the better practice to begin the proceedings with an order to show cause it is not imperative so to do. Surr. Coffin held {Guion v. Underhill, 1 Dem. 302), that no citation to show cause why an attachment should not issue is necessary. The proper way in which to show disobedience to the decree or order directing the payment of a sum of money is by allegation showing a personal demand upon the person directed by the decree or order to pay, made by or on behalf of the person to whom the money is directed to be paid. Estate of Gillman, 15 N. Y. St. Rep. 718. The order of commitment should be definite and should distinctly fix the sum necessary to be paid by the delinquent to secure his release and purge him from contempt. Matter of McMaster, 16 N. Y. St. Rep. 240. The general provisions as to punishment for contempt are contained in § 14 of the Code relating to courts of record. The general provisions governing procedure in contempt proceedings are contained in title 3 of chap. 17, being §§ 2266 to 2292. Without de- 166 surrogates' courts tailed reference to these sections it may be stated, by way of summary, that the practice indicated therein is, first, that the courts of record may inflict summary punishment for contempt, where the offense is com- mitted in the immediate view and presence of the court. See § 2267. Second, that where the offense consists of a neglect or refusal to obey an order of the court requiring the payment of costs or of a specified sum of money, and the court is satisfied by proof, by affidavit, that personal demand thereof has been made and payment thereof has been refused or neglected, it may issue without notice a warrant to commit the offender to prison, "until the costs or other sum of money and the costs and expenses of the proceeding are paid, or until he is discharged according to law." § 2268, Code of Civil Procedure. Third, the cases in which notice of the proposed punishment must be given by the offender are given in § 2269, which is as follows: § 2269. Order to show cause, or warrant to attach offender. The court or judge, authorized to punish for the offence, may, in its or his discretion, where the case is one of those specified in either of the last two sections, and in every other case, must, upon being satisfied, by affidavit, of the commission of the offence, either 1. Make an order, requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be pun- ished for the alleged offence; or 2. Issue a warrant of attachment, directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offence. The practice under the order to show cause, in regard to its service, etc., is indicated by §§ 2273 to 2276, q. v. The following forms are intended to indicate this procedure. An affidavit such as is first indicated is in- tended to bring the contempt to the notice of the court. If the order is one directing the performance of a given act, the Surrogate should proceed by order to show cause. If the order disobeyed was one directing the payment of a sum of money, the Surrogate may in his discretion proceed by order to show cause; such order is indicated in the precedents below. But if the order is one for the payment of a sum of money, the Surrogate may, in his discretion upon the affidavit, make an order for a warrant of commitment, which order and warrant are below indicated by suitable precedents. An order is also indicated of commitment upon the return of the order to show cause. DECREES AND ORDERS 167 Surrogate's Court, County of Affidavit on ap- Title, plication for en- forcement of decree state of New York by punishment for q^^^^^ ^^ con emp . being duly sworn deposes and says: that he is (give status of party upon the proceeding) Note. Or the (note); and that on the day of 19 a de- affidavit may be cree was made and entered in the office of the Surrogate of the made by the attor- county of by which decree one (give designa- ^^^' Hon such as executor or administrator with the will annexed, etc.) was directed to pay the sum of dollars to (state whether the money was directed to be paid into court or to he paid to one or more of the parties, and if to a party in a repre- sentative capacity designate such capacity) ; (or if the decree was one directing the performance of some particular act designate the same concisely u^ing preferably the language of the decree). And deponent further says : that a copy of the said decree duly certified was personally served upon said the officer (or the person) required thereby or by law to obey it; that days have expired since the service of said de- cree upon said That simultaneously with the service of said decree (or on the day of ) demand was made upon said personally by on behalf of (here designate the person to whom the money was directed to be paid or the person in whose behalf the act was to he performed) ; and deponent further says : that the said nevertheless re- fuses or wilfully neglects to obey the said decree and has not paid said moneys or any part thereof as by said decree directed to said within the time hmited by said decree (or where the decree was for the payment of money and was duly docketed under section 2553 and execution issued thereon, add, that an execution duly issued as prescribed in section 2554 of the Code of Civil Procedure to the sheriff of the said county ■ ^"'h '^''h ^'^^' °^ ^^^ ^^^ ^^^^ returned wholly unsatisfied; or if it , . is satisfied in part, state to what degree). enow cause is cus- ,„,, ' , '^ . , i j . i tomarilv resorted to (Where decree is one that cannot be enforced by execution, add though not abso- paragraph, and deponent further says that said decree is one lutely essential. The that cannot be enforced by execution under section 2554; Surrogate has a where the decree can he in part enforced by execution state the right to ptmish upon facts in this respect concisely.) proof of the con- (If proceedings under the decree sought to he enforced have tempt. Where the j,gg^ stayed by an appeal properly perfected and action has been deponent desires an ^^ thereon by the Appellate Court affirming the same, state the order to show cause, ^^^^ ^^ ^^^ affirmance and the entry of the order of the Appellate s a a ega (jgurt and the service of a certified copy thereof with notice of should be added. , , , ' ' , ^ / \ ' , , > entry thereof upon the person sought to be punished.) Note. Annex to And deponent is advised and verily believes that the said 168 SURROGATES COURTS this affidavit, affida- decree which the said refuses or wilfully neglects to vit showing personal obey should be enforced by punishing the said for decree contempt of this court. (Jurat.) (Signature.) {Note.) service of which is sought be enforced. to Order to show cause why should not be punished for contempt. Order for war- rant of commit- ment, where notice is not given to dis- obedient party. Surrogate's Court Caption. Present : Title. Hon. Surrogate. On the annexed affidavit of verified the day of showing personal service upon of a certified copy of the decree {or order) made in the above en- titled proceedings on the day of which said decree {or order) directed the said to {here specify the 'payment or act directed by the order) and also the affidavit of verified the day of show- ing that simultaneously with the service of said certified copy {or on the day of ) demand was made of the said that he should pay to the moneys di- rected by said order to be paid ; And, it appearing to the satisfaction of the Surrogate that the said refuses or wilfully neglects to obey said order and has not made the payment directed by said order and duly demanded, and it appearing that five days have elapsed since the service upon him of such order {and where the order disobeyed hm been appealed from and affirmed, recite the order of the Appellate Court with the date of its entry) ; Now let the said show cause at a special term of this court to be held on the day of at why he should not be punished for contempt of this court, for his refusal or wilful neglect to obey said decree of the day of 19 and why such further proceedings to that end should not be had, as to the court may seem just. (Signature.) At a Surrogate's Court, etc. Present : Hon. Surrogate. Title. On reading and filing the affidavit of and the affidavit of showing due personal service on of a certified copy of an order (or decree) made herein, on the day of 19 and that more than five days have elapsed since such service; and also showing that a de- mand for the payment of the moneys mentioned in said order DECREES AND ORDERS 169 (or decree) of said was duly made personally on the day of 19 also showing that said refuses and wilfully neglects to obey said order, or to pay said moneys or any part thereof, which said order directed said to pay to the said (as administrator, etc.), within five days from the service upon him of a copy of said order, the sum of dollars (and where appeal has been had and determined add, on reading also the order of the appellate division of the Supreme Court in the department, dated the day of 19 affirming said order of 19 ) and the costs of this proceeding to compel Note. The Sur- such payment being now fixed at dollars Note. rogate has power to Now, on motion of attorneys, for said impose costs on the ^mctLtr* in^^'^' ^^ ^® ordered, that a precept (or warrant) be issued out of, . / ,. and under the seal of this court, directed to the sheriff of the nature oi a penalty . ,. , . , . , for his disobedience, county of commandmg him to take the body of the said if he shall be found within his county, and com- mit him to the common jail of said county of and to keep and detain him therein, under his custody, until he shall pay the sum of dollars, as required by said order, and also the further sum of dollars, for the costs and ex- penses of the proceeding to compel such payment, together with the sheriff's fees on such precept. At a Surrogate's Court, etc. Present: Hon. Surrogate. Order of commit- Title, ment upon return of order to show cause. Upon the return of the order to show cause herein, dated 19 {here state substance of order) and on reading and filing the affidavits of on which the same was based, and the due proof of the due service thereof on and on reading and filing the affidavit of submitted in opposition to said motion. Now, after hearing for the motion and in opposition thereto (or no one appearing on behalf of said to oppose). It is Ordered, that the said motion be, and the same hereby is, granted ; and it is Further Ordered, that a warrant be issued (here follow* form, supra). Surrogate's Court, County of Warrant of com- The People of the State op New Yohk, mitment. To the Sheriff of the County of New York, Greeting t Whereas, on the day of 19 by a certain order I'JQ SURROGATES COURTS made in our Surrogate's Court for the county of in a certain proceeding pending therein, entitled " In the matter of " it was ordered that (note) pay to Note Give rep- or to his attorneys, the sum of dollars, within resentative designa- five days from the service upon him of a certified copy of said tion if necessary. order; And Whereas, a certified copy of said order has been duly served upon said more than five days since, and per- sonal demand has been made on the said for the pay- ment of the said sum of dollars, by (or on behalf of) the said as aforesaid, and by (or on behalf of) his attorneys; And Whereas, the said has hitherto refused and wilfully neglected, arid still refuses and wilfully neglects to pay the same; And Whereas, an order was made herein on the day of 19 directing a warrant to issue to commit the said to the common jail of the said coimty, there to be kept and detained until he shall pay the said sum of money, together with the costs fixed by said last order and the sheriff's fees herein : Now, Therefore, we command you, that you take the body of the said if he shall be found within your county, and commit him to the common jail of the county of and keep and detain him therein, under your custody, until he shall have fully paid the sum of dollars, as required by the said order, and the costs aforesaid, and also your fees hereon, or until the said be discharged according to law. And you are to return this writ and mandate on the day of 19 to this court, together with a certificate, under your hand, of the manner in which you shall have ex- ecuted the same. Witness, Surrogate of the county of at the county courthouse, in the day of 19 (Seal.) (Signature of Surrogate.) Where the act for which the offender is sought to be punished is failure to do some particular act, or disobedience to a citation or other mandate of the court, the Surrogate may upon proof of such disobedience proceed by attachment. This practice is customary, where the offender is one acting in a representative capacity, such as executor, administrator, trustee, or guardian, subject to the jurisdiction of the Surrogate's Court; if such a person in such capacity is, for example, cited to render an account of his proceedings and fails to do it within a reasonable time, or if he has been directed to, do it within a given time and fails to do it within that time, the Surrogate may issue an attachment substantially in the follow- ing form: DECKEE8 AND ORDERS 171 The People of the State op New York, To the Sheriff of the County of The attachment. Greeting: We command you, that you attach the (describe, as executor or administrator, etc.) of the of deceased, under letters of duly issued to him on the day of 19 by the Surrogate of the county of if he shall be found in your bailiwick, and bring him personally before our Surrogate of the county of at the Surrogate's office in the county of on the day of 19 to answer unto us for cer- tain trespasses and contempts against, us in not complying with the exigency of a citation heretofore duly issued by our Surrogate of the county directed to him, requiring him to appear before said Surrogate on a certain day, now past, and (describe purport of citation, as, for example, ren- der an account of his proceedings as such as afore- said), or show cause why an attachment should not be issued against him, which said citation was duly and personally served on the said more than days before the return day thereof, as appears by satisfactory proof of such service duly taken and had before our said Surrogate, and for disobedience to which citation this attachment is issued. And you are to make and return to our said Surrogate, in the Surrogate's Court of the county of on the day of 19 at the Surrogate's office in aforesaid, a certificate under your hand, of the manner in which you shall have executed this writ; and have you then and there this writ. In testimony whereof, we have caused the seal of office of our said Surrogate to be hereunto affixed. (L. S.) Witness, etc. (Signature of Surrogate.) (Indorsement.) Let the administrator within named give a bond for his appearance to answer on the return day of the within writ, in the penalty of dollars, with two suffi- cient sureties. (See text, supra.) (Signature of Surrogate.) When such an attachment has been issued and the person charged with contempt denies the contempt or seeks to justify or excuse his disobedience to the citation, which he may do on the ground that it was not duly served upon him, or that he was prevented by circumstances beyond his control from compliance, or for any other reason appealing to the discretion of the Surrogate, it is proper that an order be made directing certain in- terrogatories to be addressed to the offender and to which he must make categorical reply, precedents for which forms are here indicated. 172 surrogates' courts Order directing in- terrogatories. Surrogate's Court, County of Matter of Accounting, etc. It appearing to the court that (the administrator or executor, etc.), being in contempt for not appearing, per- sonally or otherwise, and rendering an account of his pro- ceedings as such administrator (or state act required to be done), pursuant to a citation for that purpose duly issued and served upon him, a writ of attachment was duly issued against him, directed to the sheriff of county, returnable this day, whereupon the sheriff made return that he had at- tached the said (and had let him at large on bail, according to a bond returned with such attachment), (or, had taken his body, and that, for want of bail, he had him in cus- tody before the court) ; and the said denying that he is guilty of the disobedience and contempt alleged against him; It is Ordered, that interrogatories addressed to the said touching the said citation, and his acts or omissions in the premises complained of, be forthwith filed in this office, and that a copy thereof be served on the said and that he put in, immediately after the service upon him of such copy, written answers to such interrogatories, upon oath, and file the same in this office. And it is further Ordered, that the said sheriff detain the said in his custody until further order of this court. Interrogatories. Surrogate's Court, County of Title. I Interrogatories for the examination of (the admin- istrator or executor, etc.), pursuant to an order made in this matter on the day of 19 First Interrogatory, e. g. : Were you, or were you not, on or about the day of last, served with a citar tion to appear personally before the Smrrogate of county, on the day of inst., at ten o'clock A. M., at the courthouse in and (state act required by the citation)? Second Interrogatory. If you were served state the time and by whom such service was made. Third Interrogatory. Is the citation now shown and read to you the one then served, and a copy whereof was there left with you? Fourth Interrogatory. Did you personally or otherwise, appear (here state act required by citation), pursuant to said citation? Fifth Interrogatory. If you did not so appear and {describe DECREES AND ORDERS 173 Answers to inter- rogatories. act required by citation), did you, on that day, show cause why an attachment should not be issued against you? Sixth Interrogatory. State, if you did not so appear and (state act required by citation), what vaUd excuse or reason you have to allege why you should not now be punished for con- tempt of this court. (Signature of Surrogate.) Surrogate 's Court, County of Title. Note. The ex- cuse is addressed en- tirely to the dis- cretion of the Sur- rogate, unless defect in jurisdiction or process is shown. Answers to interrogatories exhibited and filed in the above matter, under the oath of the of de- ceased. To the first interrogatory: If defective service is claimed state the facts concisely ; if not describe the manner of service. To the second interrogatory reply fully. To the third interrogatory answer yes or no. To the fourth interrogatory answer yes or no. To the fifth interrogatorj' answer yes or no. To the sixth interrogatory the party may answer stating concisely his reason for noncompUance, such as illness or some act of God, or any other valid reason. Note. (Jurat.) It is proper for the respondent, if new facts excusing his disobedience can be shown to move to vacate the contempt proceedings. But if he do so, and his motion is denied, and he takes no appeal nor asks for a reargu- ment a subsequent similar motion to vacate is properly denied. Matter of Hayward, 44 App. Div. 265. If by his answers to the interrogatories, the offender satisfies the court, that his refusal to disobey was justified, or that his neglect to obey was not wilful, the Surrogate may discharge him from custody, or make an order vacating the order for his attachment and discharging the sureties if he has given bail, forms for which orders it is unnecessary to indicate. If, however, the offender admits the contempt or he is unable to satisfy the Surrogate as to his innocence, the Surrogate may thereupon commit him, by an order of commitment, in which a provision may be included stating the amount of the fine which the Surrogate has discretion to impose by "way of penalty. Order for mitment. Surrogate's Court, County of Title. A writ of attachment having been heretofore issued, out of and under the seal of this court, against the of deceased, for his contempt in not appearing and 174 SURROGATES COURTS (here state act required by citation) as duly cited and ordered to do, directed to the sheriff of county, and returnable the day of instant, and the said sheriff hav- ing returned that he had attached said and taken his body, and that, for want of bail, he had him in custody be- fore the court {or and had let him at large on bail according to a bond returned with such attachment); and the said haying been, by virtue of such attachment, person- ally before the court, on said day, and denying the alleged contempt, it was thereupon ordered that interrogatories ad- dressed to the said touching the said citation, and his acts or omissions in the premises complained of should be forthwith filed in this office, and that a copy thereof should be served on him, and that the said should put in, immediately after the service of such interrogatories upon him, written answers to such interrogatories, upon oath, and file the same in this office. And it now appearing, from said interrogatories and answers thereto (and if the Surrogate has directed a reference to take further testimony or has exam- ined the party in person, state the fact) that the said has committed the contempt with which he is charged, and this court now adjudging him to have been guilty of the mis- conduct alleged, and that such misconduct was calculated to, or did, actually defeat, impair, impede or prejudice the rights of (describe parties prejudiced) in the above entitled proceed- ings; It is Ordered, that a fine of $ be, and the same is, hereby imposed upon the said for his said miscon- Note. E. g., sum ^^^^- ^°^^- specified in the de- ^^^ ^t is further ordered, that the said do pay the cree he disobeyed, charges and fees for serving the citation in this matter, Matter of Ryer, 120 amounting to $ and also do pay to the sheriff of the App. Div. 154. county of his legal charges and fees for executing said warrant of attachment. And it is further ordered, that the said be, and he is hereby, directed to stand committed to the conunon jail of the county of there to remain charged upon his contempt, until he shall have (describe act required by citar tion), and shall have paid the said fine, charges, and costs; unless the court shall see fit sooner to discharge him. And it is further Ordered, that a warrant issue for that purpose. (Signature of Surrogate.) 170. Relief from undue punishment— If the offender is punished by imprisonment and it develops, either that he cannot physically endure confinement, or pay the sum named as the fine, or actually do the thing directed, then the Surrogate has power under § 2286 to discharge him. Matter of Strong, 111 App. Div. 281. But he will exact "satisfactory proof" of the inability. For example, DECREES AND ORDERS 175 merely going through bankruptcy is not of itself proof of inability to pay estate moneys. Matter of Collins, 39 Misc. 753. § 171. Enforcement of order. — Orders have been differentiated from decrees above. Orders are defined by § 2556, which is as follows: Befimtion of "order"; flow enforced. A direction of a surrogate's court, made or entered in writing, and not in- cluded in a decree, is styled an order. It may be enforced in like manner as a similar order, made by the supreme court in an action ; and the costs are the same as upon such an order, and may be collected in hke manner. § 2656, Code Civil Proc. An order thus is an interlocutory direction of the court, while a final order or decree is an adjudication which brings some particular proceeding to a determination. Matter of Bernhardt, 16 N. Y. St. Rep. 240. Where a party applies to have a decree opened the denial or granting of his ap- plication must be by order, and not by decree. An order is to be enforced just as any Supreme Court order would be; and it carries only the costs which such an order would carry, that is, the usual motion costs. Pease v. Egan, 3 Dem. 320; Estate of Stokes, 1 Dem. 260. It is unnecessary to discuss in detail the rules applicable to the enforce- ment of orders as the general principles above laid down, as to a reasonable exercise of discretion and a substantial compliance with the Code apply to orders as well as decrees. Where a party, however, is sought to be punished for contempt for disobedience to an order, it must clearly appear that the act which he has refused to do, was distinctly required to be done by the order; thus, where a reference was ordered of the final account of certain testamentary trustees, and the referee directed to hear and de- termine all issues by the objections of the account; and the said trustees declined to answer certain inquiries put by the contestant's counsel al- though directed so to do by the referee. Surrogate Rollins held that it was material, upon proceedings to punish them for contempt for such refusal, to inquire whether the questions they had declined to answer were material or in any wise involved in the issues raised by the objections which had been filed, and if it appeared that they were not so material or relevant, the motion to punish for contempt would be denied. Robert v. Morgan, 4 Dem. 148, 152. Where an order directed an executor to file an account, and he filed a printed blank with the word "nothing" written in on each schedule, held, a contempt, and punishable. Matter of People's Trust Co., 37 Misc. 392. § 172. Power to open decree. — Section 2481, subd. 6, confers the au- thority now had by Surrogates' Court to open, vacate, modify or set aside decrees or orders, or to enter them nunc pro tunc. This section is as follows : A surrogate, in court or out of court, as the case requires, has power. . . . 6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. 176 SUREOGATES COURTS The powers, conferred by his subdivision, must be exercised only in a Uke case and in the same manner, as a court of record and of general jurisdiction exer- cises the same powers. Upon an appeal from a determination of the surro- gate, made upon an application pursuant to this subdivision, the appellate division * of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made to that term. § 2481, Code Civil Proc. It is to be observed in the first place that error of substance or of law must be corrected on appeal. Matter of Tilden, 98 N. Y. 434; Matter of Hawley, 100 N. Y. 206; Matter of Seaman, 63 App. Div. 49, 53, and cases •cited. Hence § 2481 does not cover an attempt to attack the probate of & will, two years old, and otherwise unattacked. Matter of Gajfney, 116 App. Div. 583. But see Matter of Wohlgemuth, 110 App. Div. 645. Where a decree has been made final upon appeal it is held the Surrogate cannot then open it. Matter of Westerfield, 61 App. Div. 413; Hood v. Hood, 5 Dem. 50, see opinion. The Surrogate's discretion is appealed to by a motion to open his decree, and he may properly refuse to open on motion of one who was not a party to the proceeding where it appears he could readily have intervened. Mat- ter of Tilden, 56 App. Div. 277. If he denies such an application his order is appealable to Appellate Division. Ibid, (as a semhle). See Matter of ■Gall, 182 N. Y. 270 where a creditor not a party came in after 8 years, and moved to open an accounting decree. This power of the Surrogate is very broad and general. The Court of Appeals has held {Matter of Regan, 167 N. Y. 338, 343), "The Surrogate's Court has power, independently of any statute, to exercise control over its own records, and to vacate its own decrees for mistake, fraud, or clerical error," citing Matter of Henderson, 157 N. Y. 423; Hyland v. Baxter, 98 N. Y. 610; Sipperley v. Baucus, 24 N. Y. 46; Heermans v. Hill, 2 Hun, 409; Code, §§ 1269, 2481; Matter of Flynn, 136 N. Y. 287. He may exercise this power in aid of one in default if the default be excusable. Matter of Doig, 125 App. Div. 746. The Surrogate thus has the power of a court of general jurisdiction to va- cate his decrees and may grant relief as in the Supreme Court "upon the ap- plication of any one for sufficient reason in furtherance of justice." Ladd v. Stevenson, 122 N. Y. 325; Matter of Salisbury, 24 N. Y. St. Rep. 413. Thus, where a creditor filed his claim, and thereafter the administrator, without notice to him, accounted and a decree was made, it was held the creditor was not concluded thereby and could move to reopen the decree. Matter of Gall, 40 App. Div. 114. When such decree is opened he may establish any proper claim against the estate, S. C, 42 App. Div. 255, and he need not make the beneficiaries under the decree parties to the controversy with the administrator. S. C, 47 App. Div. 490. * The section inadvertently still reads " general term." DECREES AND ORDERS 177 If distribution has been actually made under the decree, the creditor is not bound to follow the distributees, but may, if he establishes his claim, hold the administrator or his surety. Ibid, at p. 494, citing Dedbold v. Oppermann, 111 N. Y. 531; Matter of Hodgman, 140 N. Y. 421; Matter of Lang, 144 N. Y. 275. § 173. Time within which application may be made. — Section 2481 above quoted provides that the powers conferred thereby "must be exer- cised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers." Accordingly, it was re- peatedly held that §§ 1282 and 1290 governing the Supreme Court in setting aside judgments for irregularity and limiting the time within which applications to that end may be made were applicable to and controlled similar applications in the Surrogate's Court. See Corbin v. Westcott, 2 Dem. 559; Matter of Hesdra, 4 Misc. 37. The Court of Appeals in Matter ofHawley, 100 N. Y. 206, expressly held that relief from an erroneous or ir- regular decree, except upon the ground of fraud, clerical mistake, newly discovered evidence or other like causes, must be applied for within the period prescribed by § 1291 of the Code. And in Matter of Tilden, 98 N. Y. 434, it was held that the causes for which Surrogates' decrees may be va- cated under § 2481 are analogous to those enumerated in §§ 1282 and 1283, and are governed by hmitations imposed in §§ 1282 and 1290, except where fraud and collusion are made the ground of the application. And so in the latter case the court held that a motion on behalf of one who was a minor when the decree was entered must be made within one year after attaining his majority, if the two-year limit had previously expired. See also Cline v. Sherman, 78 Hun, 298. But in Matter of Henderson, 157 N. Y. 423, these cases were qualified (see opinion at page 429) , and the court held that this provision of § 2481 was not intended to assimilate, in all respects, the power of the Surrogates' Courts over their records to that possessed by the Su- preme Court; and that §§ 1282 and 1290 were not applicable in the way of hmitingthe time within which the Surrogate may act; and that while the gereral powers of the Surrogates' Courts are wholly statutory, it certainly must possess such incidental powers as are necessary to the proper exercise of its expressly conferred authority. But most of the powers mentioned in § 2481 were exercised by the Surrogate before the enactment of the Code, and so far the statute is merely declaratory of the law as it previously existed. The court passed upon the contention that "since the Surrogate must exercise his powers to open and correct the record only in a like case and in the same manner as the Supreme Court, he must necessarily act within the same time." In overruling this contention, the court observes at page 428: "The statute, in speaking of a like case, means that the party making the motion must show the existence of the error or mistake in the same way as if the record was in the other court, and, in providing for the exercise of the power in the same manner, all that is meant is that the Surrogate shall proceed in the same way to hear the application. Proof must be made, 12 178 surrogates' courts notice given and a judicial hearing of the parties had, but there is no more Hmit as to the time within which the application may be entertained since the enactment of the statute than there was before." And the court continues: "There is no force in the suggestion that the legislature must have in- tended to assimilate, in all respects, the power of the Surrogate's Court over its own records to that possessed by the Supreme Court. If it did, it is quite sufficient to say that it has not expressed such intention. But there is no reason to suppose that it had any such intention in mind. The functions of the two courts are so radically different that the reason for a limitation in the one has but little if any application to the other. Liti- gants in courts of common law confront each other upon equal terms and upon well-defined issues. They are represented by counsel who are watch- ful of their interests and who have every opportiinity to know the contents and scope of every order or judgment entered in the case. Under such circumstances, it is reasonable to suppose that any error or mistake of fact that has crept into the record, such as is involved in the case at bar, will be detected within two years. Not so with proceedings in Probate Courts. They are quite informal, conducted in many cases without the aid of counsel, frequently ex parte, by the representatives of deceased persons under such circumstances that a material error may lurk in the papers for many years without discovery. A court charged with such powers and duties should have ample authority over its own records for the cor- rection of such mistakes as appear in this case, and, until the legislature shall limit the power by some language, clearer and more explicit than it has, it may entertain such an application as was made by this executor. {In re Flynn, 136 N. Y. 287.) I am aware that what has here been said may seem to be in conflict with the decision in In re Tilden (98 N. Y. 423) and In re Hawley (100 N. Y. 206), but the conflict, if any, is with the reasoning and not with the decision in those cases. The decision in both of them was doubtless correct, whatever may be said with respect to some of the reasons given. "In both cases the ground for opening the decree was not a clerical error such as is involved in the case at bar, nor indeed any error such as is contemplated by § 2481, regulating proceedings for opening and correcting manifest mistakes, but errors of substance made at the hearing which should have been corrected by appeal and not by motion. It was claimed that the Surrogate decided certain questions of fact or law erroneously, and that the decree was affected by such error to the prejudice of the party applying for a rehearing. The other provisions of the Code covering regular appeals afforded the aggrieved party the true remedy. The ques- tions that were involved and decided in those cases are not like the one now before us. They were not to correct a record so as to make it conform to what every one intended, but to review the decision upon the merits. In other words, it was an attempt to appeal by motion from an erroneous decision. In the case at bar the application was to correct a clerical error DECREES AND OKDERS 179 in the record. It was always a part of the inherent power of a court to supervise its own records, and we think that this particular power, at least, has not been limited or restricted by any statute." See also Matter of Mather, 41 Misc. 414. § 174. Same subject. — Where a motion is made on the ground of newly discovered evidence, the Surrogate will proceed to apply the same rules that the Supreme Court would; that is to say, such a motion will be granted only where such evidence (a) Is likely to change the result, (&) Is material, (c) Is not cumulative, (d) Could not have been obtained on the original hearing by reasonable diligence. Matter of McManus, 35 Misc. 678. This was reversed, 66 App. Div. 53, on the ground that sufficient reason was not shown on the record why the alleged new evidence could not have been originally adduced by reasonable diligence. In Matter of Banks, 108 App. Div. 181, the rule is stated thus: In order to a new trial upon the ground of newly discovered evidence, he must show that the existence of the alleged new evidence was (a) unknown to him at the time of the trial and could not have been dis- covered by him in the exercise of proper diligence; or (6) that he was misled and induced to refrain from making certain proof because of excusable mistake, or by some act or admission of his adversary on which he had a right to rely. § 175. Same subject. — The power to amend a decree when opened will be exercised in respect of material error or mistake due to inadvertence (see § 179). So in Campbell v. Thatcher, 54 Barb. 382, a Surrogate's power to open a decree settling an executor's account and insert a credit of $500, inadvertently omitted, was upheld. In Matter of Robertson, 51 App. Div. 117, the power to amend was upheld in inserting a provision as to the payment of a distributive share. See Matter of Hoes, 119 App. Div. 288. Appeal may be taken from the decree as amended. Ibid. See also Matter of Douglas, 52 App. Div. 303; Matter of White, 52 App. Div. 225. So in a transfer tax case the proceeding was opened on motion of a legatee who did not receive the notice of the hearing required by the act. Matter of Daly, 34 Misc. 148, 152, citing Matter of Flynn, 136 N. Y. 287, 291; Matter of Salisbury, 24 N. Y. St. Rep. 413. And where one of the de- cedent's debts was overlooked the Surrogate opened and modified his decree by deducting the account and directing a refund of the amount erroneously assessed and paid. Matter of Campbell, 50 Misc. 485. But if the tax is based on an overvaluation it is an " error of fact arising upon the trial" under § 1283 and not remediable in this way. Matter of Lowry, 89 App. Div. 226. § 176. Same subject. — The power to open decrees given by the present Code merely gives Surrogates' Courts expressly a power which they had previously exercised as incidental to powers expressly conferred by statute. Matter of Henderson, 157 N. Y. 423; Farmers' L. & T. Co. v. 180 SURROGATES COURTS Hill, 4 Dem. 41; Matter of Clark, 5 Redf. 466. Thus in Pew v. Hastings, 1 Barb. Ch. 452, Chancellor Walworth held that the power to open a decree was absolutely essential to the due administration of justice by a Surro- gate. Similarly it was held, in Butler v. Emmett, 8 Paige, 12, 21, that a Surrogate had power to enter an order nunc pro tunc, provided that at the time to which it was made to relate back, he would have had power to make it. Similarly a Surrogate was held to have power to vacate and set aside a decree or order which he had no jurisdiction to make. Vree- denhurg v. Calf, 9 Paige, 128. So also to modify a decree by the correction of mistakes and clerical errors, the result of oversight or accident {Sipperly V. Baucus, 24 N. Y. 46; Campbell v. Thatcher, 54 Barb. 382); or to revoke a decree for fraud {Yale v. Baker, 2 Hun, 468), and see Strong v. Strong, 3 Redf. 477, citing Brick's Estate, 15 Abb. Pr. 12. § 177. Same subject. — From this brief review of the power possessed by Surrogates before § 2481 was enacted, it will be seen that the Surro- gate's Court had prior power to open, vacate, modify, or set aside a decree for fraud, clerical error, or other sufficient cause, such as a want of juris- diction or an excusable default. Olmstead v. Long, 4 Dem. 44, 48; Matter of Filley, 47 N. Y. St. Rep. 428, Coffin, Surr. It would, seem, therefore, from an examination of § 2481, that the only really new power conferred thereby, is to grant a new trial or new hearing for newly discovered evi- dence which means a retrial of the issues made by the pleadings. Matter of Hawley, 100 N. Y. 206, aff'g Estate of Singer, 3 Dem. 571; Matter of Douglas, 52 App. Div. 303. But this power to grant a new trial or hearing must be limited to the cases specified in subd. 6, which are fraud, clerical errors, or "other sufficient cause; " this does not include errors of law which ought to be reviewed upon appeal (Matter of Walrath, 37 Misc. 696; Matter of Wallace, 28 Misc. 603, 605), for the Code has expressly regulated the methods by which a review of the errors occurring upon a trial before a Surrogate can be secured, and expressly provided for a loss of this right to review unless such methods are regularly pursued. This furnishes the strongest implication that such errors are not remediable by any other proceeding; certainly not under § 2481 of the Code. Matter of Hawley, 100 N. Y. 206, 211, opinion of Ruger, Ch. J. Also Matter of Beach, 3 Misc. 393; Matter of Carr v. Tompkins, ^6 N. Y. St. Rep. 585. The character of the amendment must be such as could have been inserted in the decree when it was made. So, when it was sought to amend a decree settling an account by inserting allowance of payments made since the account was filed, the application was denied. Matter of Arkenburgh, 38 App. Div. 473. 178. Same subject. — The words, "other sufficient cause," are intended to cover only those cases where relief cannot be had by appeal or action to set aside the decree. Matter of Tilden, 98 N. Y. 434; Matter of Soule, 72 Hun, 594; Matter of Humfreville, 8 App. Div. 312. And so where a Surro- gate refused to remove an executor and proceeded with the judicial settle- ment of his account and allowed him commissions, and, in the meantime, an appeal from the order refusing to remove the executor had been had DECREES AND ORDERS 181 and his decision reversed, it was held, that the remedy was not by motion to vacate his decree settling the executor's account, but by appeal from said decree. Matter of Humfreville, supra. In the headnote it is stated: "Even were the power of the Surrogate under § 2481 of the Code of Civil Procedure analogous to that of a court of record under § 1283 of the Code of Civil Procedure permitting the court to vacate or modify in the case of 'error in fact not arising upon the trial,' it would not cover the case, as here, the error in question did arise upon the trial on which the Surrogate must have decided that the executor had not been guilty of any miscon- duct forfeiting his commissions." It may be stated as the general rule that the power of a Surrogate to open his decree on the ground of clear mistake, accident, or fraud is undoubted. But the power should be cau- tiously exercised and it should never be used for the mere purpose of en- abling the Surrogate to review his own decision. The only appropriate method of review is by appeal. Story v. Dayton, 22 Hun, 450. § 179. Cases where the power has been upheld. — The courts have up- held the power of the Surrogate to open, vacate, etc., decrees in such cases as the following: Where a party though served with citation was sick at the time of the hearing, and probably had no knowledge thereof. Matter of Traver, 9 Misc. 621. Where a Surrogate failed to file findings of fact and conclusions of law. Matter of Hesdra, 4 Misc. 37. Where the accounting executor appears to have been guilty of fraud. Matter of Flynn, 20 N. Y. Supp. 919, aff' d 136 N. Y. 287. Where the law under which he acted is later held to be unconstitutional, as in transfer tax cases. Matter of Scrimgeour, 80 App. Div. 388. Where an heir-at-law was not brought before the court by a proper ser- vice of citation, and was not a party to the probate proceedings. Matter of Harlow, 73 Hun, 433; Matter of Odell, 1 Misc. 390; Bailey v. Stewart, 2 Redf. 212; Bailey v. Hilton, 14 Hun, 3; Matter of Lyon's Will, 26 N. Y. Supp. 469. So a decree settling a judicial account may be opened on application of a party interested who had no notice of the accounting. Wells v. Wallace, 2 Redf. 58; Matter of Gall, 182 N. Y. 270 (opinion of Werner, J.). Where matters in the nature of fraud have actually misled or prejudiced parties to the proceeding, although they may not actually amount to legal fraud. Matter of Hodgman, 82 Hun, 419. Where the name of a distributee has been unintentionally omitted in a decree for distribution, the decree may not be vacated, but may be amended in that respect so as to include the omitted name. Matter of Grant, 16 N. Y. Supp. 716. Where citation was properly served but the person served was non compos, and was not represented on the proceeding by any next friend or representative. Matter of Donlon, 66 Hun, 199. It is also within the discretion of the Surrogate to open proceedings 182 SURROGATES COURTS and admit claimants to a hearing who have not presented their claims until after the Surrogate has announced the principle of his decision; that is to say, if a Surrogate decides that persons belonging to a certain class are entitled to distribution, persons claiming to belong to that class should be admitted to the proceeding upon equitable terms, and the proceeding should be opened for the purpose and the parties heard. Matter ofPierson, 19 App. Div. 478, 489. The mere fact that the decree was made by the predecessor of the Surro- gate to whom the application to open it is made, is quite immaterial. Matter of Smith, 89 Hun, 606; Cohen's Estate, 58 How. Pr. 496. He has power to open or modify such a decree equally with one made by himself. So where an executor had been credited with the full amount of a note claimed to have been paid by him, and it subsequently appeared that he had settled the debt for less than the face of the note, the decree settling the account was opened, and a rehearing granted. Matter of Beach, 3 Misc. 393. So where an executor has charged himself with property of the testator, which it subsequently appears had been sold before the testator's death, and suit was brought on such bill of sale against the estate after a decree had been made settling the executor's account, held that it was a proper case for opening the decree under subd. 6 of § 2481. Matter of McGorray, 20 N. Y. Supp. 366. So, where it appeared that an heir had been forcibly detained, and so prevented from appearing in probate proceeding, a decree admitting the will to probate should be opened, and such heir allowed to contest. Hoyt v. Hoyt, 112 N. Y. 493. It has even been held that a decree admitting a will to probate may be opened for the purpose of allowing a former contestant to obtain a con- struction of one of the provisions of the will. Matter of Keeler, 5 Dem. 218, RolUns, Surr. So a Surrogate may vacate a decree which he signed through fraud or by reason of a mistaken supposition of jurisdiction on his part, or of death or intestacy on the part of the alleged decedent. Dobke v. McClaran, 41 Barb. 491; Brick's Estate, 15 Abb. 12; Matter of Patterson, 79 Hun, 371. So where an order for the payment of money is vacated after the pay- ments therein directed to be made have been made, the Surrogate has power to direct the repayment of said moneys by the recipients. Matter of Gillman, 7 St. Rep. 321. So where it is brought to the attention of a Surrogate that the Court of Appeals has sustained the validity of a codicil to a will, which codicil re- moves an executor, to whom, upon probate of the will, he has issued letters testamentary, the Surrogate may revoke such letters. Estate of Wood, 29 St. Rep. 298. § 180. When power will be denied.— However, granting or refusing an DECREES AND ORDERS 183 application to open a decree is a matter of discretion with the Surrogate. Boughton v. Flint, 74 N. Y. 476. And while under § 2481 his determination may be reviewed by the Appellate Division {Matter of Tilden, 56 App. Div. 277), the exercise of his discretion is not reviewable in the Court of Appeals. Boughton v. Flint, supra. If the Appellate Division hold his discretion to have been wrongly exercised it can itself make the appropriate order. Matter of Hoes, 119 App. Div. 288. (But read dissenting opinion.) A decree will not be opened except on application of a party entitled thereto. So a creditor cannot move to vacate a decree admitting to pro- bate as he is not a proper party to the probate proceedings. Heilman v. Jones, 5 Redf. 398. Nor of course will it be opened where the party applying is guilty of laches. Matter of Kranz, 41 Hun, 463; Matter of Becker, 28 Hun, 207; Matter of Deyo, 36 Hun, 512, aff'd 102 N. Y. 724. Matter of Bodine, 119 App. Div. 493, holding that "other sufficient cause" means a cause "ejus- dem generis." Nor will it be opened to correct an immaterial or inconse- quential error or mistake. Matter of Deyo, 102 N. Y. 724, amount involved, $280.02. Nor unless the errors suggested are distinctly and conclusively alleged. Yale v. Baker, 2 Hun, 468; Matter of Deyo, supra. Nor on the ground of a mere mistake in law. Matter of Tilden, 5 Dem. 230; Matter of Carr, 19 N. Y. Supp. 647; Brick's Estate, 15 Abb. Pr. 12; Matter of Beach, 3 Misc. 393; Matter of Monteith; 27 Misc. 163; Matter of Mount, 27 Misc. 411. A decree was opened on motion of a judgment creditor. Sub- sequently his judgment was reversed. The order opening the decree was thereupon vacated on the ground that he was then merely a creditor having a disputed claim, but without prejudice to his applying again if he got a new judgment on the new trial. Matter of O'Brien, 33 Misc. 17. Nor has he power to open a decree, which has been affirmed on appeal and remitted for further proceedings, on the ground of an alleged error at law. Reed v. Reed, 52 N. Y. 651. Nor where it appears that all the parties were represented upon the proceeding will it be reopened for an error in law. Brick's Estate, supra; Matter of Underhill, 117 N. Y. 471, 479. Nor should a decree of a Surrogate's Court be set aside for fraud unless the fraud is clearly established. Matter of Salisbury, 6 N. Y. Supp. 932. Nor unless the facts are such as would be sufficient to justify the Su- preme Court in setting aside a judgment of its own. Matter of Richardson, 81 Hun, 425. Nor where the petitioner has been guilty of laches. Matter of Salisbury, supra. Nor has the Surrogate right to open a decree merely on the ground that it was not made in conformity with the understanding of the parties by reason of an attorney's inadvertence. Matter of Soule, 72 Hun, 594. Nor has he power to open or vacate a decree judicially settling the ac- counts of an executor or administrator, merely because an allowance of Ig4 SURROGATES COURTS commission to such executor or administrator was inadvertently omitted, unless sufficient cause is shown for such omission. Matter of O'Neil, 46 Hun, 500. Nor will a decree be opened merely because it was entered while an infant party was unrepresented by guardian; the Surrogate should be satisfied that the opening of such decree would be advantageous to the infant interested; and if the decree as entered sufficiently covers the in- terest of the infant, the omission will be deemed a mere irregularity and the decree allowed to stand. Benedict v. Cooper, 3 Dem. 362. It is competent in such a ease for the Surrogate to order a reference to determine whether or not it will be advantageous for the infant to set aside the proceedings. S. C, Rollins, Surr. § 181. Making orders or decrees nunc pro tunc. — Where, owing to some act or omission of the court, the making of an order or even the entry of a decree has been omitted, to the making or entry of which a party was entitled at a given time or stage in the proceedings, the Surrogate's Court has power to make the order or enter the decree as of such former time, that is, nunc pro tunc, upon the facts being properly presented to the atten- tion of the court. But there are well known limitations upon the authority of the court to enter a decree nunc pro tunc. So, where a party had filed proofs of a will, thinking there would be no contest and that a decree would be entered as of course, persuaded the clerk to issue letters of administra- tion with the will annexed without waiting for the formal entry of the decree; and the administrator proceeded to administer the estate with- out knowing that subsequent notice of an intention to contest the va- lidity of the will was filed in the Surrogate's office and a memorandum of that fact Was made upon the papers, and the decree accordingly withheld. Surrogate Rollins {Stapler v. Hoffman, 1 Dem. 63) held, upon an applica- tion for the entry of the decree nunc pro tunc, that the party must not only show that he was absolutely entitled to the decree at the earlier date, but that the delay in entering it had not been due to his own negUgence, carelessness, or misapprehension, but to some act or omission of the court. See cases cited. In this case Surrogate Rollins defined as the proper prac- tice that the proofs should be presented de novo and a probate of the in- strument sought. Where a Surrogate intended to refer an account for hearing and deter- mination, but the order entered merely directed the referee to hear and report, he may amend the order nunc pro tunc. Matter of May, 53 Hun, 127. So also where an order entered omits a recital of the papers on which it was granted, it may be amended nunc pro tunc. Matter of Post, 38 N. Y. St. Rep. 1. CHAPTER V APPEALS FROM DECREES AND ORDERS § 182. General provisions made applicable in Surrogates' Courts. — Section 1, art. 4, title 2, of ch. 18, provides a complete system covering appeals in Surrogates' Courts, both to the Appellate Division and to the Court of Appeals. By § 2575: The provisions of the following sections of this act, to wit: sections 1295, 1297, 1298, 1299, 1303, and 1305 to 1309, both inclusive, apply to an appeal taken as prescribed in this article. § 2575, Code Civil Proc. These sections made so applicable are purely formal. Section 1295 refers to the designation of parties to an appeal as appellants and respond- ents, and the change of the title of the cause by substituting the name of the Appellate Court. Section 1297 provides for an appeal when an ad- verse party has died, by substituting the heir, devisee, executor, or ad- ministrator of the deceased party as the case requires. Section 1299 (g. t;.) provides for proceedings when a party dies pending an appeal. Sec- tion 1303 covers the remedying of defects in proceedings on appeal. Sec- tions 1305 to 1309, both inclusive {q. v.), provide for the waiver of security; for the making of a deposit in lieu of undertaking on appeal; for the filing of the undertaking; and for the giving of a new undertaking when the sureties become insolvent, and finally as to when an action may not be brought upon the undertaking on appeal. It is unnecessary to quote these sections in full further than to say, except as they are expressly made applicable by reference, appeals from orders or decrees of the Surrogate are provided for by art. 4 of ch. 18. It is unnecessary to refer to the statute providing for the taking of appeals after September 1, 1880, from decrees or orders made before that date; as the lapse of time since the adoption of the Code gives to such enactment merely a historic interest. § 183. Who may appeal. — The first distinction drawn by art. 4, is be- tween appeals by parties and persons who are not parties. As to parties they are prohibited from appeahng in any case where the decree or order appealed from was entered upon the default of such party. See Delmar v. Delmar, 65 App. Div. 582. In this case the parties appeared at the trial but declined to proceed. When party may appeal. Any party aggrieved may appeal from a decree or an order of a surrogate's court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made upon his default. § 2568, Code Civil Proc. 185 186 SURROGATES COURTS The section contemplates by the word party, one who is a party at the iime the appeal is intended to be taken, consequently, where a person has had the status of a party to a proceeding, and the interest by reason of which he became a party has ceased, his right to appeal also ceases. Reid v. Vanderheyden, 5 Cow. 719. This was a case where the party appeaUng was at the commencement of the proceedings in the Surrogate's Court a distributee, but this interest was defeated by the birth of a posthumous child just before the decree of the Surrogate was pronounced; this divested his rights as distributee and was held to have taken away all possibility of interest on his part and when his interest ceased, his right further to litigate ceased with it. All power of appeal was therefore gone. A mere interest in the costs, it was also held, gave no right to appeal in respect of any other matter. So it has been held that where an executor had not paid a claim or become personally liable to pay it, and the Surrogate re- fused to allow said claim, the executor was not a proper person to appeal from the Surrogate's decision but only the party in interest. Kellett v. Bathhurn, 4 Paige, 102. Similarly it was held that where an appeal was taken from certain provisions of a decree settling the accounts of an exec- utor and directing distribution, and it appeared that the appellant had no interest in the question arising on certain of the provisions specified in the notice of appeal, the Appellate Court would confine its deliberations to that portion of the decree alone in which the appellant had an interest on which to base the appeal. Matter of Allen, 81 Hun, 91. See also Matter of Hodgman, 140 N. Y. 421, 430; Bryant v. Thompson, 128 N. Y. 426. Only one failing to appear is "in default" within the meaning of § 2568 of the Code, permitting appeals except by one in default. People ex rel. Patrick v. Fitzgerald, N. Y. Law Journal, June 12, 1902. § 184. Only party aggrieved may appeal. — A party aggrieved is one whose rights are denied or prejudiced by the order or decree to be appealed from, and whose rights can be protected by appropriate action by the Appellate Court. Thus an executor nominated in a will is a "party ag- grieved," within the intent of §§ 1294 and 2568 of the Code, by a decree refusing to admit to probate a codicil attached to the will. Matter of Stapleton, 71 App. Div. 1 (but see dissenting opinion at p. 8); Matter of Blair, 28 Misc. 611; Bryant v. Thompson, 128 N. Y. 435; Matter of Rayner, 93 App. Div. 114; Matter of Eckler, 126 App. Div. 199. See also Bliss v. Fosdick, 76 Hun, 508. But trustees under a will are not aggrieved by a construction of the will as to rights of the beneficiaries, and have no in- terest which is injuriously affected. Bryant v. Thompson, citing People v. Lawrence, 107 N. Y. 607; Hyatt v. Dusmbury, 106 N. Y. 663. So on a submission of an "agreed statement" to the Appellate Division by ex- ecutors and trustees on the one hand and the "persons interested" on the other to determine from what fund to pay a transfer tax, held, the repre- sentatives had no standing to appeal to the Court of Appeals where none of the "persons interested" desired or joined in such appeal. Isham v. N. Y. Assn. for Poor, 177 N. Y. 218, 222, citing Bryant v. Thompson, APPEALS FROM DECREES AND ORDERS 187 sujyra, Matter of Hodgman, 140 N. Y. 421; McLouth v. Hunt, 154 N. Y. 179; Matter of Richmond, 63 App. Div. 488. So where an order was made directing an executor to pay a legacy to A, and he appealed, claiming the legacy was invalid, and the money should go to the residuary legatees, he was held not to be a party aggrieved, and not to represent the residuary legatees. Matter of Coe, 55 App. Div. 270, citing Matter of Hodgman, 69 Hun, 487, aff 'd 140 N.Y. 421 ; Matter of Mayer, 84 Hun, 539. Where, however, an allowance is made to a special guardian, the trustees directed to pay it represent the infant sufficiently to review the Surrogate's discretion by an appeal. Matter of Stevens, 114 App. Div. 607. The Code has changed the rule as it formerly obtained with regard to the character of the interest to sustain the right of appeal. Thus, where formerly it was held that a petitioner for probate could nevertheless appeal from a decree admitting to probate {Vandemark v. Vandemark, 26 Barb. 416; Delafield v. Parish, 42 Barb. 274), nevertheless the language of § 2568, "a party aggrieved may appeal," limits the right of appeal to those who have proper reason to complain of the decree or order in question. Thus § 1294 which provides for appeals generally (ch. 12 of the Code of Civil Procedure), is almost in identical terms and reads as follows: "A party aggrieved may appeal in a case prescribed in this chapter except where the judgment or order of which he complains was rendered or made upon his default." The Court of Appeals construing this section held (Bryant v. Thompson, 128 N. Y. 426, 434), that the right to appeal was limited to a party aggrieved and that accordingly questions of however great interest and importance could not be passed upon by that court until brought there by some party having an actual and practical, as distin- guished from a mere theoretical, interest in the controversy. See opinion of O'Brien, J., at page 435, citing People ex rel. Breslin v. Lawrence, 107 N. Y. 607; Hyatt v. Dusenhury, 106 N. Y. 663. Consequently now, a party in whose favor a decree or order is given cannot be said to be aggrieved by it. Hooper v. Beecher, 109 N. Y. 609; Fairbanks v. Corlies, 1 Abb. 150. But the words are held to include the representatives of a deceased party who was himself a party aggrieved. See Campbell v. Gallagher, 18 Civ. Proc. 90. So also a person upon whom the interest of a party has devolved or to whom it has been set over. McLauchlin v. Brett, 2 Civ. Proc. 194. A stranger to the proceeding has no standing upon the appeal; that is to say, a person who does not bring himself within the definition of the in- terest prescribed by the section quoted may not appeal. See Matter of Bristol, 16 Abb. 397. Where a stranger to a proceeding applied for relief against the proceeding and his application being denied sought to appeal from such order, held that he could not do so. § 185. When person not a party may appeal. — It is expressly pro- vided that certain persons although not parties shall have the right to obtain a review of a Surrogate's determination; they are specified in § 2569, which is as follows: A creditor of, or person interested in, the estate or fund affected by the 188 surrogates' courts decree or order, who was not a party to the special proceeding, but was en- titled by law to be heard therein, upon his application; or who has acquired, since the decree or order was made, a right or interest which would have en- titled him to be heard, if it had been previously acquired; may intervene and appeal, as prescribed in this article. The facts, which entitled such a person to appeal, must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal. § 2569, Code Civil Proc. These persons, not parties, are thus differentiated from "parties" who defaulted. It has been held that this section does not give an attorney status to appeal from an order withdrawing, against his objection, his client's ob- jection to an account. Matter of Evans, 33 Misc. 671. This section does not require the obtaining the leave of the court in order that such a person may appeal. Leivis v. Jones, 50 Barb. 645. The intervention is informal, not based on petition and order. The notice of appeal, and affidavit required by § 2569 is enough See Matter of Sullivan, 84 App. Div. 51. This case also held such intervening appellant need not file exceptions. The appeal was taken by a municipal corporation "aggrieved" by a failure in the decree on accounting to direct the pay- ment of a valid tax assessed against the administrator as such. Held it was a creditor within the intent of § 2569. It has been held that unless legatees who may not have been cited upon the probate proceedings do intervene and become parties they cannot appeal from the decree of probate. Section 2569, however, may be said to require that such a person interested in the estate or fund affected by the decree or order may intervene as therein provided and when he has be- come a party he may then appeal, as prescribed in art. 4. Foster v. Foster, 7 Paige, 48. In order to determine the precise meaning of this section it should be considered in connection with § 2573, which is as follows: § 186. Who must be made parties. Each party to the special proceeding in the surrogate's court, and each person not a party, who has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers presented in the surrogate's court, or has become manifest in the course of the proceedings taken therein, must be made a party to the appeal. A person not a party, but who must be made a party, as prescribed in this section, may be brought in by an order of the appellate court, made after the appeal is taken; or the appeal may be dis- missed on account of his absence. The appellate court may prescribe the mode of bringing in such a person, by publication, by personal service, or otherwise. But this section does not require a person interested, but not a party, to be brought in, if he was legally represented, or was duly cited in the court below. § 2573, Code Civil Proc. This section distinctly provides that upon the appeal, persons who are not already parties to the proceedings must be brought in by an order of APPEALS FROM DECREES AND ORDERS 189 the Appellate Court made after the appeal is taken. See Marvin v. Marvin, 11 Abb. N. S. 97; Matter of Dunn, 1 Dem. 294. So in Matter of Hunt, 120 App. Div. 883, the court held the appeal pending the bringing in of omitted necessary parties on its own order. It would appear, therefore, from these two sections and the cases already- cited, that as the Surrogate's Court has no power to grant an order of in- tervention after the decree is entered, that the purpose of § 2569 is that a person such as is described therein may, by filing an affidavit showing that he has the interest therein required and by filing and serving his notice. of appeal, with a copy of such affidavit, become an original appellant and be thereafter a party to the proceedings in the Appellate Court. This construction of the section would obviate the risk which such a party might run of having the time within which he must appeal (which is brief at best) further shortened by the delay incident to action by the Surrogate on a formal application for leave to intervene which. Surrogate Coffin held in the Dunn case, supra, he had no power to grant. § 187. Parties to appeal —Guardian ad litem. — Section 2573 defines who must be made parties. It has been held by the Appellate Division that a special guardian appointed in a Surrogate's Court does not become functus officio by the rendition of the decree; but that under § 2573 he is a party to the special proceeding and has to be served with a copy of the decree with notice of entry, and that his duties and office should continue until the final determination of the appeal from the Surrogate's decree. Matter of Stewart, 23 App. Div. 17, opinion of Goodrich, P. J. In such a case not only is the guardian ad litem a necessary party, but the infant whom he represents should also be made a party to the ap- peal, although it is not necessary that the appeal be taken in the name of the infant. Underhill v. Dennis, 9 Paige, 202. The acceptance of costs and allowance in the court below does not preclude a guardian ad litem, however, from appealing. Matter of Edwards, 110 App. Div. 623. Among the persons who have been held entitled to be made parties as aforesaid are heirs-at-law, next of kin, legatees and executors (Oilman v. Oilman, 1 Redf . 354; Pruyn v. Brinkerhoff, 57 Barb. 176) ; persons to whom money is directed to be paid by the decree {Jauncey v. Rudderford, 9 Paige, 273; Matter of Thompson, 11 Paige, 453), also any persons who are interested in sustaining the order or decree appealed from. Kellett v. Rathburn, 4 Paige, 102; Oardner v. Oardner, 5 Paige, 170; Gilchrist v. Rea, 9 Paige, 66. As, for example, where allowance is made to counsel for the contestants of a will and the executor appeals from the decree, such counsel have been held to be properly made parties upon the appeal. Peck v. Peck, 23 Hun, 312. A motion made under § 2573 to bring in as parties to the appeal persons, not parties below, but interested in the subject-matter, should be made in the Appellate Court, after the appeal is duly perfected as to those already parties. Matter of Marks, 128 App. Div. 775 190 SURROGATES COURTS § 188. Appellate Division, first appellate tribunal. — An appeal from a Surrogate's order or decree must be taken in the first instance to the Appellate Division of the Supreme Court, under § 2570, which is as follows: An appeal to the appellate division of the supreme court may be taken from a decree of a surrogate's court, or from an order affecting a substantial right, made by a surrogate or by a surrogate's court in a special proceeding, § 2570, Code Civil Proc. By this section parties aggrieved or persons entitled under § 2569 may appeal from any decree of a Surrogate's Court, except of course a decree rendered upon the default of such party (see § 2568), but as to orders, the section is explicit that they must be orders affecting a substantial right in order to be appealable. Matter of Burnett, 15 N. Y. St. Rep. 116. As for example, an order directing the executor to pay a legacy. Matter of Halsey, 17 Weekly Digest, 241. An order adjudging that an executor or administrator has funds in his hands for which he is therefore directed to account, affects a substantial right, and appeal may be taken to the Appellate Division as also an order which permits an administrator after his account has been passed upon by a referee, to file a supplemental ac- count. Matter of Gilbert, 104 N. Y. 200; Stephen v. Lott, 42 Hun, 408. So also a decree fixing the fees of an appraiser is appealable. Matter of Har- riot, 145 N. Y. 540. But where the order is ex parte (Matter of Johnson^ 17 Hun, 538; Skidmore \. Dames, 10 Paige,611),no appeal lies. The proper practice is to move on notice to vacate an ex parte order; if this motion is refused an appeal may lie. So an order denying a motion to dismiss a petition does not affect a substantial right. Matter of Soule, 46 Hun, 661; Matter of Phalen, 51 Hun, 208. So orders merely affecting the procedure on the hearing before the Surrogate do not affect substantial rights and are not appealable (Henry v. Henry, 3 How. N. S. 386), as where a Surrogate denies a motion for the simultaneous trial of several issues in a proceed- ing pending before him. See 4 Dem. 253. So the exercise by the Surro- gate of his discretion to appoint a referee is not reviewable by the General Term. Matter of Post, 64 Hun, 635; Matter of Pearsall, 21 N. Y. St. Rep. 305. An appeal to the Surrogate's discretion, as for example, an applica- tion to reopen probate proceedings to admit extrinsic evidence is not re- viewable (Boughton v. Flint, 74 N. Y. 476), unless the exercise of the discretion has been abused. So also in a case where the Surrogate granted a motion to issue a commission. Matter of Plumb, 64 Hun, 317. So where a motion was made before the citation was served or was returnable to vacate the citation upon the ground that the petition was insufficient, an order denying such motion was held not to affect any substantial right, and was therefore held not to be appealable. Matter of Westurn, 5 App. Div. 595, citing Tracy v. Reynolds, 7 How. Pr. 327; Matter of Burnett, 15 N. Y. St. Rep. 116, and other cases cited above. So an order overruling objections to the jurisdiction of the Surrogate to make an order, e. g., to fix value of an attorney's services, is not appealable. The person aggrieved APPEALS FROM DECREES AND ORDERS 191 should wait until he exercises the asserted jurisdiction and then appeal from such determination. Matter of Loewenguth, 114 App. Div. 754, and cases cited. In this case the Appellate Court of its own motion dismissed the appeal, but without costs. So an order setting aside a referee's report and referring the matter back is not appealable. Matter of Post, 64 Hun, 635. Where a Surrogate, however, improperly refused to decree distri- bution of an estate ready for distribution, it was held that the parties ag- grieved ought not to appeal but to proceed by mandamus. Matter of Not- tingham, 88 Hun, 443. § 189. Intermediate order reviewable. — It is next to be noted that. An appeal, taken from a decree, brings up for review each intermediate order, which is specified in the notice of appeal, and necessarily affected the decree, and which has not already been reviewed by the appellate court, upon a separate appeal taken from that order. § 2571, Code Civil Proc. See Kearney v. McKeon, 85 N. Y. 136. An intermediate order may be said to be one forming a part of the history of the case involving the legal proposition which it is sought to bring before the court; but an order is not intermediate merely because made in the same matter and at a time prior to the order made directly the subject of appeal. Thus, where a will was admitted to probate and on appeal the General Term reversed the Surro- gate's decree on a question of fact, and granted a new trial to be had before a jury upon certain questions, first, whether the testator was of unsound mind when the will was executed, and second, whether the will was pro- cured by undue influence; such trial having been had and the result cer- tified to the Surrogate, the Surrogate entered a decree adjudging that the will was invalid and revoking the former record and probate of the instru- ment. On appeal this decree was affirmed by the General Term. In the Court of Appeals, it was held that upon appeal from this last order of the General Term affirming the Surrogate's decree refusing probate, the prior order reversing his decree granting probate was not an intermediate order necessarily affecting the decree within the meaning of § 2571. Matter of BarihoKc, 141 N. Y. 166, 171, citing Matter of Budlong, 126 N. Y. 423. § 190. Same subject; limit to right. — The last clause of § 2571 may make it an important question whether to appeal directly in the first in- stance from an "intermediate order." The question, of course, will be determined by the further question of an ultimate intention to appeal to the Court of Appeals. To illustrate this I give a case unreported in this particular. A accounted as administrator. B filed objections claiming the whole estate as widow. A moved to strike out the objections on the ground that by a former adjudication the Surrogate had held that B was not the widow, her marriage to decedent having been annulled, and his determination having been affirmed by the Appellate Division. The mo- tion to strike out the objections having been granted, B decided to appeal directly from this order. The order was affirmed. She appealed to the Court of Appeals and there her appeal was dismissed. In the meantime, 292 SURBOGATES' COURTS the matter proceeded under the affirmance by the Appellate Division be- fore the Surrogate to a decree settling the account. B appealed from the final decree and stated in the notice of appeal that she intended to bring up for review the "intermediate order" striking out her objections. Now, it is manifest on this appeal from the decree the Appellate Division could not review such order, because it had already been reviewed upon a separate appeal. The Appellate Division, further, having affirmed the decree, B then appealed to the Court of Appeals making a similar state- ment in her notice of appeal as to the "intermediate order" of the Surro- gate. Qumre, could the Court of Appeals, which can only entertain ap- peals from the Appellate Division, review anything which was not before the Appellate Division, under § 2571; quosre, further, whether the difficulty could have been obviated in the appeal to the Court of Appeals by specify- ing as an intermediate order, not the order of a Surrogate, but the first order of the Appellate Division affirming the order of the Surrogate? The question will doubtless in most cases turn in deciding as to the propriety of an appeal in the first instance from an order called intermed- iate as to whether it would come within the somewhat elastic definition of final order found in the decisions of the Court of Appeals. We have already noted, in Matter of Loewenguth, 114 App. Div. 754, that an order overruling objections to the jurisdiction of the Surrogate to make an order is not appealable until he has exercised his jurisdiction and made an order. But, in the case just outlined it might well have been claimed that the order striking out the objections on the ground that the objectant had no status was final, in that it effectually put her out of court (see further be- low. Appeals to Court of Appeals). § 191. Time to appeal. An appeal by a party must be taken within thirty days after the service, upon the appellant, or upon the attorney, if any, who appeared for him in the surrogate's court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof. An appeal by a person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means of an assignment or conveyance from a party; in which case, the appeal must be taken within the time limited for the tak- ing thereof by the assignor or grantor. § 2572, Code Civil Proc. This section preserves the distinction between appeals by parties and persons who were not parties, it being expressly provided that where the person not a party acquired his interest or title by assignment or convey- ance from one who was a party, his appeal must be taken within the thirty days hmited by the first part of the section. Otherwise a person not a party has ninety days in which to appeal. Thus, in transfer tax proceed- ings, to which the state comptroller was not a party, he was allowed to come in within three months and take an appeal. Matter of Dingman, 66 App. Div. 228. The time for a party to appeal is limited or set running APPEALS FROM DECREES AND ORDERS 193 not by the filing of the decree or order but by the service of a copy thereof with written notice of its entry. By the entry of a decree or order is meant its record in the proper book required by the Code to be kept by the Surro- gate under §§ 2498 and 2499, so that the service of a copy of the decree with notice of its fling does not start the time within which to appeal running. Matter of Armstrong, 32 N. Y. St. Rep. 441. § 192. Making and settling case. — Where the appeal is by a party, that is, where the time to appeal is limited to thirty days, the case on appeal must be made and a copy served on the opposite party within thirty days after a service of a copy of the decree or order with notice of the entry thereof. The party so served may within ten days thereafter propose amendments thereto and serve a copy on the party proposing a case or exceptions, who may then within four days thereafter serve the opposite party with a notice that the case or exceptions with the proposed amend- ments will be submitted for settlement at a time and place specified to the Surrogate before whom the case was tried. The time for settling the case, which must be specified in such notice, shall not be less than four days nor more than ten days after the service of the notice. Rule 32, General Rules of Practice. But it is expressly provided that the Surro- gate, on appeals from his court, may hy order allow further time for the doing of any of the acts above provided to be done on such appeal. That is to relieve him from the consequences of his omission to do any of the acts relating to the preparation, service, or settlement of the case, within the time limited. See Matter of Williams, 6 Misc. 512, 515, which holds the purpose to be to give the Surrogate power, on seasonable appUcation, and for good reason shown for the delay. Hence the power may be ex- ercised after the time has expired. This of course does not extend to the matter of taking an appeal in the first instance. See § 1303, Code Civ. Proc, and Matter of Sheldon, 117 App. Div. 357. This covers the case where the appeal is by one not a party. No order extending the time to serve a case, or a case containing exceptions, or the time in which amend- ments thereto may be served, shall be made unless the party applying for such order, served a notice of at least two days upon the adverse parties of his intention to apply therefor, stating the time and place for making such application. The practice is assimilated to that in the Supreme Court by the latter part of § 2576, which is as follows: If the appeal is taken "from a decree rendered upon the trial, by the sur- rogate, of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for the making and settling of a case upon an appeal in an action." § 2676, Code Civil Proc, in part. The recitals in the order appealed from determine the papers to be printed. Matter of Gowdey, 101 App. Div. 275. The appellant may first move to amend it; if he does not his appeal nmy be dismissed. Ihid., citing Whipple V. Ripson, 29 App. Div. 70. However, the Appellate Division has power to remit a cause to the Surrogate to be "resettled in conformity 13 194 SURROGATES COURTS with the facts," when it clearly appears either that a paper actually used was not recited in the decree, in that the decree recites a paper not actually used. Matter of Richardson, 120 App. Div. 406. § 193. Same.— It has been held that § 2576 was not intended to regulate the practice in bringing appeals, except to require that when the appeal is from a decree rendered upon a trial of an issue of fact, a case must be made and settled as on an appeal in an action. Matter of Stewart, 135 N. Y. 413, 416; Matter of Walrath, 69 Hun, 403, opinion of Mayham, P. J., citing Spence v. Chambers, 39 Hun, 193; Angevine v. Jackson, 103 N. Y. 470; Bur- ger V. Burger, 111 N. Y. 523; Matter of Falls, 29 N. Y. St. Rep. 759; Matter of Marsh, 45 Hun, 109. Where no case on appeal is presented, the Appel- late Court will have nothing to consider. Matter of Clark, 34 N. Y. St. Rep. 523. So in Matter of Goldsticker, 54 Misc. 175, Thomas, Surr., held that the only way he could settle a case involving his determination of the sanity of testator on a probate proceeding was by including all the evidence " which any party may claim to be material to the determination of the questions to be passed upon by the Appellate Court," citing Perkins v. Hill, 56 N. Y. 87, 91. Otherwise, he pointed out, it would be impossible for that court to decide under § 2545 whether the receiving by him of evidence objected to under §§ 829 and 834 of the Code was prejudicial to appellant and warranted reversal. So where the case on appeal does not contain all the evidence or does not have the usual certificate that the case contains all the evidence or contains a certificate which expressly states that part of the evidence has been excluded, the Appellate Court may decline to review the decree upon the merits. The case or papers on appeal must be certified or stipulated to be correct copies. The latter is now proper under amendment of 1904, ch. 137, to § 2567. If certified the Surrogate must charge one cent a folio "when printed copies are presented." The section now provides: Where in a proceeding in the surrogate's court the attorneys for all the adult parties interested and special guardians, or general guardians, appear- ing for all infant parties interested, other than parties in default, or against whom a final order has been taken and is not appealed from, stipulate in writ- ing that a paper is a copy of any paper whereof a certified copy is required by any provision of this act, the stipulation takes the place of a certificate as to the parties so stipulating, and the surrogate or his clerk is not required to certify the same or entitled to any fee therefor. And the paper so proved by stipulation shall be received by the clerks of all the courts and by the courts, and shall be used or filed with the same force and effect as if certified by the surrogate or his clerk. § 2567, Code Civil Proc, in part. § 194. Contents of case on appeal.— In Matter ofSprathoff, 50 Misc. 109, Church, Surr., reviews this matter at length. (See opinion.) The next section deals with the matter of findings and exceptions. The whole matter turns on the nature of the determination appealed from. If the Surrogate make an order on moving affidavits and opposing affidavits the appeal is brought on upon a record containing the order and the APPEALS PHOM DECREES AND ORDERS 195 papers on which it was based. Ibid., and cases cited. But if to make that order he had to pass on an issue of fact his decision will have included findings of fact and conclusions of law. The words "trial by the Surrogate of an issue of fact" means inquiry into and determination of such an issue, personally or by a referee whose report, however modified, he has made his own. § 195. Appeal may be on facts and on law. — "An appeal from an order or decree of the Surrogate may be taken upon questions of law, or upon facts, or upon both." Code of Civil Procedure, § 2576, in part. The rule has already been stated that under § 2545, the Surrogate must make findings of fact and conclusions of law, and that exception must be taken to his refusals to find, or to his decision. See ante. This provision is mandatory. See cases cited, ante; Matter of Falls, 29 N. Y. St. Rep. 759; Matter of Sprague, 125 N. Y. 732; Matter of Peck, 39 N. Y. St. Rep. 234; Matter of Kaufman, id. 236. It has been held that without the necessary execptions no question in such case is presented for the Appellate Court to determine. Matter of Bolton, 141 N. Y. 554; Burger v. Burger, 111 N. Y. 523, limiting Angevine v. Jackson, 103 N. Y. 470. The decision in Angevine v. Jackson merely settled the principle that there must be an exception in order to raise a question of law in the Appellate Court. Judge Finch there held that an exception "to the Surrogate's decree and each and every part of it," is useless, citing Ward v. Craig, 87 N. Y. 550; Hep- burn V. Montgomery, 97 N. Y. 617. For such an exception indicates no specific error and directs attention to no finding, and leaves the court in the dark as to what is the precise cause of complaint. In Burger v. Burger, Judge Andrews, writing the opinion of the court, distinguishes between review of the facts and a review of the law, and uses the following language: "An exception to facts found or to a refusal to find upon a question of fact is only important to entitle the appellant to a review, first, in the Supreme Court, and afterward in this court, of the strictly legal question which it is the office of an exception to present. But in the Supreme Court the facts are open for review without any exception." This refers to § 2586, providing that: "Where an appeal is taken upon the facts, the Appellate Court has the same power to decide the questions of fact which the Surrogate had, and it may in its discretion receive further testimony or documentary evidence, and appoint a referee." See Matter of Wilcox, 37 N. Y. St. Rep. 462; Matter of Patterson, 63 Hun, 529. By virtue of this section then it is manifest that no exceptions to findings of fact are necessary in order to secure a review of said facts by the Appellate Court. Exceptions, however, should be taken duly to every ruling of the Surrogate, in order to raise the questions of law which it is sought to have reviewed in the Appellate Court. Nor is it necessary in order to a review of the facts in the Supreme Court that the notice of appeal should specify the exact findings complained of; this is neither expressly required by the statute nor is it necessarily to be implied from the language of § 2576. Section 2574, which prescribes how an appeal may be taken (see infra), de- 196 surrogates' courts clares that it must be by written notice to be served referring to the decree or order appealed from and stating that the appellant appeals from the same or from a specified part thereof. It is nowhere required that the grounds of the appeal shall be stated in the notice. Matter of Stewart, 135 N. Y. 413, 416. Except in transfer tax appeals, q. v. post. § 196. Extent of power of Appellate Division.— The power of the Ap- pellate Division in the review of a decision of the Surrogate is not lim- ited to a determination of whether there exists evidence upon which his decree may be supported by virtue of § 2586 quoted in § 223 below, q. v. Not only has the court the same power in regard to the facts that the Surrogate himself had. Matter of Laudy, 148 N. Y. 403; Matter of Purdy, 46 App. Div. 33; Matter of Rossell, 121 App. Div. 381, but it must de- termine for itself upon the facts whether the case was correctly decided when such question is presented by the appeal. Matter of Rogers, 10 App. Div. 593, 594, citing Gilman v. Oilman, 3 Hun, 22; Matter of Hardenburg, 85 Hun, 580; Kingsland v. Murray, 133 N. Y. 170; Burger v. Burger, 111 N. Y. 523. This is well illustrated in Matter of McGarren, 112 App. Div. 503. The Surrogate refused to recognize as widow one whose marriage had been annulled by a Supreme Court judgment, holding that such judgment bound him so long as it stood, and that he had no power to examine whether it was based on personal service of process. The Ap- pellate Di- Deceased. J Sirs: Please take notice that pursuant to section 2618 of the Code of Civil Procedure, one of the contestants herein, an infant over the age of fourteen years, by his Special Guardian requires the production and examination of the fol- lowing named persons as witnesses: Petitioner, a practicing physician in the City of New York, Jane Doe and Mary Roe, servants in the employ of the de- cedent, during the year prior to his decease (the said names Jane Doe and Mary Roe being fictitious, the said serv- ants' real names being unknown to the contestant). Dated New York, 190. Yours, etc.. Special Guardian for Contestant. address. At a Surrogate's Court, held in and for the County of New York, at the New York County Court House in the City of New York, on the day of 19 . Present : Hon. Surrogate. In the Matter of Proving the 'j Last Will and Testament of V Deceased. J On reading and filing the annexed affidavit of verified the day of 190 together with a notice for the production of certain witnesses herein, as provided by section 2618 of the Code of Civil Procedure, and upon all the papers and proceedings herein, the Surrogate being satisfied that the testimony of the said witnesses whose names are mentioned in the notice hereto annexed may be material, and 308 SUEEOGATES' COURTS upon motion of said Special Guardian for an infant over the age of fourteen (14) years, contestant, it is Ordered, that the petitioner herein, produce for examination upon the trial of the issues herein Jane Doe and Mary Roe (the said names Jane Doe and Mary Roe being fictitious, their real names being unknown), serv- ants in the employ of or in attendance upon said decedent, at the time of the execution of said will, at or about the 8th day of May, 1909; and it is Further Ordered, that a copy of this order be forthwith served upon all the parties who have appeared herein, or upon their attorneys. Surrogate. § 313. Who may contest probate. — ^The language of the Code is very broad as to what persons may contest the probate of a will. It is contained in the first part of § 2617. Any person .... who is named as devisee or legatee in the will propounded or as executor, trustee, devisee or legatee, in any other paper purporting to be a will of the decedent, err who is otherwise interested in sustaining or defeating the will. See ante, §§ 284 et seq. This section has no connection with § 2624 as to the right to put in issue before the Surrogate the validity, construction or effect of any disposition of personal property contained in a will [See Jones v. Hamersley, 4 Dam. 427], the cases under which are elsewhere discussed. The language of § 2617 is broad; the use of the words, "in any other paper purporting to be a will" includes papers of a testamentary character both prior and subse- quent in date to the one offered for probate. See Matter of Greeley's Will, 15 Abb. N. S. 393. But the words, " who is otherwise interested in sus- taining or defeating the will," while apparently broad and general, are limited by the courts to persons who can satisfy the Surrogate by proper proof that they are interested in the probate of the will in substantially the same way in which that interest is limited in the decisions under § 2624 above referred to, q. v. Therefore a person intending to contest a will must be prepared to establish by competent proof that he belongs to one of the classes specified. If he claims to be a devisee, or legatee in the will propoimded, or an executor, trustee, devisee or legatee in some other alleged will, the testamentary paper itself may indicate the contestant by name; if he claims as one of a class he must prove that he belongs to that class; if he bases his right under the words, "or who is otherwise interested in sustaining or defeating the will," he must prove such a legal interest as the Surrogate would be justified in recognizing. This naturally implies the right of the Surrogate to determine the status of the party proposing to contest. Matter of Hamilton, 76 Hun, 20 1 , opinion CONTESTED PROBATES 309 of Van Brunt, P. J., at page 205. The contestant must state his interest with certainty. Public Administrator v. Watts, 1 Paige, 347. The contestants of a will have an absolute right to withdraw their objections, even against the protests of the attorney of record, claiming a lien for services. Matter of Evans, 33 Misc. 567. In determining the status of the contestant it has been held that the Surrogate is not exceeding his jurisdiction or exercising equitable powers if, for example, he declares an alleged widow of a testator not to be in fact such widow; his decision as to her status does not amount to a decree annulling her marriage. See Matter of Hamilton, supra. In the case cited Van Brunt, P. J., observes (where the alleged widow of Robert Ray Hamil- ton contested probate of his will, her right to so contest being objected to by one of the legatees and the Surrogate found that she was never the wife, and therefore not the widow, of the decedent, and was not in anywise interested in sustaining or defeating his alleged will): "The appellant, by virtue of an alleged marital relation was seeking to enforce her rights in a court of law, which rights could be defeated by showing that no such relation existed, because, at the time of the attempted contract, of the disability of one of the parties. This has always been the rule, and the Surrogate, in passing upon the status of this contestant, assumed no equity jurisdiction, but was passing upon a legal question." 76 Hun, at page 206. Where one, asserting herself to be the widow of the decedent, appeared and sought to contest his will. Surrogate Rollins passed upon the regularity of a decree annulling her marriage to a former husband, and held that, while the decree was defective in form under the statute, she might offer other proof that said first marriage was void in support of her claim that she was the widow of the decedent. Matter of Bethune, 4 Dem. 392; Matter of McGarren, 112 App. Div. 305. § 314. Same subject. After-born child. — Where one claims to be the child of a decedent, born of a marriage contracted before the execution of the alleged will, he has no status to contest the probate of the will, but is confined to his remedy to recover his share of the property under § 28, Dec. Est. Law, formerly § 1868 of the Code; for such child is entitled only to that share of the estate which would have come to him had the parent died intestate (see Davis v. Davis, 27 Misc. 455), and only to that in case his birth occurred after the making of the will; and that right does not affect the right of the proponent to have the will probated. After the probate of the will, resort may be had to the remedies afforded by § 1868 of the Code of Civil Procedure. Matter of Gall, 5 Dem. 374; Matter of Bunce, 6 Dem. 278. In the last case where the decedent, an unmarried woman, died shortly after the execution of her will leaving a daughter born shortly before her death and after the execution of the will offered for probate. Surrogate Rollins held, that as such daughter would be en- titled under the statute to succeed to the decedent's entire estate in the event of her intestacy, she was a proper contestant in the proceedings to prove the will. 310 The after-born child has no status in court unless the Surrogate ascer- tains that within the meaning of § 49 of title 1, ch. 6, 2 R. S. now Dec. Est. Law, a settlement was in fact made for her benefit by the alleged will; if there was, then the child is not entitled to the share in the parent's estate as if the parent had died intestate, but is entitled to oppose the probate of the alleged will upon any ground affecting its legality and validity. The Surrogate has power to pass on the regularity of adop- tion of a child. Matter of Thome, 155 N. Y. 140, aff'g 23 App. Div. 624. But where A claimed to be an adopted child and the Surrogate passed adversely on the claim, it was held that his decree to that effect was not a bar to a subsequent suit by A under the agreement of adoption to recover the estate which the decedent had agreed to leave him. Brantingham v. Huff, 43 App. Div. 414. § 315. Same subject. Other persons in interest. — "Devisees" and "lega- tees" fall under two classes: those specified in the will offered for probate, and those claiming under a prior or subsequent will. Those claiming under the will offered for probate so far as rights to contest are concerned have unquestionably the right to be made parties, for they may be next of kin or heirs, whose share in the estate would be increased by defeating the will or they may be in possession of alleged codicils to the will materially affecting its testamentary provisions, and which they are entitled to have acted upon in the pending proceeding. See Dyer v. Erving, 2 Dem. 160, citing Walsh v. Ryan, 1 Bradf. 433. Or the legatee may desire to oppose probate of a codicil which purports to revoke his legacy given under the will. Walsh V. Ryan, 1 Bradf. 433. Where the devisee or legatee claims under a will prior or subsequent to that propounded, it is immaterial whether he is an heir-at-law or next of kin of the decedent. Turhune v. Brookfield, 1 Redf. 220. But if he claims under another will he must, in proving his status to the satisfaction of the Surrogate, prove that such testamentary paper existed when the decedent died, or was lost or fraudulently destroyed, within the meaning of § 2621, before his death. Hamersley v. Lockman, 2 Dem. 524, 533. See also Will of Lucius Critten- den, 1 Tucker, 135. An executor or trustee named in a prior or subsequent will is expressly covered by § 2617 and has the right to contest the will propounded. Matter of Greeley's Will, 15 Abb. N. S. 393; Peo'ple ex rel. Patrick v. Fitzgerald, N. Y. Law Journal, June 12, 1902. § 316. Same. — ^The pubhc administrator has been held entitled to con- test a will of personal property (Gombault v. Public Administrator, 4 Bradf. 226), and the attorney general a will of real property. Merrill v. Ralston, 5 Redf. 220, 258. Surrogate Livingston (Lafferty v. Lafferty, 5 Redf. 326) held, when a devisee, named in a will offered for probate, executed a mortgage, on real estate passing under the will, after the testa- tor's death, the mortgagee or his administrator was a person sufficiently interested to intei-vene in the probate proceedings. A creditor of the decedent as such has no right to contest his will {Stapler v. Hoffman, 1 Dem. 63, 65) ; nor has the widow of a son of decedent's husband by a CONTESTED PROBATES 311 former wife; nor has the wife of an heir-at-law a right by virtue of her in- choate right of dower (Matter of RoUwagen, 48 How. 103) ; nor can a re- ceiver in supplementary proceedings of the property of a decedent's husband, contest her will, although she has thereby cut off the judgment debtor from any share of her estate. Matter of Brown, 47 Hun, 360. The fact of incorporation or nonincorporation of an association is immaterial as to its right to contest, provided the association is competent to take a devise or bequest in the will propounded or in some other testamentary paper under which it claims (Carpenter v. Historical Society, 1 Dem. 606, citing Potter v. Chajrin, 6 Paige, 639; De Witt v. Chandler, 11 Abb. Pr. 459; Owens v. Missionary Society, 14 N. Y. 380); nor is it material whether the force and effect of the objection which the contestant may raise may defeat the will in respect of a matter in which he may not be ultimately interested. For example, when the question of testamentary capacity is properly raised by a party having the right to raise it in some capacity, and where, upon the investigation which succeeds, the Surrogate becomes satisfied and finds that the testator had not mental capacity to make a will, and that the instrument offered for probate was obtained by fraud and undue influence exercised upon one not capable of resisting the same, it is the Surrogate's right and duty to refuse probate of the will, even though the contestant who prosecutes the controversy is only interested as an heir-at-law and not one of the next of kin. Matter of Bartholick, 141 N. Y. 166, 172. § 317. What wills may be proved. — Before proceeding to discuss in detail the grounds upon which a will may be contested and the sufficiency of evidence to establish a will propounded for probate, it is necessary to define clearly what wills may be proved in a Surrogate's Court. In the first place the Consolidated Laws prescribe who may make a will of real and who of personal property. In the first respect the provision is, "All persons, except idiots, persons of unsound mind, and infants, may devise their real estate by a last will and testament duly executed according to the provisions of this article." Dec. Est. Law, § 10. As to personal property the provision is, "Every male person of the age of 18 years or upwards and every female of the age of 16 years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing." Dec. Est. Law, § 15. See as to full discussion of who may take and create estates by will, 1 Thomas on Law of Estates Created by Will, pages 1 to 75 inclusive. In addition to these provisions of the Statutes, former § 2611 of the Code must be considered, which is now contained in the Decedent's Estate Law, which provides "what wills are entitled to probate," and is as follows: What vnUs may be proved. A will of real or personal property, executed as prescribed by the laws of the state, or a will of personal property executed without the state, and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where it is or 312 surrogates' courts was executed, or a will of personal property executed by a person not a resi- dent of the state, according to the laws of the testator's residence, may be admitted to probate in this state. Dec. Est. Law, § 23. This last clause before the revision read "may be proved as prescribed in this article." § 24. Effect of change of residence since execution of will. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made, since the execution of the will. § 25. Application of certain provisions to wills pr^ipn^ly, made. The last two sections apply only to a will executed by a person dying after April eleventh,, eighteen hundred and seventy-six, and they do not inyalidate a will executed before that date, which would have bqen vaUd but for the enactment of sections one and two of chapter one hundred and, eighteen of the laws of eighteen hundred and seventy-six, except where such a. will is revoked or altered by a will which those sections rendered valid", or capable of being proved as prescribed in article first of title third of chapter eighteenth of the Code of Civil Procedure. See § 27, ante, for discussion as affecting questipn of. jurisdictionv Prior to this section, or rather, to the Act of 1876 which.it now. embodies, the pla.ce of residence at deatji, and not at date o/exeqitiicin, controlled tjie law applicable to the factum. To deqide, however, the fact of residence is fully within, the Surrogate's, power. Matter of Spacer, N. Y. Law J., June 2, 1908, Thomas, Surr. In this case the facts showed a holographic will. There were no witnesses. It was claimed to be valid under the law of, France of which it was claimed testatpr was a.resident. The Surrogate found a. He was not a resident. b. That such a will was pnly valid in France when made by one not a citizen of France, or not "duly doniiciled" as a foreigner in France, in case it would be thus valid under the" law of domiqile of origin." of the testator. c. It being uncertain whether decedent was a resident here or in Rhode Island (where he paid taxes) the will was rejected as unwit.nessed and hence unprovable in either State- The principle is thus simply: Where a will is executed abroad according to the laws of testator's residence, but not according to New York law, the will is provable here under the section above quoted; but as its probate owes its force to the laws of the foreign country, so the will can be given no further effect than if proved in that country. Matter of Cruger, 36 Misc. 477. In this case the Surrogate construed the will as inoperative to grant the beneficiaries any greater rights than tjiey could have taken under, due probate in the country of domicile. It will be seen by the provision of the Revised Statutes. (?ee also New York Real Property Laws, Laws of 1896, eh. 547, § 3), to wit: "a person other than. a minor, idiot, or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or in- terest," that the question of the testator's age at the time of making the will may be an important preliminary inquiry, whether it be a will of real CONTESTED PROBATES 313 or of personal property; for no minor can devise his real estate by will; and as to the personalty the age limits are expressly designated in the stat- ute. These limitations in the statute amount to a legislative intimation, that persons under the ages specified are presumed to be mentally incom- petent to dispose of their property by "will. Townaend v. Bogart, 5 Redf. 93, 105. The age of a testator in this connection is proved just as it would be in any other case. See Matter of Paige, 62 Barb. 476, as to what is and what is not competent evidence of age. § 318. Order of discussion. — The questions arising upon the probate of a will to which objections are interposed will be discussed in the follow- ing order: 1. Due execution of the document propounded (under which will be dis- cussed all questions arising out of comphance or noncompliance with the statute relating to the execution of wills). 2. Testamentary capacity (for regardless of the mode or regularity of the execution if the decedent making the will had not testamentary capac- ity, it must be denied probate). 3. Fraud and undue infljience (for conceding compliance with the statute as to its execution and testamentary capacity to make, the will may be invalidated by proof of such influence or fraud, under which falls also the knowledge of contents- of the will by the testator). DUE EXECUTION § 319. Requirement of the statute — The Consolidated Laws provide for the proper execution of wills as follows, in the Decedent Estate Law: "Section 21. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: "1. It shall be subscribed by the testator at the end of the will. "2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made," to each of the attesting witnesses. " 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. "4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator/' Section 22 prescribes an additional requisite, that the "witnesses to any will shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will by his di- rection, shall write his own name as a witness to the will." But, it is ex- pressly provided, the omission to comply with this requisite merely sub- jects the person guilty thereof to a penalty of $50.00 to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. It shall not affect the validity of the will; nor "shall any person liable to the penalty aforesaid, be excused or incapacitated on that account. 314 surrogates' courts from testifying respecting the execution of such will." Hallmbech v. Van Valkenburg, 5 How. Pr. 281. Dodge v. Cornelius, 168 N. Y. 242, rev'g 40 App. Div. 18, was an action of this character. The constitutionality of the act was not passed on, the court finding the defendant had waived that claim (see Ibid. p. 245) although O'Brien and Landon, JJ., dissented (see pp. 249-254). The three years' statute, on an action for a penalty, was ield to run, not from the date of the will, but from the death of testator. § 320. Substantial compliance with the provisions of the statute.— The provisions of the Statutes prescribing what the necessary formalities are in the due execution of wills, were very carefully discussed by Judge Denio in Hoysradt v. Kingman, 22 N. Y. 372, in which case the Court of Ap- peals declared that the restrictions which, from motives of prudence, are thrown around the general right to dispose of one's property by act in writing to take effect at testator's death, should be construed liberally in favor of the testament, and forms should not be required which the legis- lature has not plainly prescribed. Ibid, at page 379. In other words, sub- stantial compliance with the requirements of the statute is sufficient. Gil- •bert V. Knox, 52 N. Y. 125, 129; Matter of Menge, 13 Misc. 553; Matter of Carey, 14 Misc. 486; Larabee v. Ballard, 1 Dem. 496; Matter of Application of Beckett, 103 N. Y. 167, 174; Trustees, etc., v. Calhoun, 25 id. 422; Gamble- V. Gamble, 39 Barb. 373; Coffin v. Coffin, 34 N. Y. 9; Nelson v. McGiffert, 3 Barb. Ch. 158; Carle v. Underhill, 3 Bradf. 101; Seguine v. Seguine, 2 Barb. 385; In the Matter of Cottrell, 95 N. Y. 329; Lane v. Lane, id. 494; .Seymour v. Van Wyck, 2 Seld. 120; Lyman v. Phillips, 3 Dem. 459, affirmed at the General Term and in the Court of Appeals. See also Matter of Kenny, N. Y. Law Journal, June 1, 1908, citing Matter of Voorhis, 125 N. Y. 765; also Matter of Mclntyre, N. Y. Law Journal, June 2, 1908. But this rule of substantial compliance does not permit vague, or insufficient proof as to any of the essential requirements provided by law. Matter of Rogers, 52 Misc. 412. The proponent of a will, having, as already stated, the affirm- ative of the issue, must convince the trial court by satisfactory evidence that each and every condition required to make a good execution of a will has been complied with. The rule may be stated then to be not only that substantial compliance with the statute is sufficient but also that it is ab- solutely essential. See Matter of Will of Cottrell, 95 N. Y. 329, 336; Matter of Elmer, 88 Hun. 290. 321. The subscription by the testator.— The provision of the statute is that the will shall be subscribed, by the testator, at the end thereof. Before the Revised Statutes, it was held by the Court of Errors, that by the common law as generally received and understood in England as well as in this country on the 19th of April, 1775, when the common law was by the constitution adopted as part of the law of this State, a will found in an iron chest among valuable papers of a person deceased, without signa- ture, having an attestation clause, without witnesses, written by the de- ceased with his name in the beginning thereof, in a fair hand, engrossed on conveyancing paper with a seal attached thereto, evincing much de- CONTESTED PROBATES 315 liberation and foresight in its provisions, and disposing of real and personal property to a large amount, should be considered a good and valid will of the personal estate therein mentioned. Watts v. Public Administrator, A Wend. 168, rev'g 1 Paige's Ch. 347. The decedent in this case had died in 1827, before the enactment of the Revised Statutes, which went into operation on the 1st of January, 1830. Matter of Booth, 127 N. Y. 109. The present rule is distinct and clear that the testator's name must be subscribed at the end of the ivill. See Hoysradt v. Kingman, 22 N. Y. 372. The object of the law as to signature at the end of the will is not only to exclude signatures at any other part {Sisters of Charity, etc., v. Kelly, 67 N. Y. 409; Hewitt's Will, 91 N. Y. 261; 5 Redf. 271; O'Neil's Will, 91 N. Y. 516; Matter of Sanderson, 9 Misc. 574; McGuire v. Kerr, 2 Bradf. 244), but also in order to secure the instrument from interpolation or unauthorized addition. The provision is a judicious and wise one. The intention is that the act of authentication must take place at the termination of the testa- mentary disposition, and the testator and the witnesses must concur in determining that point. Younger v. Duffie, 94 N. Y. 534, 539. The law is no more fulfilled by the testator signing in the middle of the will, and the witnesses attesting at the end, than the witnesses signing in the middle and the testator at the end. They must both subscribe at the end. Mc- Guire v. Kerr, supra. A will may be said, therefore, to be signed at the end thereof where nothing intervenes between the instrument and the sub- scription. Oilman's Will, 1 Redf. 354; 38 Barb. 364. Blanks in the body of a properly executed will do not affect its validity. Matter of Murphy, 48 App. Div. 211. See Matter of McCarthy, 59 Misc. 128, effect of inter- vening blank page in body of will. Nor is it material that at the moment of executing a will written on three sheets of paper, they were not fastened together. Matter of Snell, 32 Misc. 611; In re Fitzgerald, 33 Misc. 325. In a very recent case {Matter of Whitney, 153 N. Y. 259, rev'g 90 Hun, 138), the Court of Appeals passed upon this point, stating that it was no longer an open one in that court. The will was in that case drawn upon a printed blank, covering one page, and the testator and subscribing wit- nesses signed at the foot thereof; the subdivisions of the will, marked re- spectively "First" and "Second," filled the entire blank space in the printed form, and at the end of the second subdivision were the words, "see annexed sheet." On a separate slip of paper were written two ad- ditional subdivisions marked respectively "Third" and "Fourth;" this was attached to the face of the will, immediately over the first and second subdivisions, by metal staples, so that the slip annexed had to be raised up or turned back in order to read the first two clauses. The court held that the alleged will was not subscribed at the end thereof, observing, "the will must be a complete whole signed by the testator and witnesses at the end thereof." The court. Judge Bartlett writing the opinion, reviewed four cases on this point as follows: 316 surrogates' courts "In Matter, etc., of Hewett, 91 N. Y. 261, the will was written on two sides of an irregular shaped piece of paper, about one half of it upon one side and the other half upon the other side. "The witnesses signed their names at the bottom of the first side and again at the top of the second side. "The testator signed his name at the end of the disposing portion of the instrument, near the middle of the second side, and again at the bottom of the second side. "It was held that the statute required that both the testator and the witnesses must sign at the end of the will. Judge Earl said: ' Wherever the will ends, there the signatures must be found, and one place cannot be the end for the purpose of subscribing by testator, and another place be the end for the purpose of subscribing by the witnesses.' "This court held that the probate of the instrumemt was properly denied. " In Matter, etc., ofO'Neil, 91 N. Y. 516, the instrument was drawn upon a printed blank, the formal commencement being on the first page and the formal termination at the foot of the third page. The blank space was filled on the first, second and third pages and the last or thirteenth clause of the will was partly written on the third page and the balance carried over to the blank fourth page. The names of the testator and the witnesses- were subscribed near the bottom of the third page, below the formal termi- nation of the will, and there only. The written matter on the fourth page was not connected with the main body of the will by reference of any kind, although it was obviously a continuation and completion of the thirteenth paragraph of the will. "This court held that the will was not subscribed at the end thereof and that parts of the instrument preceding the signature could not be received, as the will was either valid or invalid as a whole. " In Matter of Conway, 124 N. Y. 455, there was a state of facts quite similar to Matter of O'Neil, just commented upon, with the exception that at the end of the provisions in the body of the will were the words, ' carried to back of will,' and upon the back of the sheet was the word ' continued.' Following this word were various bequests, and then below them were added the words 'signature on face of the will.' "The Second Division of this court held, with three judges dissenting, that this instrument was not signed by the testator and witnesses at the end thereof, and had been improperly admitted to probate. The dissent- ing opinion rested mainly upon the fact that there was a clear and distinct reference in the body of the will to the provisions on the back of the paper, and that they were thereby properly connected with the subject-matter preceding the signatures. "This court, very recently, in Matter, etc., of Lewis R. Blair (reported in 152 N. Y. p. 645), affirmed, without an opinion, the judgment of the General Term, First Department, reversing the decree of the Surrogate's Court of the county of New York, admitting the alleged will of Lewis R. CONTESTED PROBATES 317 Blair to probate. This instrument consisted of eight pages; the testator signed at the bottom of the seventh page and the witnesses signed at the end of a proper witnessing clause at the top of the eighth page. " After the place for the signatures of the witnesses, but before they were actually signed or the will executed, a clause was added directing the executors to sell at private sale a certain piece of real estate, and to de- vote the proceeds of the sale in liquidating any deficiency in interest or cash bequests under the will. "The will was then executed, as before stated, and the testator signed the added clause, but the witnesses did not. "The Surrogate held that the will was complete without the added clause, and admitted the main body of the instrument to probate, ex- cluding the added words. We held that the additional clause was a part of the will, and that it was not signed at the end thereof by testator and wit- nesses as required by the statute. "The object of the statute is to surround testamentary dispositions with such safeguards as will protect them from alteration and prevent fraud." Matter of Blair, 84 Hun, 581, citing Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of Case, 1 N. Y. St. Rep. 152. See also Matter of Andrews, 162 N. Y^. 1, where will was executed on reverse side of first page, the second page containing dispositive parts of will. The court held it was not subscribed "at end thereof" and also refused to read the second page into the will as by incorporation. Matter of Donner, 37 Misc. 57. See Matter of Dake, 75 App. Div. 403; Matter of Albert, 38 Misc. 61. Thus while it has been intimated that the court will not undertake judicially to say, that the subscription should be one-eighth, one-half, two, or ten inches, from the last line of the instrument, yet the rule embodied in the decisions contemplates that the signature of the testator shall follow so closely after the end of the testamentary instrument as to pro- vide a reasonable safeguard against interpolation of additional provisions, there have been a number of cases where the signature of the testator has been confused with the attestation clause (see Matter of Noon, 31 Misc. 420), and the signature of the witnesses; and yet, where a testator by mistake subscribed beneath the attestation clause, it was held to be a valid execution. Will of Cohen, 1 Tucker, 286. The learned Surrogate observed that as the statute also provided that the attesting witnesses must also sign, "at the end of the will," and as there was no provision in the statute for an attestation clause, that there was a substantial com- pliance with the provisions of law. "It is customary," he says, "where there is an attestation clause for the testator to sign opposite a seal and just preceding that clause and for the witnesses to sign below the clause. In that case they do not all sign in exactly the same place; yet the pro- priety of this practice has never, I believe, been called in question." § 322. Same subject. — In this connection it is necessary to note that the attestation clause is not an essential part of the will. Jackson v. Jack- son, 39 N. Y. 153, 159, citing Chaffee v. Baptist Missionary Association, 10 318 SURROGATES COURTS Paige, 85; Leaycraft v. Simmons, 3 Bradf. 35; Jackson v. Christman, 4 Wend. 277; Younger v. Duffie, 94 N. Y. 534, 539. Bearing in mind, therefore, that the purpose of the law which requires the subscription to be at the end of the will, is to prevent fraudulent additions to a will before or after its execution, it is manifest that the statute should be so construed as to accomplish this purpose. The testator shall determine what shall form part of the instrument which he intends as his will, that is, as the instrument by which he makes disposition of his property to take effect after his decease. In this connection the Court of Appeals observes (Younger v. Duffie, supra), "every word contained in the instrument may not relate to or bear upon the disposition of property. It is not uncommon for the testator to recite in the will his religious faith and hopes, and the moral or prudential maxims which have guided his life, and to give directions concerning his body, and to make many declarations which have no bearing whatever upon the disposition of his property; and yet they are all part of the instrument which he intends as his will. Such matters and declarations are usually inserted at the commencement of the will, but they may as well be placed after the disposing parts of the will; and yet if the signature in such case is placed below them, it is at the end of the will, within the meaning of the statute. So, too, ordinarily what is called the attestation clause, when it follows the signature, is no part of the will. Jackson v. Jackson, 39 N. Y. 153. It is not essential to the validity of the will, and as it follows the signature, it cannot be taken as a part thereof. But if the testator chooses to insert the attestation clause before his signature, thus making it a part of the instrument, then like any other matter contained in the will which does not relate to the disposition of the property, it becomes a part of the instrument called a will. If the testator, beneath the disposing part ■of the will, and before his signature, should insert the Apostles' creed, or the Lord's prayer, it would be a part of the instrument called a will, and although it would intervene between the signature and the disposing part of the will, it could not be contended that the will was not subscribed at its end." It is manifest that this language contemplates a case very different from those where (as in McGwire v. Kerr, 2 Bradf. 244, and In re O'Neil, 91 N. Y. 516) portions of the will succeed the signature of the testator, where of course it is properly held that the will is not subscribed at the end thereof. So where a testatrix signed in a blank space in the attestation clause it was held a valid subscription. Matter of Acker, 5 Dem. 19. But in that case it appeared beyond doubt that it was intended by her to be a subscription to the will and was so understood by the wit- nesses. So, where a will was written upon an ordinary sheet of legal cap and the will covered the first and third page only, leaving the back of the first page blank and ending at the very bottom of the third page, where the testator signed it, leaving no room for the signature of the witnesses, and the attestation clause was placed upon the opposite blank second page of the instrument so that in appearance the attestation clause was in CONTESTED PROBATES 319' the middle of the will and upside down, the General Term of the Second Department, Judge Barnard writing the opinion, held that the will was. duly executed, and there was no fraud, that the testator signed at the end of the will; and that the will was in point of fact attested after its execution by the testator at the end of the will. Hitchcock v. Thompson, 6 Hun, 279. See also Matter of Singer, 19 Misc. 679, citing Matter of Dayger, 47 Hun, 127, and Hitchcock v. Thompson, supra. It is also manifest, from what has been said as to the signature of the testator, and as to the attestation clause forming no part of the will, re- garded as a testamentary disposition, that it is immaterial whether the attestation clause is carried entirely across the face of the instrument, as a matter of fact separating the signature of the testator from that of the witnesses. In such a case all signatures may properly be said to be at the end of the will. The attestation clause may be opposite the signature of the testator or below it; the cases are clear on this point. See Matter of Beck, 6 App. Div. 211, Cullen, J., citing McDonough v. Loughlin, 20 Barb. 238; Williamson v. Williamson, 2 Redf. 449; Wooley v. Wooley, 95 N. Y. 231. However, where testamentary dispositions are interpolated between the signature and the attestation clause, the signature is invalidated. Matter of Sanderson, 9 Misc. 574. § 323. Same subject —Effect of reference to annexed paper. — (See also § 438, post, and article in Albany Law Jour., June 3, 1899, by Henry W. Hardon). Cases have not been infrequent where a testator, by reason of carelessness or a desire to economize space or effort, has referred in his. will to extraneous papers or memoranda, either as fixing the names of beneficiaries of particular devises or bequests, or as fixing the amount or the manner in which the amount of such devises or bequests is to be ascertained. It has been held that the power of incorporating the contents of extraneous papers by suitable words of reference in the will itself is undoubted, but that it is subject to certain limitations. First, the paper or papers sought to be incorporated must be shown to have been actually in existence at the time the will was executed. Matter of Robert, below. Second, it must be capable of identification as the self-same paper which the testator intended to indicate. Thus in Caulfield v. Sullivan, 85 N. Y. 153, the court held that proof of a codicil referring to a will was sufficient proof of the will. Van C our tlandt v. Kip, mil], 590. Third, it must not contain any testamentary dispositions of property. See Dyer v. Erving, 2 Dem. 160; Matter of Robert, 4 Dem. 185, 192; In the Matter of the Will of O'Neil, 91 N. Y. 516, 523; Cook v. White, 43 App. Div. 388, 393; Matter of Andrews, id., p. 394, aff'd 162 N. Y. 1; Matter of Conway, 124 N. Y. 455; Matter of Whitney, 153 N. Y. 259. In Matter of Andrews, supra, the. Appellate Division said, at p. 401, "We think that under the law now prevailing in this State, extraneous documents can be referred to only to ascertain matters of description, and not for dispository provisions." This incorporation of extraneous papers by reference must not be confused with the republication of a 320 surrogates' courts prior instrument either defectively published or revoked. For example, where a codicil refers to a prior unattested instrument of the character of a testamentary disposition and the codicil is duly executed, the prior instrument may be so identified by the codicil or subsequent .will. See Brown v. Clark, 77 N. Y. 369, 378; Vogel v. Lehntter, 139 N. Y. 223, 235; Caulfield v. Sullivan, supra. In the Robert case cited above the testator provided tha,t any moneys or indebtedness which should appear upon any inventory or ledger, or a book of accounts kept by him or under his direction, "charged as due to me from any or either of my said children or Robert College of Constan- tinople, during my lifetime, and as an outstanding or unsettled account at the time of my decease," should be considered as forming a part of his estate, and that his executors, by discharging such indebtedness to such children or college, should be deemed to have paid an equivalent amount on account of the share given by the will to such child or college. Surro- gate Rollins held that it was competent to consider all such entries as should have been made before the will was executed, and that the legacies should be abated by the amount thereby shown to have been advanced to any of his said children or said college. 4 Dem. 185. The Court of Appeals in construing this same will (Robert v. Corning, 89 N. Y. 241) held it to be valid " within this rule that a testator may direct that the amount of a legacy once completely fixed by the will itself, shall be diminished by •events actually occurring as matters of fact but not by an unattested testa- mentary vyriting, disconnected from any actual occurrence." See dissenting opinion in Conway case, 124 N. Y. 455. So where a will directed trustees to pay to tiestatot's sister a certain income, "excepting those items named and referred to in clause fourth of this will," by which clause the testator directed his trustees after the sister's death to distribute certain legacies to sundry institutions and per- sons named in "three memorandums left with this will for their guidance." After the will had been proved application was made to have these memo- randa admitted to probate as a necessary and important part of the testa- tor's will. In the petition it was alleged that these papers were in the hand- writing of the testator and were prepared by him, at or before the time when the will itself was executed, with the intent that they should be treated as forming a part thereof. The learned Surrogate Rollins {Dyer v. Erving, 2 Dem. 160), observing that he had reviewed every reported case bearing upon the subject which by diligent search he had been able to discover (at page 168, LvMam v. Otis, 15 Hun, 410, Brown v. Clark, 77 N. Y. 369, and English and other cases cited at page 169) held: "First. That words of reference in a will will never suffice to incorporate the contents of an extraneous paper, unless it can be clearly shown that, at the time such will was executed, such paper was actually in existence. "Second. That an extraneous paper produced as and for a paper so referred to in a will, and shown to have been in existence When such will CONTESTED PROBATES 321 was executed, may be adjudged to form part of such will, and be admitted to probate as such, under these circumstances, and no other: to wit, when by satisfactory and conclusive evidence it has been proved to be the self- same paper which the testator by his words of reference designed to indi- cate." He added, , " By its recent decision in Matter of O'Neil, 91 N. Y. 523, the Court of Appeals of this State gives distinct intimation of its unwillingness to en- large, if not, indeed, of its disposition to narrow, the scope and effect of referential words in testamentary papers." Consequently the proof identifying the papers referred to must be clear and satisfactory. The mere fact that they were found in the same box, or trunk, or drawer, or even in the same envelope is by no means conclusive. Dyer v. Erving, supra, at page 170 et seq. A decedent left two papers, each in a separate envelope, sealed, both indorsed as purporting to contain her will, the second, however, containing this additional writing by her: "I direct that this should not be opened until after the death of my brother Stewart and my sister Harriet." The paper contained in the first envelope purported to give the possession and use of all her estate to such brother and sister, and provided: "From and after the death of the longer lived of my said brother and sister, I give, devise, and bequeath my said estate to persons named on another sheet and enclosed in another envelope which shall not be opened until after the death of my said sister and brother." The first paper was executed in due form and the second one contained a disposing clause between the signature of the testator and the attestation clause, and was held not to be properly executed. It was held that the first paper was valid as a will; that the second paper was void as a will; that the second paper was not sufficiently identified as the paper referred to, although corresponding generally to the description in the first, and although both were executed on the same day and were both in the hand- writing of the testatrix; and finally that the reference in the valid will to a paper which could not be identified, did not have the effect of an- nulling the will. Matter of Sanderson, 9 Misc. 574. A peculiar case arose (Vogel v. Lehritter, 139 N. Y. 223) where a will was claimed to have been made by the testatrix in Germany. It appeared that the paper offered as a will was signed by the testatrix only but inclosed in an envelope within which it was sealed, and upon which was indorsed an elaborate certificate by a Royal Bavarian notary, to the effect that the envelope contained the last will of the testatrix so declared by her to him, and also indorsed by two witnesses who also signed, whereupon the notary made an additional cer- tificate, reciting all the facts as to the publication of the will. The Court of Appeals held in the first place, that the paper contained in the envelope was not subscribed before the witnesses. Second, that the containing envelope and the certificate of the notary could not be regarded as a will or as any part of a will; and that, when the signatures were placed upon it, 21 322 SURROGATES COURTS there was a complete absence of any testamentary intent, and that the most that could be said was that, by these alleged formal acts before the notary, the testatrix desired to identify the paper contained in the envelope which was not in fact properly executed; and that the papers propounded could not be admitted as « will. A writing inseparably connected with the previous clauses of the will, though named a "schedule," and sought to be incorporated solely by reference, will be deemed a part of the will where the attestation clause attests the schedule as solemnly as the will itself. Matter of Brand, 68 App. Div. 225, 227. In this case the "schedule" was admitted to probate with the will. Ibid., citing Matter of Hunt, 110 N. Y. 278; Matter of Beckett, 103 N. Y. 167; Matter of Turell, 166 N. Y. 330, 337. The annexation of papers referred to in a will, will not invalidate a proper signature at the end of the will (Tonnele v. Hall, 4 N. Y. 140), where a map of testator's property was annexed. Nor will a reference in a will to a paper which is not annexed invalidate it. Thompson v. Quimby, 2 Bradf. 449. Nor necessitate refusal of probate. Matter of Reins, 59 Misc. 126; Matter of Sanderson, supra, and other cases cited. The paper is to be deemed complete as it stands at the time of execution and of attestation. Where, however, after decedent's signature, a clause is inserted appointing an executor or making any testamentary disposition, the signature is not at the end of the will within the meaning of the statute. Matter of Niles, 13 St. Rep. 756; Matter of Sanderson, 9 Misc. 574. It has been held that where a paper purporting to be a will contained a clause appointing executors after the signatures of the testator and of the witnesses, the question of validity turns on whether this clause was written in before or after the time of the execution (Matter of Jacobson, 6 Dem. 298), the theory of course being that if they were written in before execu- tion then they are a part of the will, and the will is not executed at the end thereof, and is therefore invalid. If, however, the words were written in after execution, they cannot affect the validity of the will, as they are mere surplusage and cannot be considered as a part of the will. See Matter of Conway, 124 N. Y. 455, discussion by Parker, J., as to what is sufficient signing at the end of a will. See also In re Purdy's Will, 20 N. Y. Supp. 307. § 324. Place of signature where will is executed without the State.— At common law, if a person wrote his name in the body of a will or eon- tract with intent to execute it in that planner, the signature so written was as valid as though subscribed at the end of the instrument. Matter of Booth, 127 N. Y. 109, citing Merritt v. Clason, 12 Johns. 102; People v. Murray, 6 Hill, 468; Caton v. Caton, 2 H. L. 127; 2 Kent's Com. 511; 1 Jarman on Wills, 79. So in the Booth case above cited, the only signature was the words italicized. " If I, Cecilia L. Booth, should die within the year 1884, I leave to my sister, Geraldine Josephine Timoney, all money due me from my late father's deceased will, also my wearing apparel and furniture, and I also CONTESTED PROBATES 323 leave to my little nephew, Albert Philip Timoney, all money deposited in the Emigrant Savings Bank in my maiden name, Cecilia L. Hatfield. "Witnessed by "Amelia Kukrus, "Mamie Clifpoed. "June 16th, 1884." The Surrogate held that this instrument was well executed under the laws of New Jersey and admitted it to probate. 3 Dem. 414. This was reversed by the General Term and its judgment affirmed by the Court of Appeals. Chief Justice Follett in writing the opinion, observed, " We as- sume that under the laws of New Jersey a will may be legally executed if the name of the testator is written by him in the body of the instrument with intent to execute it. Nevertheless, as the record contained no evi- dence tending to show that the testatrix, directly or indirectly, by word or gesture, referred to her name in the first line of this paper as her signature," her simple declaration, "This is my will; take it and sign it," is insufficient to sustain a finding or verdict that her name was written with intent that it should have effect as her signature in the final execution of the will. The court said, that where signatures are subscribed at the end of the will in the usual way in which. instruments are finally authenticated, there is a legal presumption that the signatures were written for the purpose of finally executing the documents, but that no presumption arises when the name of the testator appears elsewhere in the body of the instrument al- leged to be authenticated thereby. § 325. Manner of signature. — The signature of a testator may be made in any one of four ways. 1. He may subscribe his name personally. 2. A third person may subscribe it for him at his request. 3. Such third person may guide the testator's hand in writing. 4. The testator may make his mark. § 326. Signature by testator personally. — When the signature purports to be that of the testator, the inquiry is addressed to the genuineness of the signature. The object of having the subscribing witnesses is that they may testify as to the fact of signature, or as to an acknowledgment by the decedent that he did in fact sign; therefore the legibility of the signature is not necessarily a test of its genuineness. Where a signature is indis- tinct or imperfect or illegible, but the witnesses testify that it was in fact made by the testator in their presence or acknowledged by him to them to have been made, the court will deem it to be the testator's mark (Hart- well V. McMaster, 4 Redf. 389), which as will be seen below has repeatedly been held to be a substantial compliance with the statute. Where the sig- nature of the testator is disputed or where the subscribing witnesses are dead, the genuineness of the signature must be proved. See Matter of Hesdra, 119 N. Y. 615, aff'g 17 N. Y. St. Rep. 612. § 327. Burden of proof. — The burden of satisfying the Surrogate of the genuineness of the signature is on proponent throughout. Hence,^ 324 surrogates' courts contestant need not, in proving forgery, establish it "to the exclusion of every other- reasonable hypothesis." If the Surrogate be not satisfied that the signature is genuine, he will refuse probate. The fact that the will is holographic has been held to raise no presumption of actual execution. Matter of Burtis, 43 Misc. 437. Expert evidence is of value only where the opinion given is based on satisfactory premises, i. e., established facts, as reasons for the opinion. In the Burtis case the signature was too good. It was so identical with a concededly genuine one as to afford strong proof of superimposition and tracery. See cases cited in opinion. § 328. Signature by other than testator. — The Court of Appeals has held in regard to the acts which the statute requires of a testator in the execution of his will, that it is not absolutely essential that he should per- form them himself, provided they are done by a third person in his pres- ence and he assents thereto and adopts the same. Gilbert v. Knox, 52 N. Y. 125, 130. This has chiefly been held with regard to declarations by the draughtsman or some one else present, that the paper is the testator's will, or where such third person requests the witnesses to sign or asks the decedent whether he desires them to sign. This same rule that the act of the third person may be adopted has been applied to the signature; namely, that it is competent for a third person to sign the will for the testator and in his name; only, in such cases the courts will require con- clusive proof that this was done at the testator's express desire and also that he was himself unable to append his signature thereto in person. Merchant's Will, 1 Tucker,' 151; Bobbins v. Coriell, 27 Barb. 556. In the first of the cases last cited there was a dispute upon the probate of the will as to whether the name of the testator was in his handwriting; it was proved, however, that at the time the subscribing witnesses signed, the testator drew a paper out of his pocket, and that his name appeared already signed at the end of the will, and the subscribing witnesses there- upon duly signed their names as such; there was also proof that the tes- tator acknowledged the signature before the witnesses. It was held first that convincing proof of such acknowledgment would amount to an adop- tion of the signature whether in fact made by the testator or not. Second, that there was not sufficient proof of the forgery alleged in respect of such signature. Where, however, the name is written by another than the testator at his request, the usual acknowledgment that the paper is the will of the testator which is sufficient where the subscription is made in the presence of the witnesses is not sufficient. The testator must expressly adopt the signature. So Chancellor Walworth held (Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 92), that there must be either, "the actual subscription in the presence of the witnesses or an acknowledgment to each of them that the testator had previously subscribed or had directed some other person to sign it with the testator's name which appeared thereon." The Court of Appeals (Matter of Will of Phillips, 98 N. Y. 267, 273), Rapallo J., said in a case where the signature was not made in the pres- CONTESTED PROBATES 325 ence of the witnesses, the exhibition of the will and of the testator's sig- nature attached thereto and his declaration to the witness that it was his last will and testament and his request to the witness to attest the same, were a sufficient acknowledgment of the signature; but the acknowl- edgment of the signature must in every case include the same identification of the written words as necessarily exists when the uritnesses see the testator write. Mitchell V. Mitchell, 16 Hun, 97, 98, aff'd in 77 N. Y. 596. Under the Revised Statutes (2 R. S., ch. 6, title 1, art. 3, § 33), it was provided that any person who should sign the testator's name to any will by his direction, should write his own name as a witness to the will, un- der a pecuniary penalty of $50.00 in case of omission. Such omission, however, neither disqualified the person from testifying respecting the execution of the will nor did it affect the validity thereof. This provision was repealed by Laws of 1880, ch. 245, but though inserted in § 41 is not now4n Decedent Estate Law. See as to signing through another, Butler V. Benson, 1 Barb. 526; Campbell v. Logan, 2 Bradf. 90; Hollenbeck v. Van Valkenburgh, 5 How. 281. § 329. Guiding testator's hand. — In the third place the testator's hand may be guided by a third person in cases of illness, or weakness, or illit- eracy and a subscription so made is valid. Campbell v. Logan, 2 Bradf. 90. See also Van Hanswyck v. Weise, 44 Barb. 494; Simpson's Will, 2 Redf. 29. The reason for requiring conclusive proof of an express desire on the part of a testator that another should sign his name for him to the will or should guide his hand in making his own subscription is that in the case of persons who are so ill, or otherwise disabled as to be unable to write, as well as in cases of illiteracy, there is no presumption that the testator knew what he was doing; but the knowledge of the contents of the will and the character of the paper have to be proved. The contestant may well urge that there was undue influence in persuading the ill, dis- abled, illiterate testator in performing the act of signature. See Roll- wagen v. Rollwagen, 3 Hun, 121. The material inquiry is whether the aid rendered was assistance or/ control. Matter of Kearney, 69 App. Div. 481, 483. So, if, against the/ wish of the alleged testator at the time, or without his consciousness as to the purpose, another writes the name with a pen which is merely in physi- cal contact with the hand of the alleged testator, then the signature is not, in legal intent, made by the latter. Ibid., citing Butler v. Benson, 1 Barb. 526; Campbell v. Logan, 2 Bradf. 90, 97. § 330. Signature by testator's mark. — It has been observed that leg- ibility of the signature is unimportant. So if the signature is indistinct, if all the letters necessary to the proper spelling of the name cannot be made out, the court may treat the signature as the testator's mark, and signature by mark has long been upheld as valid. See Jackson v. Jack- son, 39 N. Y. 153. In Matter of Hopkins, 172 N. Y. 360, the court refers to the experts' using testator's mark in executing or cancelling will as a basis of comparison, 326 surrogates' courts In the first place signature by mark must not be confused with signa ture of the testator's name by a third party at his direction; nor is th( writing of the testator's name around or on either side of, or above, or un der the mark made by the testator to be deemed, "signing the testator's name by his direction;" the two are wholly distinct; the testator maj subscribe the will by his full name or by his mark, and if he does so thai is-the subscription required by the statute and would be effective as such even though no one made the written memorandum thereof around such mark. Such memorandum is useful and important not only as a guide to the memory of witnesses and a contemporaneous declaration of the purpose of the mark and that it was made by the testator, but as a pro- tection against fraud; but it is not the essence of the execution. Where it is necessary to prove the execution of an instrument, "by a marksman," the proof consists of evidence of the making of the mark; the writing of the name around it is no essential part of the execution. Jackson v. Jackson, supra, at page 160, citing Butler v. Benson, 1 Barb. 526; Chaffeew. Baptist Missionary Convention, 10 Paige, 91. See Matter of Engler, 56 Misc. 218. But the illiterate must subscribe. So where he merely put a check mark O.K'ing a written memo made by a witness "the will is not subscribed by testator because he is illiterate" it is held not to be a sub- scription. Matter of Beneventano, 38 Misc. 272. So where one of the wit- nesses was dead and the other when examined testified that he did not see the mark made, probate was necessarily denied. Porter's Will, 22 N. Y. Supp. 1062. But in case where one of the witnesses is dead and the sur- viving witness testifies clearly and conclusively as to the making of the mark by testator it has been held to be sufficient proof without confirma- tory evidence by other witnesses. Hylands's Will, 27 N. Y. Supp. 961, discussing Matter of Walsh, 1 Tucker, 132, criticised in Simpson's Will, 2 Redf. 29; Reynolds's Will, 4 Dem. 68; Worden v. Van Gieson, 6 Dem. 237; Matter of Dockstader, 6 Dem. 106; Matter of Phelps, 5 N. Y. Supp. 270. As a cross mark has no such cast or form as to distinguish it from a like mark made by any other individual, it cannot of course be the sub- ject of expert testimony; so unless the witnesses actually saw the mark made, or other witnesses are procurable to testify in this regard, probate must be refused. Yet see Hopkins case, supra. In the Hyland case Surrogate Ransom summed up his examination of the adjudicated cases in these words: "While it is desirable to have the testimony of both witnesses to prove the making of a mark by a testator, yet when one cannot be produced and no other person was present, the testimony of the other if his character is not impeached, supported by the apparent good faith of the transaction and a full attestation clause, I hold to be sufficient." 27 N. Y. Supp. 961, 965. The effect of the attestation clause will be discussed directly, but it may be here observed, that while the decision in the Hyland case referred to the CONTESTED PROBATES 327 existence of an attestation clause it did not really turn upon that fact. The point decided and we think properly decided was, that if the testi- mony as to the making of the mark is clear and uncontradicted the will may be admitted upon the testimony of one credible and disinterested witness, it being impossible to produce and examine the other. See also Matter of Wilson, 76 Hun, 1, citing Matter of Kane, 20 N. Y. Supp. 123, and Matter of Hyland, supra. Neither a will of real nor of personal prop- erty requires a seal and if it has a seal that fact does not permit the court to attach any greater solemnity to the instrument or to dispense with any of the statutory requirements in ascertaining whether it was duly executed. See Will of Diez, 50 N. Y. 88. See Matter of McCarthy, 59 Misc. 128, Ketcham, Surr., as to recital of seal where there is in fact none. An im- perfect signature cannot be deemed the testator's mark where the proof shows that it was after all an uncompleted signature due to the illness, or death of the decedent preventing his completion thereof at the time of the alleged execution. Thus, where the testimony proved that the dece- dent, Patrick J. O'Neil, started to sign his name but that when he had finished the letter "t" the pen dropped from his hand and he said that he could not go any further, whereupon a third person present took up the pen, made a cross mark, and finished the signature; but there was no proof that his act in so doing was either at the request or with the knowl- edge and approbation of the testator, Surrogate Rollins held that there was not a sufl&cient execution. Knapp v. Reilley, 3 Dem. 427. See also Matter of Van Geisen, 47 Hun, 5. The misspelling of the name of a testa- tor subscribed to a will raises no presumption of forgery and if the sub- scribing witnesses swear the signature was in fact made in their presence and the other formalities were duly observed, the will must be admitted. Matter of Williams, 40 N. Y. St. Rep. 356. §331. The second statutory requirement. — ^The second subtopic in this discussion falls under the provision of the statute, supra, to wit: "Such subscription shall be made by the testator in the presence of each of the attesting witnesses or shall be acknowledged by him, to have been so made, to each of the attesting witnesses." See Matter of Purdy, 46 App. Div. 33. The discussion of this provision of the statute is closely related to the foregoing. This provision contemplates that all the sub- scribing witnesses may be able to testify, that the testator signed in their presence, or they shall severally be able to testify that the testator acknowl- edged to each that his subscription had been made, by him. This provision may be paraphrased by saying, the subscription may be made by the tes- tator either in the presence of each of the witnesses, which means in the presence of both, or it shall be acknowledged by him to each of them as having been theretofore made. Accordingly it has been held that he may make it in the presence of either and acknowledge to the other or that he may make it in the presence of neither and acknowledge it to each. See Matter of Diefenthaler, 39 Misc. 765, Thomas, Surr., citing Hoysradt v. Kingman, 22 N. Y. 372; Willis v. Mott, 36 N. Y. 486; Matter of Carey, 14 328 surrogates' courts Misc. 486; Barry v. Brown, 2 Dem. 309; Lyman v. Phillips, 3 Dem. 459, aff'd 34 Hun, 627, and 98 N. Y. 267; Matter of Engler, 56 Misc. 218. Signature in the presence of the witnesses even though they do not see the mark made by the pen in the testator's hand has been held to be suffi- cient. Thus, in Matter of Van Houten, 15 Misc. 196, it appeared that the signature of the testator upon an alleged codicil appeared in the form of a cross mark between the Christian and surname. Both the subscribing witnesses were present. The testator's counsel who prepared the will, read the will to the testator and then held the pen and wrote the testator's name, the testator holding the penholder while he wrote. The witness testified that he did not see what mark the pen made and c»uld not swear whether the signature or the cross mark was made when the testator had his hand on the pen. The other witness testified substantially to the same effect and added that he heard a scratching noise made by the pen. Sur- rogate Tompkins held from this testimony that the codicil was signed in their presence by the testator and should be probated. In Matter of Beneventano, 38 Misc. 272, Church, Surr., held a will un- executed where it appeared that decedent did not sign it, but merely made a check mark opposite a statement at the end of the alleged will, written by the draughtsman, "The present will is not subscribed by the testator because he has stated he is illiterate." The Court of Appeals in a very recent case (Matter of Laudy, 148 N. Y. 403, 407, modifying S. C, 78 Hun, 479; S. C, later, 161 N. Y. 429), re- iterated the rule formerly declared (Matter of the Probate of the Last Will and Testament of James Mackay, Deceased, 110 N. Y. 611) that, "subscrib- ing witnesses to a will are required for the purpose of attesting and iden- tifying it," (Leivis v. Leivis, 11 N. Y. 220; Mitchell v. Mitchell, 77 N. Y. 596, aff'g 16 Hun, 97; Matter of Nevins, 4 Misc. 22; Baskin v. Bashin, 36 N. Y. 416; Chaffee v. Baptist Missionary Society, 10 Paige, 85) and in order to do this it is essential, (a) that they should see the testator sub- scribe his name, or (b) that with the signature visible to them he should acknowledge it to be his. In Matter of Clute, 37 Misc. 586, the court observed: A subscribing witness is one who was present at the time when the instrument was executed, and who at that time subscribed his name to it as a witness of the execution. Henry v. Bishop, 2 Wend. 575. Although the witness was present at the execution, if he did not subscribe the instrument at that time, but did it afterwards without request of the parties, he is not a good attesting witness. Hollenback v. Fleming, 6 Hill, 303; Welch v. St. Patrick Church, 63 N. Y. St. Rep. 235; 81 Hun, 372; Pritchard v. Palmer, 68 N. Y. St. Rep. 588; 88 Hun, 416. A notary who subscribed the notarial certificate of acknowledgment is not a subscribing witness. Mutual Life Ins. Co. v. Corey, 27 N. Y. St. Rep. 608, rev'd 48 id. 247, but not on above point. Matter of Rogers, 52 Misc. 412. In Lewis v. Lewis, supra, it appeared that the paper was so folded that C0NTE!3TED PROBATES 329 the witnesses did not see any subscription. The court held the will not properly executed, and said: "If the party does not subscribe in their (the witnesses') presence, then the signature must be shown to them, and identified, and recognized by the party, and in some apt and proper man- ner designated by him as his signature. The statute is explicit and will not be satisfied with anything short of a substantial compliance with its terms." In Matter of Mackay, supra, it appeared that the paper was so folded that the fitnesses could see no part of the writing except the attestation clause, and they did not see either testator's signature or his seal. For this reason the will was held not to have been properly executed. This language of the courts has been held to mean that the signature of the testator must be so far visible to the witnesses as that they can see and know that the name purporting to be subscribed is the very name of the testator, otherwise they cannot identify it as that of the testator as rec(uired by the rule laid down in Matter of Laicdy, 148 N. Y. 403. If the will is so far sealed or covered up by the testator that the witnesses can merely see some writing where the signature is claimed to have been, then the signature cannot be fairly said to be visible to the witnesses in such a sense as to constitute a compliance with the statute and the construction given to its language by the courts. Matter of Laudy, 14 App. Div. 160, opinion of Williams, J., at page 164. See also Matter of De Haas, 9 App. Div. 561, ahd same 'case on appeal aSter the jury trial (reported in 19 App. Div. 266) had been had. If the signature is in plain sight, a request that the witnesses sign the paper published and declared as a will is a suffi- cient ackndwledgment of the signature. Matter of Phillips, 98 N. Y. 267; Matter of Lang, 9 Misc. 521; Matter of Stockwell, 17 Misc. 108. But where a will was shown not to have been signed in the witnesses' presence, and neither witness saw the signature, probate was refused, although one wit- ness testified to an acknowledgment by the testatrix. Matter of Aber- crombie, 24 App. Div. 407, 408. The Appellate Division says: "It is the subscription, and not the instrument, which the statute requires to be acknowledged; and a signature which is neither seen nor identified can in no proper sense be said to have been acknowledged by the mere state- ment that it had been affixed to a paper which was characterized as a will." Id., citing Chaffee v. Baptist Miss. Convention, 10 Paige, 85; Levris V. Levds, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97, aff' d 77 N. Y. 596; Matter of Mackay, 110 N. Y. 611; Matter of Laudy, 148 N. Y. 403; Matter of Whitney, 153 N. Y. 259. A third witness is unnecessary and may be disregarded if there are two subscribing witnesses. Matter of Sizer, 129 App. Div. 7. § 332. Same stibject. — The testator's signature must have been made before the witnesses signed. This rule was established by the case of Jackson v. Jackson, 39 N. Y. 153, 161. It has been uniformly followed by the subsequent decisions; so where the testator after the witnesses had signed added an attestation clause in his own handwriting, beginning with 330 surrogates' courts the words, "subscribed by John Kelly, the testator named in the fore- going will," the Court of Appeals held that the will was not properly executed and probate should be denied. (Sisters of Charity v. Kelly, 67 N. Y. 409, 413. This case has been cited as holding that the testator may sign after witnesses if he subsequently acknowledges his signature. An examination of the first three paragraphs negatives this. See cases dis- cussed in opinion of Folger, J. See also Matter of Blair, 16 N. Y. Supp. 875. The acknowledgment by the testatrix in the presence of the witnesses of the making of a signature amounts to nothing if as a matter of fact there was no signature at the end of the will as required by statute. Matter of Booth, 127 N. Y. 109, 115. The same rule appHes where the name of the testator written in at some place other than at the end of the will is not shown to have been written with intent to execute the will. § 333. Publication. — The testator at the time of making such subscrip- tion or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. "At the time of" merely requires "contemporaneity in the whole transaction;" e. g.. A, the testa- trix, says: "this paper is my will and I wish you two to witness it." Then she signs and they sign. This is a sufficient declaration and request. Matter of Gamber, 53 Misc. 168. The object of this provision of the statute is obvious; it is that the will shall be declared to be the testator's last will and testament, and that it shall be so declared to the subscribing wit- nesses and that such declaration shall be made at the time of executing the will. While the recitals in an attestation clause may have a strong corrobora- tive effect in supplying deficiencies in proof in certain cases, the absence of recitals in the attestatioh clause as to the occurrence of one of the essential acts making up a due execution is by no means conclusive. Thus, publica- tion of the will may be proved wholly regardless of the contents of such attestation clause. The omission to recite at the end of the will any or all of the prescribed forms affects neither the validity of the instrument nor the proof thereof. Leaycraft v. Simmons, 3 Bradf . 35, 37. A will offered for probate must be the will of the testator and of no one else, and when a testator is ignorant of the contents of the paper pro- pounded, it cannot be said to be his will. Proponents are bound to show affirmatively as a condition of probate, that the testator had an intelli- gent knowledge of the contents of the will. Matter of De Castro, 32 Misc. 193, citing Barry v. Boyle, 1 T. & C. 422; Tovmsend v. Bogart, 5 Redf. 93; Hyatt V. Lunnin, 1 Dem. 14; Cooper v. Benedict, 3 id. 136; Heath v. Cole, 15 Hun. 100; Jones v. Jones, 42 id. 563; Matter of Green, 67 id. 527. See also Rollwagen v. Rollwagen, 63 N. Y. 504. The testamentary character of the instrument must have been urir equivocally communicated by testator to witnesses. Matter of Delprat, 27 Misc. 355, citing Lewis v. Lewis, 11 N. Y. 220; Ex parte Beers, 2 Bradf. 163. See also Matter of Dale, 56 Hun, 169, aff'd 134 N. Y. 614; Matter of Turrell, 28 Misc. 106, 108. When a will was read over to testator who said, CONTESTED PROBATES 331 "It was all right," held, together with full attestation clause sufficient evidence of publication. Matter of Buel, 44 App. Div. 4, 5. Where the witnesses deny publication, the impeaching of their credibiUty does not affirmatively prove what they deny, even where will is holographic. Matter of Moore, 109 App. Div. 762. The publication must be proved to both witnesses; this is elementary. Matter of Sarasohn, 47 Misc. 535. A request to both to sign, and a con- fidential statement made to but one that the paper is a will is fatally insufficient. Ibid. The rule requiring substantial compliance with the statute permits, however, any communication by the testator to the witnesses, at the time of signing or acknowledging, indicating that the testator intended to give effect to the paper so signed and attested as his will. Remsen v. Brincker- hoff, 26 Wendell, 325, 332. Judge Nelson observed in the case just cited, "Any communication of this idea or to this effect will meet the object of the statute." Coffin v. Coffin, 23 N. Y. 1. It has never been supposed that a particular or in fact any form of words was necessary to effect it. Lane V. Lane, 95 N. Y. 494, 498, citing Remsen v. Brinckerhoff , supra. In the Lane case. Judge Danforth adopted the language of the Court of Errors defining the word "declare" as signifying, "to make known, to assert to others, to show forth," and this in any manner, either "by word or by act, in writing or by signs;" in fine "that to declare to a witness that the instrument described was the testator's will,^ must mean to make it at the time distinctly known to him by some assertion, or by clear assent in words or signs." Lane v. Lane, supra, 498, 499, citing Coffin v. Coffin, 23 N. Y. 1; Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Gil- bert V. Knox, 52 N. Y. 125; Thompson v. Stevens, 62 N. Y. 634; Rugg v. Rugg, 83 N. Y. 592; Dack v. Back, 84 N. Y. 663; In re Pepoon, 91 N. Y. 255. The necessary pubhcation may be proved by circumstances as well as words {Lewis v. Lewis, 11 N. Y. 220), and inferred from the conduct and acts of the testator and those of the attesting witnesses in his presence (Lane v. Lane, supra), as well as established by their direct and positive evidence. Any act of a testator in the presence of the witnesses at the time of the execution of the will that tends to show that he desired to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered. Matter of Hardenburg, 85 Hun, 580, 587, citing Lane v. Lane, supra; Reeve v. Crosby, 3 Redf. 74; In the Matter of the Revocation of the Probate of the Last Will and Testament of Ann Voorhis, Deceased, 125 N. Y. 765; D.arling v. Arthur, 22 Hun, 84; Matter of Cottrell, 95 N. Y. 329; Matter of the Will of Bernsee, 141 N. Y. 389; Matter of Hunt, 110 N. Y. 278. So it is held that a man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing; and a deaf and dumb man may make a will if only the for- malities prescribed by the statute are observed in their spirit and intent in 332 SURROGATES COURTS such manner as is practicable under the condition existing. In re Perego's Will, 65 Hun, 478. So where a testator makes his will during an illness and his only declaration is in the form of a sign of assent, when asked by the draughtsman or by any person present, if he declares the will to be his last will and testament and desires the witnesses to sign it as such, it will be held sufficient; but such assent in such case must be clearly proved. Heath v. Cole, 15 Hun, 100; Matter of McGraw, 9 App. Div. 372, 381. So where the witnesses are present as the will is being drawn up and are told by the draughtsman that he is writing the testator's will and that they had been sent for as witnesses, and upon the completion of the will the testator takes and reads it and signs it, and then passes it over to the witnesses for their signatures, the circumstances are sufficient to constitute a dec- laration within the meaning of the statute. See Lane v. Lane, 95 N. Y. 494, 500. § 334. Meaning of the words, " at the time of." — The object is general contemporaneity, as above noted. The intent of the statute is that the publication should be made at the time of execution. Ex parte Collins, 5 Redf. 20; Matter of Phillips, 98 N. Y. 267; Walsh v. Laffan, 2 Dem. 498; Jackson v. Jackson, 39 N. Y. 153. A subsequent declaration is not by itself sufficient. Matter of Moore, 109 App. Div. 762. The purpose is that the acts constituting the declaration and pubUcation must be con- temporaneous with the execution, that is, form part of the same trans- action. Thus the publication may be incorporated with the request to the witnesses to sign. Matter of Murphy, 15 Misc. 208; Coffin v. Coffin, 23 N. Y. 9. Or the publication of the will may be made by the testator immediately before he signs his own name. Matter of Williams, 2 Connoly, 579. If the declaration is made while the witness is signing, it is sufficient. Matter of Phillips, 98 N. Y. 267. In this case the Court of Appeals held that although when the witness started to sign he did not know he was witnessing a will, yet since the declaration was made before the signature was finished, the execution was valid. So where a testator reads his will and signs it in the presence of the witnesses and hands it over with the request that the witnesses read the attestation clause which contains a recital of publication, and the witness does so, there is sufficient compliance with the statute. Matter of Woolsey, 17 Misc. 547. The wording of the statute that the testator should declare the instrument either at the time of making his subscription or at the time of acknowledging the same im- plies that the declaration may be made to the witnesses apart from each other, for the signature may be acknowledged to them separately. Barry v. Brown, 2 Dem. 309, Rollins, Surr.; Hoysradt v. Kingman, 22 N. Y. 372. Surrogate Calvin held (Von Hoffman v. Ward, 4 Redf. 244), where testator in the presence of all the witnesses read the will adding, "evidently I give all I possess to my mother," that there was sufficient publication, there being also an attestation clause reciting due publication. See also Sey- mour V. Van Wyck, 6 N. Y. 120. It has been stated that, "knowledge derived from any other source or at any other time, cannot stand as a CONTESTED PROBATES 333 substitute for the declaration of the testator." Thomas on Law of Estates Created by Will, vol. 2, page 1162. That is to say, that a communication by the testator to the witnesses at some subsequent time, that the paper which they had signed is his will, is not a compliance with the statute. Matter of Dale, 56 Hun, 169. But the Court of Appeals held (Matter of Application of Beckett, 103 N. Y. 167) where a testatrix who had previously made a will and had had some conversation with the witnesses in regard to availing herself of their services in that capacity, called them in after her will was ready for execution and said to one, "This is the paper I spoke to you about signing," and in speaking to the other witness who had witnessed the prior will, asked her if she would sign "that paper" and that she was sorry to trouble her again to sign "the paper," that it was a suffi- cient compliance with the statute. The court held that there was a suffi- cient identification of the paper as a will and that the remarks of the testatrix relating back to the prior conversation were not too indefinite or imperfect, but that the witnesses could hardly fail to correctly interpret her meaning, to wit : that the paper she referred to was her will. See opinion of Ruger, Ch. J., at pages 174, 176. But a mere request to witness "this instrument" is an insufficient publication of it as a will (Matter of Delprat, 27 Misc. 355, citing Ruther- ford V. Rutherford, 1 Den. 33; Wilson v. Hetterick, 2 Bradf. 427), or " docu- ment," even though it proves to be a holographic will. Matter of Turrell, 28 Misc. 106, aff'd 47 App. Div. 561, aff'd 166 N. Y. 330. Witnesses may not guess it to be a will, or infer it such. Wilson v. Hetterick, supra. See, where after hearing will read testator said, "It is all right," Matter of Buel, 44 App. Div. 4. (There was, however, an attestation clause in this case.) § 335. Effect of assent where there is no express declaration. — The as- sent by sign or by affirmative response to a question by the scrivener or counsel, or by any person present, whether the testator declares the in- strument to be his last will and testament is usually a valid publica- tion as has been already indicated. Matter of Menge, 13 Misc. 553; Matter of Murphy, 15 Misc. 208. But this must be clearly proven, par- ticularly where the testator is in his last sickness, or very feeble, or is shown to have been unconscious, or under the influence of some drug, such as opium. Heath v. Cole, 15 Hun, 100; Matter of Lyman, 14 Misc. 352. Where the sum of the testimony of the witnesses is to the effect that all the formalities required by the statute were complied with, it is immaterial whether both witnesses testify to identical transactions, so long as there is no conflict between them. Thus where one of the wit- nesses testified that the testator's counsel who was present asked the testatrix, if it was her desire that the witnesses should witness her will, and she answered yes; and the other witness testified that either the counsel or the testatrix said, at the time of the execution, that the paper they were called upon to witness was the will of the testatrix, it was held to be sufficient evidence of pubUcation. Matter of Voorhis, 125 N. Y. 765. The 334 surrogates' courts effect of an attestation clause, where the witnesses do not recollect o where their recollection conflicts, is discussed below. See Matter of Bernset 141 N. y. 389, 392. § 336. Republication. — Cases may occur where the publication of i subsequent or supplemental testamentary instrument may cure defects ii publication of a prior will. This rule usually applies to cases where th second will or codicil is executed upon a distinctly separate occasion subse quent in time and affects the prior instrument by reference or incorpora tion; but cases have arisen where the two instruments are shown to hav( been prepared and in existence simultaneously and to have been the sub ject of the one act of execution. Thus in the Hardenburg case, 85 Hun 580, the General Term held there was due publication upon the following facts: The will having been drawn and read to the testator the draughts- man was requested to change a certain clause of the will which was dent in the presence of the testator, not, however, by changing the body of tht instrument but by appending a brief clause entitled "codicil." The wil was signed by the testator by his mark; then followed the attestation clause signed by both the witnesses one of whom also witnessed the mark; then followed the codicil bearing the same date again signed by the testator and the two witnesses. The subscription to the will and codicil were made at the same time, the testator requested one of the witnesses to sign foi him; the attesting clause was read aloud and the witnesses subscribed in both places on the same occasion. The General Term held that the paper though apparently divided into a will and codicil, was really one instru- ment executed at one time, and to be taken together as one transaction. The declaration of the deceased, after he had executed the paper by sign- ing his name twice, that it was his last will and testament, was a declara- tion as to the whole instrument, and his request to the witnesses to sign it related to the same. See Graham's Will, 9 N. Y. Supp. 122, and cases cited. § 337. Same subject. — But where the paper purporting to be a will or codicil (the due publication or execution of which is alleged to give validity to an imperfectly executed prior testamentary instrument) (see Matter oj Douglas, 38 Misc. 609) is executed on an entirely distinct separate occasion, not only must all the formalities of execution {Matter of Stickney, 161 N. Y. 42), be distinctly and separately proven in substantial compliance with the statute, but the fact of reference to or incorporation in such will or codicil must satisfactorily appear. The codicil, however, distinctly refer- ring to the will, need not be actually annexed to the will; it may be on an entirely separate paper; any sufficient words of reference will operate as a republication. Van Cortlandt v. Kip, 1 Hill, 590. This has long been the rule. In the case last cited Judge Cowen remarked, "It seems to me that at this day it would be a violation of all reliable authority to deny that a codicil duly attested to pass real estate would per se, whether it related to real or personal property, operate as a repubUcation of a devise, unless the testator declares that he does not intend the codicil should have that CONTESTED PROBATES 335 effect" (see cases cited at page 593); and the learned justice quoted the words of Lord Commissioner Eyre, that a codicil might be inseparably annexed to a will not by a wafer or wrapper, but by internal annexation. But a wholly invalid codicil was held inoperative to republish a will to which it was annexed, when revoked by a later will. Matter of Frost, 38 Misc. 404. In Matter of Emmons, 110 App. Div. 701, the rule is stated that a codicil, properly executed, is a final testamentary disposition; and so, if there be an existent and complete will, it takes it up and incorporates it, citing Matter of Campbell, 170 N. Y. 84. But if the will sought to be so taken up is not itself an existent, vaUdly executed will (e. g., only one wit- ness) the codicil cannot so operate, and stands only if complete in itself. Ibid. Hence, it may stand if it suffice to merely designate an executor. Yet, if there be sufficient identification of the prior will due execution of a codicil to it validates the will not only without re-execution thereof, but even where it has been formally revoked by a subsequent will. Cook V. White, 43 App. Div.. 388, 392. In re Knapp's Will, 23 N. Y. Supp. 282, citing 1 Jarman on Wills, page 188; Storm's Will, 3 Redf. 327; Illensworth V. Illensworth, 39 Misc. 194; Brown v. Clark, 77 N. Y. 369. The Court of Appeals held in the case last cited, that where a woman, being unmarried had made her will, and, after her marriage, duly executed a codicil to such will, any testamentary document in existence at the execution of the latter testamentary instrument might by reference be incorporated into it, and the will and codicil were accordingly sustained although the will by law had been revoked by the marriage. The effect of sustaining a will and cod- icil in such cases, is to revoke the intermediate will, for the date of the cod- icil attaches to the will revived or republished thereby and constitutes the last will and testament of the testator. See Matter of Miller, 11 App. Div. 337. "A testatrix named Ellen Campbell made a will on July 6, 1897, revok- ing all former wills and this she specifically revoked by a will made in 1899. On December 7, 1900, she executed a paper, headed "Codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897," and this contained no revocation clause whatever. Held that the will of 1899 was not her last will. That the codicil amounted to a republication of the will of 1897 and made it speak, as modified by the codicil, as of the date of the codicil. Matter of Campbell, 35 Misc. 572 (headnote). In Cook v. White, supra, it was held that a will made while testator was insane could be validated if republished in a lucid interval, citing 1 Wms. on Exrs., 7th Am. ed., 267. In Langdon v. Astor's Executors, 16 N. Y. 9, the Court of Appeals held that the effect of a codicil re-executing a will made six years prior, giving a legacy which was in the meantime satisfied or adeemed, did not operate to revive or reinstate such satisfied legacy. See opinion of Denio, C. J., at pages 37 and 38. Generally speaking, then, the publication of a dbdicil operates as a republication of the will and, so far as regards the formalities of execution, the will is sufficiently proved by proof establishing that the 336 surrogates' courts codicil was executed, in accordance with law. Matter of Nisbet, 5 Dem. 286, Rollins, Surr., citing among other cases, Van Cortlandt v. Kip, 1 Hill, 590; Kip V. Van Cortlandt, 7 Hill, 346; Van Alstyne v. Van Alstyne, 28 N. Y. 375; Brown v. Clark, 77 N. Y. 369. The language of the Court of Appeals in Langdon v. Astor's Executors, supra, to the effect that the republication of a will by a subsequent codicil or codicils does not cause the will and codicils to speak as one as of the date of the last execution (see headnote at page 12), must not be extended beyond the evident meaning of the court in that case; for the learned chief justice observed (at page 537) that all the instruments together although executed at different times did in fact constitute the last will and testa- ment of the deceased. And in the Van Alstyne case, 28 N. Y. 375, Judge Selden observed that a codicil to a will amounts to a republication of the whole will so far as it is not changed by the codicil, and must be held to speak as of the time of the execution of the codicil. The point involved in that case was as to what charges were released by the testator. See as to republication of a will, Rogers v. Potter, 9 Johns. 312; Simpson's Will, 56 How. Pr. 125; Master's Estate, 1 McCarthy, 459. The rule was sum- marized by Judge Earl (Caulfield v. Sullivan, 85 N. Y. 153, 160), by ob- serving, that where a codicil distinctly refers to and identifies the will and reaffirms the same, the will and the codicil together constitute the will of the testator; the provisions of the former may be treated as embodied in the latter and both may be treated as if executed and published at the same time. Brown v. Clarli, 77 N. Y. 369, q. v. at page 375. See Mooers V. White, 6 Johns. Ch. 375; Jackson v. Holloway, 7 Johns. 394. See also Moffett V. Elmmdorf, 82 Hun, 470. § 338. Insufficient publication. — Failure to comply substantially with the statute as quoted above, namely, that the testator indicate in some sufficient manner to the witnesses and every of them that the instrument they are by him requested to sign as witnesses is his last will and testament, will necessitate a refusal of probate. Thus, where a draughtsman, sent out to bring two persons desired by the testator to witness his will, re- quested them to come to the house to witness a paper or a will, but it did not appear from the testimony that when they actually were present at the time of execution any declaration was made by or on behalf of the testator identifying the paper which they witnessed as a will, probate was refused for want of due publication. McCord v. Lounshury, 5 Dem. 68. So where testator of a holographic will requests A to witness " this document " held insufficient. Matter of Turrell, 28 Misc. 106, aff'd 166 N. Y. 330. There must be a declaration of the testamentary character of the instrument. Ibid., citing Baskin v. Baskin, 36 N. Y. 416; Matter of Will of Phillips, 98 N. Y. 267; Matter ofMackay, 110 N. Y. 611; Matter of Laudy, 148 N. Y. 403. It must be remembered in this regard that publication is one of the distinct acts constituting execution; it is an independent fact from sub- scription or acknowledgment of subscription or from request to sign and must be sufficiently separately proven. In re Nevin's Will, 24 N. Y. Supp. ' CONTESTED PROBATES 337 828, citing Baskin v. Baskin, 36 N. Y. 416. The fact that the messenger sent for the witnesses states to them that they are desired to witness a will, is of itself wholly immaterial except that proof of such fact might contri- bute in a doubtful case to satisfy the Surrogate that acts or conduct on the part of the testator alleged to constitute a declaration by assent was clearly understood by the witnesses to relate to the execution of a testamentary instrument. See also Dodworth v. Crow, 1 Dem. 256; Matter of Kane's Will, 20 N. Y. Supp. 123; Burke v. Nolan, 1 Dem. 436, 440, 441. § 339. The witnesses, — ^There shall be at least two attesting witnesses, each of w"hom shall sign his name at the end of the will as witness at the request of the testator. In the first place it may be said that the words, "at the end of the will," have the same meaning already discussed with regard to the testator's signature, except that as the witnesses are supposed to attest an executed instrument, the statute contemplates that they shall sign after the testator has signed {Jackson v. Jackson, 39 N. Y. 153; Rugg V. Rugg, 83 N. Y. 592), or at the end of the signed will. The object of hav- ing witnesses is not only that there may be persons capable of identification, and who may be called upon to testify as to substantial compliance with the provisions of the statute, but, particularly, in order that they may by the act of witnessing record the fact that at that time the will had been duly and actually signed by the testator; or as Surrogate Silkman says (Losee's case, 13 Misc. 298): " In the case of a will a witness must have knowledge that the paper is a will by the declaration of the testator that it has been signed, by either seeing the signature written or by seeing the signature with an accompany- ing acknowledgment by the testator that it is his or her signature." Lems V. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; In re Mackay, 110 N. Y. Qll; Sisters of Charity v. Kelly, 67 id. 409; Willis v. Mott, 36 id. 486; Matt&- of Van Geisen, 47 Hun, 8; Matter of Bemsee, 141 N. Y. 389. In the Mackay case. Earl, J., in writing the opinion, says: "Subscribing witnesses to a will are required by law for the purpose of attesting and identifying the signature of the testator, and that they can- not do unless at the time of the attestation they see it." And in the case of Bernsee, Andrews, Ch. J., cites the Mackay case, and says: "It is essential to the due publication of a will either that the wit- nesses should see the testator sign the will or that such signature should have been affixed at some prior time and be open to their inspection." Where both witnesses sign before the testator does probate must be refused. See Knapp v. Reilly, 3 Dem. 427. From what has been already said in another connection it will be remembered that intervention of the attesta- tion clause between the testator's and witnesses' signatures, is perfectly proper. See Williamson v. Williamson, 2 Redf. 449; McDonough v. Loughlin, 20 Barb. 238; Matter ofDayger, 110 N. Y. 666, aff'g 47 Hun, 127. § 340. Same subject. — There is nothing in the statute as to the wit- nesses subscribing in the presence of each other. Lymun v. Phillips, 3 Dem. 459, aff'd 98 N. Y. 267; Herrick v. Snyder, 27 Misc. 462; Matter of 22 338 surrogates' courts Diefenthaler,39 Misc. 765; Willis v. Mott, 36 N. Y. 486; Matter of Engler, 56 Misc. 218. If the testator signs in the presence of one witness re- questing him to sign which he thereupon does, and subsequently acknowl- edges his signature to the other witness who thereupon signs in his presence, it is immaterial that the two witnesses did not subscribe in the presence of each other. Hoysradt v. Kingman, 22 N. Y. 372. .If the witnesses, how- ever, are not present at the same time all the formalities must be repeated in the presence of each. Tyler v. Mapes, 19 Barb. 448. If there are more than two witnesses the will may be probated if the formalities were suf- ficiently complied with in the presence of at least two. Carroll v. Norton, 3 Bradf. 291. Where the signature purports to have been made in the presence of the witnesses, it has been held sufficient, provided it clearly appeared that the witnesses signed after the signature of the testator had been appended; but where the recollection of a witness is defective upon the point whether the witness saw the testator actually sign, the courts will hold that if the witness was in a position where he could have seen the act of signature he did see it. This is the English rule as stated by Lord Ellenborough that "in favor of attestation it is presumed, if he might see he did see." See Spaulding v. Gibbons, 5 Redf. 316, 319; Gardiner v. Raines, 3 Dem. 98; Peck V. Carey, 27 N. Y. 9, 31. So, in case where one of the witnesses testified that she was in the same room with the testatrix when she signed, but refrained from looking at her "from fear it would make her nervous," the execution was not invali- dated. Bedell's Will, 12 N. Y. Supp. 96. The statute of course contem- plates the signature "at the end of the will" by the witnesses; a total absence of signature by a sufficient number of witnesses or at "the end of the will" within the legal meaning of the term invalidates its execution. Ex parte Le Roy, 3 Bradf. 227; Heady's Will, 15 Abb. Pr. N. S. 211; Matter of Case, 4 Dem. 124. And while the witnesses need not actually attest in the presence of each other {Matter of Carey, 14 Misc. 486), yet they must attest upon the same occasion, that is to say, there must be sufficient contemporaneity to make all the acts constituting due execution parts of the same transaction. The continuity of the transaction is of course in- terrupted if the testator's death intervenes before all the formalities have been complied with, for of course the statute contemplates that all the acts going to make up due execution shall occur during the lifetime of the testator; so where a testatrix died after one witness had signed and before the other could sign, her will was properly refused probate. Matter of Fish, 88 Hun, 56. In that case the General Term held that while it was manifest that the instrument attempted to be executed contained the intentions of the testatrix, and that she intended and had requested the witness to sign it as such, yet in construing the statute the intention of the legislature and not that of the testator must be kept in mind, and that as a will takes effect at the instant the testator dies, it must at such instant be a valid, complete, perfect instrument. It was held (Herrick v. Snyder, 27 Misc. CONTESTED PROBATES 339 462, 466, by Hiscock, J.), that signature by a witness, not in the presence of testator, fifteen minutes after testator signed and published the will, at another house, was sufficient, citing Lyon v. Smith, 11 Barb. 124. See also Matter of Phillips, 34 Misc. 442; Ruddon v. McDonald, 1 Bradf. 352. The witnesses may subscribe by mark or per alium. Mock v. Garson, 84 App. Div. 65. So Surrogate Bradford upheld a will where one of the witnesses attested by making a mark which she then acknowledged to be her mark and signature. Meehan v. Rourke, 2 Bradf. 385, 392. See Jack- son V. Van Deusen, 5 Johns. 144. Signature by mark is resorted to only in case of illiterate witnesses, but a witness otherwise able to write may be temporarily incapacitated, in which case a request to a third party, even the other witness, to sign for the incapacitated witness, properly proven, will sustain the execution of the will. In re Strong's Will, 16 N. Y. Supp. 104, where one of the witnesses had a felon on her right hand. The case last cited was peculiar in that, after the death of the testatrix, the witness whose signature had been at her request written by her husband, the other witness, caused her name as written by her husband to be erased and then personally signed her name in its place; the Surrogate does not seem to have passed upon this singular act in his opinion. A subsequent case by Surrogate Silkman in the same county which purports by the headnote to be in conflict with this, is not in fact authority to the contrary. In re Losee's Will, 34 N. Y. Supp. 1120. The learned Surrogate in that case held that as the witness who signed per alium, so signed because her eye- sight was too defective for her to see to write her own name, she could not be a competent attesting witness to a will at all. He says at page 1122: "There must be an identification of the instrument by one who has seen the signature written, or has seen the signature which has been acknowl- edged by the testator as his or hers. The paper propounded is identified only by the witness, Lefurgy. She is the only one who saw the signature of the decedent at the time of the execution, and can swear that it is the paper that the decedent signed, and which she signed as a witness. It is true that the statute permits the proof of the handwriting of the decedent and of the subscribing witness or witnesses, where the subscribing witness or witnesses are dead, or absent from the State, and their testimony cannot be obtained; but the statute applies only where there have been two at- testing witnesses who have signed their names as such. The statute was passed to allow the probate of wills that had been executed with all the formalities required by law. The difficulty in this case is that there was but one witness, and the formalities prescribed by the statute were not fulfilled. Mrs. Brown was not a witness, because she could not see at the time of the alleged execution. If she had been able to see then, and sub- sequently lost her sight, the case might be different. Such was the case of Cheeney v. Arnold, 18 Barb. 434, relied upon by the proponents. In that case, a subscribing witness who had signed the will had become blind by reason of great age. The case was decided upon the well-established legal principle that, where the witnesses are dead, or by lapse of time do 340 surrogates' courts not remember the circumstances attending the execution, the law, after diligent production of all the evidence existing, if there are no circumstances of suspicion will presume a proper execution of the will, particularly when the attestation clause is full. The statute prescribing the necessary for- malities for the due execution of a will was passed to provide against fraud and imposition, and the protection given by it cannot be repealed by the court. Its wisdom needs no argument to sustain it, even though in isolated cases injustice is done and the wishes of the dead thwarted. A decree will be entered denying probate." § 341. The request to the witnesses to sign. — The statute requires a re- quest by the testator that the witnesses sign the paper declared by him to be his will as witnesses thereof. The circumstances, however, under which wills are frequently executed are such, that the request is not and indeed cannot always be made by the testator. The same principle above noted in other connections may be relied upon in support of vaUd execution, to wit: that the attendant circumstances were such that from them a re- quest by the testator may properly be impUed. The Court of Appeals in an early case {Coffin v. Coffin, 23 N. Y. 1, 16), Comstock, Ch. J., says: "Now, the statute, it is true, declares that each witness must sign on such request. But the manner and form in which the request must be made, and the evidence by which it must be proved, are not prescribed. We apprehend it is clear that no precise form of words, addressed to each of the witnesses at the very time of the attestation, is required. Any communication importing such request, addressed to one of the witnesses in the presence of the other, and which, by a just construc- tion of all the circumstances, is intended for both is, we think, sufficient. In this case both the witnesses, by the direction or by the knowledge of the testator, were summond to attend him for the purpose of witnessing his will. They came into his presence accordingly, and, in answer to the in- quiry of one of them, in which the singular instead of a plural pronoun was used, he desired the attestation to be made. In thus requiring both the witnesses to be present, and in thus answering the interrogatory addressed to him by one of them, we think that he did, in effect, request them both to become the subscribing witnesses to the instrument. Any other in- terpretation of his language, and of the attending circumstances, would be altogether too narrow and precise." See also Brady v. M'Crosson, 5 Redf. 431. Where witnesses have previously been requested by the testa- tor to attend on a certain occasion to witness his will, and are accordingly so present, and hear the will read and see it signed, and sign it themselves,, there is a presumption that the desire of the testator continues and the request to the witnesses though not distinctly proven to have been made in so many words at the time of execution, may be presumed from all the circumstances. Coffin v. Coffin, 23 N. Y. 1, 16; Brady v. M'Crosson, 5 Redf. 431. As to whether the circumstances amount to a request in sub- stantial compliance with the statute, depends upon the facts in each particular case. And so the courts have always held that there is no par- CONTESTED PROBATES 341 ticular form or manner in or by which it is requisite that the request of the testator should be made; it may be verbal; or it may be by sign; it may come directly from the testator to the witnesses; or it may come inter- rogatively from the witness to the testator, in which case it will be suf- ficient if assented to by the latter. See Hutchings v. Cochrane, 2 Bradf . 295. In the case last cited two witnesses were in attendance upon tlie testatrix, one of whom, George C. Barrett, had copied the will which included an attestation clause. The testatrix knew the purpose for which the witnesses had come; she read the formal attestation clause in their presence; she was told by one that two witnesses were necessary; she signed and published the instrument as her will and they signed it as witnesses in her presence. The request was held to be sufficiently shown. Id., page 296, citing Doe v. Roe, 2 Barb. 200. Where the words of request are made on behalf of the testator by a third person they must be made in presence of the testator, and his assent to such request may be manifested by words, sign or conduct, indicating acquiescence or approval. In Peck v. Carey, 27 N. Y. 9, the draughtsman, in the presence of the testator, requested the witnesses to sign the will, and they thereupon signed it; it was held to have been done at the request of the testator. In Gilbert v. Knox, 52 N. Y. 125, one of the subscribing witnesses had charge of the execution of the will and assumed to act and speak for the testator, and publicly stating the character of the instrument, observed that it was necessary that the testator should request those who were in attendance as witnesses to sign the will as such, and then stated in the presence of the testator and such witnesses, that the testator wished them to sign the will in that capacity, the testator made no dissent, and when the will had been executed took it into his possession and thereafter retained it; held, to be a sufficient request. See also Matter of Nelson, 141 N. Y. 152; Matter of Barnes, 70 App. Div. 523, 528. In Brinkerhoff v. Remsen, 8 Paige, 499, the chancellor observes: "I think, therefore, there can be no reasonable doubt that, if this will and this attestation clause, or this attestation clause alone, had been read over in the presence and hearing of the testatrix, so that the witnesses could be fully satisfied that she knew and understood its meaning, her request to them to attest it as witnesses would have been such a recognition of the instrument as her will as to make it a good execution thereof, according to the intent and spirit of the statute." See also Trustees of Auburn Theological Seminary v. Calhoun, 25 N. Y. 422. The rule in regard to the communication by a testator of his request to witnesses through a third person was stated by Surrogate Livingston (Burke V. Nolan, 1 Dem. 436) as follows: "If the communication is made through the intervention of a third person it must be so made in the presence and hearing of the testator, and to the witnesses, so that the attesting witnesses may know of their own knowledge that what was said or done by the third person on behalf of the testator was assented to by him," citing Thompson 342 V. Stevens, 62 N. Y. 634; Stein v. Wihinski, 4 Redf. 441, 448; McDonough v. Loughlin, 20 Barb. 238, 244. In the case in which he so stated the rule, the learned Surrogate denied probate for the reason that while the wit- nesses heard the lawyer who superintended the will ask the testator, "if he wanted those gentlemen to witness it," to which the witnesses testified he made some affirmative motion or indicated his assent in some way, yet there was no evidence that the testator knew whom the lawyer referred to, nor that he knew that the witnesses were there for the purpose of wit- nessing his will; and moreover the testator was not in a condition to ob- serve or take notice of things not pressed upon his attention. He says (at page 422), "Under such circumstances it must appear that the questions which were asked (of the testator) were made very clear to him," citing Heath v. Cole, 15 Hun, 100. Moreover, it appeared in that case that one of the witnesses was in an outer room and not near enough to the testator or the lawyer to come within the scope of the cases, holding, that where the witness was in such a position that he could and ought to have heard what was said, the request will be presumed to have been made in his hearing. In such cases the presumption will outweigh a defective recollec- tion but not positive testimony that he did not hear. See Leiois v. Lewis, 11 N. Y. 220, 224; Ors&- v. Orser, 24 N. Y. 51; Wilson v. Hetterick, 2 Barb. 427. Where a decedent, a man of upwards of sixty years of age, had been deaf and substantially dumb from early childhood, and accustomed to communicate his ideas mainly by signs and gestures, and it appeared from the evidence of the witnesses that the dumb show by the testator indi- cating his desire that they should witness the instrument, and his thanks to them when they had done so, was unmistakable, the General Term re- versed a decree of the Surrogate denying probate and ordered a trial by jury of the material questions of fact as to the execution. Matter ofPerego, 65 Hun, 478. See also Matter of Beckett, 103 N. Y. 167, 174; Matter of Stillman, 29 N. Y. St. Rep. 213, and cases cited. The desire of the testa- tor that the witnesses sign may consist merely in a passive acquiescence in the acts and words of the one superintending the execution of the will. Matter of McGraw, 9 App. Div. 372; Matter of Lyman, 14 Misc. 352; Matter of Menge, 13 Misc. 553; Matter of Voorhis, 125 N. Y. 765. The request may be combined with the publication (Matter of Murphy, 15 Misc. 308), and may be made to the witnesses before the testator has actually sub- scribed his own name (Matter of Williams, 2 Connoly, 579), and is suffi- cient although it consists merely in a request to one or both witnesses, or to the scrivener to read aloud the attestation clause which contains such request. See Matter of Woolsey, 17 Misc. 547. See also Kingsley v. Bkmch- ard, 66 Barb. 317; Stewart's Will, 2 Redf. 77, 79; Neugent v. Neugent, 2 Redf. 369, 375. In the case last cited Surrogate Calvin held the request insufl[icient as not appearing to have been made in the presence or hearing of the testatrix, one of the witnesses having subscribed in an adjoining room, there being an absence of sufficient proof that such witness had CONTESTED PROBATES 343 validly subscribed the instrument. The learned Surrogate remarked: "I am aware that it is not essential that the attesting witnesses should each subscribe in the presence of the other {Hoysradt v. Kingman, 22 N. Y. 372; Willis v. Mott, 36 id. 486), nor is it necessary that the witnesses should sign in the presence of the testator. Ruddonv. McDonald, 1 Bradf. 352; Jackson v. Christman, 4 Wend. 277. If they sign at the testator's request, although in an adjoining room, out of sight, it is sufficient, though their signing must be done at the time of the execution, or acknowledg- ment, with the knowledge and at the request of the testator (Lyon v. Smith, 11 Barb. 124), but I think the proof in this case fails to show that the signing of the witness Cosgrove was with the knowledge, or at the re- quest, of the testatrix." See Troup v. Rdd, 2 Dem. 471, where Surrogate Rollins collates the authorities upon the question of the sufficiency of a decedent's assent to the words of another upon this question. Ruther- ford V. Rutherford, 1 Denio, 33; Doe v. Roe, 2 Barb. 200; Brown v. De Selding, 4 Sandf. 10; Torry v. Bowen, 15 Barb. 304; Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Matter of Oilman, 38 Barb. 364; Gam- hie V. Gamble, 39 Barb. 373; Peck v. Carey, supra; Gilbert v. Knox, supra; Heath v. Cole, supra; Burke v. Nolan, supra. § 342. Effect of attestation clause. — In connection with all that has been said above with regard to the formal execution of a will, the impor- tance of a proper attestation clause containing recitals of all the acts re- quired by the statute constituting due execution will be manifest. Par- ticularly will this be so where one or more of the witnesses may have died and their oral testimony as to what actually took place, cannot be ob- tained. And its absence, where the witnesses contradict one another as to the occurrence of one of the cardinal facts of due execution may defeat probate. Matter of Sarasohn, 47 Misc. 535. We have already discussed § 2620 of the Code (see ante, page 290), which permits the Surrogate to. dispense with the testimony of a subscribing witness, who may be dead or incompetent by reason of lunacy or otherwise, or is unable to testify, or if such a subscribing witness is absent from the State, or if such sub- scribing witness has forgotten the occurrence or testifies against the exe- cution of the will. Section 2620 provides in such cases that the will may nevertheless be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also "of such other circumstances as would be sufficient to prove the will upon the trial of an action;" this section requires a little further discussion in connection with this discussion of the effect of the attestation clause. Forgetfulness on the part of a witness may be pecuniarily induced. The courts have held that positive denial of execution of a will by a subscrib- ing witness whose name appears to be signed thereto is "forgetfulness" within the meaning of this section. Estate of Bogart, 67 How. Pr. 313. This section of the Code puts in the form of a statutory enactment, a rule in relation to the proof necessary to show the valid execution of a will, which had been, indeed, before then well settled but had previously 344 surrogates' courts existed by force of adjudication alone, to wit: that the due execution of a ■will might be established by competent evidence even against the positive testimony of the subscribing witnesses thereto. Matter of Cottrell, 95 N. Y. 329, 332. See also Wyman v. Wyman, 118 App. Div. 109. And see opinion of Marcus, Surr., in Matter of Moor, 46 Misc. 537, when the witnesses were all hostile to probate, and so "failed" to remember any publication by decedent. In this case there was a holographic will. Held, this was a persuasive element in deciding on testator's declaration, for the object of the declaration exacted by the statute is to make sure that testator knew he was making a will. Trustees v. Calhoun, 25 N. Y. 422. Prior to the Code it had been held that the facts making due execution need not all or any of them be established by the concurring testimony of the two subscribing witnesses; while both of such witnesses must be examined, a will could be established even in direct opposition to the testimony of both. Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 425; Tarrant v. Ware, reported as a note to Trustees of Auburn Sepiinary v. Calhoun, where Judge Denio says: "My purpose is to show that whether their denial of what they had attested proceeds from perversity or want of recollection, the testament may in either case be supported." See also Rugg v. Rugg, 83 N. Y. 592; Levns v. Lewis, 11 N. Y. 220. So Chancellor Walworth stated the rule to be (Jauncy v. Thome, 2 Barb. Ch. 59), "A will may therefore 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 jury is satisfied that the contrary was the fact." See also Chaffee v. Baptist Missionary Conv., 10 Paige, 91. In Matter of Fitzgerald, 33 Misc. 325, the Surrogate refused to believe the subscribing witnesses, and admitted the will on the testimony by another of due execution, which was " complete and satisfactory," citing MaUer of Cottrell, 95 N. Y. 329; Matter of Carey, 24 App. Div. 531, 542. § 343. Same subject. — The cases cited under the discussion (§ 2620 of the Code) are sufiicient to indicate the rule. It is now proper to consider what effect, presumptive or otherwise, a proper attestation clause will be deemed to have. In an early case {Nelson v. McGiffert, 3 Barb. Ch. 158, 163), the chancellor held, that an attestation clause, after a considerable lapse of time, when it may reasonably be supposed that the particular circumstances attending the execution of the will have escaped the recollec- tion of the attesting witnesses, is a circumstance from which the court or a jury may infer that the requisites of the statute were complied with. This rule so declared has been substantially adopted in subsequent decisions. See Matter of Bemsee, 141 N. Y. 389, 392; MaUer of Probate of Will of Pepoon, 91 N. Y. 255; Matter of Cottrell, 95 N. Y. 329; Lane v. Lane, 95 N. Y. 494; Brown v. Clark, 77 N. Y. 369; Peck v. Carey, 27 N. Y. 9, 31; Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Matter of Van Houten, 15 Misc. 196; Matter of Merriam, 16 N. Y. Supp. 738; Matter of Sears, 33 Misc. 141; Matter of Buel, 44 App. Div 4. See, also. Matter of CONTESTED PROBATES 345 Foley, 55 Misc. 162, where all the witnesses were dead, and testatrix had signed by "mark," of which there was no eyewitness procurable, nor any "standard of comparison" to prove his "writing." The Surrogate held that these facts, and the fact there was no case in point, "should not dethrone reason!" Nor should it warrant "a constipated construction of the Statute; " so he admitted the will on " common-law evidence." See, as to when this rule is not appUcable, Matter of Turrell, 28 Misc. 106, 109, aff'd 166 N. Y. 330. As when, e. g., one of its recitals is shown to be false. Porteus V. Holm, 4 Dem. 14; Rumsey v. Goldsmith, 3 Dem. 494. So, where the distinct recollection of the witnesses contradicts a recital. Matter of Nash, 76 App. Div. 212. In Matter ofPepoon, supra, the court held, " Where the attestation clause of a will is full and complete it is not always essential that all the particulars required by the statute to constitute a valid execution of the instrument should be expressly proved." 91 N. Y. 255, 257. See also Matter of Carey, 24 App. Div. 531, 543. The Court of Appeals also observed in the Pepoon case, supra, "the rule is well established that when there is a failure of recollection by the subscribing witnesses the probate of the will cannot be defeated if the attesting clause and the surrounding circumstances satis- factorily establish its execution." See Ru^g v. Rv^g, supra; Matter of Kellum, 52 N. Y. 517, 519. See also Lane v. Lane, 95 N. Y. 494. In Matter of Sizer, 129 App. Div. 7, Gaynor, J., asks whether a full attes- tation clause and proof of the signatures of the testator and the witnesses was " alone evidence of the execution of the will with the formalities re- quired by law?" He answers: "It was." See opinion at p. 9 and cases at p. 10. § 344. Same subject. — It has already been observed that the attesta- tion clause is no part of the will, but is useful merely as a memorandum of facts which may be presumed to have transpired, which may aid the recollection of the witnesses and even overbear their testimony where there is a conflict. Where one of the witnesses is dead and the recollection of the other is defective much effect may be given to the attestation clause; especially so when it purports to make the subscribing witnesses say that all the essentials to the proper execution of the will were observed. Matter ofBrissell, 16 App. Div. 137, 139, citing Matter of Will of Kellum, 52 N. Y. 517; Brown v. Clark, 77 N. Y. 369; Matter, etc., of Pepoon, 91 N. Y. 255; Matter, etc., ofCottrell, 95 N. Y. 329; Matter, etc., of Hesdra, 119 N. Y. 615. This presumption in favor of the regularity of the execution of a will when the attestation clause contains full recitals, may be strengthened by proof, that it was read aloud at the time of the execution. Matter of Wilcox, 14 N. Y. Supp. 109. But the formal proof may not be presumed from the attestation clause alone. Matter of Delprat, 27 Misc. 355, citing Woolley v. Woolley, 95 N. Y. 231; Lewis v. Lewis, 11 N. Y. 220. But the presumption created by the existence of such a clause may be rebutted. In Woolley v. Woolley, 95 N. Y. 231, it was held that the attestation clause was not effectual to raise 346 surrogates' courts the presumption of the formal and due execution of the will against positive evidence to the contrary. See also Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 77 N. Y. 596; Matter of Van Geison, 47 Hun, 5. But these are cases where the evidence of the witnesses against the recitals in the at- testation clause is positive and explicit as to the nonoccurrence of one of the essential facts recited in such clause. See also Rumsey v. Goldsmith, 3 Dem. 494. Failure of the memory of both witnesses may, however, be dis- regarded if the facts may be found from other evidence in the case and the inference to be drawn therefrom. Matter of Laudy, 14 App. Div. 160, Wilhams, J. So, if it appears that at the time of the execution the attesta- tion clause was not read and the witnesses were not even permitted to see it, and the witnesses differ as to the compliance with the statute, the attes- tation clause cannot have its usual effect. Matter of Laudy, supra; M'Cord V. Lounsbury, 5 Dem. 68. Surrogate RoUins discussed the adjudicated cases somewhat fully (Rolla v. Wright, 2 Dem. 482), in connection with § 2620 of the Code and the effect of an attestation clause (among others Butler V. Benson, 1 Barb. 526; Rider v. Legg, 51 Barb. 260; Moore v. Gris- wald, 1 Redf. 388), in all of which cases the court commented on the ab- sence of circumstances calculated to arouse suspicion. In the following cases a full attestation clause was instrumental in sustaining a will where the memory of witnesses was defective. Matter of Sears, 33 Misc. 141, 146; Matter of Graham, 9 N. Y. Supp. 122; Matter of Hunt, 110 N. Y. 278; Matter of Rounds, 7 N. Y. St. Rep. 730; Matter of Tovmley, 1 Connoly, 400; Matter of Wilcox, 14 N. Y. Supp. 109; Matter of Langtry, 5 N. Y. Supp. 501; Matter of Frey, 2 Connoly, 70; Potter v. Mc Alpine, 3 Dem. 108. But on the other hand where the attestation clause is as to its recitals in conflict with one of the witnesses and it appears the other never read it, it loses its value. Porteus v. Holm, 4 Dem. 14, 23. So if any one of the re- citals in the attestation clause is shown to be false it loses its presumptive force. Rumsey v. Goldsmith, 3 Dem. 494; Matter of Turrell, 28 Misc. 106, 109, aff'd 166 N. Y. 330; Porteus v. Holm, 4 Dem. 14. The attestation clause itself is always some proof of the due execution of the will {Matter of Nelson, 141 N. Y. 152, 156), although it does not furnish any evidence of the facts. Matter of Look, 125 N. Y. 762, aff'g 4 Silv. 233. But where beyond its presence or in addition to its presence there is evidence that it was read aloud in the hearing of the testator and witnesses, with the assent of all concerned, express or inferential, to its statement of facts, it cannot in the words of Judge Finch {Matter of Nelson, supra), "be denied that there is some and quite persuasive evidence of the actual occurrence of the facts recited." This is so even if one of the essential requirements is omitted from the recital. If in addition to such omission, however, which lays the fact open to dispute, one of the surviving witnesses denies the occurrence of the fact, the Surrogate is warranted in refusing probate unless there is other and convincing evidence either from persons present, whether as witnesses or not, or from the attendant circumstances which tend to satisfy him that the omission was accidental and that the re- CONTESTED PROBATES 347 quirements so omitted were actually complied with. Matter of Nelson, supra. But it must be noted that the absence of an attestation clause does not invalidate the will, nor raise any presumption of defective execution. Lends V. Merritt, 98 N. Y. 207; Matter of Crane, 68 App. Div. 355, 357. § 345. Due proof. — Due execution of a will is presumed although all the witnesses are dead, provided their handwriting be proved as required by the Code, even though there is an attestation clause defective in re- spect of some one of the essential requirements. Price v. Brown, 1 Bradf. 291. See § 300, ante, discussing § 2620 of the Code. But in such case it is proper for the Surrogate to require proof of "other circumstances" under § 2620. See Brown v. Clarke, 77 N. Y. 369. Surrogate Fitzgerald in a recent case (Matter of the Will of John Oliver, 13 Misc. 466), reviewed the cases and stated what are the "other circumstances" which in the judgment of a Surrogate should be sufficient to prove the will within the meaning of § 2620. The learned Surrogate uses this language at page 473: "I have before me proof of the handwritings of the testator and of his deceased witnesses; a will reasonable in its provisions when the circum- stances of the family are considered, the scheme of which was suggested in part, but as a whole was approved by the testator; his declarations as to the manner in which it was executed, showing that he knew the requisites of the execution, and that all the facts were in conformity with the statute, and the whole transaction from beginning to end in apparent good faith with nothing to raise a suspicion to the contrary; and the paper was preserved for ten years with no suggestion of dissatisfaction with its pro- visions. These facts, under the decisions, would be ample proof to admit the will in evidence on the trial of an action, when its admission might go far to determine, if it would not be conclusive of, the rights of the par- ties to the controversy, and under § 2620 of the Code, already cited, the facts are equally effective to prove its execution in a special proceeding on the probate of a will in this court. " I hold that the will was duly executed and I will sign a decree admitting it to probate." So Surrogate Calvin, where two of the witnesses were dead and the handwriting of a testator and such witnesses was proved and there was a full attestation clause, took into consideration the fact that the testator was a lawyer and the will was in his handwriting, as circumstances tending to show regularity in execution. Williamson v. Williamson, 2 Redf. 449. In addition, in this case there was a third witness who corrobo- rated the attestation clause in all respects. Where a witness did not recol- lect distinctly the occurrences at the time of execution but on reading the attestation clause testified that he believed it was true in its recital of the facts, the will was admitted to probate. In re Klett, 3 Misc. 385. Where the subscribing witnesses are strangers to the testator, while their testimony is sufficient to prove due execution {Marx v. McGlinn, 88 N. Y. 357), it is proper to identify the testator by proving his hand- writing or by any other sufficient method. Mowry v. Silber, 2 Bradf. 133. 348 surrogates' courts See also Simpson's Will, 2 Redf. 29; Peebles v. Case, 2 Bradf. 226, which see for full discussion of circumstantial evidence where witnesses deny or forget the execution, citing Jackson v. Christman, 4 Wend. 277, where Justice Sutherland said: "If the subscribing witnesses all swear that the will was not duly executed, the devisee may notwithstanding go into circumstantial evidence to prove its due execution." While it has been held that the testimony of persons present at the execution of a will other than the subscribing witnesses, is not entitled to the same weight as that of such witnesses {Matter of Higgins, 94 N. Y. 554), on the principle doubtless that the minds of the subscribing witnesses being addressed to the fact of execution are more likely to be actually retentive of the circumstances, yet this will not be true where the third person happens to be the lawyer superintending the execution of the will and familiar with the legal requirements, particularly if the subscribing witnesses are persons who are not shown to possess knowledge of the es- sential elements of a valid execution. See Egan v. Pease, 4 Dem. 301; Mat- ter of Cornell, 89 App. Div. 412. See ante, at page 288, as to when an at- torney, not a subscribing witness, may testify, i. e., where testator has waived the statute. Where the will is holographic and particularly where the testator is shown to have been familiar with the requirements essential to due execu- tion, there is some presumption so far as the acts of the testator are con- cerned that he complied with the statute. See Lawrence v. Norton, 45 Barb. 448; Matter of Buckley, 2 N. Y. Supp. 24; Williamson v. Williamson, 2 Redf. 449; Matter of Stillman, 9 N. Y. Supp. 446. But in Matter of Turrell, 28 Misc. 106, aff'd 47 App. Div. 561, and 166 N. Y. 330, where witness was asked to witness a "document" it was held insufficient, though the "document" was a holographic will, citing Matter of Beckett, 103 N. Y. 167, 174. See also Lends v. Lends, 11 N. Y. 220; Matter of Dale, 56 Hun, 169; Matter of EUred, 109 App. Div. 777. In Matter of Moor, 109 App. Div. 762, it is said: "In proving the execution of a will of that kind, the evidence of its publication may be relaxed somewhat." See also Matter of P alma, 42 Misc. 469. TESTAMENTARY CAPACITY § 346. Presumption that everyone is compos mentis. — See Jarman on Wills, ch. 3, on personal disabilities of testators, Redf. on Wills, 4th ed., vol. 1, ch. 4, on mental capacity requisite to execute a valid will, Schouler on Wills, 2d ed., part 2, ch. 1, on capacity and incapacity to make a will. It has already been stated that the proponent must sustain the burden of proof, and in offering his evidence in support of the will must make out a prima facie case as to the testator being at the time the will is alleged to have been executed competent in the eyes of the law to dispose of his prop- erty. The proponent, however, has in his favor the legal presumption that every man is compos mentis. The provisions of the Revised Statutes which permit the making of a will of personal property by any male of the age CONTESTED PROBATES 349 of eighteen years or upwards or any female of the age of sixteen years or upwards "of sound mind and memory," and the making of a will of real property of all persons except "idiots, persons of unsound mind and in- fants," are the provisions under which the law of testamentary capacity in this State has developed. The party propounding the will is bound to prove to the satisfaction of the court that the testator was at the time of making and publishing the document propounded as his will "of sound and disposing mind and memory." Delafield v. Parish, 25 N. Y. 9. See also Ramsdell v. Viele, 6 Dem. 244, citing Harder v. Harper, 1 T. C. 355; Kingsley v. Blanchard, 66 Barb. 317, 322; Miller v. White, 5 Redf. 320; Matter of Cottrell, 95 N. Y. 336; Cooper v. Benedict, 3 Dem. 136; Matter of Freeman, 46 Hun, 467; Matter of Goodwin, 95 App. Div. 183. Of course if it develops upon the proponent's case that the testator was very old, or very sick, or very weak, or the subject of habits of intoxication or other self-indulgences from which physical or mental weakness might develop, the burden upon the proponent is increased and he will have to offer clear and convincing proof that the testator's mind accompanied the act of execution. See Matter of Hitchcock, 16 Weekly Dig. 533; McSorley V. McSorley, 2 Bradf. 188; Loder v. Whelpley, 111 N. Y. 239. See Hyatt V. Lunnin, 1 Dem. 14, 20. So in Weir v. Fitzgerald, 2 Bradf. 42, the court held, something more than formal proof of execution is necessary to es- tablish the vahdity of a will when from the infirmness of the testator or the circumstances attending the transaction the usual inference cannot be drawn from the execution itself. § 347. What is testamentary capacity. — In the first place the age of the testator is a material fact. The statutes fix the minimum age when persons of sound mind may execute a will; this has been held to indicate the judg- ment of the legislature that a person under that age is not of sufficient men- tal capacity presumably, though with ordinary intelligence, to execute such an instrument. See Townsend v. Bogart, 5 Redf. 93, 105. But once the age which the statute fixes as the age at which persons may make wills has been reached, then there is no presumption from mere advanced age without proof of other circumstances of mental unsoundness; or as Judge RolHns puts it, "no man can live so long as to be legally incapable by the mere lapse of years, from ordering the disposition which shall after his death be made of his estate." Matter of Henry, 18 Misc. 149; Matter ofHalbert, 15 Misc. 308; Matter of Pike, 83 Hun, 327; Matter ofOtis's Will, 22 N. Y. Supp. 1060; In re Carver's Will, 23 N. Y. Supp. 753; Cornwell v. Riker, 2 Dem. 354, 366, citing Van Alst v. Hunter, 5 Johns. Ch. 158; Clarke v. Fisher, 1 Paige, 171; Horn v. Pullman, 72 N. Y. 276; Maverick v. Reynolds, 2 Bradf. 360; Moore v. Moore, 2 Bradf. 261; Leaycraft v. Simmons, 3 Bradf. 35; Carroll v. Norton, 3 Bradf. 291; Crolius v. Stark, 64 Barb. 112. The general principles of law in relation to the capacity of a person to make a will have long been settled. So Chancellor Walworth declared {Clarke v, Fisher, 1 Paige, 171, 173) that "the testator must be of sound and disposing mind and memory so as to be capable of making a testa- 350 surrogates' courts mentary disposition of his property with sense and judgment in reference to the situation and amount of such property, and to the relative claims of the different persons who are or might be the objects of his bounty." Stewart v. lAspenard, 26 Wend. 255, 306, 311, 312; Blanchard v. Nestle, 3 Denio, 37. The rule as to what constitutes testamentary capacity has been variously stated, but nowhere perhaps more clearly than in the lead- ing case of Delafield v. Parish, 25 N. Y. 9, to wit: "It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relation to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have suflScient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will." See also Mat- ter of Tovmsend, 75 Hun, 593; Matter of Seagrist, 1 App. Div. 615, 620; Matter of Carey, 14 Misc. 486; Matter of Will of Snelling, 136 N. Y. 515, 517; Matter of Flansburgh, 82 Hun, 49; Matter of McGraw, 9 App. Div. 372; Matter of Bolles, 37 Misc. 562, 566; Van Guysling v. Van Kuren, 35 N. Y. 70; Matter of Martin, 98 N. Y. 193. See Lavin v. Thomas, 123 App. Div. 113. The general fine along which all the cases have been decided is very clearly discussed by Senator Verplanck, in Stewart v. lAspenard, 26 Wend. 255, at page 306: "When the testator is shown to possess such a rational capacity as the great majority of men possess, that is sufficient to establish his will. 'When this can be truly predicated, bare execution is sufficient' (per Sir J. Nichol, 1 Hagg. R. 385) ; no matter how arbitrary its provisions, or how hard and unequal may be its operation on his family. On the other hand, when a total deprivation of reason is shown, whether from birth, as in idiocy, or from the entire subsequent overthrow of the understanding, whether permanently or existing only at the time of execution, further inquiry is needless; the will is itself a nullity, however just and prudent in its provisions, and with whatever fairness of intention it may have been obtained by well meaning friends. This intermediate class, who fall below the most ordinary standard of sound and healthy minds, whether from the partial disease of one faculty, or the general dullness and torpor of the understanding, are not on that account interdicted from the common rights of citizens, and least of all from that of testamentary disposal. But their defect of intellect may furnish most essential and powerful evidence, in union with other proof, that some particular will or codicil was obtained by fraud and delusion; that it had not the consent of the will and under- standing, and was not executed by one who in that respect was of a sound and disposing mind and memory. As in the former class of cases, there is a general legal disability, because the party, from total unsoundness of CONTESTED PROBATES 351 mind and memory is unable to consent, with understanding, to any legal act whatever; so, in the latter instances, there may be shown an absence of consent to the particular will, from inability to comprehend its effect and nature." See also Horn v. Pullman, 72 N. Y. 269, 276. § 348. Same subject. — It has already been intimated that mere ad- vanced age does not create any presumption of lack of testamentary ca- pacity; but it is always a most material inquiry as to whether by reason of advanced age the testator's powers have been thereby impaired and weak- ened to the extent of rendering him incapable of making a lawful will. Horn V. Pullman, 72 N. Y. 269; Van Guysling v. Van Kuren, 35 N. Y. 70, 74; Bleeker v. Lynch, 1 Bradf. 458, 472; Matter of Metcalf, 16 Misc. 180, 182, citing Matter of Carver, 3 Misc. 573. So in Matter of Dwyer, 29 Misc. 382, it was held that the marriage of a woman seventy years old with a much younger man, of itself, though foolish, did not rebut the presumption of sanity. See Matter of Barhineau, 27 Misc. 417. In Matter of Brower, 112 App. Div. 370, capacity was predicated of a testatrix ninety-six years old. It has been held that there is no standard of mental capacity which it is necessary for a person to possess to enable him to make a disposition of his property by will; all that is required is that the testator have sufficient in- teUigence and mental power to understand what he is doing and the legal effect of the instrument he is making. In re Oiis's Will, 22 N. Y. Supp. 1060; In re Gray's Will, 5 N. Y. Supp. 464. Therefore no presumption arises from the mere fact of old age if the faculties be unclouded and the testator have competent understanding; which necessarily must be deter- mined from the facts of each particular case. See Delafield v. Parish, 25 N. Y. 9; Clark v. Davis, 1 Redf. 249. Chancellor Kent (Van Alst v. Hunter, 5 Johns. Ch. 158) laid down the rule which has always been followed that the law looks only to the competency of the understanding and neither age nor sickness nor extreme distress nor debility of body will affect the capacity to make a will if sufficient intelligence remains. So Judge An- drews says (Horn v. Pullman, supra), incapacity cannot be inferred from vast age, or a feeble condition of the mind or body; and he adds (72 N. Y. 269, 276), "such a rule would be dangerous in the extreme and the law wisely sustains testamentary disposition made by persons of impaired men- tal and bodily powers, provided the will is the free act of the testator and he has sufficient intelligence to comprehend the condition of the property and the scope, meaning and effect of the provisions of the will." See Matter of Conaty, 26 Misc. 104. So proof that testator was "an old man, feeble in mind and body and could not make his mark unassisted," was held insufficient of itself to show lack of capacity. Matter of Dixon, 42 App. Div. 481; Patterson's Will, 13 N. Y. Supp. 463. Therefore it may be ob- served that the existence of physical infirmity whether due to age or illness, merely operates so that the usual inference as to capacity cannot be drawn from the mere formal execution of the will. Weir v. Fitzgerald, 2 Bradf. 42, 69. 352 surrogates' courts § 349. Analysis of discussion. — The more important decisions in re- spect of this subject will be discussed under the following heads: Illness and bodily infirmity. Eccentricity. Addiction to the use of Uquor, opium, etc. Idiocy, lunacy and delusions. § 350. Rule of evidence. — It has been noted in an early chapter that, as to the examination of witnesses, the generic rules in Courts of Record prevail in the Surrogate's Court, e. g., where a legatee under a will has made admissions as to the lack of testator's testamentary capacity as of the date of the will, or even prior thereto, such admissions may be competent and cogent to bind him, were he the only person in interest; but they cannot be held binding on other legatees, for their interest is separate and several. Matter of Kennedy, 167 N. Y. 163, 177; Matter ofMyer, 184 N. Y. 54, 61. § 351. Illness and bodily infirmities. — The effect of chronic or acute illness or of congenital bodily infirmities must always be taken into ac- count in determining the question of testamentary capacity; but the ex- istence of such illness is by no means conclusive upon the question. Matter of McLean, 31 Misc. 703; Matter of White, 121 N. Y. 406, 413; DoUe v. Armstrong, 160 N. Y. 584, 593. The fact that a man is upon his death- bed when he executes a will is no argument against its validity {Matter of Seagrist, 1 App. Div. 615, 620); nor will medical testimony to the effect that the testator was very weak, and that his mental powers were impaired, or that he was a mental and physical wreck or incoherent in speech suf- fice to outweigh positive testimony by other witnesses competent and disinterested to testify to actual facts, from which the court may infer that the testator was possessed of sufficient comprehension to enable him to comprehend generally the existence of his property, to remember the persons who depended upon him, and to decide intelligently as to the propriety of his benefactions to them. Matter of Seagrist, supra; Opinion of Rumsey, page 620. The character of the will, plus proof that the tes- tator, while dictating it, was under a powerful dose of morphia, may turn the scale in deciding the question, " Is it, or is it not, the real testamentary desire of the decedent?" Matter of Simon, 47 Misc. 552. See also In re Buckley's Will, 2 N. Y.. Supp. 24, Ransom, Surr. See also In re lAddy's Will, 4 N. Y. Supp. 468, Ransom, Surr., the first headnote: "The testi- mony of the three subscribing witnesses to a will, showing testamentary capacity, will prevail over the opinion of an expert, where to give cre- dence to the latter would be to impute perjury to the former." But where the evidence of the attending physician, as to a condition of stupor or of impairment of faculties or of incoherence on which he bases an opinion as to lack of capacity to transact business or to make a will is corroborated as to the facts on which he bases an opinion by the testi- mony of the subscribing witnesses or of other persons at the time of ex- ecution, probate will be refused. See Matter of Coop, 6 N. Y. Supp. 664. Where a testator over ninety years of age met with an accident by which CONTESTED PROBATES 353 he fell and broke his thigh, from which injury he died in a short time, and it appeared that he suffered much pain, and was in the language of the witness "a very sick man after the accident," yet it nowhere appeared that his mind was affected or impaired by the accident up to the time of the execution of the will, but it was clear he understood the nature of such will and gave explicit directions in regard to its construction, the will was admitted to probate. Matter of Harris, 19 Misc. 388. See also In re Schreiber's Will, 5 N. Y. Supp. 47, where testator suffered from Bright's disease and was at times intemperate. In Matter of Soden, 38 Misc. 25, probate was refused of a will of a woman of seventy, where the will was proven to be in conflict with previously expressed testamentary intentions and was executed when she was a victim of tumor in the face, paralysis, progressive aphasia and symptoms of paresis, and afflicted with a delu- sion. So, where a person tenaciously holds to a belief that a certain state of affairs exists, which do not, he is suffering from a delusion, and where a will is governed by such a delusion it is invaUd. Matter of Lapham, 19 Misc. Rep. 71; Matter of Soden, 38 Misc. 25, 27. §352. Same --Paresis; heredity.— In Matter of Myer, 184 N. Y. 54, the attack on capacity was based on paresis. Contestant, in a proceeding to revoke probate, sought to prove this condition by calling two physicians who had attended the brother and the mother of testatrix. These physi- cians testified that both their patients had general paresis. The Court of Appeals, reversing the courts below, held that such testimony was pro- hibited by § 834, and not within the exceptions of § 836; also, that there was no proof, anyhow, that the paresis as to which they testified was of the transmissible type so as to involve a hereditary taint in testator. The general rule is stated to be: "Where the mental soundness of an individual is in question, the sanity of the blood relations in the ancestral line may be shown, as tending to establish the fact in issue," citing Welsh v. People, 88 N. Y. 458. But "there must be evidence that such disease is hered- itary or transmissible." Ibid. Admissibility of proof of hereditary tendency is upheld only in aid or support of other evidence going directly to show disordered mind in the person whose capacity is under examination. Pringle v. Burroughs, 185 N. Y. 375, 381, aff'g 100 App. Div. 366. § 353. Same ^General debility or paralysis. — In Matter of Rounds, 25 Misc. Rep. 101, it was held of a will executed when the testatrix was in a very feeble condition, being afflicted with creeping palsy, and a witness testifying to an expressed desire of the testatrix for a different disposition of the property, than that made, that probate was properly refused, citing Delafield v. Parish, 25 N. Y. 9; Van Guy sling v. Van Kuren, 35 id. 70. A mere progressive paralysis although conducing to, or resulting in death, and extending over a period of years will not raise any presumption of incapacity, if the decedent continued to administer all his business affairs with prudence and judgment. In re BirdsaU's Will, 13 N. Y, 421. In- competency may, under acute recurring attacks, be intermittent. Matter 23 354 surrogates' courts of Winne, 50 Misc. 113. It may be observed that the intimation in the celebrated case of Stewart v. Lispenard, 26 Wend. 255 to 306, that a man's capacity may be perfect to dispose of his property by will, although wholly inadequate to the management of other business, as for instance to make contracts for the purchase or sale of property, has not been wholly ap- proved in subsequent decisions. See DelafieM v. Parish, supra. And proof of a testator's ability to transact his ordinary business affairs with judg- ment and discretion, and to manage his property with reasonable pru- dence, will generally be considered very strong if not conclusive evidence of testamentary capacity. See Matter of Birdsall's Will, supra; Matter of Kiedaisch, 2 Connoly, 435; Matter of Grhy, 5 N. Y. Supp. 464; Coit v. Patchen, 77 N. Y. 533; Horn v. Pullman, 72 N. Y. 269; Pilling v. PiUing, 45 Barb. 92; Crolius v. Stark, 64 Barb. 112; Heyzer v. Morris, 110 App. Div. 313. So evidence of some acute serious illness during which the tes- tator may well be said to have been incapable of making a will, must if it is desired to show lack of capacity at the time of execution be followed by affirmative proof showing that the effect of such illness or attack con- tinued; for there is no presumption that it does. Just as has been held in the case of intoxication and drunkenness the disability ends when the exciting cause is removed. In re Johnson's Will, 27 N. Y. Supp. 649, 650, Fitzgerald, Surr. In this it differs from insanity which once shown to exist is presumed to continue until there is proof that intelligence and reason have reasserted themselves. Where a paralytic attack is of so se- vere a character as to completely alter the testator's disposition and per- sonal habits, destroying his aptitude for business and results in morose- ness and delusions, these facts may raise a presumption of impairment of the mental powers, but this presumption may always be met by proof that at the time of execution the testator knew what he was about and ex- ercised his judgment, will, and memory in the testamentary act. See Sheldon v. Dow, 1 Dem. 503, and DelafieM. v. Parish, 25 N. Y. 1. So where at the time or just prior to the execution of the will the testator has fainted and lost consciousness, this does not prove sufficient mental weakness to render him incapable of executing a will, particularly if, subsequently, the testator refers to the fact of having made a will or to some of the testa- mentary dispositions contained in the instrument. Matter of Mahoney, 34 St. Rep. 183. See also Cheney v. Price, 90 Hun, 238. If the Surrogate is satisfied that at the time the will was executed the testator was competent and of sound mind, proof of severe illness prior to that time culminating subsequently in acute mental disorder or in ir- rational action or dementia is immaterial. Matter of Davis, 91 Hun, 209; Matter of Fricke, 19 N. Y. Supp. 315. Evidence of subsequent physical or mental weakness is of course proper only as bearing upon the impairment of his mind and body. Matter of Skaats, 74 Hun, 462, where the General Term in the First Department (at p. 467) says: "It is conceivable that, by reason of physical and mental weakness, one might be deprived of testamentary capacity just prior and subsequent to a period when such CONTESTED PROBATES 355 capacity existed, and the question in all such cases necessarily must be as to the mental condition of the testator at the date when the will was made." Declarations of the testator, while incompetent to prove external facts are admissible on the question of mental capacity or undue influence. Matter of Woodward, 167 N. Y. 28; Matter of Potter, 161 N. Y. 84; Water- man V. Whitney, 11 N. Y. 157; Chambers v. Chambers, 61 App. Div. 299, 308; Marx v. McGlynn, 88 N. Y. 374; Matter of Clark, 40 Hun, 233. § 354. Same —Total breakdown. — When the disease is one which, if proven to exist, by its very nature involves breaking down of the brain tissues, the decision is easily made. Non experts may testify to acts and symptoms. The expert may give his opinion, by observation or inference, as to the nature and effect of the disease. Matter of Wendel, 43 Misc. 571. § 355. Same— Nature of will. — The unfairness or injustice of a will made by a sick or aged testator, is no proof of lack of testamentary ca- pacity in and of itself. If the disposition is unnatural and inconsistent with the obligation of the testator, it then becomes the duty of the pro- ponents to give some explanation. Matter of Bvdlong, 126 N. Y. 423; Matter of Soden, 38 Misc. 25, 27. Matter of Donohue, 97 App. Div. 205. An unnatural disinheritance of an infant child taken together with tes- timony as to mental weakness requires submission to a jury, in an action vmder § 2653a. Byrne v. Byrne, 109 App. Div. 476. But, if a testator says in his will that the disinherison of a child is for undutifulness, the proponent is not under any burden of accounting therefor. Matter of Arensburg, 120 App. Div. 463, citing Ross v. Gleason, 115 N. Y. 664. Of course, if the disinheritance is the result of fraud or undue influence a different situation is presented. (See below.) In Matter of Lowenthal, 2 Misc. Rep. 323, it was held that where a tes- tator died of paralytic dementia, having made his will while in the first stages of the disease and giving his wife but a small sum, where their de- votion prior to that time was marked, a finding of incompetency was sustained. It is proper to consider the provisions of the will in determining this question (La Bau v. Vanderbilt, 3 Redf. 384), but the crucial inquiry is, was the testator compos mentis at the time of execution (Hoyt v. Ross, 20 N. Y. Supp. 521); if he was, his will must stand, although it is evidently the result of anger or ill-will. Matter of Suydam, 84 Hun, 514. § 356. Forgetfulness and mistake. — Failure of memory is not of itself evidence of lack of mental capacity, nor will the mistakes consequent thereon invalidate a will (Matter of Stewart, 13 N. Y. Supp. 219; Matter of Lang, 9 Misc. 521); still if the failure of memory is so complete as that the testator cannot recognize or recall those dependent upon his bounty or so marked as to obscure his testamentary intentions, it may be suflicient when viewed in connection with other circumstances to warrant a finding of lack of testamentary capacity. The rule seems to be that where defect of memory is proven it will not be sufficient to create incompetency unless it be total or appertain to things very essential. See Sleeker v. Lynch, 1 356 surrogates' courts Bradf. 458, 466, 467. See also Reynolds v. Root, 62 Barb. 250. See also Children's Aid Society v. Loveridge, 70 N. Y. 387. § 357. Eccentricities. — Contestants of wills on the ground of lack of testamentary capacity, frequently rely unduly upon ecoentricities dis- played by the testator in his habits or conduct, particularly when such eccentricities begin and seem to develop from and after paralytic or apoplectic seizures or chronic diseases. Undoubtedly such eccentricities are symptomatic, and may be proven as facts from which the court may . be asked to infer mental unsoundness; and while as Lord Brougham ob- served, it is not the duty of the court to strain after probate, and the proponent is undoubtedly bound to sustain the burden of proof and satisfy the court that the testator was competent to make the will propounded, nevertheless Surrogates are loath to predicate insanity or unsoundness of mind upon acts often innocent and harmless, occasioned by individualities of disposition or peculiarities of circumstance. The leading case already freely cited (Delafield v. Parish, 25 N- Y, 9), was one as the headnote says: "Where the question of fact, whether the deceased possessed that mod- erate degree of reason and understanding which is required to enable one to dispose of his property by will, was determined in the negative." In that case prior to the paralytic attack resulting in the conditions which were made the basis of contest the testator was a wealthy, refined gentle- man, hospitable, of great command of temper and strict observance of decorum. The Court of Appeals refers with some detail to the melancholy developments resultant from the attack of paralysis, that he was often violent, vulgar, offensive and rude, showing as the court remarks, "the changed man, the forgetfulness of the gentleman, and the habits of the imbecile." The numerous eccentricities of character and conduct, totally inconsistent with and opposite to his character and conduct prior to his paralytic attack, the court held were most significant and material on the point of testamentary capacity. See opinion of Davies, J., at page 47. So Surrogate Rollins {Cornwell v. Riker, 2 Dem. 354, 368), observes: "Evidence respecting eccentricities of dress or demeanor, weakness of memory, absurdities of speech or conduct, and such like thjjigs, on the part of a decedent, is admissible in opposition to the probate of a paper- offered as his will, only because it tends to show, in a greater or less degree, that, in the making and execution of such a paper, such decedent did not thoroughly understand what he was doing; was not able to appreciate the nature and extent of his possessions; could not, after calUug to mind the persons who might naturally expect, because of the claim of kinship or for other reason, to participate in his bounty, form an intelligent purpose as to whom he would make, and whom he would refuse to make, his testamen- tary beneficiaries." In the case last cited the eccentricities claimed to be at variance not only with the demeanor that persons endowed with reason and intelli- gence exhibit, but also with the habits of the decedent herself earlier in life, were proven in great detail before the Surrogate; they tended to CONTESTED PROBATES 357 establish penuriousness, conspicuous untidiness, want of delicacy in cer- tain features of her daily life; it was claimed that there was a great and general impairment of all her mental faculties, that she was slovenly as to the care of her body, and as to the fashion of her apparel, coarse and vulgar in her tastes, grossly offensive in her personal habits, and well- nigh bereft of her powers of memory. Nevertheless the Surrogate found that the will expressed the free, unrestrained, deliberate purpose of the decedent and that she was of sound mind and memory when she published it. 7d. at page 395. See also Matter of Murphy, 41 A^Tp.Div. 153; Ivisonw. Ivison, 80 App. Div. 599; Matter of Armstrong, 55 Misc. 487. In this connection it is proper to note that the witnesses must be in- terrogated as to facts which they have observed. Petrie v. Petrie, 126 N. Y. 683, affi'g 6 N. Y. Supp. 831. The Court of Appeals has summarized the rule in this regard. Hewlett v. Wood, 55 N. Y. 634. "The general rule is that witnesses must speak of facts alone, and may not utter opinions, conclusions or inferences. To this rule there are these exceptions. "The subscribing witness to a will may speak as to the sanity of the testator at the time of executing a will. PoWell on Devisees, 69; Clapp v. Fidlerton, 34 N. Y. 190. "Experts may give their opinions (see post, page 369) upon questions of trade, skill, or science from the facts proven, or the circumstances noted by themselves. Persons not experts may testify to facts and incidents, known or observed by them, in relation to a testator, which tend to show soundness of mind or the contrary, and may testify to the impression pro- duced upon them by what they beheld or heard, and whether the acts and declarations thus testified to seemed to them rational or irrational (Clapp V. Fullerton, supra); but they may not express any opinion as to the gen- eral soundness or unsoundness of the mind of the testator (People v. O'Brien, 36 N. Y. 276; Real v. People, 42 id. 270), nor as to the competency of the testator to execute a will. 36 N. Y. 276; De Witt V. Barley, 17 id. 340. In a later case (Holcomb v. Holcomb, 95 N. Y. 316), Judge Danforth reviewed the cases in this connection. De Witt v. Barley, 17 N. Y. 340; Clapp V. Fullerton, 34 N. Y. 190; O'Brien v. People, 36 N. Y. 276; Real v. People, 42 N. Y. 270; Hewlett v. Wood, supra; Rider v. Miller, 86 N. Y. 507; Matter of Ross, 87 N. Y. 514. Judge Danforth says, citing Clapp v. Fullerton, that when a layman is examined as to facts within his own knowledge and observation tending to sho'w the soundness or unsound- ness of a testator's mind, he may characterize as rational or irrational the acts to which he testifies. "But to render his opinion admissible even to this extent, it must be limited to the conclusions from the specific facts he discloses; he may testify to the impression produced by what he witnesses, but he is not legally competent to express an opinion on the general question whether the mind Of the testator was sound or unsound." This limitation applied to such witnesses is made more apparent by the exception in favor of sub- 358 surrogates' courts scribing witnesses; they may be required to state not only such facts as they remember, but their own conviction of the testator's capacity. Cla'pf V. Fullerton, 34 N. Y. 190. See also Matter of Peck, 17 N. Y. Supp. 248; Matter of Folts, 71 Hun, 492. This exception, however, also has its limitations; thus where a subscribing witness was asked, "Do you think the testator had mind sufficient, at the time he is alleged to have executed that will, to give those specific directions with reference to the disposition of this property?" the General Term (Matter of McCarthy, 5 Hun, 7, Barker, P. J.) held the admission of the question error, on the ground that the inquiry was not limited to an expression of the opinion of the witness as to the sanity of the testator at the time of the execution of the will so as to bring the case within the rule stated in Clapp v. Fullerton and Hev}- lett V. Wood. The court adds, "in determining the question of testamen- tary capacity on the part of the testator in particular instances whenever the question arises, the inquiry is not, had the testator capacity to make the will in question, but, whether he was of sound mind and memory at the time of its execution." Mere opinions of witnesses as to the testator's lack of capacity will be given little weight aside from the facts upon which they are claimed to be based {Nexsen v. Nexsen, 2 Keyes, 229), and even though the witnesses be distinguished experts their conclusions and opinions may be rejected or disregarded when they are based upon premises which the Surrogate is unable to infer from the facts proven. Cornwell v. Riker, 2 Dem. 354, 368; Harper v. Harper, 1 S. C. 351; Matter of Connor, 7 N. Y. Supp. 855; Matter of BiLckley, 2 N. Y. Supp. 24; Matter of McArthur, 12 N. Y. Supp. 822. And their competency may be tested upon cross-examination. Hoag v. Wright, 174 N. Y. 36. In Matter of Myer, 184 N. Y. 54, the following was in the record: "Q. Did such. acts and conversations make any impression on you as to their being rational or irrational? A. I think they were irrational " (stricken out). Whereupon he answered: "Yes, they did. Q. What was the im- pression made on you? A. She was irrational, I thought." Held the last answer should have been stricken out. The question was proper in form; but the answer was an attempt by a lay-witness to give an opinion upon the question of capacity. They can only give their con- temporary impressions as to the rationality or irrationality of the acts testified to. Ihid and cases cited at p. 60. The exception taken on this record appears hypertechnical. In fact the court concedes that alone it would not justify a reversal. It was as nearly exact and direct as a woman and lay-witness could be expected to give. Even an expert's opinion evidence carries only the weight of its logical sequence from stated facts, and some latitude, in non-jury cases is preferable to a rule which would practically require the "coaching" of witnesses. See Wyse v. Wyse, 155 N. Y. 367. § 358. Capacity for business. — Referring generally to insane delusions, intoxication, existence of prejudices in the mind, sudden fits of anger, melancholia, etc., it may be said that the possession by testator of a ca- CONTESTED PROBATES 359 pacity for transacting his business and amassing an estate, establishes a strong presumption that the testator also has a capacity to direct how that estate shall be disposed of after his death. Matter of Murphy, 41 App. Diy. 153, 156 (where court described testatrix as "shrewd, rugged old woman," of "whims and filth," "parsimoniously clinging to her prop- erty"). Contestants of a will can often prove eccentricity of character by emphasizing and exaggerating idiosyncrasies which have formed a part of testator's character and individuality among those who knew him, but which emphasized may, to an outsider, and one unacquainted with his character, make him appear to border on the insane. The knowledge of this fact will make courts extra cautious in their consideration of such evidence; see Matter of Murphy, 41 App. Div. 153, 156; particularly when the same is advanced by interested witnesses. The Court of Appeals has summarized this rule by saying (Brick v. Brick, 66 N. Y. 144, 148, Rapallo, J.), "It would be indeed strange that a person should have the capacity to acquire a large fortune by his personal in- dustry and inteUigence, and from causes existing at the same time be held not to have sufficient mental capacity to dispose of it by will." § 359. Addiction to the use of liquor, opium, etc. — ^The leading case in this connection is Peck v. Carey, 27 N. Y. 9. In that case the testator for some time before making his will had become excessively addicted to the use of spirituous liquors; had experienced several attacks of the par- ticular mania arising from such habits; had more than once attempted to put an end to his existence by means of poisonous drugs; and eventually committed suicide; there was testimony to the effect that he indulged in habits of licentiousness and was scarcely ever sober. Denio, Ch. J., ob- served, that in order to avoid a will made by an intemperate person it must be proved that he was so excited by liquor, or so conducted himself during the particular act as to be at the moment legally disqualified from giving effect to it; and adds it is not to be understood that a will made by one who is at the time under the influence of intoxicating liquor is for that reason void .... for under a slight degree of excitement from liquor, the memory and understanding may be as correct as in the total absence of any exciting cause. A drunkard may make a valid will even if at the time of the execution of the instrument he is under the influence of liquor, provided he comprehends the nature and extent and disposition of his es- tate, his relation to those who have or might have come upon his bounty and is free from undue influence, fraud or coercion. Matter of Reed, 2 Con- noly, 403, 405, Ransom, Surr., citing Peck v. Carey, supra; Gardner v. Gard- ner, 22 Wend. 526; Van Wyck v. Brasher, 81 N. Y. 260. See also Matter of Sutherland, 28 Misc. 424, 427; Cook v. White, 43 App. Div. 388, 392; Matter of Hewitt, 31 Misc. 81. See also Matter of Will of Johnson, 7 Misc. 220, Fitzgerald, Surr. The reason for this rule is stated to be that the most pronounced drunkards have times when they are sobei- and have per- fectly lucid intervals in which every act performed is of course legal and binding, their deranged condition of mind is transitory and when the ex- 360 SURROGATES COURTS citing cause is removed and the effects have disappeared the person is capable in the eyes of the law. See Matter of Halbert, 15 Misc. 308, and cases cited at page 311; and Matter of Tijft, 55 Misc. 151; Matter ofFeeney, 55 Misc. 158. In Matter of Woolsey, 17 Misc. 547, the Surrogate found from testimony of the subscribing witnesses that the testator was not drunk at the time the will was executed, although it appeared that he had taken three bottles of whiskey during the day, the will being executed in the evening; he held from all the evidence that the testator's understanding was not clouded or his reason dethroned by actual intoxication at the exact time the will was executed. See also Matter of Watson, 12 N. Y. Supp. 115, where a person had been declared to be an habitual drunkard after judicial in- quiry. Matter of Sutherland, 28 Misc. 424, 427. It was held in several early cases that his will would not therefore be void, but that there must be satisfactory affirmative proof of his mental capacity. Lewis v. Jones, 50 Barb. 645. See also Ex- -parte Patterson, 4 How. Pr. 34; McLaugMin's Will, 2 Redf . 504. Whether, therefore, the intoxication is habitual or not the court's in- quiry is addressed to the question, was the decedent intoxicated at the time of executing the will? If he was, the further inquiry is, whether he was so intoxicated as to disorder his faculties and pervert his judgment sufficiently to incapacitate him. The same rule applies where the indul- gence by the testator is in opium or other drugs tending to impair the men- tal powers or disturb the testator's volition or judgment; the same rule holds that it must appear that the action of the drug at the time of ex- ecution was such, that the testator cannot be Said to have been in posses- sion of his faculties or to be acting as a free agent. See Glockner's Will, 2 N. Y. Supp. 97; Matter of Lowman's Estate, 1 Misc. 43. Where a will was executed under circumstances presenting the question of incapacity by reason of intoxication, but there was no such evidence in regard to a codicil which in express terms ratified the will, the court wou^ld uphold the will, upon due proof of the codicil. Cook v, White, 43 App. Div. 388, 392. § 360. Idiocy, lunacy and insane delusions.— ^It has beeft held that by the words, "a sound mind," in the meaning of the law is not meant a mind which is perfectly balanced and free from all prejudice or passion {PhiUips V. Chater, 1 Dem. 533, 547) ; nor will mere imbecility of mind incapacitate a testator, if there be sufficient understanding to satisfy the rule, to wit: that the testator must have at the time of executing the will sufficient capacity to comprehend the condition of his property and his relation toward the persons who are or might be objects of his bounty, and the scope and bearing of the provisions of the will. Wade v. Holbrook, 2 Redf. 378. See also McLaughlin's Will, id., page 504. "An imbecile is neither a lunatic nor an idiot." McGoumv.Underhill, 115 Ap^. Div. 6S8. "Im- becility is not a disqualification for making a will, provided the testator has the capacity which the law requires, and that is detettflined not by CONTESTED PROBATES 361 any mere generalization of his capacity (i. e., by expert opinion that he was imbecile) but from his acts in reference to the particular business in hand." Ibid. It has already been noted that mere eccentricities are not enough to disturb testamentary capacity. See cases cited, supra, and Hartwell v. McMaster, 4 Redf . 389, 394. One who is congenitally an idiot comes within the prohibition of the statute and is incompetent to make a will. Insanity, if it is shown to have existed at the time of execution, will also incapacitate. Matter of Lawrence, 48 App. Div. 83; Matter of Rich- ardson, 51 App. Div. 637. The difficulty had always lain in the question whether the specific acts proven are sufficient to warrant the conclusion that the testator was in fact at such time insane. It has already been noted that insanity or imbecility will not be presumed merely from ex- treme old age. See cases cited, supra, and also Romaine's Will, 6 N. Y. Legal Observer, 1056. In regard to imbecility, insanity or insane delusions, the court must judge from the facts. Opinions of medical men and of alienists have no more value than attaches to the reasonableness of their conclusions from the facts from which they testify. Nor is insanity in- ferable from the mere act of suicide. Roche v. Nason, 186 N. Y. 128, 137 (106 App. Div. 256), citing Weed v. Mutual Ben. Life Ins. Co., 70 N. Y. 561; Shipman v. Protected Home Circle, 174 N. Y. 398, 405. In respect to the subject now under discussion the ordinary presump- tion is that every man is compos mentis and he that alleges the contrary must prove it. If testator is proved to have been insane on a date subse- quent to that of the will's execution, it cannot affect its validity. Matter of Lawrence, 27 Misc. 473. But once lufiacy has been shown to have ex- isted, the legal presumption arises that it continues, and the burden of proof then rests upon a proponent to show that the execution of the will took place during a lucid interval. Matter of Coe, 47 App. Div. 177; Car- ter V. Beehwith, 128 N. Y. 312, 316; Matter of Lapham, 19 Misc. 71, 75. See also WadsWorth v. Sharpsteen, 8 N, Y. 388; Hughes v. Jones, 116 N. Y. 67; L'Amoureux v. Crosby, 2 Paigej 422. This presumption arises as soon as a testator has been declared incompetent in lunacy proceedings; it is not conclusive as to testamentary incapacity, but prima facie or presump- tive evidence thereof. Matter of Widmayer, 34 Misc. 439, citing Matter of Coe, 47 App. Div. 177; Matter of Clark, 57 App. Div. 5; Lewis v. Jones, 50 Barb. 645; Wadsworth v. Sharpsteen, 8 N. Y. 395. But if a person so declared a lunatic is subsequently declared to have recovered his sanity, a will executed thereafter has the benefit of the presumption of his con- tinued sanity; if subsequently he is again declared insane it is for the Surrogate to determine from all the available evidence whether at the time of the execution of the will he possessed testamentary capacity; in such a case a Surrogate will attach more importance to the testimony of witnesses who observed the testator's daily life and conduct, than to the evidence of medical experts in answer to hypothetical questions. See Matter of Kied&isch, 13 N. Y. Supp. 256. In the case last cited Surrogate Raasom refei^ed in his opiflion at page 260, to the Pendleton case, 5 N. Y. 362 surrogates' courts Supp. 849, where the will of a person who at the time the will was made was under the care and custody of a commission in lunacy, was admitted to probate. The learned Surrogate intimated that the case was an au- thority only to the effect that the existence of the commission in lunacy was not conclusive upon the question of capacity and that the court had a, right to inquire independently into the facts to ascertain whether the alleged insane person was in fact sane or executed a will in a lucid interval. See also Van Guysling v. Van Kuren, 35 N. Y. 70. § 361. The test of insanity. — It is by no means always or frequently the case that the testator who is alleged to have been insane had in fact passed the scrutiny of judicial proceedings de lunatico inquirendo, and the court is usually asked to infer that he was insane from his peculiar con- duct or the extraordinary character of his disposition. The cases will fall Tinder two general heads: (a) Where alleged insanity is based upon the existence of insane de- lusions. (6) Where it is claimed to follow as an irresistible inference from the condition of health or the eccentric behavior of the decedent. § 362. Insane delusions. — First then as to predicating insanity upon the existence of insane delusions. In this connection it will be noted from the cases about to be discussed that two facts must be proved: 1. The insane delusion must be shown to have existed. 2. The insane delusion must be shown to have operated on the mind of the testator in making the particular will sought to be invalidated. See Matter of Richardson, 51 App. Div. 637, 638. In the leading case in this State {Society v. Hopper, 33 N. Y. 624), Judge Denio, in delivering the opinion of the court, enunciates the principle governing this class of cases of dementia, or loss of mind and intellect, " The true test of insanity is mental delusion. ... If a person persistently believes supposed facts, which have no real existence except in his per- verted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion, and delusion in that sense is insanity. Such a person is essentially mad or insane on those subjects, though on other subjects he may reason, act, and speak like a sensible man. If the deceased was unconsciously laboring under a delusion as thus defined, in respect to his wife and family connections, who would naturally have been the objects of his testamentary bounty when he executed his will, or when he dictated it, and the courts can see that its dispository provisions were or might have been caused or affected by the •delusion, the instrument is not his will, and cannot be supported as such in a court of justice. The conduct and designs which he imputed to his wife and relations were such as, upon the assumption of their existence, should have justly excluded them from all share in the succession of his estate." See also definition in In re Smith's Will, 24 N. Y. Supp. 928, In the light of this opinion it is manifest, first, that the courts will require CONTESTED PROBATES 363 proof that the testator's mind was possessed, (a) of a conviction, (b) actually influencing his conduct, (c) which has no foundation in the facts. These three conditions should be shown to coexist. § 363. Insane delusions, spiritualism. — Having observed that the three conditions above noted must coexist, to wit: a conviction, actually in- fluencing conduct, without reasonable foundation in fact, it is important to note first, that the court will not go in its inquiry into those realms of thought in which all persons are free to indulge in independent individual speculation unless a clear ease is made out amounting to religious mania, and even in such cases the existence of such religious mania is deemed symptomatic and is only important as bearing upon the general sanity or insanity of the decedent. It is manifest, for example, that the courts will not regard infidelity or a lack of adherence to generally accepted religious truths as indicating insanity in the eye of the law whatever may be the theological view. To illustrate, Surrogate Coffin observes (Hartwell v. McMaster, 4 Redf. 389, 394), "The testator's want of belief in the saving efficacy of infant baptism, and of the doctrine of the Real Presence are ■utterly without significance as evidence of his insanity." Again Surrogate Calder {Matter of Halbert, 15 Misc. 308, 318), observes, "We are not to treat spirituahsm theologically but legally, in its application to the testa- mentary capacity of the testatrix. It matters not what our individual ■opinion may be as to the facts, formalities or claims of spiritualism." In that case it appeared that the testatrix had been a spiritualist and had done many things consistent with the teachings of spiritualism. "She visited the cemetery and communed with the spirits of her deceased hus- bands ; set apart a bedroom for them in order that they might have a place to rest when they visited her; placed at the table a sufficient number of plates for them," etc. But the learned Surrogate observed, "It is well settled that believers in this faith, when testamentary capacity is in qiies- tion, must be considered in the same light as they who take part in any other religious ceremony," citing Keeler v. Keeler, 22 N. Y. St. Rep. 439; Matter ofVanderbilt, 3 Redf. 384; Matter of Vedder, 14 St. Rep. 470. So again. Surrogate Calvin (Matter of Cornelius Vanderbilt, 3 Redf., 384) held that evidence of a belief in clairvoyance on the part of a testator might be material, provided the will sought to be proved was the direct offspring of the belief. He cites the case of Robertson v. Adam, Redf. Cases upon Wills, 367, where the will was shown to be the direct offspring of the testa- trix's assumed communication with her deceased husband, and her belief in regard to her son-in-law being possessed of a supernatural control over his wife, and of himself being under the immediate control of evil spirits; and he cites an excellent definition by Judge Redfield of an insane delusion as, "the result of a false perception of the mind that cannot be cured or dispelled by any amount of evidence or argument addressed to the mind while in this insane state." Mere speculative opinion upon religious questions however singular or absurd in the common judgment, will not affect the validity of wills made by such persons. No belief as to future 364 SURROGATES COURTS rewards and punishments or principles of justice upon which they are to be administered, or other reUgious creed, can be regarded as evidence of insanity, since there is no test by which their truth can be ascertained so as to determine whether they are delusions or not, and if so, whether they will yield to reason or not. Will of Cornelius Vanderbilt, at page 388, supra. In Matter of Brush, 35 Misc. 689, it was held that a belief in Christian Scieftce, when founded on religious convictions, is consistent with testa- mentary capacity, and beyond the scope of judicial inquiry. In fact, the truth or falsity of religious behefs has always been held an improper sub- ject of judicial inquiry. Keeler v. Keeler, 20 N. Y. St. Rep. 439. In the case of Thompson v. Quimby, 2 Bradf. 449, where a great deal of evidence was given as to singular beliefs held by the testator as to the Phi- losopher's Stone, as to his ability to locate the treasures of Captain Kidd; and as to his having a spiritual eye by which he could discern the presence of ghosts, and of spirits in the moon, Surrogate Bradford discussed the question at great length (see especially page 474 et seq.), and commented upon the danger of confounding the results of ignorance, early impression, credulity, and superstition with the phenomena of mania, and noted that it would be most dangerous as erecting a standard of sanity dependent upon education and knowledge; and he observes that where peculiar speculative beliefs are the result of impressions of childhood they are not only very seldom throughly eradicated, but have very little evidential value in this connection, as compared to cases where they break out suddenly or at an advanced stage of life or subsequent to some sudden illness or seizure. See exhaustive statement of deductions and conclusions at the end of Thompson v. Quimby, at pages 507, 508. In Matter of Rohe, 22 Misc. 415, Surrogate Marcus obsefved, that while the testimony offered proved the fact that the testatrix was a believer in spiritualism and that she was a constant attendant upon spiritualistic stances there was not sufficient proof that either the spirits or mediums in which she believed or with which she had relations operated to induce or affect specific dispositions in her will. So a belief in transmigration of souls is not of itself proof of lack of testamentary capacity. Mattef of Bonard, 16 Abb. Pr. N. Y. 128. See also Fowlev v. Ramsdell, 4 Albany Law Journal, 94. So the courts have held that the belief in spiritualism is so common that so far as testamentary capacity is concerned the la* must treat it as it would any other religious conviction. Keeler v. Keder, 3 N. Y. Supp. 629. In Matter of Vedder, 6 Dem. 92, a will was admitted to probate in spite of the testator's belief in witches and in witchcraft and proof of various hallucinations, such as, that she had been and conversed with Jesus; that if live coals and a red garter should be put under a churn the butter would come; that it was impossible to keep her horses fat because the witches rode them at night, etc., it appearing that her belief did not affeet her testamentary act. See opinion at pages 104 and 105 and cases cited at page 101. In Porman's Will, 54 Barb. 274, 297, it was held that a believer CONTESTED PROBATES ' 365 in witches and witchcraft, in spiritualism, or in the doctrines of Moham- med, may make a vaUd will. The General Terni in affirming Surrogate Bradford's decision (Thompson v. Quimby, 21 Barb. 107), observed: "Erroneous, foolish and even absurd opinions on certain subjects do not show insanity when the person entertaining them still continues in the possession of his faculties, discreetly conducting not only his own affaire but the business of others." So also on the subject of religion. Matter of White, 121 N. Y. 406. In Van Guysling v. Van Kuren, 35 N. Y. 70, it appeared that the testatrix believed she was tormented by witches and spooks which kept her awake at night and became enraged at those who told her there were no witches; that she imagined she saw things that did not exist and described visions she had while sleeping; that she used the fingers in place of knife and fork; and that her eyes were fre- quently wild and glaring. The Court of Appeals held she was of disposing mind and memory. § 364. Insane delusion as distinguished from mistaken beliefs. — Proof of a mistaken belief not amounting to an insane delusion will not invali- date a will. Ckbpp V. Fullerton, 34 N. Y. 190. The inquiry which the court must make has been stated to be whether a person situated in all respects like the decedent might have believed all that the evidence shows he believed, and yet have been in full possession of his senses. Phillips v. Chater, 1 Dem, 533, 543. So the Court of Appeals (in Clapp v. Fullerton, supra) sustained probate where a testator excluded one of his children by reason of his mistaken belief that she was illegitimate. See also Matter of Gross, 14 St, Rep. 429. See also In re Smith's Will, 24 N. Y. Supp. 928. § 365. Erroneous belief resulting in disinheritance of an heir. — Where a testator is shown to have possessed erroneous ideas or beliefs in regard to one or more of the persons who might naturally be supposed to benefit by his will, and by reasons of such behefs disinherits them, the court will not be influenced by sentiment (Potter v. McAlpine, 3 Dem. 108, 113), but can deny probate only where the mistaken behef amounts to an insane delusion. Matter of O'Dea, 84 Hun, 591, affirming probate on opinion of Surrogate Fitzgerald. Unjustifiable impressions, resulting in an estrange- ment so that testator disinherits the one as to whom he entertains such impressions cannot be styled delusions. Dobie v. Armstrong, 160 N. Y. 584. A testator, may "use his will for displaying kind or vindictive sentiment, may indulge if he choose, his whims, spite, vanity, or his egotism, or his animosities, to the top of his bent; if he is not deficient in mental capacity and is observant of the forms which have been established by law for the execution of the testamentary instrument, his wishes must be respected by the courts, at least to the extent of adjudging that they be made effec- tual." Hagan v. Yates, 1 Dem. 584, 596, Rollins, Surr. In the case last cited the testator had discriminated against two daughters by his first wife for what the court termed a very ignobl© reason; but the Court of Appeals intimates in Horn v. Pullman, 72 N. Y. 269, that if a reason is 366 SURROGATES COURTS satisfactory to the testator, however inadequate it may seem to a court, it is no ground of itself for setting aside a will. In PMUips V. Chater, supra, a wife was excluded from her husband's will owing to a mistaken impression on his part that she had been unfaithful. The Surrogate sustained the will, holding that the facts upon which his belief was evidently based would warrant such a person as the testator in entertaining the belief. In Matter of Jenkins, 39 Misc. 618, there was no reasonable basis for this belief of infidehty, and the Surrogate set aside the will cutting off the wife on the ground it was the "offspring of delusion." He uses this definition, "A person is imder a delusion where he, without cause or evidence, firmly and persistently believes in and acts upon certain premises as existing facts when no such facts really exist." This is correct if the word "delusion " is read in the light of Bouvier's def- inition quoted at page 620 of the opinion. So wills have been admitted to probate where the testator had a mistaken belief that one of his kinsmen had wronged him. Matter of Lang, 9 Misc. 521. But where the testator after his second marriage became possessed of the belief that his children were opposed to the marriage and were all trying to rob him and lived ap- parently in continual fear of them and became violent whenever they were referred to, it was held that he was a monomaniac on the subject of his children, the delusion having no basis in fact and such delusion operating directly to modify his testamentary dispositions, the will was not admitted. Matter of Dorman, 5 Dem. 112, 117, citing Matter of Shaw's Will, 2 Redf. 107; Lathrop v. Borden, 5 Hun, 560; Stanton v. Wetherwax, 16 Barb. 259; Seaman's Friend Society v. Hopper, 33 N. Y. 619; Morse v. Scott, 4 Dem. 507; In re McCue, 17 Weekly Dig. 501; Riggs v. American Tract Society, 95 N. Y. 503. So a will was admitted to probate where the testatrix excluded her brother from her will by reason of a deep-rooted and long-continued dislike of him; and a belief that he had in some indefinite manner wronged her. Bull v. Wheeler, 6 Dem. 213. The insignificance of the matter out of which the dislike arises is immaterial. In the case last cited the trouble seems to have originated in regard to the use of a horse and a wagon. Where a testator was shown to have repeatedly declared that a certain young man whom he had adopted was not his son and in fact left him out of his will, it was held not to be sufficient proof of insane delusions. Matter of Zdgler, 19 N. Y. Supp. 947. Where a decedent at the time of making his will was persuaded that his wife and children had entered into a conspiracy against him to send him to a lunatic asylum; that they had attempted to poison him and it was proven that he finally killed his wife and attempted to kill himself, Surro- gate Ransom held that he was laboring under an insane delusion and de- nied probate to his will (Matter ofKahn, 1 Connoly, 510, 514), holding that the proof showed that the instrument propounded had its origin in the de- lusion of a mind unsound in respect of the subject involved. So where a testator, who ultimately ^ied in an insane asylum of progressive paresis, made a will during the first stage of the disease discriminating against his CONTESTED PROBATES 367 wife with whom prior to his disorder his relations had been "more than ordinarily felicitous," the General Term of the Common Pleas (Matter of Loewenstine's Will, 2 Misc. 323), held that there was not reasonable basis for his delusion, that he was unduly influenced thereby in the making of his will, and accordingly refused to disturb the finding of a jury that he was not possessed of testamentary capacity. See also Matter of Weil, 16 St. Rep. 1. So where a testator among other delusions believed that his brothers and sisters desired to poison him and made special provision in his will for his executor of a sum "large enough to be over and above any bribe that may be offered by my brothers and sisters, and children," it was held that he was laboring under an insane delusion sufficient to invalidate the will. Matter of Lockwood, 8 N. Y. Supp. 845. The Court of Appeals in a recent case (Matter of Will of White, 121 N. Y. 406) where the prejudice of the testator against his son grew out of the fact that he was a Free Mason, of which order the testator had frpm his youth entertained a bitter dislike, sustained the will. Judge Gray remarks in his opinion: "On questions of testamentary capacity courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation," citing Seaman's Friend Society v. Hopper, 33 N. Y. 624. "Delusion is insanity, where one persistently believes supposed facts, which have no real ex- istence, except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumpton of their existence. But if there are facts, however insufficient they may in reality be, from which a prejudiced, or a narrow, or a bigoted mind might derive a particular idea, or belief, it cannot be said that the mind is diseased in that respect. The belief may be illogical, or preposterous, but it is not, therefore, evidence of insanity in the person. Persons do not always reason logically, or correctly, from facts, and that may be because of their prejudices, or of the perversity, or peculiar construction of their minds. Wills, however, do not depend for their validity upon the testator's ability to reason logically, or upon his freedom from prejudice." Clapp v. Fuller- ton, 34 N. Y. 190. See also Dobie v. Armstrong, 160 N. Y. 584. See contra, Lathrop v. American Board of Foreign Missions, 67 Barb. 590. Where a testator who left all his property to his wife was shown to have a delusion that his brother by athletic exercise was developing his muscle for the purpose of kiUing him, probate was sustained. Fricke's Will, 19 N. Y. Supp. 315. The court will always take into consideration where the disinheritance of an heir or one of the next of kin is alleged to be due to an insane delusion, the relation of the person disinherited to the decedent. See Probate of the Will of Forman, 1 Tucker, 205, 221. See also Matter of Springstead, 8 N. Y. Supp. 596. Those who in the testator's lifetime have been unfriendly or bitter, or hostile in their conduct towards him will not be heard to complain if the natural result of disinheritance from a share in the estate after his death follows therefrom. Dobie v. Armstrong, 160 N. Y. 584; Matter of Will of White, 121 N. Y. 406; Matt^ oflredale, 53 App. Div. 45, 51. 368 surrogates' courts § 366. Insane delusions must be effectual. — Where an insane delusion is relied upon in contesting a will it must not only appear that it existed but that it materially affected the testamentary disposition made by the will propounded. For example, where a testator had an exaggerated idea as to the extent of his own property, and was shown to have declared that he had more property than anyone knew, Surrogate Davie admitted his will to probate although there was other evidence indicating that the testator was of a licentious nature, vulgar and indecent in conversation, passion- ately fond of narrating his amorous exploits, speaking of his liaisons pub- licly and boastingly. In re Jones's Will, 25 N. Y. Supp. 109. The Surro- gate observes: "The inference is fairly justified by the evidence that the testator was either a notorious romancer or a veritable Don Juan; but eccentricities of habit or perversion of feelings and conduct, forming what is termed 'moral insanity,' do not constitute legal incapacity, 1 Jarm. Will., p. 75. The law, recognizing the fact that proof of moral depravity ■does not necessarily estabhsh a lack of intellectual ability, does not require any particular grade of moral rectitude as an element of testamentary ■capacity. Even pronounced insane delusions, if they do not relate to, or directly bear upon, the testamentary act, do not invalidate a will. Cases illustrating the proposition are numerous. Coit v. Patehen, 77 N. Y. 533; Society v. Loveridge, 70 N. Y. 387; Van Guysling v. Van Kuren, supra; Thompson's Case, 21 Barb. 107; Forman's Will, 54 Barb, 274; Bonnrd's Will, 16 Abb. Pr. (N. S.) 128; In re MacPherson's Will (Surr.), 4 N. Y. Supp. 181. Several witnesses on part of the contestant have described •certain acts and statements of testator, and characterized them as irra- tional, but such expression of opinion affords no evidence of mental unsound- ness. In re Bapplee's Will (Sup.), 21 N. Y. Supp. 801. No reliable esti- mate of one's mental condition can be predicated upon isolated and inde- pendent acts. It is the entire line of conduct, each act examined with reference to that which preceded and that which followed it, which indi- cates whether the man is controlled by the dictates of sense and reason, or by the illusions of a disordered mind or imagination." In the Vedder case, 6 Dem. 92, where the eccentricities and alleged delusions, were of extraor- dinary character, the learned Surrogate nevertheless observed (at page 97) : "There is no evidence whatever to show that any or all of these beliefs, delusions, eccentricities, or peculiarities had the slightest connection with or influence upon her testamentary act here in question." The cases are uniformly to the effect that unless the delusion entered into the testamen- tary act, its existence will not operate to defeat probate. See Matter of Lapham, 19 Misc, 71; Matter of Gannon, 2 Misc. 330; Matter of Loewenstine, 2 Misc. 323; Matter of Dorman, 5 Dem. 112; Lock-wood's Will, 2 Connoly, 118; Matter of Kahn, 1 Connoly, 510; Leslie v. Leslie, 92 N. Y. 636; Matter ofMcCue, 17 Weekly Dig. 501 ; Keeler v. Keeler, 3 N. Y. Supp. 629. In Mat- ter of Long, 43 Misc. 560, Church, Surr., denied probate of a will made by a woman, fifty years married, which cut off her husband as to whom he found she was under the insane delusion that he was unfaithful and an CONTESTED PROBATES 369 habitual drunkard. Singularly, the husband was not contestant; but the ruling was made in a contest by a collateral relation (see opinion and cases). § 367. Expert and opinion evidence. — Allusion has already been made to the weight and value which the courts attach to the opinions of witnesses testifying to the insanity or sanity of a testator, and the fact has been noted that subscribing witnesses to a will may testify as to the testamentary capacity of the decedent, stating their opinion that he was or was not capa- ble of making a will. (See onfe.) See MaMer o/Pec/c, 17 N. Y. Supp. 248, and other cases cited, supra. So, also, it is held that testimony of subscrib- ing witnesses who had opportunity of seeing and observing testator, should prevail over the opinion of an expert, based merely upon a hypcfthetical question. Matter of Connor, 29 Misc. 391, 393, citing In re Lyddy's Will, 4 N. Y. Supp. 468; Matter of Kiedaisch, 13 N. Y. Supp. 255, 260; Matter of Johnson, 7 Misc. 220. The declarations of beneficiaries under the will are incompetent, however, on this inquiry. Matter of Van Dawalker, 63 App. Div. 550. The Court of Appeals in a recent case restated the rule in regard to evidence given by nonexperts {Paine v. Aldrich, 133 N. Y. 544, 546) upon the trial. The Court of Appeals says: "The trial court applied the correct rule in regard to this class of evidence. The witness was a lay- man and could not properly give an opinion as to the mental capacity of the grantor, or as to whether he was rational or irrational, even when such opinion might be based upon specific acts and conversations, and his per- sonal observations. He could state the acts and conversations of which he had personal knowledge, and then be permitted to say whether, in his judg- ment, such acts and conversations were rational or irrational, or were those of a rational or an irrational person. This is the extent to which any of the cases have gone, and the tendency is to limit rather than enlarge the rule, because, even in the present form, it is an infringement of the fun- damental law of evidence that a witness, who is not an expert, shall not be permitted to testify to his conclusions or opinions as to an issuable fact." See also Hewlett v. Wood, 55 N. Y. 634, where it was said: "Persons not experts, after testifying to facts and incidents in relation to a testator, tending to show soundness of mind or the contrary, may testify to the im- pression produced upon them thereby, and also whether .the acts and dec- larations testified to seem to them rational or irrational, but they may not testify as to the general soundness or unsoundness of mind of the testa- tor." See also DeWitt v. Barley, 9 N. Y. 371. Nonexperts may observe and testify to facts as symptoms of a disease, of which the expert may state the nature and effect. Matter of Wendel, 43 Misc. 571. While of course an expression of opinion by a witness in a contested will case that the testator's conduct observed by him was irrational and showed unsoundness of mind, does not of itself prove a lack of testamentary capacity (Matter of Rapplee, 66 Hun, 558), yet if he has testified to particular acts or remarks of the testator, he may also testify as to the impression received by him from such acts or remarks. See People v. Strait, 148 N. Y. 566; Petrie v. Petrie, 24 370 SURROGATES COURTS 6 N. Y. Supp. 831; Matter of Folts, 71 Hun, 492; Yeandle v. Yeandle, 5 N. Y. Supp. 535. The limitations of § 834, Code Civ. Proc, must be kept in mind. Matter of Myer, 184 N. Y. 54. Where expert evidence is attempted to be offered it must first be noted, that the question whether the witness is or is not an expert, is a question of fact for the trial court. See Otis v. Cowles, etc., Co., 13 N. Y. Supp. 251; Hyman v. Boston Chair Co., 13 N. Y. Supp. 609. Second, that they are competent witnesses to testify to their opinions as to matters which are the subject of their expert knowledge. GarUg v. N. Y., L. E. & W. R. R. Co., 75 Hun, 605. See also Reich v. Union R. R. Co., 78 Hun, 417. In Hewlett v. Wood, 55 N. Y. 634, the court stated the rule, that witnesses testifying as experts may give opinions upon questioi!s of trade, skill or science, from facts proven or the circumstances noted by themselves. Applying this rule the General Term (Matter of Arnold, 14 Hun, 525, 527), held it error to admit the second of the follow- ing questions, to a medical expert in a contested will case. " Q. Do you understand what is meant in law or medical jurisprudence by the term, 'testamentary capacity' ? A. I do. " Q. Did you consider him possessed of that power between the time of this shock and the time of his death? " (Objected to, objection overruled and Exception.) " A. No, sir, I do not think he was." Similarly where a physician was permitted to testify under the objection and exception of the proponent that the testatrix, " had not sufficient men- tal strength to manage her estate or conduct the business connected with it," held error. Matter of Mason, 60 Hun, 46, 54. Where the expert wit- ness personally observed the testator at or about the time of the execution of the will he should testify to the facts, and may be allowed to give his opinion therefrom, but where medical experts are called to testify in an- swer to hypothetical questions the court will require the hypotheses upon which the question is based to be founded upon facts proved in the case. The Court of Appeals has laid down this rule, "Hypothetical questions are allowed to be put to experts but the hypothesis upon which they are ex- amined must be based upon facts admitted or estabUshed by the evidence, or which if controverted the jury might legally find on weighing the evi- dence." People V. Augsbury, 97 N. Y. 501. And again, " In such a case it is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established or as he can recollect and carry in his mind, and thus form and express an opinion." Matter of Mason, supra, at p. 55, citing Reynolds v. Robinson, 64 N. Y. 589; Guiterman v. Liverpool, etc., S. S. Co., 83 N. Y. 358; Hagadorn v. Conn. Mutual Life Ins. Co., 22 Hun, 249. Nor can medical books be introduced in evidence; nor can an expert witness be permitted to testify to statements made therein. See Roe v. Strong, 107 N. Y. 350; Matter of Mason, supra, and cases cited at page 57. Where a testatrix out of extreme caution secured two experts in insanity as subscribing witnesses to her will, both of whom testified in the probate proceedings that she was of sound mind, memory and understanding at the CONTESTED PROBATES 371 time of execution, the Appellate Division of the Second Department (Mat- ter ofJourneay, 15 App. Div. 567, Bartlett, J.), held that there was nothing suspicious in the circumstances of having such persons act as subscribing witnesses, and further that the clear and explicit evidence given by these qualified specialists as to the mental condition of the testatrix at the very time of executing the codicil republishing her will should prevail, " even if the proof from other sources indicating that the testatrix had been de- ranged or suffered from delusions at other times was much stronger than it actually was." The Court of Appeals has stated the rule as to the value attached to expert witnesses. People v. Kemmler, 119 N. Y. 580, 583. " Expert evidence is only entitled to much importance in arriving at a judg- ment, when fairly given by one properly accredited to give it, through his experience, study and scientific eminence, and upon a hypothesis which shall be true in relation of its parts to the whole case which is the subject of inquiry." And it has very properly been stated that the testimony of an expert, "although admissible and always a great aid to a court or jury in discovering where the truth lies in a question of this kind cannot ever be held to be conclusive and controlling against the testimony of persons of intelligence who saw the testator daily and who had transactions with him socially and on business." Matter of Kiedaisch, 13 N. Y. Supp. 255, 260, Ransom, Surr. Matter of Tifft, 55 Misc. 151; Matter of O'Connor, 29 Misc. 391. In framing a hypothetical question, however, the rule, that it must be based upon facts in the case, does not debar counsel from assuming the facts to be in accordance with his theory of them; he may assume any facts within range of the evidence already offered {Cowley v. People, 65 N. Y. 464; Harnett v. Garvey, 66 N. Y. 641), but when this opinion is asked upon facts not within his personal knowledge or observation, the question must be based upon some particular specified state of facts. Bolt v. Mur- ray, 2 N. Y. St. Rep. 232. See Barton v. Govan, 116 N. Y. 658. See also Bristed v. Weeks, 5 Redf. 529, Rollins, Surr. See also In re Lyddy's Will, 4 N. Y- Supp. 468, 470, Ransom, Surr. If the hypothetical question, how- ever, does not state the facts as proven, it becomes valueless as the basis for a determination. Matter of Connor, 29 Misc. 391, 392; Dickie v. Van Vleck, 5 Redf. 284, 293. Or, if based on a hypothesis shown to be erroneous it becomes valueless. Philips v. Philips, 77 App. Div. 113. See Heyzer V. Morris, 110 App. Div. 313, 317. UNDUE INFLUENCE § 368. Definition. — Undue influence as used with reference to wills has been defined as, "that which compels the testator to do that which is against his will, from fear, a desire of peace or some feeling which he is unable to resist " (Schouler on Wills, 2d ed. par. 22) ; or again, " the influence that will avoid a will on account of undue influence must amount to moral coercion, restrain independent action and destroy free agency; or the im- portunities must be such as to constrain the testator to do that which is against his desire;" or again, "undue influence has been defined to be 372 surrogates' courts any improper or wrongful constraint, machination or urgency of persuasion, whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would do if left to act freely." 27 Americah and English Encyclopedia of Law, 453, citing 2 Abb. Law Dictionary, page 615. And the same authority at page 454 continues: "Influence which exists from attachment, affection, or a desire to gratify, or which results from argument and appeal to reason and judgment, is not undue influence." See, e. g., gratitude for saving life. Matter of Cleve- land, 28 Misc. 369. (See post, p. 374.) Or undue influence may by way of summary be defined as the exerting upon a testator of an improper in- fluence whether fraudulent, threatening, or otherwise coercive, so as to effect a change in the testator's testamentary dispositions so that the will made is not the will he would, if uninfluenced, have made. See Matter of Bolles, 37 Misc. 562, 568; Matter of Martin, 98 N. Y. 193; Matter of Vedder, 14 N. Y. St. Rep. 470. See Matter of Eckler, 47 Misc. 320. An extreme case is presented where a stranger to the blood secures a will in his favor, drawn by himself, from an aged and infirm person of wealth who before and after the event has denied that he will leave any will. The circumstance is so suspicious that in order to "satisfy" the Surro- gate he is under the burden of overcoming by a preponderance of evidence the presumption of undue influence resulting therefrom. § 369. Burden of proof. — The underlying idea of undue influence is that the will of another is substituted for that of the testator nominally acting, whose act is only the expression of another's will, so that all questions of free agency fail. Any influence to be material must be operative and must actually produce an effect which is clear. It can never be inferred from mere opportunity. It must arise in one of two ways: either from proof, or presumption of law. The exerting of undue influence is a fact and must be proved like any other fact, it must not be guessed out. Steb- bins Y. Hart, 4 Dem. 501, 505; Mason v. Williams, 53 Hun, 398. It is to be established affirmatively from the circumstances. Matter of Murphy, 41 App. Div. 153, 157; Matter of Shannon, 11 App. Div. 581; Matter of Snelling, 136 N. Y. 515; Matter of Rohe, 22 Misc. 415. That is to say the facts proved must be sufficient to justify an affirmative finding. Matter of Hurlbut, 48 App. Div. 91. The burden of proof has been held almost, if not quite generally, to be upon those who allege it, and anyone contesting a will on those grounds, who sets the same up in his pleadings must prove such undue unfluence by a clear preponderance of evidence. Matter of Read, 17 Misc. 195, 198; Dobie V. Armstrong, 160 N. Y. 584; Matter of Nelson, 97 App. Div. 212; Matter of Mon^orf, 110 N. Y. 450. To invalidate a will on the ground of undue influence there must be affirmative evidence of the facts from which such undue infiuence is to be inferred; it is not sufficient to show that a party benefited by a will had both motive and opportunity to exert such influence; it must be shown that he did exert it and so controlled the actions of the testator either by importunities which he could not resist or by de- CONTESTED PKOBATES 373 ception, fraud or other improper means that the instrument is not really the will of the testator. Cvdney v. Cudney, 68 N. Y. 148, opinion of Rapallo, J., at page 152. So it has been held, "If there is testamentary capacity and a present knowledge of the contents of the will and the will is executed pursuant to the formalities prescribed by the statute, it can only be avoided by proof of infiuence amounting to force or coercion and the burden is on the party making the allegation, that the testatrix was imposed upon or overcome by the acts or practice of the beneficiary." Matter of Mabie, 5 Misc. 179, 183, citing Matter of Martin, 98 N. Y. 193; Loder v. Whelpley, 111 id. 239; Matter of Williams, 19 N. Y, Supp. 778, and cases cited. See also In re Soule, 3 N. Y. Supp. 259, 268; Matter of Cornell, 43 App. Div. 241, 242; Matter of Munger, 38 App. Div. 268. § 370. Mutual wills. — Where mutual wills are simultaneously executed there arises a nearly absolute presumption that no undue influence was exerted. Matter of Tredwell, 58 Misc. 103, citing Matter of Drake, 45 App. Div. 206; Matter of Nelson, 97 App. Div. 212; Matter of Martin, 98 N. Y. 193. § 371. Character of evidence required. — It has been held that, "The proof of undue influence must be by direct affirmative evidence, or by such an array of circumstances as to make the inference of its exercise irresistible; in other words, the contestants must show facts utterly inconsistent with the hypothesis of the execution of the will by any other means than undue influence." In re Williams' Will, 15 N. Y. Supp. 828, 834, citing Gardiner V. Gardiner, 34 N. Y. 155; Loder v. Whelpley, supra; In re Clausmann, 9 N. Y. St. Rep. 182; Marx v. McGlynn, 88 N. Y. 357. See also Matter of Murphy, 41 App. Div. 153; Matter of Snelling, 136 N. Y. 515. On the other hand, it has been stated that, " Direct proof is never required, but the fact of its exercise always may be inferred from other facts proven." Mat- ter of Read, 17 Misc. 195, 198. For it is rarely that a ease is susceptible of such direct evidence. Chambers v. Chambers, 61 App. Div. 299, 310, citing Tyler v. Gardiner, 35 N. Y. 559; Marvin v. Marvin, below; McLaughlin v. McDevitt, below; Rollwagen v. Rollwagen, 63 N. Y. 504. See also Matter of Blair, 16 Daly, 547. See also as to onus probandi, Van Orman v. Van Orman, 34 N. Y. St. Rep. 824; Matter of McGraw, 9 App. Div. 372. Also Lake v. Ranney, 33 Barb. 49; Ewen v. Perrine, 5 Redf. 640, 642; Weir v. Fitzgerald, 2 Bradf. 42; Matter of Pike, 83 Hun, 327, 330, citing Tyler v. Gardiner, 35 N. Y. 559; McLaughlin v. McDevitt, 63 N. Y. 213; Matter of Will ofBudlong, 126 N. Y. 423; In re Will of Martin, 98 N. Y. 193; In re Green, 67 Hun, 531; In re Wheeler's Will, 25 N. Y. Supp. 313, 318. See also Ledwith v. Claffey, 18 App. Div. 115, 119; Brick v. Brick, 66 N. Y. 144; Matter of Mondorf, 110 N. Y. 450; Marvin v. Marvin, 3 Abb. Ct. of App. Dec. 192; Seguine V. Seguine, 4 Abb. Ct. of App. Dec. 191. See also Matter of Spratt, 17 App. Div. 636. § 372. How a presumption of undue influence will arise. — It has been stated that undue influence must be proved as any other fact; and further that a case of undue influence must arise in one of two ways, either from proof or from a presumption of law. 374 surrogates' courts Before discussing what is or is not proof of the exercise of undue influence it may be well to indicate the various classes of cases where the courts have held that no presumption of undue influence will be necessarily entertained. It is true that undue influence is not always capable if ever of being proven by direct evidence and must usually be proven or inferred from circum- stantial evidence. See Marvin v. Marvin, 3 Abb. Ct. of App. Dec. 192. See Chambers v. Chambers, 61 App. Div. 299, 310. The Court of Appeals {Tyler v. Gardiner, 35 N. Y. 559) has properly declared: "It is not to be supposed that fraud and undue influence are ordinarily susceptible of di- rect proof. The purposes to be served are such as court privacy rather than publicity. In some cases, as this court said, in the case of Sears v. Shafer, ' undue influence will be inferred from the nature of the transaction alone;, in others from the nature of the transaction and the exercise of occasional or habitual influences. The grounds for imputing it, as Sir John Nicholl said in the case of Marsh v. Tyrrell, must be looked for in the con- duct of the parties and in the documents, rather than in the oral evidence. The necessary inferences to be drawn from that conduct will afford a solid and safe basis for the judgment of the court. Where the oral evidence harmonizes with those inferences, a moral conviction rightfully follows; but the dispositions, where they are at variance with the conduct of the parties, and with the res gestce, are less to be relied upon.' " See also Matter of Baker's Will, 2 Redf . 179. On the question, however, of presumption it may be remarked first that there are certain classes of circumstances or degrees of relationship which if shown may be material although not necessarily conclusive upon the question of undue influence. This may be discussed under the following headings: 1. Confidential relationship and fiduciary relationship, 2. Opportunity. 3. Weakness of testator. § 373. Confidential relationship and fiduciary relationship. — In regard to any presumption arising from proof of the persons benefiting by the will alleged to have been procured by undue influence sustaining near relations of kinship or affection to the testator, it may be said in the first place that it has been repeatedly held that there is a legitimate influence which such persons may indulge in without danger of the wills being set aside upon the ground of undue influence. Thus it has been said that "certain forms of influence, such as suggestion and 'advice or solicitation, persuasion and entreaty, unless the testator is worn out by importunities so that his will at last gives away, have been held not to be undue, alth6ugh the amount of pressure allowable always depends upon the relation of the parties in each case, and the strength of the testator's resistance." Matter of Read, 17 Misc. 195, 198. Again it has been held, "Such influence as arises from gratitude, esteem or affection does not come within the meaning of undue influence." Ledwith v. Claffey, 18 App. Div. 115, 119. The Appellate Division in the First Department has stated the rule very clearly {Matter CONTESTED PROBATES 375 of Seagrist, 1 App. Div. 615), as follows: "Those persons who occupy inti- mate and affectionate relations with any individual have the right, by per- sonal request, by fair argument, and even by decent importunities, to pro- cure a will to be made. The fact that they have done so is no argument against the validity of the paper, provided these importunities do not pro- ceed so far as to overpower the will of the testator and induce him to do the thing which he would not have done but for these importunities, and to substitute the will of the beneficiary in the place of his own uncontrolled judgment." Opinion of Rumsey, J., at page 619, citing Tyler v. Gardiner, 35 N. Y. 559. See also Matter of Hedges,-57 App. Div. 48, reviewing cases; Matter of Cruger, 36 Misc. 272; Matter of McGill,'26 Misc. 102; Matter of Hurlhut, 48 App. Div. 91; Matter of Bonner, 33 Misc. 9, 11. So, where the chief beneficiary of a proposed will was trustee of testatrix during her life- time, and had control and custody of her estate, while he is under the burden of showing that the will was her free, untrammeled and intelligent act, yet he has " a right by faithful service and delicate attention to win her esteem." Matter of De Vaugrigneuse, 46 Misc. 49. In this case, Thomas,' Surr., uses the words "to create a testamentary intention in his favor" in decedent's mind. So, no presumption of undue influence arises from the fact that one child gets more than another. Matter of Woodward, 52 App. Div. 494. The importunities, requests or arguments, which it has been intimated may be resorted to to influence the testator in making his will, must not, however, be such as to fraudulently deprive any other person or persons of a share of the testator's estate. Thus where a daughter by vague and indeflnite charges against her brother of improper conduct towards her persuaded her mother to discriminate against him in her will, there being no reasonable basis for these charges, and the mother, while of tes- table capacity, being in a condition such as to be peculiarly exposed to the exercise of undue influence, the Court of Appeals held, that a will executed under such circumstances should be rejected. Tyler v. Gardiner, 35 N. Y. 558. See ikfaWer o/Drafce, 45 App. Div. 206. And obtaining control of an aged, infirm parent, by constant importunity and insidious effort may be held undue influence. Matter of Sears, 33 Misc. 141, 142. See also Matter of White, 23 N. Y. St. Rep. 882; Matter of Bishop, 31 N. Y. St. Rep. 314. Importunity amounting to threats is improper. Chambers v. Chambers, 61 App. Div. 299. And the Appellate Division of the First Department (Matter of Spratt, 4 App. Di,v. 1, 5) held, that the natural influence of the parent or guardian over the children, or husband over wife, or attorney over client, may lawfully be exerted to obtain a will or a legacy as long as the testator thoroughly understands what he is doing and is a free agent, citing Brick v. Brick, 66 N. Y. 144; Matter of Liddy, 5 N. Y. Supp. 636; Matter of Bedtow, 67 Hun, 408. Where the will is shown clearly to have been prompted by gratitude, e. gi, for saving testator's life. Matter of Cleveland, 28 Misc. 369, even though all the testator's property is left away from the natural objects of his bounty, there is no presumption of undue influence in the absence of fraud, 376 SURBOGATES' COURTS imposition or coercion. The Court of Appeals so held in a case where the testator who had lived upon unfriendly terms with his wife or rather apart from her, left all his property to a woman with whom it was claimed he had for several years meretricious relations. Matter of Mondprf, 110 N. Y. 450. Judge Earl remarked: "This will was prompted by gratitude, and a will thus induced cannot in the case of a perfectly competent testator be said to have been obtained by what in the law is styled, 'undue influence,'" and he adds, " Even if his relations with Mrs. Schaumburg were meretri- cious the law does not on that account conderrm a will made in her favor. Where such relations exist, all the circumstances attending the execution of a will which may be shown to have been induced thereby will be care- fully scrutinized; but the right of a competent testator to make any dis- position of his property which pleases him although it may be unjust and unnatural will not be curtailed." Id., at page 456, citing Seguine v. Seguine, supra; Horn v. Pullman, supra; Marx v. McGlynn, 88 N. Y. 357; In re Will of Martin, 98 N. Y. 193; Scott v. Barker, 129 App. Div. 241; '•Heyzer v. Morris, 110 App. Div. 313. See also Matter of Rand, 28 Misc. 465; Matter ofWesterman, 29 Misc. 409, 411; Matter of Evans, 37 Misc. 337; Denimert v. Schnell, 4 Redf . 409. This was a case where the testator who was dying of a very painful disease was a tenant of the respondent, occu- pying part of her house and absolutely dependent upon her in his last illness for care, attention and even the necessaries of life. He was married, but his wife had not lived with him for nine years. While in health he had repeatedly expressed the intention of leaving his property to his brothers in Germany. The respondent had often asked him in jest to make his will in her favor, but there was evidence that he had stated the idea to be pre- posterous inasmuch as he had brothers living. One will had already been executed by him at the beginning of his illness, leaving a legacy of one- third of his property to the respondent. A few days later his attorney was called in to make a second will in which, aside from a conditional bequest to his wife, the respondent was made residuary legatee. The Surrogate observed at page 412: "The will was made at a time when the testator was seriously ill, suffering from a painful disease; so weak physically that he had to be assisted out of bed, and when his complete dependency upon Mrs. Schnell readily subjected him to her control. Here we have all the facts and circumstances by which the courts say that undue influence may be proved." Rollwagen v. Rollwagen, 63 N. Y. 504, 519; Horn v. Pullman, 72 id, 269, 276; Forman v. Smith, 7 Lans. 443; Marvin v. Marvin, 3 Abb. Ct. App. 192; Children's Aid Society v. Loveridge, 70 N. Y. 387, 403; Rey- nolds V. Root, 62 Barb. 250; Mowry v. Silber, 2 Bradf. 133. "It does not appear that the testator gave any reason for this sudden change in the disposition of his property, and the circumstances under which it was made required that Mrs. Schnell should show that the com- plete dependence of this dying man upon her had not been taken advantage of in any way .... should in fact, repel the presumption arising from the facts proved that the change was brought about by undue influence. CONTESTED PROBATES 377 1 Wms. on Exrs., p. 48, note; Mowry v. Silber, 2 Bradf. 133; Tyler v. Gardi- ner, 35 N. Y. 559; McLaughlin v. McDevitt, 63 id. 213, 220; Forman v. Smith, 7 Lans. 443; Lee v. Dill, 11 Abb. Pr. 214; Matter of Welsh, 1 Bradf. 238; Kinne v. Johnson, 60 Barb. 69. " In Matter of Brough, 41 Misc. 263, the testatrix's gratitude was evoked by help given her in resisting proceedings to have her adjudged insane. JMarcus, Surr., writes a convincing opinion on this typical case. " In Matter of Eddy, 41 Misc. 283, a will to a paramour was upheld, dis- inheriting children, on proof that the woman had in fact exercised no influence whatever in the premises. The Surrogate notes the only statu- tory limitation on disinheritance which is as to 'Exempt property.' The rule to be deduced from the decisions on the subject is this: that where a person enfeebled by old age or illness makes a will in favor of another per- son upon whom he is dependent, and that will is at variance with a former will made, or intentions formed when his faculties were in their full vigor, and is opposed to the dictates of nature and justice, the presumption is that such a will is the result of undue influence, unless that presumption is satisfactorily rebutted by other evidence in the case." See also CrispeU V. Du Bois, 4 Barb. 393; Limburger v. Rauch, 2 Abb. N. S. 279. Where testatrix took care of her nurse by will {Matter of King, 29 Misc. 268), cut- ting off a husband from whom she had been for seventeen years separated, it was held valid. Similarily where a legacy to a nurse was increased, it appearing the relatives had not been denied free access to the decedent. Matter of Lacy, 35 Misc. 581. § 374. Same subject. — Under the definition above given it is manifest that unless a relative of the decedent or one to whom he is under some debt of gratitude, deprives others by means of fraud or imposition of an interest in the testator's estate whith by reason of proven declarations or of their actual claims upon him it appears they would have been entitled to, the courts will allow what has been called reasonable or decent importunity; but when a relative sustains such relations to a testator who is ill or aged or weak-minded as to procure the execution of a will where none was in- tended to be made in his favor or in favor of one in whom he is peculiarly interested or procures the making of a will under which he is the chief beneficiary, a presumption of undue influence is raised; this presumption, however, is one of fact, and where the evidence introduced by the proponent tends to show that the will was nevertheless the voluntary deliberate act of a person having testamentary capacity, prompted by affection and with- out improper persuasion, probate must be granted. In re Soule's Will, 3 N. Y. Supp. 259, 267. In Marx v. McGlyrin, 88 N. Y. 357, the testator had made " a will in favor of his religious advisor," and the question as to presumption of undue influence was raised. The court held that it is not sufficient to show that the will is the result of affection or gratitude or the persuasion of a friend or relative, which he may legitimately use, but the influence must be such as to overpower the will, producing a disposition of the property which the testator would not have made if left free to act. 378 surrogates' courts The case of the Will of Martin, 98 N. Y. 193, was one where the testator left three sons, one of whom was named executor of the will, but it was shown that he had communicated to the scrivener the provisions to be in- serted in the will and was himself a beneficiary. It appeared that the tes- tatrix not only had testamentary capacity but also a present knowledge of the contents of the will; it was held that it could not be avoided except by proof of influence amounting to force or coercion. , Generally speaking the rule has been properly stated in the following words: "Qui se scripsit haredem, Or whoever draws a will in his own favor, ■does a thing which ought to excite the suspicion of a court, and call upon it to jealoiisly examine the evidence, and be judicially satisfied that the paper propounded expresses the true will of the deceased, before admitting it to probate. (See Matter of Thompson, 50^150.222.) The fact that the testa- tor had full testamentary capacity and knew the contents of the will, is sufficient to remove such suspicions, and to place the burden upon the con- testants of proving undue influence." In re Soule, supra, page 268. See opinion in Matter of Elster, 39 Misc. 63, citing Lee v. Dill, 11 Abb. Pr. 214. Also Matter ofEgan, 46 Misc. 375, Thomas, Surr. See also opinion by Beck- ett, Surr., Matter of Lamport, N. Y. L. Journal, June 2, 1908. § 375. Same subject. — Where the draughtsman of the will has been an agent or attorney of the testator or testatrix, and is made a beneficiary by the will which he draws, the courts will scrutinize the circumstances, but no presumption of undue influence necessarily arises. (See case of an attorney. Matter of Gallup, 43 App. Div. 437. Also Lake v. Eanney, 33 Barb. 49; Matter of Murphy, 28 Misc. 650, and cases on page 651.) Also Matter of Marlor, 121 App. Div. 398, and Matter of Thompson, 121 App. Div. 470. Thus where the will of a testator was drawn by one who had been for many years her agent in another State for the management of certain of her prop- erty, he being also her nephew, and he was made an executor of and legatee under the will, which was, however, in all of its provisions just and fair and recognized the claims of the various relatives of the testatrix, it was held there was no presumption of undue influence. In re Sheldon's Will, 16 N. Y. Supp. 454. In this case the contestants claimed that, under such cir- cumstances, the proponent must give other than the usual evidence of the witnesses to the will, before it can be admitted to probate; that it must be shown the testatrix gave directions for its drafting which were obeyed, or that it was read to or by her before its execution; and based this proposi- tion of law upon the ground that, where the writer of a will has confidential relations with the testator, and the will makes him an executor or legatee thereof, such a presumption 'of fraud and undue influence arises that the ordinary proof of the execution of the will thus made does not rebut or out- "weigh such legal presumptions; that the proponent must show, in addition thereto, that the will was made freely, without fraud and undue influence; and that the proponent should establish by affirmative evidence that none of the provisions of the will were dictated, suggested, or brought about by his instigation. The court held, however, that "The rule of law which the CONTESTED PROBATES 379 contestant invokes applies only to the class of cases where, by reason of sickness, old age, mental and physical condition, or other circumstances, the testator had not that health, intellectual vigor, independence of charac- ter, freedom of action and judgment to guard his rights, and protect him- self and his estate from the stealthy tread of those who would illegally take what he has designed for others. We shall hold that, where a testator has that mental and physical vigor which is essential to make a valid will, it is not the law that the drawer of a will, even if he holds confidential relations to the testator, cannot be his executor or take a legacy thereunder; nor is the law that, if the attorney, physician, or priest of the testator draws a will in which there is a legacy to himself, such will or such legacy is pre- sumed to be fraudulent, nor in such a case is fraud presumed in aid of those who seek to overthrow the will; nor does this fact, in the absence of evi- dence, warrant the presumption that the testatrix was unduly influenced, or was improperly or fraudulently controlled, in making her will. All that can be legally claimed for such a state of facts is that it may or may not be a suspicious circumstance; but whether it is or not depends upon the facts of each case. "The fact that a beneficiary is the attorney, guardian, or trustee of a de- cedent does not of itself alone create a presumption against a testamentary gift; neither is it presumed to have been procured by fraud and undue in- fluence in every case and under all circumstances ; nor does that single act call upon courts to pronounce against a will thus executed unless addi- tional evidence is produced to prove knowledge of its contents by the de- ceased. It is only in that class of cases where the testator excludes the natural objects of his bounty that a will in favor of his attorney, physician, priest," (see Matter of Johnson, 28 Misc. 363) "is looked upon by courts with suspicion. To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence can be inferred. It is not sufficient that the party benefited by a will had the motive to exert such influence. There must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by deception, fraud or other improper means, that the instrument is not really the will of the testator. If a contestant alleges fraud and undue influence, or any other defense, it is his duty to prove it, because fraud is never presumed from the existence of an oppor- tunity to commit it. It must be established by such evidence that the in- ference of wrongdoing follows as a natural and unavoidable result, and it is only so estabUshed when such facts are proven that no other legitimate, conclusion can be drawn. Justice to testators, heirs, and legatees does not command such a rule of law as the contestant seeks to maintain, nor is there any necessity for its existence. If such were the law, testators would, many times, be debarrec^ the aid of an attorney, relative, or other person in whom they had the must implicit confidence, and whose legal ability, knowledge of the testator's affairs, or other circumstances made it espe- cially necessary to have such person draw the will, provided he desired to 380 surrogates' courts remunerate him for services rendered or to be rendered, or for faithfulness to his interest, or from any other proper motive, wished to give him a legacy. To say that every lawyer, doctor, minister, or other person holding confidential relations with a testator, who draws a will with a legacy to himself, is, from that simple fact alone, presumptively dishonest, his motives and his acts presumptively fraudulent and wicked, and the will presumptively the product of undue influence, is to assert a proposition of law which is not now, never has been, and probably never will be the law of the State." But, in Matter of Bedell, 107 App. Div. 284, the circum- stances were such (q. v.) as to show that the decedent had no intelligent knowledge of the will in favor of his legal adviser. And in Matter of Mar- lor, 52 Misc. 263, the survey of the testanientary transaction providing for the lawyer to the exclusion of husband and sons named in prior vdlls, led the surrogate to deny probate. § 376. Same Subject. — Where one who has acted as attorney or legal ad- viser for a testator drafts a will in which he is indicated as executor or made a legatee and is accused of exerting undue influence, it will be sufficient to meet the case if it can be shown that the will drawn was in substantial compliance with the testator's testamentary scheme known to have been entertained by him for some time. In re Carver's Will, 23 N. Y. Supp. 753. In this case Surrogate Davis says in respect to the influence which must be proved in order to avoid a will upon the ground of undue influence: "It must not be the promptings of affection, the desire to gratify the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts or friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. . . . It is undoubtedly true that the law looks with a jealous eye upon the acts of one who, standing in a relation of trust or confidence, is instrumental to any extent in procuring a testamentary provision in his own favor; and, while such circumstance does not in and of itself invahdatethe bequest, it does call for satisfactory explanation, and imposes upon him claiming under such provision the burden of showing that it was in all respects fair and honest." See Post v. Mason, 91 N. Y. 539. That the will is holographic may be a material point in this connection. Matter of Smith, 36 Misc. 128, 131. While it is important in such cases to show knowledge of the contents by a testator, which will be discussed later, it has been held that where a will was drawn by the principal bene- ficiaries under it, and the testator was able to read writing, and of sufficient capacity to transact business, and yet did not read the will it may never- theless be inferred from the circumstances that the testator was acquainted with its contents. Nexsen v. Nexsen, 3 Abb. Dec. 360; In re Smith, 95 N. Y. 516, 523. In the case last cited it was held,that the fact that the at- torney of the deceased was the principal beneficiary under the will does not alone create a presumption that the testamentary gift was procured by fraud or undue influence, but that in a case where the testator was of ad- CONTESTED PROBATES 381 vanced years, infirm mentally and physically, and made his attorney his principal beneficiary, contrary to previously expressed testamentary in- tentions, and where such attorney was the draughtsman of the will, and took an active part in procuring its execution, and that the testator acted without independent advice, the burden is imposed upon the attorney of showing that the will was the free and untrammeled expression of the testator's intentions. See Matter of Rintelen, 37 Misc. 462, aff'd 77 App. Div. 142. § 377. Undue influence by relatives. — The courts have almost uni- formly held except in very unusual cases that a wife or a child of a testator by virtue of their relationship to him have the right to exert any legitimate influence in their own favor in regard to the testamentary disposition in their behalf. The Umitation upon this rule is consistent with the limita- tions already noted, that is to say, the influence exerted by the wife or child must not be of such a character as to overbear the will of the testator. For example, where a daughter by constant teasing, fretting and annoying her father so distressed and importuned him that he made his will in the form desired by her, the court held that it was not the will of the testator and that the influence shown to have been exerted by the daughter was un- due influence. See Matter of Bishop, 10 N. Y. Supp. 217. Where undue influence is charged against a relative, resulting in an un- fair disposition of the estate as to other relatives, it is held to be proper to inquire into the condition and value of the estate. Matter of Wood- ward, 167 N. Y. 28. The General Term in the First Department (In re Liddy's Will, 5 N. Y. Supp. 639) held: "The mere fact that a wife has exercised influence upon her husband in relation to the disposition of his property by will or other- wise, in no way supports the proposition that undue influence has been exercised. Influence may always be. exercised, and it is proper that it should be exercised; but it only becomes improper when it becomes undue, and it becomes undue when it substitutes the will of the person exer- cising the influence for the will of the person who is to do the act. Argu- ments, persuasions, and suggestions may be made so long as the person who is to do the act, can weigh the suggestion and has the ability of mind to resist the influence,. then there is nothing undue in regard to it although he may yield to it." See also Mason v. Williams, 53 Hun, 398. In the De Baum case, 2 Connoly, 304, a testator and his second wife executed mutual wills, and it was shown that the testator while possessed of testamentary capacity was a man of very weak will and completely under the domination of his second wife. Surrogate Rollins says in his opinion, "She was coarse, selfish, mercenary, exacting, indifferent to her own kindred, and possessed of an unyielding will." She seems to have controlled every action of her husband. "If her wishes mildly expressed were not complied with, she commanded; if commands failed she used threats, and he submitted for the sake of peace. In all important matters his free agency seems to have been overcome." At the time the mutual 382 surrogates' courts wills were made she had a property very much larger than his. The Surrogate held that although the testamentary scheme of both wills was concocted by the wife, the testator acquiesced in it intelligently, under- standingly, and voluntarily under the selfish belief at the time that it would be greatly to his advantage if he survived his wife. And although the will was unjust and inequitable in its provision towards the sons of the testator, the actual objects of his bounty, one of whom was the helpless imbecile, the will must be allowed probate. See also Matter of Bedell, 2 Connoly, 328, where a mother and daughter made mutual wills excluding a second daughter with whom they had quarreled. . 378. Opportunity. — Where a testator has been for years dependent in respect of his conifort and home upon persons whom he makes chief'or exclusive beneficiaries under his will, and it is shown that their influence over him was great, and even where it is shown that they requested or urged the making of'the testamentary provisions which appear in his will, the courts will not refuse it probate on the ground of undue influence unless it clearly appear that some fraud, imposition or coercion, was exercised; or, as Van Brunt, P. J., observes (Matter of Bedlow, 67 Hun, 408, 413): "The mere fact that the opportunity of exercising undue in- fluence has been afforded and that benefits have resulted to those who had. the opportunity of exercising such influence by no means raises a pre- sumption that such influence was exercised." See Matter of Munger, 38 Misc. 268 — all estate to grandniece, in token of gratitude for nursing him while long separated from wife and married daughter. There was proof of declarations of affection and of intent to reward. In other words, the: exercising of undue influence must be proved as a fact and will not be in- ferred, nor will it arise as a presumption merely from opportunity and interest. Matter of Murphy, 41 App. Div. 153; Matter of Keefe, 47 App. Div. 214; Matter of Lawman's Estate, 1 Misc. 43, 46, citing Gardiner v. Gardiner, 34 N. Y. 155; Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191;, Kinne y. -Johnson, 60 Barb. 69; Cudney v. Cvdney, 68 N. Y. 148. So in the Seagrist case, 11 Misc. 188, where it was claimed that undue influence had been exerted by a niece who was the principal legatee, and it was shown that she had ample opportunity under her relations to the decedent to exert such influence, Surrogate Fitzgerald observes at page 191, "Though his favored niece had the opportunity and even the motive to secure the largest benefaction, the fact does not import the exercise by her and her husband of undue influence. Those who raise the issue must prove it affirmatively." Opportunity coupled with motive does not prove it was exercised. It must also appear that such influence was in fact exercised and was sufficient to'^vercome the mil of testator. Matter of Hawley, 44 Misc. 186. § 379. Opportunity continued. — Where an attorney who draws a will benefits by its provisions, and there is evidence of such circumstances as to the testator's health, and as to the attorney's relation to him as to in- dicate improper motive on the part of the attorney, the court will require CONTESTED PROBATES S8S some affirmative proof that the testator knew the contents of the will and that there was no undue influence. The case of Post v. Mason, 26 Hun, 187, seems to be authority to the effect that where a legacy is left to the draughtsman of a will, who is at the time and for many years prior thereto has been legal advisor of the testator, it rests upon him to establish affirmatively that the testator acted with full knowledge of all the surrounding circumstances, to show that the transaction was free from all fraud or undue influence on his part. See headnote and opinion at page 181, citing Crispell v. Du Bois, 4 Barb. 393; Evans v. Ellis, 5 Denio, 640; Nexson v. Nexson, 2 Keyes, 229; Davoue v. Fanning, 2 Johns. Ch. 252; Robertson v. Caw, 3 Barb. 415, opinion of Wil- lard, J., and cases there cited; Newhouse v. Godwin, 17 Barb. 236; White- head V. Kennedy, 69 N. Y. 466; Wilson v. Moran, 3 Bradf. 172. It has been more recently held by the Court of Appeals {Matter of the Will of Smith, 95 N. Y. 516), that the mere fact that a proponent of a will, a chief beneficiary thereunder, was the attorney or agent, does not create any presumption against the validity of the legacy. See also Matter of Dixon, 42 App. Div. 481, 487. The burden imposed upon the attorney of satisfying the court that the will is the free, untrammeled, intelligent expression of the intention of the testator is imposed only where the cir- cumstances are such as to show either that the testator was infirm or weak, or peculiarly susceptible to, or where there is direct proof of declarations- by such testator as to the testamentary intention wholly different from those expressed in the will. See also Clarke v. Schell, 84 Hun, 28; Matter of Suydam, 84 Hun, 514. If, however, the attorney who draws a will appears to be the sole beneficiary thereunder the court will require proof of knowledge of its contents by the testator and affirmative evidence that there was no fraud or undue influence. Matter of Westurn, 60 Hun, 298. § 380. Weakness of testator. — The rules above stated as to the creating of presumption in certain cases may be materially modified in any given case by proof that the testator while possessed of testamentary capacity in the eyes of the law was nevertheless so aged or infirm as to be peculiarly susceptible to importunities or influence alleged to have been asserted by some beneficiary under the will. Matter of Hurlhut, 26 Misc. 461. For example, the rule as to there being no presumption that the attorney who drew a will under which he is a beneficiary exerted any undue in- fluence merely from the fact that he was legal adviser of the testator, may be completely nullified, if it appear that the testator was in such conditioa of health as either not to have been fully capable or not to understand what was being done, or if capable of understanding would yield readily to any influence which the attorney by reason of his fiduciary relation might be able to exert. Thus in the Soule case, 3 N. Y. Supp. 259, the testator died at the age of ninety-two years, having made a will and four codicils, and in his last codicil gave a legacy of $30,000 to his legal adviser, the draughtsman of the will, the Surrogate held that the presumption of undue influence by the draughts- 384 surrogates' courts man was completely rebutted and the burden upon the draughtsman to show the absence of undue influence removed by proof of the affection entertained for him by the testator, the fact that the legacy was only about six per cent of the whole estate, in regard to which the testator had for years consulted him professionally, that the codicil was read aloud by the draughtsman in the testator's hearing at the time of execution, and it was clear that the testator had full testamentary capacity and knowledge of the contents of the will and codicils. See discussion of cases in Surrogate Teller's opinion, pages 260 to 274. Where a testator is on his deathbed and induced to make a will in favor of a relative who threatens and reproaches him, the will will be invalidated for undue influence. Hol- comb V. Holcomb, 95 N. Y. 317. The rule in this connection has already been quoted above, to wit: That where a person, enfeebled by old age, or illness, makes a will in favor of one upon whom he is dependent, which is at variance with some former will made, or intentions declared, when in full vigor of health, and such later will is unjust, the presumption is created that the will is the result of undue influence. See Demmert v. Schnell, 4 Redf. 409, and cases cited. So where relatives discharged the regular physician in charge of the aged testator, suffering from paresis, and later got him to execute a will in their favor, held to justify a finding of undue influence. MaUer of Miller, 36 Misc. 310. § 381. Same subject. — Where the person who is alleged to have pro- cured by undue influence the will, under which he is chief or sole bene- ficiary, has been the medical attendant of the decedent, who is shown to have been aged or infirm, the court will scrutinize the circumstances with great care, and require him to sustain the full burden of showing that the will was indeed the free, independent, testamentary act of the decedent. But where it appears the will was drawn pursuant to testator's instructions, and the medical attendant was not present at time of exe- cution, held, no presumption of undue influence. Matter of •Cornell, 43 App. Div." 241, 245, aff'd 163 N. Y. 608, citing Matter of Will of Smith, 95 N. Y. 516; Matter ofSpratt, 4 App. Div. 1, 5. See also Matter of Small, 105 App. Div. 140. The rule in this class of cases has been stated by Surrogate Rollins as follows: "Where a will has been prepared or procured by one interested in its provisions, an additional burden is imposed upon those who seek to establish it; the circumstance is regarded by the court with suspicion and jealousy, and there must be stronger proof than would else be required that the paper propounded expresses the free, unbiased testa- mentary purpose of the alleged testator, and not merely the wishes of the interested beneficiary. Moreover, the existence of a confidential relation, such for example as subsists between physician and patient, implies of it- self peculiar opportunities for the exercise by the former over the latter of influence and authority, so that if he had been instrumental in procur- ing from his patient a will containing provisions greatly to his advantage, 'fraud and undue influence will readily be inferred unless all jealous sus- picion is put to rest,' by satisfactory testimony," citing Schouler on Wills, CONTESTED PROBATES 385 256; Newhouse v. Godwin, 17 Barb. 236; Wilson v. Moran, 3 Bradf. 172; Crispell v. Du Bois, 4 Barb. 393; Kinne v. Johnson, 60 Barb. 69; Post v. Mason, 91 N. Y. 539. See Matter ofKeefe, 27 Misc. 618. In the Lowman case, 1 Misc. 43, one of the residuary legatees was a nephew of the testator and attended him as a physician. Others of the persons interested in the estate alleged undue influence on the part of this nephew, predicated first upon his opportunity as such attending phy- sician, and second upon the fact that he had professionally prescribed mor- phine to the testator for the purpose of allaying pain; it was held that there being no proof that at any time or at the time of the execution of the will, the testator was under the influence of the drug to the extent of impair- ing his mind or his will, and there was not the slighest evidence of any bad faith on the part of the nephew, no presumption would be entertained adverse to the will or in favor of the undue influence. In a case where a will was made by a patient in favor of his physician who had only attended him for comparatively a brief period, and it appeared that the testator was broken in mind and body by indulgence in vicious habits, and it also appeared that the will was made under an insane delusion respecting relatives of the decedent, it was held that there was a strong presumption against its validity, which was not met by the circumstance and proofs, but that fraud and undue influence were inferable from, and established by, all the facts in the case, and the will was denied probate. Calhoun v. Jones, 2 Redf. 34. See Matter of Rintelen, 37 Misc. 462, where conflrmed inebriate made will in favor of an attorney, citing Matter of Westurn, 60 Hun, 298; Peck v. Belden, 6 Dem. 299; Turhune v. BrookfieM, 1 Redf. 220. § 382. Effect of character of the will combined with age or weakness of the testator. — Where the evidence shows that the will propounded ignores or disinherits those remembered by the testator in prior wills or who were dependent upon the testator or whom the testator has previously regarded with affection, or where the will is at variance with the repeated testamentary declarations of the testator, and the will contested was made by the testator in a last illness or under circumstances of great bodily weakness, or infirmity, in favor of the person accused of exerting undue influence, the Surrogate will require explicit affirmative proof of the ab- sence of fraud or imposition. Thus where it appeared that the testatrix had often said that she would make no will but did make a will before her death, when she was so weak that she could neither speak nor sign her name, that the directions in regard to the will were given by one who had never been particularly intimate with the testatrix or liked by her, and it appeared that this person went to the house three days before her death for the purpose of getting her to make a will and superintended its execution, it was held a sufficient proof of undue influence. In this case, however, it was also held, that the will was signed by the testatrix's mark, and that when asked if she acknowledged her signature she said, she did not know whether she did or not. Matter of Hopkins, 6 N. Y. St. Rep. 390. See also Matter of Stewart, 10 N. Y. Supp. 744. So where a testator 25 386 surrogates' courts having made previously wills in favor of his family executed a subsequent will at the house of a friend, substantially in favor of that friend and his wife, and it was shown that the testator was illiterate, intemperate and infirm, probate was denied on the ground of undue influence. Matter of Ldney, 34 N. Y. St. Rep. 700. See also Matter of Divyer, 29 Misc. 382. So in a case where a testator was seventy-nine years old, who had been strong and vigorous all his Ufe until he was attacked by a serious illness during which in expectation of death he made his will, and it appeared that one of his daughters was disinherited by this will as the result of letters written by one of the sons containing accusations against the daugh- ter which alienated her father's affection, it was held that a verdict that the will was procured to be executed by undue influence, was proper if the jury were satisfied that the son wrote the letter knowing its statement to be untrue, with the design that it should reach his father and influence him in the disposition of his property, and with the result that it did in fact influence him to disinherit the sister. Matter of Will of Bvdhng, 126 N. Y. 423, 431. § 383. Summary. — From the cases discussed it is dear that the pre- sumption of undue influence arises first in cases of confidential or fiduciary relationship as where a patient makes a will in favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser. Second, this presumption is strengthened where the contents of the will are unjust, or at variance with the declared testamentary intentions of the testator. And third, the presumption may arise where in addition it appears that the will was executed by a testator so infirm by reason of age or weakness as to be pecuUarly susceptible to importunities or other infiuences, par- ticularly when the person benefiting by the will then made has mo- tive and opportunity to exert influence and appears to have profited thereby. If in any particular case such a presumption is created by the facts, it may be met as to the first class of cases by proof of such consanguinity or nearness of relation as to warrant the person sustaining the confidential or fiduciary relation in exerting that degree of persuasion, urging or decent importunity, which the courts permit, or by any affirmative proof show- ing that undue influence was not in fact exerted. The presumption in the second class may be met by proof that the testator having testamentary capacity had full knowledge of the contents of the will, unless of course it appear that the making of the particular will was induced by false repre- sentations actually affecting the testamentary disposition. The presump- tion in the third class of cases may be met by affirmative proof of testa- mentary capacity and by showing that undue influence was not in fact exerted. § 384. Change of testamentary intention. — ^The fact that testator has made other wills prior to the one objected to, making entirely different CONTESTED PROBATES 387 disposition of his property, particularly where the prior will is equitable and provident, is a material inquiry upon the issue of undue influence. Calhoun v. Jones, 2 Redf. 34; Matter of Dwyer, 29 Misc. 382. So also may it be material to show that the testator had repeatedly declared his in- tention of making no will, yet this fact if proved is not at all conclusive but should be viewed in connection with other circumstances in the case. Matter of White, 5 N. Y. Supp. 295. And particularly material will be proof that the will is completely at variance with the testator's repeated declara- tion as to his testamentary intentions. See Matter of Phelps, 19 Weekly Dig. 293. § 385. Knowledge of contents. — The ordinary presumption as to the knowledge by a person who has executed a document, of the contents of such document, does not arise in case of wills where there is proof that the testator was suffering from some physical infirmity or defect, or where the will was executed under any of the conditions above noted, and presents either in connection with the circumstances surrounding its execution or in its very provisions any suspicious feature such as to require the court to inquire narrowly into the facts. Conceding testamentary capacity to exist, and the only objection to be that of undue influence, it is a most important inquiry for the court to make, whether the testator really knew the contents of the will he was signing. It is true that among the four statutory requirements above discussed there is no provision that the will must be read by or to the testator before its execution. However, the courts have frequently intimated the wisdom of such a precaution in cases where it appeared that the testator was illiterate, infirm, or extremely aged. Thus it has been observed judicially: "We think it is -the duty of witnesses of wills to know, by inquiry of the testator or otherwise, whether or not he has personal knowledge of the contents of the paper he is about to sign as his last will and testament. Unless this is done, there might not be any evidence that the will had been read to or by him; no evidence that he ever had knowledge of its contents, and thus opportunity would be afforded to take advantage of his confidence or carelessness, to impose a will upon him not in accordance with his directions or intentions; especially would this be so in the case of the aged, sick, or infirm, who might be powerless to protect themselves from being surrounded by those who would not hesitate to benefit themselves by fraud, coercion or undue influence, and possibly crime." Matter of White, 15 N. Y. St. Rep. 753. See also Will of Crumb, 6 Dem. 478. The Court of Appeals held, in a case where a decedent was shown to have mental capacity but to have been undoubtedly impaired in mental power, and his will enfeebled by paralysis and disease, that a party who offered an instrument for probate as a will, must show satisfactorily that it is the will of the alleged testator, and upon this ques- tion he has the burden of proof. Rollwagen v. Rollwagen, 63 N. Y. 540, 517. And Judge Earl observes: "Ordinarily, when a testator subscribes and executes a will in the mode required by law, the fact of such subscription and execution are sufficient proof that the instrument speaks his language 388 surrogates' courts and expresses his will; but when a testator is deaf and dumb, or unable to read or write and speak, something more is demanded. There must then not only be proof of the factum of the will, but also that the mind of the tes- tator accompanied the act, and that the instrument executed speaks his language and really expresses his will." § 386. Proof of knowledge of contents. — If it appear in evidence that the will was read to the testator before executionL prior to his publication of the same as his will, this will generally be considered sufficient proof that he understood the contents thereof. And even where the testator is an illiterate person, if it is proven that the will was read aloud in her pres- ence, the court will assume in the absence of allegations of evidence of fraud on part of the person so reading it, that the whole will was read and read correctly. Matter of Murphy, 15 Misc. 208, 211, Lansing, Surr. See opinion at page 212 et seq., and question of undue influence between ser- vant and master. Where, however, the decedent is shown to have been at the time of execution a person of business capacity, prudence, and full testamentary capacity, the court cannot require proof that the will was read but will infer knowledge of contents from the circumstances of the execution. See Matter of Smith, 24 N. Y. Supp. 928; Matter of Metcalf, 16 Misc. 180; Hagan v. Yates, 1 Dem. 584; Matter of Sheldon, 40 N. Y. St. Rep. 369. So knowledge of contents may be proved by evidence that the testator subsequently made declarations indicating recognition of the will or that the testator prior to its execution expressed testamentary intentions which appeared to be carried out in the will. See Wightman v. Stoddard, 3 Bradf. 393; Ewen v^ Perrine, 5 Redf. 640, Alton B. Parker, Surr. This is not to be taken as indicating that undue influence may be proved merely by declarations of the testator, for it has been held in that respect, that there must be independent proof of efforts so to influence him. See Cudney v. Cudney, 68 N. Y. 148. Knowledge of contents of the will, however, may be proved circum- stantially, the court may infer it from all the circumstances attending the execution and it may be established by the testimony of the subscrib- ing witnesses, or by the testimony of one witness in opposition to that of the other or others, or it may be established by independent testimony, even against that of the subscribing witnesses. See Theological Seminary v. Calhoun, 25 N. Y. 422. § 387. Undue influence in destroying a will. — Undue influence may be exerted not only to procure a will, but also to procure the destruction or revocation of a will. In this latter case a court may admit to probate a will destroyed in the lifetime of the testator as the result of undue influence. In such a case, however, not only must the undue influence be proven re- sulting in the destruction of the will but it must first be shown that the will existed and that it had been duly executed. See Voorhees v. Voorhees, 39 N. Y. 463. § 388. Mistake. — It is not sufficient ground for refusing probate of a CONTESTED PROBATES 389 will that error as to any matter of fact has been made by the testator, unless it appear, that the mistake embodied in the will has been of such a character as to nullify or materially to affect his testamentary intentions. Boell V. Schwartz, 4 Bradf. 12. It has, however, in another connection been already pointed out that proof of mistake on the part of the testator, will not invalidate the will where it does not amount to an insane delusion. See cases cited supra. Thus a mistake as to the person named as executor, is no ground for refusing probate. Matter of Finn, 1 Misc. 280. And it has been held proof that the omission of a beneficiary in part or all of the will was the result of mistake is inadmissible. Matter of Forbes, 60 Hun, 171, where the General Term observes: "There are many reported cases where proof has been introduced in controversies over wills of the expression of testamentary intentions which were not carried out in the instrument. Such testimony has usually been introduced upon the question of undue influence, but we find no case where such proof has been received to destroy a will on the ground of mistake alone .... such a doctrine would be fraught with danger." This of course does not affect the rights of courts in construing wills to receive evidence that statements or provisions therein contained are void for uncertainty or mistake. See, for example, Kalbfleisch v. Kalbfleisch, 67 N. Y. 356, 360. However, where the will in question appears to be in direct controversion of the testator's known testamentary intentions, and the question of his knowledge of the contents of the will is in issue, the court may very properly take into consideration the variance of the writ- ten will upon the question whether the will was the will of the testator or the will of someone else imposed upon him by force or fraud. See Matter of Westurn, 60 Hun, 298. So in Matter of Tousey, 34 Misc. 363, Thomas, Surr., held: "The doctrine of dependent relative revocation includes as one of its branches, and applies to, an attempted revocation of a testamentary provision which upon some ground of mistake is held inoperative. If applicable to a will it must appear clearly from the will itself, not only that there has been a mistake made by the testator, but also just what he would have done in case there had been no mistake. Gifford v. Dyer, 2 R. I. 99. Where a legacy was made by a will and in a codicil revoking it was recited that the legatee was dead, such revocation was held inoperative on proof that the legatee survived the testator {Campbell v. French, 3 Ves. 321), but even in case of revocation by codicil the rule has been applied with caution, and the mistake must appear on the face of the codicil as the sole moving cause to induce the revocation. Skipwith v. Cabell, 19 Gratt. 758. An apparent mistake as to a matter of fact as to which the testator must have had full knowledge is not sufficient. Mendinhall's Appeal, 124 Penn. St. 387. In no case which has been brought to my notice has a will been refused probate, or has any attempt been made to correct or change its provisions on proof extraneous to the document of a mistake by the testator as to a fact which might possibly have led him to do something different from 390 surrogates' courts what he has done. On the contrary, the cases in the courts of this State which require the testator's directions to be followed, even though it may be made quite clearly to appear that he was actuated by erroneous opinions on questions of fact, are quite numerous. Matter of Bedlow, 67 Hun, 408- Clapp V. Fullerton, 34 N. Y. 190; Matter of Harris, 19 Misc. Rep. 388; Creeley v. Ostrander, 3 Bradf. 107. CHAPTER V ADMITTING THE WILL TO PROBATE § 389. Will, when sufficiently proved. If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint; it must be admitted to probate, as a will valid to pass real property, or personal property, or both, as the surrogate determines, and the petition and citation require, and must be recorded accordingly. The decree admitting it to probate must state whether the probate was or was not contested. § 2623, Code Civil Proc. The wording of this section indicates that the admission of the will to probate is a judicial act and involves a determination by the Surrogate whether the. will, execution of which he declares by his decree to have been in compliance with the statute, is a will valid to pass real, or personal, or real and personal property; but this does not involve necessarily any de- termination by the Surrogate as to the validity of the bequests or devises in the will contained. Where there has been a failure to comply with the statutory provisions relative to the execution of wills, a will must be denied probate. Public policy requires it. Matter of Kivlin, 37 Misc. 187, and cases cited. The intent of the testator may be clear; it may, e. g., be a holographic will; but that cannot be paramount to the intent of the legis- lature. Matter of Andrews, 162 N. Y. 1. In Matter of Babcock, 42 Misc. 235, Silkman, Surr., held that in view of the difficulties inherent in appeals from a decree refusing probate in a close case (referring to Matter of Beck, 6 App. Div. 211) he would decree probate where the factum was estab- lished satisfactorily unless lack of capacity, or fraud, or undue influence be established beyond a reasonable doubt. But this means there must be some evidence that the person who made the will was competent, and not imder restraint. This is usually done by the subscribing witnesses. Mat- ter of Schreiber, 112 App. Div. 495, citing Miller v. White, 5 Redf. 321. If there be no such proof, probate must be denied. Ibid., citing Matter of Goodwin, 95 App. Div. 183; Matter of Ramsdell, 117 N. Y. 636. The pre- sumption of sanity is not alone sufficient to underlie a finding to sustain the judicial act called for by § 2623 in the words "if it appears to the Surro- gate." The judicial action of the Surrogate in a probate proceeding must be confined to a determination of the question of the due execution of the will, and whether the testator had sufficient testamentary capacity, and was not under any restraint. He has also power, under the provisions of the Code, § 2624 (see ch. VIII) to pass on the validity of a bequest of person- alty as incidental to the probate of the will unless probate is denied; but the 391 392 SUREOGATKS' COURTS words "a will valid to pass real property" mean solely a will duly executed which undertakes in terms to convey that species of property. But, probate logically precedes any power to construe. Upon due proof of statutory execution he must admit to probate. On its validity in the other sense the Surrogate can then pass. Matter of Davis, 182 N. Y. 468, 475, aff'g 105 App. Div. 221, and 45 Misc. 554. This Davis case was pe- cuUar in that sole legatee, devisee and executrix did not survive testatrix. See also Matter of Pilsbury, 50 Misc. 367. The Surrogate does not decide in admitting a will to probate, that the instrument in fact passes title to any real estate, he passes on the factum of the will alone; and the descrip- tion of the wills as wills of real or personal property, relate to the manner in which they have been executed. For example under § 2611, now Dec. Est. Law, §§ 23-25, there are wills which while they may purport to devise real estate can only be admitted to probate as wills of personal property, such, for example, are wills executed without the State in the manner pre- scribed by the laws of the State or county where executed, or the will of a nonresident executed according to the laws of his residence, but not as prescribed by the laws of this State; and a decree admitting a will to pro- bate as a will valid to pass real property gives in the first place, to the de- cision of the Surrogate, no effect as an adjudication as to the validity of the devises in the will (see Matter of the Will of Merriam, 136 N. Y. 58, 61), and, in the second place, prejudices no one interested in the property sought to be bequeathed or devised, because the statute expressly limits the con- clusive effect of a probate decree in the case of wills of real and of personal property, by §§ 2626 and 2627 of the Code already quoted (in the chapter on decrees and orders) but here repeated for purposes of clearness. Probate, how far conclusive as to personalty. A decree admitting to probate a will of personal property, made as prescribed in this article, is conclusive, as an adjudication, upon all the questions deter- mined by the surrogate pursuant to this article, until it is reversed upon ap- peal, or revoked by the surrogate, in an action brought under section 2653o to determine the validity or invalidity of such wiU; and except that a de- termination, made under section 2624 {that is where a party puts in issiie the validity, construction, or effect of provisions in the will) of this act, is conclusive only upon the petitioner and each party who was duly cited, or appeared, and every person claiming from, through, or under either of them. § 2626, Code Civil Proc. This conclusiveness extends into collateral proceedings. Vanderpoel V. Van Valkenburgh, 6 N. Y. 190; Wetmore v. Parker, 52 N. Y. 450. Probate, how far conclusive as to realty. A decree, admitting to probate a will of real property, made as prescribed in this article, establishes, presumptively only, all the matters determined by the surrogate, pursuant to this article, as against a party who was duly cited, or a person claiming from, through, or under him; or upon the trial of an ac- tion, or hearing of a special proceeding, in which a controversy arises concern- ing the will. Where the decree is produced in evidence, in favor of or against a person, or in a case, specified in this section, the testimony taken in the ADMITTING THE WILL TO PROBATE 393 special proceeding, wherein it was made, may be read in evidence, with the same force and effect, as if it were taken upon the trial of the action, or the hearing of the special proceeding, wherein the decree is so produced. § 2627, Code Civil Proc. Now it is manifest under these two sections that as far as personal prop- erty goes, the probate decree becomes conclusive after a year has elapsed from the time of its entry, that being the period within which an appeal should be taken or a petition filed to revoke probate (see Post v. Mason, 91 N. Y. 539; Smith v. Hilton, 19 N. Y. St. Rep. 340); and consequently, if the time to appeal or to apply for revocation of probate has expired, there is no remedy unless it is possible to make out a case of fraud in procuring probate under which the decree could be attacked. It appears also that so far as realty is concerned, the decree has no conclusive effect but estab- lishes presumptively only the matters determined by the Surrogate, that is to say, the sufficiency of the facts proved to establish due execution. See Matter of Oilman, 38 Barb. 364. In Matter of Macca'fil, 127 App. Div. 21, a will disposing of realty only but appointing an executor was admitted on the latter ground as a will of personalty, although the husband claimed jure ma/riti, as in intestacy. See opinion of Jenks, J., and cases discussed. So far as rights in the property thereby devised go, the probate decree concludes no one. So it has been held {Baxter v. Baxter, 76 Hun, 98), that a Surrogate's decree admitting a will to probate as a will of real prop- erty was .presumptive evidence, (a) Of the facts as to proper execution (see also Van Rensselaer v. Morris, 1 Paige, 13); (6) As to the competency of the testator (see also Howard v. Moot, 64 N. Y. 262); (c) That he was not under restraint; (these being the facts covered by § 2623) ; and accordingly one claiming under a deed, made by the testator of a will refused probate by the Surro- gate on the ground of incompetency of the testator, was held not to be in any way concluded as to his rights under the deed from proving the grant- or's competency to convey, although it appeared that the deed and the will were made upon the same day, and, moreover, it was held that the claimant under the deed having been a party to the probate proceedings in which the will had been rejected made no difference in this regard. Baxter v. Baxter, supra. And as it may be that a will purporting to pass real estate may not be admissible to probate as a will of real property but may be admitted as a will of personal property, so it may be that a will invalidated as to personalty, as for example, the will of a testator domiciled in another State at the time of his death, and held in that State by a com- petent court to have been revoked by the subsequent birth of a child, may while invalidated in this State as to personalty, still be valid in this State as to realty. See Bloomer v. Bloomer, 2 Bradf. 336. And where the decree has no conclusive effect, the Surrogate may refuse to open the probate on petition of one not concluded thereby. Bailey v. Stewart, 2 Redf. 212. 394 surrogates' courts The Code provides, § 2625, that. Where the surrogate decides against the sufficiency of the proof, or against the vahdity of a will, or upon the construction, validity, or legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party, he must enter in the minutes, the grounds of his decision. But, where a Surrogate has refused to probate a will upon the ground that the proof of its execution is insufficient and the testator incompetent to make it, his powers over it are ended and he cannot go further and admit it to probate, with a statement of the executor and chief beneficiary to the effect that the direct bequest to him of realty and personalty was in fact made for the children of the testator, that the testator considered them incompetent to manage the property and that the executor holds it in trust for them. Matter of Eckert, 36 Misc. 610 (headnote). The form of a decree refusing probate, on the ground of insufiiciency of proof, or invalidity of any of the grounds upon which the Surrogate has jurisdiction to deny probate, can readily be adapted from the form of the decree below suggested. It will be noted in the precedent under § 390 be- low, that provision is made for a clause in which may be incorporated the determination of the Surrogate with respect to the construction, validity, or legal effect of any provision in the will expressly put in issue by a party to the proceeding. The object of § 2625, particularly in respect to its last provision, is to add to the probative effect of the decree in subsequent pro- ceedings. For example, if a will is sought to be established by an action, subsequent to its rejection by the Surrogate, the decree duly recorded or certified is admissible in evidence; and while having no conclusive effect upon the rights of the devisees, it is conclusive upon the matters, and in the respects touching which the Surrogate had jurisdiction. See Corky v. McElmeel, 87 Hun, 13. In affirming the case last cited, the Court of Ap- peals (149 N. Y. 228) said, in this connection (see opinion of Gray, J., at page 245) : "The jurisdiction of the Surrogate is only such as is conferred by the statute, and though a scheme for the determination of the factum of wills of real property, as well as those of personal property, is provided by the Code of Civil Procedure, it is not to be regarded as exclusive of the right, which existed at common law, in favor of heir and of devisee, to a trial by jury of the question of the title to the testator's real property. The Surro- gate's decree, as to a will of personalty, is made conclusive by force of the statutory provision (Code, § 2626), giving it such effect, if favorable to the will; and if unfavorable, it is, in fact, conclusive; because the transmission and distribution of the property bequeathed are checked. It was always considered, when the provisions of the Hevised Statutes were the source of the Surrogate's authority, that his decree did not, and could not, con- clude the question of the validity of a testamentary devise of real property, in a subsequent litigation involving the title thereto. Bogardus v. CUrh, 4 Paige, 623; Harris v. Harris, 26 N. Y. 433. We think that it is true now under the Code. That the Surrogate's admission to probate of a will of ADMITTING THE WILL TO PROBATE 395 real property has its advantages, is, of course, plain enough. In the first place, it entitles the will to be recorded as a proved will, and, in the second place, in a subsequent litigation over the real property devised, the devisee defending his title has the benefit of the presumption arising from the pro- duction of the Surrogate's decree and the testimony upon which it was rendered. Also, the devisee is protected against the claim of a purchaser in good faith from the heir-at-law. (Code, § 2628.) These are manifest advantages and render the admission of the will to probate a desirable thing; but they are only advantages and nothing more. The title of the devisee is still open to litigation at the instance of the heir-at-law, who is not concluded by anything which has taken place in the Surrogate's Court." Where the parties required to be cited are of full age and desire to ex- pedite the probate of the will, they may do so by means of the subjoined waiver and consent, duly acknowledged and filed. Surrogate's Court, Kings County. Waiver and con- In the Matter of the Probate" sent. of the Last Will and Testa- ment of Deceased. _^ the undersigned, being of full age, heir and next of kin of deceased, named in the petition herein, do hereby appear in person and waive the issuance and service of a citation in the above entitled matter and consent that the last Will and Testament of deceased, bearing date be admitted to probate forthwith. (Signature.) Note. Note. If acknowl- edgment be taken outside of County, County Clerk's cer- tificate of Notary- ship must be at- tached. Or where the citation is served, they may, if of full age, consent to the probate as follows: Surrogate's Court, Kings County. Admission of ser- In the Matter of the Probate' vice of citation and of the Last Will and Testa- consent, ment of Deceased. as a Will of Real (or of Personal) Property (or of both). the undersigned, heir and next of kin of 396 surrogates' courts deceased, named in the annexed citation, being of full age, do hereby admit due and timely personal service of the said citation upon on the day of 190 at in the State of and do hereby appear in person in the above-entitled matter and consent that a decree be entered therein admitting to probate the last Will and Testament of deceased, bearing date the without further notice to (Signature.) § 390. Procedure where there is no contest. — Where all have waived citation or consented and there is no contest, the subscribing witnesses being examined as outlined in a preceding chapter, their depositions are taken (reduced to writing) and sworn to before the Surrogate or his as- sistant substantially in the following fornu Surrogate's Court, County of New York. In the Matter of Proving the ' Last Will and Testament of Deceased, as a Will of Real and Per- sonal Property. State of New York County of New York, of being duly sworn as a witness in the above-entitled matter, and examined on behalf of the appli- cant to prove said will, says: I was well acquainted with now deceased; I knew the above-named decedent for more than years before h death. The subscription of the name of said decedent to the instrument now shown to me and offered for probate as h last will and testa- ment, and bearing date the day of in the year one thousand nine hundred and was made by the decedent at the City of New York, on the day of in the year one thousand nine hun- dred and in the presence of myself and the other subscribing witness. At the time of such sub- scription the said decedent declared the said in- strument so subscribed by h to be h last will and testament; and I thereupon signed my name as a witness at the end of said instrument, at the request of said decedent, and in h presence. The said decedent at the time of so executing said instru- ment, was upwards of the age of twenty-one years, and in my opinion of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will. I also saw said the other subscribing witness sign h name as witness at the end of said will, and r ADMITTING THE WILL TO PROBATE 397 know that he did so at the request, and in the presence of said decedent. Witness sworn and examined before me this 'day of 190 Assistant to the Surrogate, New York County. If there has been an infant represented by special guardian the special guardian should file a report substantially as follows: Surrogate's Court, Westchester County. In the Matter of Proving a," Paper Writing Purporting to be the Last Will and Testa- ment of Deceased.^ I, Attorney and Counsellor at Law, hereto- fore appointed the special guardian of the infant for the purpose of appearing for herein and protect- ing rights and interests, in this proceeding do hereby report that the interests of said infant are that I have examined the said paper writing dated purporting to be the last Will and Testament of said deceased, the petition for probate thereof, citation and proof of service, depositions of the subscribing witnesses to said Last Will and Testament, all other papers in this proceeding, and have examined the witnesses produced by the proponent; I further report that there is no valid objection to the probate of said paper writing on the part of said infant, or any of them. (Dated.) Special Guardian. When the depositions have been made and filed, and the special guardian if any has made his report stating that there are no objections to the pro- bate of the will, the papers are marked for decree, and a decree granting probate is handed down by the Surrogate substantially in the following form: Surrogate's Court Caption. Present : Decree granting Hon. probate. Sinrogate. In the Matter of the Probate' of the Last Will and Testa- ment of late of Deceased, as a Will of Real (or) (and) Personal Property. ^ Satisfactory proof having been made of the due service of the citation herein upon, or of the due appearance herein by, all persons entitled to notice of this proceeding and, r- 398 surrogates' courts Esq., special Guardian for an infant 14 years of age having appeared in person And the witnesses to said last Will and Testament having been sworn and examined, their examination reduced to writing and filed, and it appearing by such proofs that the said Will was duly executed, and that the Testat at the time of executing it, was in all respects competent to make a will, and not under restraint; and this Court being satisfied of the genuineness of the will, and the validity of its execution; and the probate thereof not having been contested. It is 'Ordered, Adjudged and Decreed, that the instrument offered for probate herein be, and the same hereby is, admitted to probate as the last Will and Testament of the said deceased, valid to pass Real and Personal property, and that the said Will, with the proofs thereof, and this Decree be re- corded, and that Letters Testamentary be issued to the Ex- ecut who may qualify thereunder, and that said Execut pay to Esq., special Guardian, the sum of dollars as and for his costs and allowance herein. Surrogate. § 391. Admitting will after contest. — The following precedent for a de- cree admitting to probate a will to which objections have been filed indi- cates the various matters to be covered by the decree, the form being readily adaptable by omission or amplification to meet any ordinary cases. Surrogate's CJourt Caption. Present : Hon. Surrogate. In the Matter of Proving the' Decree granting Last Will and Testament probate after con- of Deceased, t^st. as a Will of Real and Per- sonal Property. Satisfactory proof having been made of the due service of the citations heretofore issued in this matter, requiring all persons entitled to notice of this proceeding to be and appear before one of the Surrogates of the county of New York to attend the probate of the last will and testament of la^e of deceased, bearing date the day of 19 and [here recite all the appearances, as for example, and one of the executors named in said will, the petitioner herein, having appeared, in person or by attorney as the case may be, in support of said probate; and (add other parties appearing and contesting) and infants over (or under) the age of 14 years having appeared by a guardian ad litem duly appointed by the surrogate and filed an answer in opposition to said probate; and a per- ADMITTING THE WILL TO PROBATE 399 ' son named as executor in another paper purporting to be the last will and testament of the above named decedent having appeared herein by his attorney in pursuance of an order of this court duly made upon his petition permitting him to intervene as a party upon this proceeding, and no other person having appeared] ; And witnesses having been examined and proofs taken (by and on behalf) of the proponent and the contestants touching the facts and circumstances attending the execution of said will, and the competency of the testator to make the same, and his freedom from restraint, and the Surrogate hav- ing heard such proofs and the allegations of the respective parties, and due deliberation having been thereupon had, it is Ordered, Adjudged and Decreed — I. That the instrument in writing bearing date the day of 19 propounded as and for the last will and testament of the said deceased, in this proceeding, is the last will and testament of the said deceased, and was duly executed as required by law. That the said the testator at the time of executing it was, in all respects, competent to make such will and not under restraint. II. (If the validity, construction or effect of any disposition of personal property contained in the will was put in issue be- fore the Surrogate add here the determination of the Surrogate as to the true construction and legal effect of the clause, re- citing it.) Note. Note. No such m. And it is further Ordered, Adjudged and Decreed, that disposition can be ^jjg gg^jfj instrument offered for probate herein be, and the put in issue under ^^^^ hereby is admitted to probate as the last will and testa- e on , e ep - j^^g^^ ^f ^j^g g^j^j deceased, valid to pass (real, or per- r "I It h nf n r ^o^^h or real and personal) property; and that the said will sonal property ^'^'^ *^® proofs thereof, together with this decree, be recbrded ; (&) The will be ^^^ that letters testamentary issue to the executor (s) named of a resident of the in said will, who may qualify thereunder. State. IV. (It is proper to add a further direction dismissing as (c) The will was unproved and unsustained the objections, if any, that may executed within the have been filed and not substantially disposed of by the de- °*^*^- terminations as to testamentary capacity and undue influenca^ V. (Here incorporate directions as to the payment of costs to the proponent and to special guardians, and whatever pro- visions for taxable disbursements that may be necessary, specifying whether the costs are to be paid out of the estate or to be imposed upon the contestants personally.) (Signature.) Surrogate. Where the Surrogate, however, refuses probate it is proper to follow the foregoing form substantially as far as paragraph I. only, at which point the determination of the Surrogate as to the particular ground for the rev- 400 surrogates' courts ocation of the will, should be incorporated. For example, if due execu- tion has been proven but the exercise of undue influence established, the decree may read: It is Ordered, Adjudged and Decreed, that the paper writ- ing purporting to be, and offered for probate as, the last will and testament of deceased, is not the last will and testament of the said deceased, the execution thereof by said having been procured while he was under restraint and undue influence upon him exercised by and it is Further Ordered, Adjudged and Decreed, that the said instrument offered for probate herein be and the same hereby is, denied probate as the last will and testament of the said deceased, and (here add a further clause granting costs to the successful contestants and providing for taxable disbursements out of the estate). The grounds of his decision must be entered in the minutes by the Surrogate, if required by either party. Code Civ. Proc. § 2625, ante, p. 394. § 392. The Surrogate's certificate of probate. — After the decree ad- mitting the will to probate has been made, the Surrogate must make a certificate under § 2629 of the Code, which is as follows: The surrogate must cause to be indorsed upon, or annexed to, the original will admitted to probate, or the exemplified copy, or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under his hand, or the hand of the clerk of his court, and his seal of office, stating that it has, upon due proof, been admitted to probate, as a will valid to pass real or personal property, or both, as the case may be. The will, or the copy or statement, so authenticated, the record thereof, or an ex- emplified copy of the record, may be read in evidence, as proof of the original will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last three sections. § 2629, Code Civil Proc. The certificate should read substantially as follows: Surrogate's Court, Kings County. Certificate of pro- In the Matter of the Probate' bate. of the last Will and Testa- ment of Deceased. State of New York County of Kings, Be it remembered, That, in pursuance of section 2692 of the Code of Civil Procedure, I hereby certify that on the day of the date hereof, the last Will and Testament of deceased, being the annexed written instrument, was upon due proof duly admitted to probate by the Surrogate's ADMITTING THE WILL TO PROBATE 401 Court of the County of Kings and by the Surrogate of said County, as and for the last Will and Testament of said de- ceased, and as a Will valid to pass Real and Personal Property. Said Last Will and Testament and proofs are recorded in the ofl&ce of said Surrogate, in Liber of Wills, page In Testimony Whereof, I have hereunto sub- scribed my name and affixed the Seal of Office of the Surrogate of said County, this day of one thousand nine hundred and Clerk of the Surrogate's Court. § 393. Decree where will is not produced having been lost or destroyed. — Where probate is sought of a lost or destroyed will under §§ 2621 and 1865, it will be recalled that due execution and the existence of the will at the time of the testator's death, or its fraudulent destruction in his life- time must be clearly proven; and the provisions of the will must be estab- lished in the way prescribed by the Code. The decree admitting such a will or establishing such a will, should con- tain similar formal recitals as to the citation and its due service as the fore- going decree and, after reciting further the appearances in the proceeding, may proceed as follows: and the Surrogate having inquired particularly into all the facts and circumstances; and witnesses having been examined and proofs taken on behalf of the several parties hereto; and due deliberation having been thereupon had, whereby it appears, to the satisfaction of the Surrogate, that the said deceased, did, on or about the day of duly execute a last will and testament in the manner required by law; and that the said will was in existence at the time of the said testator's death (or was fraudulently de- stroyed in his lifetime) and that it has been lost; and it further appearing to the satisfaction of the Surrogate that the pro- visions of said will so lost as aforesaid have been clearly and Note. That under distinctly proved by at least two credible witnesses; {Note) section 1865 a cor- Now, on motion of the counsel for the petitioner rect copy or draft herein, it is is made equivalent Ordered, Adjudged and Decreed, that late of to one witness; if deceased, did on the day of 19 make and ex- such a draft has ^^^^ -^^ ^^^ manner prescribed by law, his last will and testa- een ma e use o , i ^^^^ containing substantially the following provisions : Qiere ,, J ith 11 h embody the provisions in the words in which they haveheen 'proven it is not absolutelv ^2/ ^^ witnesses; or where there is a draft proven to have been em- essential that this be bodied in the will, incorporate the same verbatim); and it is fur- done, ther Ordered, Adjudged and Decreed, that the said last will, containing the aforesaid provisions be and the same hereby is admitted to probate as the last will and testament of the said deceased, vahd to pass real and personal prop- 26 402 surrogates' courts erty; and that the said will containing the said provisions with the proofs thereof, together with this decree, be recorded, and that letters testamentary issue to the executors (who are proved to have been named therein; or where the witnesses have been unable to prove any executor named in the will provide for letters of administration with the will annexed) who may quaUfy thereunder. (Add the necessary provisions as to costs.) (Signature.) Surrogate. § 394. Prompt entry of decree. — The danger of not promptly entering a decree admitting a will to probate, is, that the time is thereby set running within which an adverse title might be started by an heir conveying to a purchaser in good faith, and for a valuable consideration, property other- wise disposed of by the will. The danger is a remote one, but the statute provides for a validation of such a bona fide purchaser's title in case the will is not admitted to probate within the time thereby limited, which is four years; the section is as follows: When purchaser from heir protected notwithstanding a devise. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admitted ,to probate and recorded, as a will of real property, in the office of the surrogate having juris- diction, or established by the final judgment of a court of competent jurisdic- tion of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for Ufe; or without the state, or, if the will was concealed by one or more of the heirs of the testator, the limitar tion created by this section does not begin until after the expiration of one year from the removal of such a disabihty, or the deUvery of the will to the devisee or his representative, or to the proper surrogate. § 2628, Code Civil Proc. Now Dec. Est. Law, § 46. The words "if at the time of the testator's death, the devisee is ... . within the age of twenty-one years," have been held not to refer to unborn children. Fox v. Fee, 167 N. Y. 44, 46. And the concealment of the will by heirs of the testator is such concealment as leaves the devisees ignorant of their rights under the will, and deprives them of knowledge of its exist- ence. Ibid., and Cole v. Gourlay, 79 N. Y. 527, 533. The Surrogate has of course in a proper case power to enter the decree nunc fro tunc. But this power must be carefully exercised. So, where, by a peculiar error, an administrator took out letters under a will where no probate decree was entered, and acted thereunder. Surrogate Rollins, upon an application to revoke the letters of administration with the will an- nexed, which he denied as being made by one having no standing in the ADMITTING THE WILL TO PROBATE 403 proceedings, passed also upon the administrator's application that a decree be entered nunc pro tunc admitting the will to probate. This he denied on the ground that the failure to obtain it earlier was attributable to the negligence of the applicant and not to an act or omission of the court. Staples V. Hoffman, 1 Dem. 63, 66. § 395. Additional provisions as to record of wills. — The following sec- tions of the Code contain miscellaneous provisions with regard to the record of wills: Recording wills proved elsewhere within the state. A transcript of a will of real property, proved and recorded in any court of the state, of competent jurisdiction, and of all the notices, process, and proofs relating to the same, must, when duly exemplified, be recorded, upon the request of any person interested therein, in the surrogate's court of any county, in which real property of the testator is situated. § 2630, Code Civil Proc. Records of certain wiUs heretofore proved; how far evidence. The exemplification of the record of a will, proved before the judge of the former court of probates, and recorded in his office before the first day of January, in the year 1785, certified under the seal of the officer having custody of the record, must be admitted in evidence in any case, after it has been made to appear that diligent and fruitless search has been made for the original will. § 2631, Code Civil Proc. The "record" must include the "proofs," or its exemplification will not make it evidence. Hill v. Crockford, 24 N. Y. 128, citing Morris v. Keyes, 1 Hill, 540. § 396. Records of certain wills heretofore proved; how far evidence. An exemplified copy of the last will and testament of any deceased person, which has been admitted to probate, whether as a will of real or personal property, or both, and recorded in the office of the surrogate in any county of this state, shall be admitted in evidence in any of the courts, of this state, without the proofs and examination taken on the probate thereof, and whether such proofs shall have been recorded or not, with like effect as if the original of such will had been produced and proven in such court, when thirty years have elapsed since the will was admitted to probate and recorded. And the recording of such will shall be evidence that the same was duly admitted to probate. The exemplification of the record of a will which has been proved . before the surrogate or judge of probate, or other officer exercising the like jurisdiction of another state must, when certified by the officer having by law, when the certificate was made, custody of the record, be admitted in evidence as if the original will was produced and proved, when thirty years have elapsed since the will was proved. § 2632, Code Civil Proc. § 397. Records of certain wills, how far evidence; as to wills of real property. A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state, with the certificate of proof thereof annexed thereto or endorsed thereon, or an exemplified copy thereof, may be 404 surrogates' courts recorded in the office of the clerk or the register, as the case requires, of cny county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator with the will annexed, must cause the same, or an exemplified copy thereof, to be recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exemplifi- cation, or an exemplification of the record thereof, must be received in evi- dence, as if the original will was produced and proved. § 2633, Code Civil Proc. Now Dec. Est. Law, § 42. Index and fees. Upon recording a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substantially in the same manner, as if it was a deed recorded in his office. Dec. Est. Law, § 43. An executor, or administrator with the will annexed, who causes a record of a will or exempHfication to be made as prescribed in section forty-two of the decedent estate law, must be allowed, in his account, the fees paid by him therefor. § 2634, Code Civil Proc. § 398. Wills to be returned after probate. Except where special provision is otherwise made by law, or where the surrogate sends a will into another state or territory, or into a foreign country, or dehvers it to a party in interest, as provided in section 2620 of this act, a written will, after it has been proved and recorded, must be retained by the surrogate, until the expiration of one year after it has been recorded, and, if a petition for the revocation of probate thereof is then ffied, until a decree is made thereupon. It must then be returned, upon demand, to the person who delivered it, unless he is dead, or a lunatic, or has removed from the state; in which case, it may, in the discretion of the surrogate, be delivered to any per- son named therein as devisee, or to an heir or assignee of a devisee; or, it re- lates only to personal property, to the executor, or administrator with the will annexed, or to a legatee. § 2636, Code Civil Proc. § 399, Recording will proved in other states, or abroad. Where real property situated within this state, or an interest therein, is devised, or made subject to a power of disposition, by a will, duly executed in conformity with the laws of this state, of a person who was, at the time of his, or her death, a resident elsewhere within the United States, or in a foreign country, and such will has been admitted to probate within the state or terri- tory, or foreign country, where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory, or foreign country, a copy of such will or of the record thereof and of the proofs or of the records thereof or, if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in section forty-five of this chapter, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authen- ADMITTING THE WILL TO PROBATE 405 ticated as prescribed in said section forty-five, accompanied by a certificate that no proofs or statement of the substance of proof of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in said section forty-five, may be recorded in the office of the surrogate of any county in this state where such real property is situated; and such record in . the office of such surrogate, or an exempUfied copy thereof, shall be presump- tive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property. § 2703, Code Civil Proc. Now Dec. Est. Law, § 44. See also Laws 1894, ch. 131. See ancillary administration, post, as to how foreign wills and records are to be authenticated for use in this state under § 2704, Code Civ. Proc. Now Dec. Est. Law, § 45. A Will, to be entitled to fecord here, for the evidential purposes indicated in this section, must have been executed "in conformity with the laws of this State." Any defect in the proof of that fact, or of the other essential facts prescribed, destroys the utility of the record here. Estate of Shearen, 1 Civ. Proc. Rep. 455; Estate of Langbein, 1 Dem. 448. Such defect, if dig- covered when the papers are offered for record, is warrant for refusing record. Ibid. See also Lockwood v. Lockwood, 21 N. Y. St. Rep. 93. So, in the proofs of due execution, if but one witness prove to have been ex- amined, and no reason why the other was not examined is shown by the record, the papers will be rejected. Matter of Hagar, 48 Misc. 43, citing above cases and Meiggs v. Hoagland, 68 App. Div. 182; Matter of Nash, 37 Misc. 706. Millard, Surr., in Matter of Coope, 53 Misc. 509, Hmited the fl^agrar case and ordered record under §§ 2703-04 (now §§ 44-45, Dec. Est. Law) of a will shown to have been executed as required by New York law, but ac- tually probated in Michigan on testimony of but one witness of the two. The object of this section is limited. It does not purport to authorize the issuance of letters testamentary on a will so recorded. Pollock v. Hooley, 67 Hun, 370; Matter of Langbein, supra. See provisions of L. 1894, ch. 731, ante, as to issuing letters on probate of a will on record of pro- bate elsewhere of will of United States citizen, dying domiciled anywhere in the British Empire, leaving property in this State. The record of the foreign probate is made equivalent to proving the will here. Bromley v. Miller, 2 T. & C. 575; Matter of Langbein, 1 Dem. 448. A deed, therefore, executed by the executor conveys title by force of the will, though no letters have issued here. Pollock v. Hooley, supra. The application to the Surrogate should be made by duly verified peti- tion, which should set forth the preliminary facts which authorize the ac- tion of the Surrogate in spreading the exemplified copy of will and proofs upon the records of the Surrogate's Court. Such petition should show that there is real property situated within the county of the Surrogate which is devised or made subject to a power of sale in a will duly executed in con- formity to the laws of this State, by a person who was at the time of death 406 SUBROGATES COURTS a nonresident, stating place and date of death, alleging original probate with date and place, together with other facts necessary and proper to be brought to the attention of the Surrogate. Matter of Nash, 37 Misc. 706, 709, citing Matter of Shearer, 1 Civ. Proc. 455. In Meiggs v. Hoagland, 68 App. Div. 182, it appeared (see headnote) that the will of a testator, who died seized of a burial plot situated in the State of New York, was executed ,in Philadelphia, Pennsylvania, and was admitted to probate in that city by a deputy register of wills. The wit- nesses did not testify that they had become such at the request of the testa- tor, but they subsequently appeared before another deputy register of wills in Philadelphia and so testified. An exemplified copy of the probate proceedings, including those had be- fore the second deputy register, was filed in the office of the Surrogate of Kings County in November, 1872. Chapter 680 of the Laws of 1872, which was then in force, provided that where any real estate located in the State of New York should be hereafter devised by any person residing out of the State of New York and the will had been admitted to probate in such other State, an exemplified copy of such will and of the proofs might be recorded in the oSice of the Surrogate of the county where the real estate was situ- ated and should be presumptive evidence of the will and its due execution. Held, that assuming that all the proceedings in the Register's Court of Philadelphia, including the second deposition made by the subscribing witnesses, were properly incorporated in the exemplified record, such record was only presumptive evidence of the will and its due execution and that this presumption was overcome by the fact that at the time the will was admitted to probate it had not been shown that the subscribing witnesses became such at the request of the testator. See also Matter of Nash, 37 Misc. 706, where proof of execution was defective. CHAPTER VI REVOCATION OF PKOBATE AND DETERMINING VALIDITY OP A WILL § 400. Persons interested may apply to revoke probate. A person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate's court, in which a will of personal property was proved, a written petition, duly verified, containing allegations against the validity of the will, or the competency of the proof thereof; and praying that the probate thereof may be revoked, and that the persons, enumerated in the next section but one, may be cited to show cause why it should not be revoked. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. § 2647, Code Civil Proc. A petition must be presented, as prescribed in the last section, within one year after the rec»rding of the decree admitting the will to probate; except that, when the person entitled to present it is then under a disability, specified in section 396 of this act, the time of such a disability is not a part of the year limited in this section, unless such person shall have appeared by general or special guardian, or otherwise, on said probate. But this section does not affect an application made pursuant to subdivision sixth of section 2481 of this act. § 2648, Code Oivil Proc. Section 2514, subd. 11 (see introductory definitions, ante), defines who are "persons interested." For the purposes of § 2647 the definition must be limited in contemplation of the general intent of the provision. Thus the administrator of a sister having life estate under her brother's will is not within the intent of the statute a person interested in the decedent's estate. Matter of Milliken, 32 Misc. 317. So, although the life tenant had commenced a proceeding to revoke probate, his application to be sub- stituted in her stead upon her death was denied. See, relating to action imder § 2653a of the Code, decision in Wells v. Betts, 45 App. Div. 115, as to husband's right as tenant by curtesy, and as beneficiary under a previous will. So such a "person interested" does not forfeit his rights by having signed a waiver and consent in the original probate proceedings. Matter of Albert, 38Misc. 61. § 401. Grounds for application to revoke probate. — Section 2647 in- dicates that the application to revoke probate must be made upon allega- tions (a) Against the validity of the will, or (&) The competency of the proof thereof. The words, " validity of the will," relate to the will considered as a duly executed instrument valid to pass real and personal property as stated in eh. V; they do not relate to the validity of the bequests or devises con- 407 408 • SURROGATES COURTS tained in the will. Therefore, if after a will has been admitted to probate, a later will is discovered it is evident that this fact affects the validity of the will already probated as the last will and testament of the decedent, and presents a proper case for an application imder § 2647. Cunningham V. Souza, 1 Redf. 462; Canfield v. Crandall, 4 Dem, 111. Where it appears, however, subsequent to the probate of a will, that it was in fact a will exe- cuted in duplicate, the omission of the probate decree to recite this fact is a mere irregularity and affords no ground for an application to revoke pro- bate. Matter of Grossman, 2 Dem. 69; Crossman v. Crossman, 95 N. Y. 145, 150; Roche v. Nason, 185 N. Y. 128f 135. The proceeding provided for by these sections cannot be resorted to as a cover for an attempt to open, vacate, modify or set aside a probate decree, or for an attempt to obtain a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other like sufficient cause. Such a proceeding is provided for (Pryer v. Clapp, 1 Dem. 387) by § 2481, subd. 6, which contains this qualifying clause, "The powers conferred by this sub- division must be exercised only in a like case and in the same manner as a court of record, and of general jurisdiction exercises the same power." The application under § 2647, is an application made as a matter of right. An application under subd. 6 of § 2481 is addressed to the favor and sound discretion of the court. If a decree has been made admitting a will to probate, it would be proper to apply to open the decree, the application being addressed to the discre- tion of the Surrogate (see Boughton v. Flint, 74 N. Y. 476), for causes com- ing clearly under the language of subd. 6. For example, to allow a witness to correct^ his testimony {Martinhoff v. Martinhoff, 81 N. Y. 641), or to. permit an heir to come in, discovered after the decree has been made and not cited in the probate proceedings {Bailey v. Hilton, 14 Hun, 3; also Matter of Harlow, 73 Hun, 433) ; to take newly discovered evidence, or to correct palpable error. And, in such cases, it is proper for the Surrogate to reopen the decree pro tanto, that is, only in so far as is necessary for the re-examination of new evidence, or to correct the error. See Matter of Dey Ermand, 24 Hun, 1. So the Court of Appeals held, that it was proper to open the proceedings and allow an heir to come in and contest probate, where it was proved that he had been forcibly prevented from appearing on the proceedings. Hoyt v. Hoyt, 112 N. Y. 493. Where the Surrogate has power to open the decree for fraud or other like cause, it has been held, that the power is not limited as respects the time within which it must be exercised by §§ 1282 and 1290 of the Code of Civil Procedure. See Matter of Flynn, 136 N. Y. 287. This further emphasizes the distinction between the remedies under §§ 2481 and 2647, for § 2648 expressly limits the time within which an application to revoke probate must be made to one year after the recording of the decree admitting the will to probate. It has been held (see Matter of Hamilton, 20 N. Y. Supp. 73), in view of the fact that § 2647 hmits proceedings to revoke probate to wills of personal property {In re Kellum, 50 N. Y. 298. See also Matter of Donhn, 66 Hun, 199), KEVOCATION OF PROBATE 409 that an application to set aside a decree probating a will of real and per- sonal property, must be made under § 2481, subd. 6. Surrogate Coffin who emphasized this rule, declared the proper practice under such subdivision to be upon affidavit, praying for an order, that the decree be vacated or opened, and that all persons interested might be cited to show cause why such order should not be made; and in the case before him he directed that the citation should issue not only to' the heirs-at-law and next of kin who were cited to attend the probate, but also the legatees, if any, who did not belong to either class and were thus not required to be cited. This was a case where a later will had been discovered, and Surrogate Coffin remarked (Matter of Hamilton, ibid., page 74) : "On the return day of the citation, if there were no opposition, or if there were, and the proper facts stated in the petition and affidavits were established and deemed sufficient to justify it, an order would be made setting aside the decree provided the later will should be sufficiently established to warrant its admission to probate. Then, in case it would not be, the original decree would stand. If the order prayed for were granted as suggested, then the usual proceedings would be had to revoke the later will. If successful, it would, as above stated, operate to make the decree of revocation final. If, on the contrary, it failed, the original decree would remain of full force." In Matter of Gaffney, 116 App. Div. 583, it was held that an application under § 2481, subd. 6, could not be used to review any erroneous decision on a mixed question of law and fact in the original probate, which had been acquiesced in without appeal or other attack for two years. Kruse, J., dissented. § 402. Same subject. — On the other hand, it is manifest that the applica- tion for the revocation of probate must be made for reasons coming within the meaning of § 2647. Thus where an application was made to revoke probate on the ground that the Surrogate making the decree had no juris- diction to take proof of the will, Surrogate Coffin denied the application, pointing out, that the allegations of the petition were neither against the validity of the will, nor the competency of proof, so that the only remedy could be under subd. 6 of § 2481. Heilman v. Jones, 5 Redf. 398. The person interested, contemplated by § 2647, must be a person coming within the limitation of the definition in subd. 11 of § 2514; this, it will be recalled, expressly excludes creditors. The petition should expressly describe the applicant as a person interested, specifying his exact relation- ship to the decedent, whether as heir-a:t-law or next of kin, devisee, legatee, etc. See Matter of the Will of Bradley, 70 Hun, 104, 108. See also Matter of James, 87 Hun, 57. The Surrogate has power upon this proceeding, as in other proceedings, to determine primarily whether the petitioner is a person interested in the estate of the decedent as required by this section. See Matter of Peaslee, 51 N. Y. St. Rep. 134. Accordingly, if the applicant is shown to have accepted benefits under the will he is estopped from at- tacking the probate of the will and cannot maintain the proceedings Matter of Peaslee, supra; Matter of Richardson, 81 Hun, 425. But mere 410 surrogates' courts consent to probate, as already noted, will not estop him. Matter of Albert, 38 Misc. 61. § 403. Object of the application. — The Court of Appeals {Matter of Gouraud, 95 N. Y. 256, 260, 262) has held, that the Code substantially re-enacts the former provisions of the Revised Statutes (2 R. S. 61, §§ 29, 30, 31, 32, 33, 34, 35), and in a previous case the court had held {Matter of Will of Kellum, 50 N. Y. 298), that it was in consequence of the conclusive effect of the probate of a will of personal property that the provisions were adopted which admitted the next of kin, within one year thereafter, to contest the will by filing allegations against the validity of the will or the competency of the proof thereof. It will be noted that the language was identical with that of § 2647, and in the case cited Judge Rapallo said: "These provisions are an important safeguard against imposition or mistake, and afford the next of kin a whole year after the probate, to in- vestigate the circumstances attending the execution of the will." And he adds, that "no such provisions are necessary as to wills of real estate, as the probate may be repelled at any time by contrary proof." And so, in the Gouraud case, supra, Judge Earl held, that those seeking the revocation of the probate of a will were not confined in their allegations to such matters merely as were not investigated and tried when the will was admitted to probate. He says: "The adjudication admitting the will to probate is not res adjudicata upon the hearing of the allegations filed for a revocation of the probate. For that purpose the whole case is left open, and a party desiring to contest the probate in that way has the right to try over again, upon the same, or other additional evidence, the very questions which were litigated when the will was first proposed for probate." And he points out that while this double litigation of the same questions upon merely the same evidence and before the same tribunal may in some cases operate very inconveniently, yet the design of the statute is clear; and he alludes to the nonconclusiveness of a decree admitting a will of real estate to probate, observing, " Whenever title to real estate is at- tempted to be made under it, its vaUdity may be resisted on precisely the same grounds that were litigated when it was admitted to probate, or upon any other grounds." Consequently it was held in that case, that the Surrogate could not refuse to entertain the appUcation for the revocation of probate merely because the allegations filed therein were substantially filed against the original probate. Ibid. See opinion of Earl, J., at p. 261. See also Ma«er o/ M- dington, 20 N. Y. St. Rep. 610. § 404. Time within which application must be made.— Section 2648 above quoted requires the petition to be presented within one year after the recording of the decree admitting the will to probate. In the Gouraud case, 95 N. Y. 256, 262, it was held that the presentation of the petition to the Surrogate under § 2648 corresponded to the filing of allegations Under § 31, 2 R. S. 61, under the former practice. This, there- REVOCATION OP PROBATE 411 fore, means the time when the petition is filed in the office of the Surrogate (Matter of Layton, 15 Misc. 660), and not, as has been in other connections held, the time when it comes up before the Surrogate for his judicial action. If, therefore, the petition is presented within the year the proceeding is deemed to have commenced within the meaning of § 2517. But in that case it is essential that § 2517 be fully complied with in its further provi- sions in order to entitle the petitioner to the benefit of that section. Ac- cordingly, the citation issued upon the presentation of such petition, must within sixty days thereafter be served as prescribed in § 2520 upon the adverse party, or upon two or more adverse parties who are jointly liable or otherwise united in interest, or within the same time the first publication of the citation must be made pursuant to an order made as prescribed in § 2522 of the Code. See § 2517 and Matter of Bennett, 9 N. Y. Supp. 459. If the citation is not so served within these sixty days, the Surrogate loses his jurisdiction. Pryer v. Clapp, 1 Dem. 387. It has been held that sixty days, within which the citation must be served, run from the issuance of the citation and not the presentation of the petition. See Matter of Bradley, 70 Hun, 104, 109, referring to § 2519 of the Code. If the petition, however, is duly presented and the citation issued within the statutory time and properly served, irregularity or mistake in the citation is amenda- ble so long as the court has acquired jurisdiction of the jparties. See Matter of Soule, 6 Dem. 137. But the citation must be served upon all the parties to the proceeding, except in the case covered by § 2517, where several of them are united in interest. Consequently where in a proceed- ing to revoke probate, the petition having been presented in time, and the citation duly issued and served upon the executor, but no service made upon other necessary parties, it was held that the proceeding must be dismissed. Fountain v. Carter, 2 Dem. 313. See also Bennett's Will, 1 Connoly, 296. See also Matter of Phalen, 6 Dem. 446, and reporter's note, pages 448 to 453. It is further apparent from § 2648, that the year within which the petition must be presented runs, in the case of a person under ^ny disa- bility specified in § 396 of the Code, only from the time the disabihty ceases or is removed. So where an infant not appearing by general or special guardian or otherwise upon the probate of the will, desires to apply for the revocation of its probate, he is not debarred by §§ 2647 and 2648 until a year has expired from the time he attains his majority. See Matter of Becker, 28 Hun, 207. But if it appear that the infant has accepted benefits under the will after he became of age, this will be deemed to be a ratification of the probate on his part sufficient to estop him from main- taining the proceeding. See Matter of Richardson, 81 Hun, 425. The time from which the year begins to run, within which application to revoke probate of the will must be made, is stated in § 2648 to be "the recording of the decree admitting thewill to probate." Confusion, however, is likely to arise where the will is admitted to probate after a trial by jury in the Supreme Court, or as formerly in the Court of Common Pleas. In 412 SURROGATES COURTS such a case it has been held, that the date which sets the year running, is the day of the recording of the decree in the court where the proceedings for the proof of the will were had. Matter of Ruppaner, 9 App. Div. 422. In the case cited the petition for the revocation of probate was presented to the Surrogate of New York County on the 3d of March, 1894. The proceedings for the probate of the will had been taken in the Court of Common Pleas under § 2486 of the Code as it stood prior to the amend- ment of 1895, and judgment was entered in that court admitting the will to probate November 2, 1892. The judgment and will were not filed in the office of the Surrogate until January 19, 1893, and they were not recorded until after the 3d of March, 1893. The Surrogate dismissed the petition as not having been presented in time and the Appellate Division, Rumsey, J., writing the opinion, affirmed his decree. § 405. The petition and citation. Citation, to whom to be directed. A petition, presented as prescribed in the last two sections, mUst pray that the citation may be directed' to the executor, or administrator with the will annexed; to all the devisees and legatees named in the will; and to all other persons, who were parties to the special proceeding in which probate was granted. • If a legatee is dead, his executor or administrator must be cited, if one has been appointed ; if not, such persons must be cited as representing him, as the surrogate designates for the purpose. § 2649, Code Civil Proc. The following is suggested as a precedent for a petition in this pro- ceeding: Surrogate's Court, County of Petition for revo- In the Matter of the Applica- cation of probate tion of a person imder § 2647, C. C. interested in the estate of Deceased, to revoke the probate of his alleged Last Will and Tes- tament. To the Surrogate's Court of the County of The petition of respectfully shows to the court and alleges: I. That your petitioner is a person interested in the estate of late of deceased, being (here state rela- tionship to decedent). II. That on the day of 19 a decree was recorded in the office of the Surrogate of the county of Note. If will was ('*<''^) admitting to probate as a will of personal property an established after trial instrument in writing bearing date the day of in Supreme Court 19 as and for the last will and testament of the note the fact and the decedent above named. REVOCATION OF PROBATE 413 date the judgment of that court was entered. Note.^ The allega- tions against the va- lidity of the will may be worded substan- tially as if the ap- plicant were filing objections with a view to contesting probate (Henry v. Henry, 3 Dem. 322), addressing the alle- gations to any mat- ter touching which he would have a right to oppose the original probate of the will. It seems, however, that sec- tion 2647 does not authorize the appli- cant to put in issue the validity, con- struction, or effect of any disposition Note. Section 2649 provides that if a legatee is dead his executor or ad- ministrator must be cited if one has been appointed, if not, such person must be cited as representing him, as the Surrogate may designate for the purpose. Conse- quently if any leg- atee be dead the fact of his death and of the appointment of an executor or ad- ministrator must be alleged in addition. III. And your petitioner further shows on information and belief that the said instrument so admitted to probate as and for the last will and testament of deceased, was not in fact his last will and testament, and was not entitled to probate as such, for the following reasons: (here insert, "al- legations against the validity of the will or the competency of the proof thereof " as required by section 2647). Note. IV. And your petitioner further alleges that under the said decree admitting said will to probate and recorded as afore- said on the day of 19 letters testamentary were issued to one of the executors therein named, who qualified according to law; and said executor is now adminis- tering the estate of the said decedent by virtue of such letters. of personal property contained in the will, under section 2624, as he could upon the original contest. MaUer of Ellis, 22 St. Rep. 77, Ran- som, Surr. See, how- ever. Matter of the Will of Gouraud, 95 N. Y. 256, 260. If the allegations are ad- dressed to the com- petency of the proofs either exclusively or in addition to the question of the va- lidity of the will, the petition should spec- ify concisely the re- spects in which the proofs taken in the probate proceedings are alleged to have been incompetent to prove due execution, testamentary capac- ity and freedom from restraint and undue influence. V. That all the devisees and legatees named in the said last will, and all other persons who were parties to the special proceeding in which probate was granted as aforesaid are set forth in the following schedule showing their names, ages and addresses together with the capacity in which they are sever- ally entitled to be made parties to this proceeding. Note. Name Age Address Relationship Wherefore, your petitioner prays for a decree revoking the probate of said alleged last will and testament of de- ceased, and that a citation issue directed to the said (here specify the executor or administrator with the will an- nexed, devisees, legatees and other persons specified in the foregoing schedule, describing each) requiring them to show cause why said decree should not be revoked, and why your 414 SURROGATES COUB'io petitioner should not have such other and further relief in the premises as may be just. (Dated.) (Signature.) (Verification.) Upon the presentation of such a petition the surrogate must issue a citation accordingly. § 2647, Code OivU Proc. The citation will follow the usual form, citing the persons to whom it is addressed, "to show cause why the probate of the alleged last will and testament of late of deceased, admitted to probate by a decree recorded in the office of the Surrogate in the county of on the day of 19 should not be revoked." It is manifest that it would not be proper to commence proceedings to revoke probate of a will, while the decree admitting it to probate is sus- pended as to its operation by an appeal duly perfected. This, however, would not be true, if the appeal is not from that part of the decree which admits the will to probate, but merely from some incidental provision thereof, such as the determination of the Surrogate, where some party has put in issue the validity, construction, or effect of a testamentary dispo- sition of personal property contained in the will. For whether the Appel- late Court should affirm or reverse that decision it will in nowise affect the question, whether the will was executed in pursuance of the statutory re- quirements by a person having testamentary capacity and whether or not he was unduly influenced, which are the only questions involved de novo in the proceedings for revocation of probate. On the other hand, if on the proceedings to revoke probate, the will should be declared invalid, the final determination of the question of construction will become of mere academic interest; while if the probate should be sustained, the decision on the appeal would furnish a guide to the Surrogate upon the accounting of the executor and in framing the decree directing the distribution of the estate. In re Bonnett, 9 N. Y. Supp. 459, 460. § 406. Effect of pendency of proceeding. — The effect of the pendency of proceedings to revoke probate is to relegate the executor, from the time the citation is served upon him, practically to the position of a temporary administrator; this is by virtue of § 2650, which is as follows: Executor, etc., to suspend proceedings. After service upon him of a citation, issued as prescribed in the last three sections, the executor, or administrator with the will annexed, must suspend, until a decree is made upon the petition, all proceedings relating to the estate; except for the recovery or preservation of property, the collection and pay- ment of debts, and such other acts as he is expressly allowed to perform, by an order of the surrogate, made upon notice to the petitioner. § 2650, Code Civil Proc. This section is intended to prevent any acts by the executor, which might, in the event of probate being revoked, result in placing any of the EEVOCATION OP PROBATE 415 property of the estate beyond the reach of the heirs and next of kin. The section has been declared to be intended to restrict the powers of the ex- ecutor, not to enlarge the powers of the Surrogate. See Matter of McGowan, 28 Hun, 246; Matter of Hoy t, 31 Hun, 176. This section should be considered with § 2582, by which the powers of executors are defined during the suspension of the probate decree by virtue of an appeal duly perfected. See Bible Society v. Oakley, 4 Dem. 450; Mat- ter of Van Voorhis, 1 N. Y. St. Rep. 306. The words, "such other acts as he is allowed to perform by an order of the Surrogate," must be construed with the whole context so that the acts, which the Surrogate will be justified in permitting him to perform under this section, must be such as look to the recovery or preservation of prop- erty, or the collection and payment of debts. Therefore in the cases above cited, it was held, that the Surrogate was without power to direct any distribution of the estate or even the advance of parts of legacies. See Matter of McGowan, and Matter of Hoyt, swpra; La Bau v. Vanderbilt, 3 Redf. 384, 418, 419. In the Meyer case, 131 N. Y. 409, where proceedings had been begun for the revocation of the probate of the testator's will, by his brother, who with two sisters, were the only heirs-at-law of the decedent, it was held, by the Court of Appeals, that the pendency of the proceedings in nowise affected the liability of the executors to pay interest upon the funds of the estate, intermediate the death of the testator and the ultimate probate of his will, which funds it appeared were being held by them and used in their business as a firm. The question arose in the Stewart case, 131 N. Y. 274, whether the sus- pension of the powers of the executor under § 2650 operated so as to pre- vent the imposition of interest in favor of the State upon the unpaid succession tax imposed by the collateral inheritance act of 1885. The legacy in this case amounted to $74,914.42, which tax was by the decree of the Surrogate made to bear interest at six per cent from April 25, 1888, a date eighteen months after the death of the testatrix. Prior to that date proceedings were duly instituted for the revocation of the will of Cornelia N. Stewart, which proceedings did not terminate until January 16, 1890, and it was claimed that interest should not be charged upon the unpaid taxes during this period. The Court of Appeals, however, held that it should, basing their decision upon the provision of the statute which enacted, that a modified rate of interest must be charged where,, "by reason of claims made upon the estate, necessary litigation, or other unavoidable cause of delay, the estate of the decedent cannot be settled. Matter of Stewart, Supra, page 285. § 407. The hearing. — The hearing in a proceeding to revoke probate is substantially the same as if the will were offered for probate de novo. Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. The testimony, taken upon the appli- cation of probate, of a witness who is dead, or without the state, or who, since 416 surrogates' courts his testimony was taken, has become a lunatic or otherwise incompetent, must be received in evidence. § 2651, Code Civil Proc. except as to such statutory rights as are expressly limited to probate pro- ceedings, such as the right under § 2618 to an order requiring the examina- tion of the subscribing witnesses. See Hoyt v. Hoyt, 112 N. Y. 493, afR'g 9 N. Y. St. Rep. 731. The situation of the proponents of the will practically does not differ from that which they would occupy if the issues involved in the proceeding had been made by objections duly filed at the time the paper in dispute was originally offered for probate. Hoyt v. Jackson, 2 Dem. 443, Surrogate Rollins, citing Code Civil Procedure, § 2652; Collier v. Idley's Executor, 1 Bradf. 94. In the case cited by Surrogate Rollins, Surrogate Bradford held, that the proponent would be obliged to prove the will by original proof independently of the proofs first offered; that the probate decree could not be offered in evidence nor even the deposition of any of the wit- nesses taken on the first proof be read in evidence except in the precise contingencies pointed out by the statute. Collier v. Idley's Executor, supra, page 99. The precise contingency pointed out by § 2651 in this regard is, that the testimony, taken upon the first probate, of a ^Yitness who upon the proceedings to revoke probate proves to be dead, without the State, or to have become a limatic, or otherwise incompetent, must be received in evidence; otherwise the testimony must all be taken de novo, the proponent sustaining the same burden, and the contestant being as free in regard to the scope of his investigation as if no adjudication had been made in the premises. See Matter of Gouraud, 95 N. Y. 256; Matter of Soule, 19 N. Y. St. Rep. 532; Hoyt v. Hoyt, 112 N. Y. 493, 511, 512. In the case last cited Judge Gray observed: "The proceeding taken below was, within the terms and purview of § 2647, for the revocation of a will of personal property, and was so recognized by all parties. The effect of presenting the petition was to procure a re-examination of the case and to have proofs taken de novo. The executors, as proponents, proceeded to prove the will by original proof, independently of the first proof, and the practice was right and such as is contemplated by § 2651. That section was a re-enactment of a pro- vision of the Revised Statutes (2 R. S. 61, § 28) and necessarily implies that the only evidence, which need not be taken anew, is in the case of witnesses dead, without the State, or insane." § 408. The decree. Decree. If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, or is, for any reason, invalid, he must make a decree re- voking the probate thereof; otherwise, he must make a decree confirming the probate. § 2652, Code Civil Proc. Section 2652 must be read in connection with § 2622, which provides that "before admitting a will to probate, the Surrogate must inquire particu- larly into all the facts and circumstances, and must be satisfied of the gen- REVOCATION OF PEOBATE 417 uineness of the will and the validity of its execution." Surrogate Rollins {Cooper V. Benedict, 3 Dem. 136) held that the same doctrine is applicable to proceedings to revoke probate as to a proceeding for probate, and that the principle enunciated in Delafield v. Parish, 25 N. Y. 9, held good in both; the principle being, " In all cases the party propounding the will is bound to prove to the satisfaction of the court, that the paper propounded in ques- tion declares the will of the deceased, and that the supposed testator at the time of making and publishing the document was of sound and disposing mind and memory. ... If upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question contains the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not en- titled to probate." It is the duty of the Surrogate to revoke probate wherever upon the same testimony it would be his duty originally to deny probate. For ex- ample, if it is not clear from the testimony that the testator was physically and mentally competent at the time of execution, probate should be re- voked. See Knapp v. Reilly, 3 Dem. 427. But where, on the contrary, there is nothing in the records or proofs on the proceedings to revoke probate to lead the Surrogate to doubt the gen- uineness of the will or its validity, the proceedings to revoke must be dis- missed. Matter of Walther's Will, 7 N. Y. Supp. 417; Matter of Johnston, 1 Connoly, 518. Where a will of which probate was revoked as to personalty alone, upon the ground that it was not the will of testator in respect thereto, contained a clause revoking all former wills, it was held that this revocation clause fell with the will, and could not, at least as to personalty involved, be in- voked to defeat a prior valid will. Matter of Miller, 28 Misc. 373. § 409. Wo power to construe. — ^There is no power to construe a will in a proceeding to revoke probate. Matter of Wilcox, 55 Misc. 170, citing Bevan v. Cooper, 72 N. Y. 317, 329; Matter of Ellis, 22 N. Y. St. Rep. 77. The reason is that the power to construe given by § 2624 in probate pro- ceedings is limited by the words "unless the decree refuses to admit the will to probate." Revocation of probate proceedings contemplate just such a refusal. They are governed by a separate article of the Code giving no express power to construe. § 410. Notice of decree of revocation. Where the decree revokes the probate of a will, as prescribed in this article, the surrogate must cause notice of the revocation to be immediately published, for three successive weeks, in a newspaper published in his county. § 2663, Code Civil Proc. The form of the decree may be substantially as follows: 27 418 surrogates' courts Surrogate's Court Caption. Present : Hon. Surrogate. Decree revoking ,j,j^j ) probate. ' j a person interested in the estate of late of deceased, having on the day of 19 presented to this Surrogate's Court, in which the will of said decedent was proved as a will of personal property, a written petition duly verified containing allegations against the valid- ity of said will and the competency of the proofs thereof; and praying that probate thereof be revoked; and that the execu- tor of said will, the devisees and legatees named therein, and also the persons who were parties to the special proceeding in which probate was granted, might be cited to show cause why it should not be revoked ; and a citation having accord- ingly issued directed to the executor (s) under said will, to all the devisees and legatees therein named, and to all other per- sons who were parties to the special proceeding in which pro- bate was granted requiring them to appear before the Surro- gate of the county of and show cause why the probate of said will should not be revoked. Now, the said citation having been returned, on reading and filing proofs of due service thereof on all the persons to . whom it was directed, and on the return day of said citation, there having appeared (recite appearances in detail including appearances by special guardian, reciting due appointment thereof) ; and witnesses having been examined and proofs taken touching the facts and circumstances attending the ex- ecution of said will and the competency of said testator to execute the same, and his freedom from restraint or undue influence; and due deUberation having been had upon the al- legations and proofs of the parties, whereby it appears to the satisfaction of the Surrogate that the said will is not suffi- Note. See Ian- ciently proved to be the last will of the testator {note) (or if guage of § 2652, C. the Surrogate decides that it is for any reason invalid state the fact and the reason concisely) ; It is accordingly on motion of attorney for Ordered, Adjudged and Decreed, that the instrument here- tofore admitted to probate by a decree of this Surrogate, re- corded on .the day of 19 is not sufficiently proved to be the last will of said testator (or if he has decided that it is for any reason invalid state the reason con- cisely) ; And it is further Adjudged and Decreed, that the probate of said alleged last will and testament of deceased, together with the letters testamentary issued thereon, on the C. P. REVOCATION OF PROBATE 419 day of to and as executors of said alleged last will and testament be and the same hereby are revoked. Note. Note. The wording of article 2d of title 3 of chapter 18, does not apparently con- template the revocation of the decree as would be necessary in case the proceeding were to vacate or set aside the decree. The decree was valid when made and stands in the records of the court, but the probative effect of the decree is revoked and the letters testamentary issued thereunder are revoked. It is accordingly unnecessary and would perhaps be irregular to incorporate in the decree revoking probate, a revocation of the decree granting probate; that is merely rendered nugatory by the decree revoking probate. If the Surrogate affirms instead of revoking probate, the form of the de- cree can be readily adapted from the foregoing, and in either case it is proper to insert the necessary directions as to the payments of costs and taxable disbursements, as well as the publication required by § 2653. § 411. Determining validity of a will. — It is proper in this chapter to discuss § 2653a, of the Code of Civil Procedure, by which a new remedy is provided capable of being exercised within a longer period than that for revocation of probate; but which remedy must be exercised by means of an action in the Supreme Court for the county in which probate of the will was had. The section as now amended is as follows: Determining validity of a wiU. Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this state, as provided by the code of civil procedure, or any person interested as heir-at-law, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to pro- bate in this state, as provided by the code of civil procedure (chap. 701, Laws, 1897, inserted here "within two years prior to the passage of this act, or any heir-at-law or next of kin of the testator making such will,") may cause the validity (same act inserted here, "or invalidity") of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator must be parties to the action. Upon the completion of service of all parties, the plaintiff shall forthwith file the summons and complaint in the office of the clerk of the court in which said action is begun and the clerk thereof shall forthwith certify to the clerk of the surrogate's court in which the will has been admitted to pro- bate, the fact that an action to determine the validity of the probate of such will has been cbmmenced, and on receipt of such certificate by the surrogate's court, the surrogate shall forthwith transmit to the court in which such action has been begun a copy of the will, testimony and all papers relating thereto, and a copy of the decree of probate attaching the same together, and certify- ing the same under the seal of the court. The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil of the testator, or either. It shall be tried by a jury and the verdict thereon shall be conclusive, as to real or personal prop- erty, unless a new trial be granted or the judgment thereon be reversed or 420 surrogates' courts vacated. On the trial of such issue, the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation execution and validity of such will or codicil. A certified copy of the testi- mony of such of the witnesses examined upon the probate, as are out of the jurisdiction of the court, dead, or have become incompetent since the probate shall be admitted in evidence on the trial. The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the wiU shall then offer his other evidence and rebutting testimony may be offered as in other cases. If all the defendants make de- fault in pleading, or if the answers served in said action raise no issues, then the plaintiff may enter judgment as provided in article two of chapter eleven of the code of civil procedure in the case of similar defaults in other actions. If the judgment to be entered in an action brought under this section is that the writing produced is the last will and codicil, or either, of the testator, said judgment shall also provide that all parties to said action, and all persons claiming under them subsequently to the commencement of the said action, be enjoined from bringing or maintaining any action or proceeding, or from interposing or maintaining a defense in any action or proceeding based upon a claim that such writing is not the last will or codicil, or either, of the testator. Any judgment heretofore entered under this section, determining that the writing produced is the last will and codicil, or either, of the testator, shall, upon application of any party to said action, or any person claiming through or under them, and upon notice to such persons as the court at special term shall direct, be amended by such coiu"t so as to enjoin all parties to said ac- tion, and all persons claiming under the parties to said action subsequently to the commencement thereof, from bringing or maintaining any action or proceeding impeaching the validity of the probate of the said will and codicil, or either of them, or based upon a claim that such writing is not the last will and codicil, or either, of the testator, and from setting up or maintaining such impeachment or claim by way of answer in any action or proceeding. When final judgment shall have been entered in such action, a copy thereof shall be certified and transmitted to the clerk of the surrogate's court in which such will was admitted to probate. The action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate, but persons within the age of minority, of unsound mind, im- prisoned, or absent from the state, may bring such action two years after such disability has been removed. § 2663a, Code Civil Proc. Note. The words " absent from the state " held not to mean one permar nently a non-resident, e. g., a foreigner. Bell v. ViUard, 48 Misc. 587. § 412. What remedy the section affords. — Section 2653a furnishes a new remedy being incorporated into the Code of Civil Procedure by ch. 591 of the Laws of 1892 which purported in terms to amend art. 2, of title 3, of ch. 18 (which relates to revocation of probate), by adding thereto a new section to be known as § 2653a. "At the time of the adoption of this amendment the probate of a will was conclusive as to personal property unless revoked by the proceeding in Surrogate's Court as above stated, but the probate was only prima fade conclusive as to the real estate devised by the will so that the heir could REVOCATION OF PROBATE 421 bring ejectment after probate not barred by the Statute of Limitations. A great necessity, therefore, existed of further limiting the right of the heir to contest the devises of a will in order to quiet titles to real estate, and in the light of this necessity we will consider the effect of § 2653a. The pur- pose of this amendment is manifest. It is to provide a procedure by an action in the Supreme Court to determine the validity of the probate of any will, whether of real or personal property or of both, and requiring such an action to be commenced within two years after the will has been admitted to probate, and the question to be tried is whether the writing produced is or is not the last will of the decedent, and that question is to be tried by a jury and the procedure upon the trial is pointed out, and it provides that the verdict of the jury shall be ' conclusive as to real or personal property unless a new trial be granted or the judgment thereon be reversed or vacated.' The amendment does not affect the remedy provided in the Surrogate's Court by special proceedings under the title amended, but only provides an additional remedy by action." Snow v. Hamilton, 90 Hun, 157, 161. The section originally read, "any person interested in a will or codicil," and it was at first contended that this language precluded persons not named in a will from bringing the action contemplated by the section. It was held, however (Snow v. Hamilton, 90 Hun, 157, 161), that devisees, legatees, heirs and next of kin, were persons interested within the meaning of the section, citing Wager v. Wager, 89 N. Y. 161. And the section has since been amended so as to read in its present form, "any person inter- ested as devisee, legatee or otherwise in a will or codicil," with the addi- tional provision, "or any person interested as heir-at-law, next of kin or otherwise in any estate, any portion of which is disposed of or affected, or any portion of which is attempted to be disposed of or affected, by a will or codicil." . . . (The words " or any heir-at-law, or next of kin of the tes- tator making such will," were put in by ch. 701 of 1897, in effect May 22, 1897, the effect on which of ch. 104 of the same year is commented upon, post), thus embodying in the statute the rule already laid down by the courts. It will be noticed further that the section furnishes a remedy ap- plicable to all wills, whether of real, or of personal property, and enables the plaintiff in the action to secure a trial before a jury of the issue, whether the writing produced is, or is not, the last will of the testator, which is made to include any codicil probated therewith; but the provision while intended to insure a trial by jury as to the validity of the will or codicil goes no further than to provide that the plaintiff should be entitled to pursue this inquiry in the Supreme Court, in which court he is entitled to a trial by jury as distinguished from a trial at special term, but his right to go to the jury is conditioned as it would be in the trial of any other action in that court. The court has the same power, therefore, to direct a verdict that it has in any other case. Hawke v. Hawke, 82 Hun, 439; Katz v. Schnaier, 87 Hun, 343, 346. In Brinkerhoff v. Tiernan, 61 Misc. 586, it was held that § 448 as to one 422 SURROGATES COURTS suing for benefit of others similarly situated is not applicable to this sec- tion. (This is a special term decision sustaining a demurrer on additional grounds.) In view of the fact, however, already pointed out, that § 2653a was ex- pressly enacted as an amendment to art. 2, relating to the revocation of probate, it must be construed with reference to the practice and pro- cedure in the Surrogates' Courts; Shea v. Bergen, 59 Misc. 294; and es- pecially in connection with the other sections of art. 2; accordingly it has been held that the section provides merely an additional remedy being supplementary to, and not intended to repeal the other sections of art. 2; and that consequently since "a person interested in the estate must apply for revocation within one year after the recording of a decree admitting to probate a will of personal property," under § 2648 in default of which, as to such property, the probate concludes all mankind (see Hoyt v. Hoyt, 112 N. Y. 493, 505), the intent of the legislature was to afford equal relief where relief was needed, namely, with regard to real estate, and the object was to expedite, and not to protract the settlement of estates. See Long v. Rodgers, 79 Hun, 441. Judge Barrett in his opinion at page 443 remarked: " It is clear, therefore, that the intention was in adding this section to embrace it within the existing system, not to substitute it therefor. And there is no inconsistency or irreconcilable repugnancy between the two systems, when the mischief aimed at is advisedly considered. As to the personalty, the functions of the existing statutes continue and the effect of probate after lapse of a year remains unaltered. This function does not conflict with the function of the new section, which operates upon real es- tate, and which affords a practical method of making that conclusive which otherwise would remain indefinitely presumptive. "There is nothing in the phraseology of the new section which militates against this construction. It is true that we find these words therein: 'It shall be tried by a jury, and the verdict thereon shall be conclusive as to real or personal property,' etc. But this does not say that 'a person inter- ested in the estate of the decedent' shall not be otherwise concluded. Nor does it limit the effect of his failure to apply for revocation under §§ 2647 and 2648 within the year. It may entitle ' a person interested in the will '— which is the phrase used in the new section to indicate the persons who may proceed thereunder — as distinguished from ' a person interested in the estate, (which is the phrase used in § 2647), to bring the action to validate the will, even during the running of the year. But it certainly does not author- ize a person who has omitted to apply for revocation within the year, and as against whom the probate has become conclusive, to inaugurate a fresh contest thereafter." Long v. Rodgers, 79 Hun, 441, 443. The effect of this decision was merely to prevent a person, who could have brought proceedings to revoke probate, from bringing an action to determine the validity of a will, unless he brought such action before he was concluded by the lapse of time, by the decree admitting the will to probate. But in view of the drastic amendment of 1897 designating the persons enti- REVOCATION OF PROBATE 423 tied to bring the action under § 2653a, it is clear that the rule laid down in Long V. Rodgers has been obviated. The language contrasted in Judge Barrett's opinion to the words, " a person interested in the estate of the de- cedent" found in § 2647 being now not "person interested in a will," but "any person interested as devisee, legatee or otherwise in a will .... or any person interested as heir-at-law, next of kin, or otherwise in any es- tate. . . ." § 413. Effect of amendments of 1897. — The peculiar tinkering by the legislature with § 2653a in 1897 was confusing. The Court of Appeals in Lewis V. Cook, 150 N. Y. 163, had held that the language of the section as it then existed contemplated an action, to be brought by some person in- terested in sustaining the will to which all persons interested in the disposi- tion of the testator's estate should be made parties; and that the action should be one wherein the validity of the probate of the will might be de- termined conclusively as against them; and Judge Gray called attention in that case (see page 165) to the fact that, under § § 2647 and 2648 authority already existed for the maintenance of a proceeding by a person interested in the estate of the decedent, to revoke the probate of a will at any time within one year after the decree admitting the will to probate; and he says (at page 166) that such person had thfe opportunity of contesting before the Surrogate, the validity of the testator's will, and that he had the right to continue the contest through the appellate courts, and moreover that by reason of § 2647 he had also a year from the recording of the final decree within which he might revive the contest and secure a trial of the matter de novo (citing Hoyt v. Hoyt, 112 N. Y. 493, 606). "There is no way, how- ever," says Judge Gray, "by which the validity of a will and its probate could be once and for all established and placed beyond attack by the heirs- at-law until the enactment of § 2653a. They could put the validity of the will of the decedent in question in an action involving title to real property, but a person taking an interest under the will was without remedy to es- tablish his title and to prevent such actions." See Anderson v. Anderson, 112 N. Y. 104. § 414. Same. — Shortly after this decision appeared in the reports, the legislature passed two acts amendatory to the section. The first, L. 1897, c. 104, was passed March 23, 1897, and was to take effect on September 1, 1897. Two months later. May 22, 1897, L. 1897, c. 701, another act was passed to take effect immediately. * Chapter 701 amended the act so that it read, "Any person inter- ested .... may cause the validity or invalidity of the probate .... to be determined in an action," limiting the action to one under a will or codi- cil " admitted to probate in this State as provided by the Code of Civil Pro- cedure, within two years prior to the passage of this act," and added to the de- scription of persons who could bring such an action involving the validity or invalidity of the probate, "Any heir-at-law or next of kin of the testator making such vdll." Chapter 701 did not expressly repeal ch. 104. 424 surrogates' courts But, there have been three decisions since the amendment, which indi- cate that the Supreme Court takes the view that ch. 701, legislating as it does upon the whole subject and being a later explanation of the legisla- tive will, supersedes ch. 104. See Reid v. Curtin (1st Dept.), 51 App. Div. 545, 548; Ocobock v. Eeles (4th Dept.), 37 App. Div. 114, 118; Welk v. Betts (3d Dept.), 45 App. Div. 115, 117. The case first cited did not necessarily involve the determination of this question, although it is carefully reasoned out in the opinion. The other two cases assume without discussion that the effect of ch. 701 was to super- sede ch. 104. These cases control the practice. The reasoning of Mr. Justice Patterson in Rdd v. Curtin is wholly satis- factory. He points out, at page 548, " It is to be noticed that all that can be done under the amendment of March may still be done under that passed in May. There is inserted in the May amendment only a provision with reference to an heir-at-law or next of kin of a testator making a will ad- mitted to probate within two years prior to the passage of the act, causing the validity or invalidity of the probate to be determined. As the May amendment is general legislation covering the whole subject-matter of an- tecedent legislation as to the same subject-matter, the only inference would seem to be that the legislature intended the May enactment to be a com- plete substitute for that of March." It is clear, therefore, that Leivis v. Cook, 150 N. Y. 163, forbidding the maintaining of this action by one claiming in hostiUty to the will no longer controls, because both of the acts of 1897 added to the class of persons who could maintain the action, " any persons interested as heir-at-law or next of kin or otherwise in any estate." So that it is plain that the legislature must have intended to make a change which would give to the heir-at-law as such, and independently of his interest or lack of interest under the will, the right to sue which, prior to the amendment, he did not possess. Reid v. Curtin, supra, at page 548. See also Wells v. Betts, supra, at page 118. This latter case passed also upon the provision of the amendment limiting it to wills admitted to probate " within two years prior to the passage of this act." The act was passed May 22, 1897, and the will in suit probated February 14, 1898. Landon, J., observes: "A literal reading might restrict the remedial provision in behalf of persons interested in the estate disposed of by the will or attempted to be disposed of, to such wills and codicils as were admitted to probate during the two years prior to May 22, 1897, but such a narrow construction would, no doubt, impute to the legislature an intention contrary to the fact. That intent, doubtless, was to give the act a retroactive effect for the two years prior to its passage. The final paragraph of the section provides that 'the action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate.' "The limitation of two years certainly extends to wills admitted to pro- bate after the passage of the act, and there seems to be no doubt that the Umitation was intended to apply in like manner to wills admitted to pro- REVOCATION OP PROBATE 425 bate before its passage." In Miller v. Maujer, 82 App. Div. 419, it is held that the interest must be an enforceable one. Thus, where, assuming the will were set aside, there survives a husband or wife who would take the estate anyhow, it would be idle to suppose the next of kin are to be allowed to bring an action which if successful would result in no distributive benefit to them. It seems unnecessary to discuss, in view of this amendment, such cases as Wallace v. Payne, 9 App. Div. 34; 14 App. Div. 579; Seagrist v. Sigrist, 20 App. Div. 336, inasmuch as they dealt with the situation developed by the decision in Lewis v. Cook, 150 N. Y. 163. § 415. Proceedings under § 26S3a. — The directions of § 2653a as now amended as to who should be parties to the action and as to the manner in which the action must be tried, are so explicit as to require little discussion. The words "including the executor or administrator," as being necessary parties, contemplate, of course, only such as may have qualified. Timp- son V. Lorsch, 50 Misc. 398. Attention may be called to one or two points: For example, it has been held that a temporary injunction may be granted without undertaking restraining the executors under the will, the validity of the probate of which is sought to be determined under this section, from conveying, disposing of, delivering or incumbering any of the property men- tioned in the will during the pendency of the action. Matter of Hughes, 41 Misc. 75; Shea v. Bergen, 59 Misc. 294; Hawke v. Hawke, 74 Hun, 370. And in this last case it was held that as the real property amounted to more than sufficient to afford abundant security for the share which the plaintiff would be entitled to if he succeeded in having the will adjudged to be invalid, the injunction should be modified so as to restrict its restraining effect to the real property only. If an injunction be granted, the jurisdiction of the Surrogate's Court is pro tanto suspended. Shea v. Bergen, 59 Misc. 294, 296. It has also been held that the provisions of this section, as to filing the summons and complaint in the office of the clerk of the court in which the action is begun, and as to the prompt certifying by the clerk to the clerk of the Surrogate's Court, where the will was probated, the fact that an action to determine the validity of the probate of a will has been commenced, and as to the subsequent transmission by the Surrogate to the court in which the action has been begun of a copy of the will, testimony, and all papers relating thereto with a copy of the decree of probate duly attached to- gether and certified under the seal of the court, were directory merely; that the acts required were not jurisdictional and that it was error to dismiss the complaint upon the ground that these provisions had not been compHed with. Johnson v. Cockrane, No. 2, 91 Hun, 165. And Brown, P. J., said (at page 168) that none of these acts required by the section were jurisdic- tional and none of them were required to be set forth in the complaint, and that the motion was not properly made at the trial, and had no relation to any of the issues raised by t*he pleadings. " If the statute had not been complied with, the motion should have been addressed to the special term 426 surrogates' courts to have the omission corrected." See, also, Smith v. HoMen, 116 App. Div. 867. It has also been held {Johnson v. Cochrane, No. 1, 91 Hun, 163), that the effect of the provision in, § 2653a, to wit: "The issue in such action shall be confined to the question, whether the writing produced is or is not the last will of the testator," etc., limited the court in the exercise of its ordinary powers so that it was without power to appoint a receiver after final judg- ment to preserve the real property pending an appeal. The court says at page 165, "Such power can be exercised only in cases where the property is the direct subject of the action, and where the judgment to be granted will act upon the specific property. . . . The subject of this action was the validity of a will .... and while the judgment is conclusive as to the title to the real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the decedent died seized, and the plaintiff could not, under any process that could be issued to enforce the judgment, obtain possession of the real estate in ques- tion." And Brown, P. J., adds: "The effect of the judgment upon the rights of the parties is to leave them in the same situation they would have occupied if the decedent had died intestate. The title of the property passed to the heirs-at-law, and possession must be recovered in the proper form of action for the recovery of the possession of real estate. Neither can the land be sold under the judgment in this action and the proceeds distributed." See Le Brantz v. Conklin, discussed below. It has also been held that one who has elected to take under the pro- visions of a will, is estopped from maintaining an action under this section. Katz V. Schnaier, 87 Hun, 343. In Le Brantz v. Conklin, 39 Misc. 715, three wills were involved. A trust company had been appointed temporary administrator. The special term enjoined proceedings in the Surrogate's Court under the two wills not sought to be established in the Supreme Court, to abide the event of the trial there. But, secondly, as the relief prayed in that action did relate to property, the court held that a receiver could be appointed and accordingly the same trust company was made receiver under an order Umiting its ac- countability to the Supreme Court to its acts and conduct as such receiver. § 416. Futility of appeal from decree probating will. — In Matter of Beck, 6 App. Div. 211, 216, Judge CuUen called attention to the practical opera- tion of § 2653a of the Code. The appeal was from a decree of the Surro- gate's Court of Kings County admitting a will to probate. Judge CuUen says: "We think it proper to call the attention of the parties to the con- sideration, whether it is now worth while to prosecute such appeals as the present one. By § 2653a of the Code of Civil Procedure (added in 1892), any person interested in a will may cause the validity of the probate thereof to be determined by a jury, in an action brought in the Supreme Court for that purpose. Should we reverse the decree of the Surrogate on the ques- tions of fact in this case, the only relief we could grant the appellants would be to direct the trial of the issues by a jury {§ 2588, Code). This relief or REVOCATION OF PROBATE 427 review the parties can obtain as a matter of right, under the section of the Code first cited, without an appeal. In fact, it can still be had in this case, as two years have not elapsed since the decree admitting the will to probate. It would seem that now an appeal from a decree of the Surrogate, probating a will, is only profitable where the appeal is based solely on questions of law." § 417. Burden of proof. — Ordinarily, the burden of proof is upon the party propounding a will, but § 2653a places the burden upon the party who contests the validity of the will of establishing the testamentary in- capacity of the testator or other reason of invalidity. Dohie v. Armstrong, 160 N. Y. 584, 590; Scott v. Barker, 129 App. Div. 241. The probate of the will by the Surrogate is made prima facie evidence of its due execution and validity. See Ivison v. Ivison, 80 App. Div. 599, citing Cook v. White, 43 App. Div. 388; Heath v. Koch, 173 N. Y. 629; McGown v. Underhill, 115 App. Div. 638. Thus it is clear that, if one claiming in hostility to the will brings an ac- tion under the section, as now amended, to determine such invalidity, it is for the defendants, claiming that the will is valid, to open and close. They accordingly offer in evidence the will in probate and rest (Hagan v. Sane, 68 App. Div. 60, rev'd 174 N. Y. 317, but not on this point), whereupon the plaintiff sustains the burden of proof formerly laid upon the defendants contesting the validity of the will. See also Mock v. Garson, 84 App. Div. 65. It is for the court to say whether a contestant, be he plaintiff or defend- ant, has adduced sufficient evidence to warrant the submission of the case to the jury. Dobie v. Armstrong, at page 594. The court may direct a ver- dict, Ibid., and see Cook v. White, 43 App. Div. 388; Haughian v. Conlan, 86 App. Div. 290; Hawke v. Hawke, 146 N. Y. 366. In Hagan v. Sone, supra, the Court of Appeals reversed a judgment entered on such direction on the ground that, as defendant had merely offered the will and probate proceedings and rested, and plaintiff had adduced some testimony of in- competency and undue influence, it was for the jury, and not the court, to pass on the questions of fact. So the direction of a verdict will not stand if there be any question of fact, e. g., proof of mental weakness coupled with unnatural disinherison of an infant child. Byrne v. Byrne, 109 App. Div. 476. See Shayne v. Shayne, 54 Misc. -474, 480. The general rule that the party upon whom rests the burden of proof has the right to open is thus changed by virtue of the express provision of the statute by which the decree of the probate is made primn facie evidence of the due attestation, execution and delivery of the will, and imposes, there- fore, upon the party attacking it, the burden of proving that the instru- ment is not the last will and testament of the decedent. Ibid. § 418. Form of verdict. — It is clear from the entire section that this is an action in rem. That is, the purpose of the statute is to determine finally whether the writing in question is or is not the last will of the testator, and 428 surrogates' courts thus to enable those interested, either under the will or in the estate, to have the question set at rest. Delmar v. Delmar, 65 App. Div. 582, 584. The plaintiff seeking to avoid a will cannot by defaulting upon the trial, de- prive the defendant of his right to affirmative relief, because the answer does not contain a counterclaim. The defendant's rights in such case are given by the statute; and if the answer prays for the relief provided by the section, the court may, upon such default, direct a verdict in favor of the defendant and against the plaintiff, sustaining the will and with the in- junctive relief permitted by the section. Ibid. In this case it was held proper also that an extra allowance be granted to the defendant within the sound discretion of the trial justice. It should be noticed that for purposes of a possible appeal, the case should be submitted to the jury on specific questions framed according to the character of the objections to the validity of the will. Even if a general verdict be entered in favor of the parties seeking to invalidate the instru- ment, the Appellate Court may hold that as a verdict may have been rendered on any one of the grounds upon which the will was assailed, it should not be permitted to stand if any of these grounds was insufficient to nullify the instrument. Buchanan v. Belsey, 65 App. Div. 58, 60. § 419. Costs and allowances. — The court has power, in awarding costs, to grant an extra allowance. Haughian v. Conlan, 86 App. Div. 290; iSeo- grist V. Sigrist, 20 App. Div. 336; Delmar v. Delmar, 65 App. Div. 582. But the action is one at law ; hence the unsuccessful party may not be given costs or allowance. Carolan v. O'Donnell, 105 App. Div. 577, 1st Dept. But, in the opinion, this case intimates that, assuming the action as equitable, then the discretionary award to an unsuccessful party is re- viewable in the Appellate Court. In Larkin v. McNamee, 2d Dept., 109 App. Div. 884, it was held that the action is one in which costs are dis- cretionary, under § 3230, and does not come under §§ 3228 or 3229. CHAPTER VII PROBATE OF HEIRSHIP § 420. Probate of heirship. — The somewhat valueless and rarely re- sorted to practice of establishing the heirship of the heirs of an intestate is the subject of art. 3, of title 3, of ch. 18 of the Code, being §§ 2654 to 2659, both inclusive. The remedy is seldom resorted to, chiefly because of its in- conclusiveness, since a petition to vacate or modify a decree establishing the right of inheritance of the petitioner, may be presented to the Surrogate's Court, at any time within ten years after the decree has been made; and it is in addition a proceeding which the Surrogate is required to dismiss in case the heirship which the petitioner desires to establish and his interest or share in the decedent's real property is put in issue and contested. § 421. The application. — The application to establish the right of inheritance of a person claiming to be an heir of a person dying, seized in fee of real property within the State, either wholly intestate or without having devised his real property to specific persons, must be made to the Surro- gate's Court, (o) which has acquired jurisdiction of the estate, or, (6) if there is no such court, to the court of the county where the real property or any part thereof is situated. Section 2654 provides as follows: Where a person, seized in fee of real property within the state, dies in- testate, or without having devised his real property to specific persons, his heirs, or any of them, or any person deriving title from or through such heirs, or any of them, may present to the surrogate's court which has acquired jurisdiction of the estate, or, if no surrogate's court has acquired such juris- diction, then to the surrogate's court of the comity where the real property, or any part thereof, is situated, a written petition, duly verified, describing the real property, setting forth the facts upon which the jurisdiction of the court depends, and the interest or share of the petitioner, and of each other heir of the decedent, in the real property, and praying for a decree establish- ing the right of inheritance thereto, and that all the heirs of the decedent may be cited to attend the probate of that right. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. § 2654, Code Civil Proc. The provisions of this section clearly imply, that this application may be made, regardless of whether application for letters testamentary or letters of administration are pending, so long as the will, under which letters are being sought, does not specifically devise the property in question as con- templated by the section. It is manifest that proceedings under this arti- cle are likely to be taken only as incidental to other proceedings and for the 429 430 surrogates' courts purpose of securing a judicial determination amounting to presumptive evidence of the facts adjudged in the decree. The proceedings vifould be of value, in enabling one seeking to bring an action involving title to real prop- erty, to specify all the persons having an interest or right therein by means of this proceeding. The amendment to § 2654, made in 1892, permits " any- person deriving title from or through the heirs of the intestate," to make this application. This article provides a speedy and inexpensive method of ascertaining these facts, and while doubtless affording no protection to any one relying upon the adjudication as against persons whose rights as heirs might not be discussed or discovered in the proceeding, nevertheless has, in the few occasions in which it has been resorted to, sufficed to meet the par- ticular exigencies involved. The reports appear to contain no adjudications upon these sections of the Code, in which respect they may therefore be said to enjoy an enviable no- toriety. The provision by which the proceeding dies the moment contest is made, explains the entire* absence of appeals from the few decrees made un- der this article which are recorded in the offices of the Surrogates of this State. § 422. The petition. — The petition to initiate these proceedings should be substantially in the following form: Surrogate's Court, County of Petition under In the Matter of the Probate" § 2654, C. C. P. of Heirship of claim- ing to be an Heir of late of Deceased.^ To the Surrogate's Court of the County of The petition of of respectfully shows to this court as follows: I. That your petitioner resides in and is years of age and is one of the heirs-at-law (or if petitioner is a person deriving title from or through an heir, state the fact) of late of deceased. II. That said departed this life on the day of 19 seized in fee of real property within this state situated in and described as follows (here insert description as in a deed). III. And your petitioner further shows on information and belief that said • deceased, left no will devising his real property to specific persons, and no Surrogate's Court has acquired jurisdiction of his estate; and that the above described real property (or some part thereof) is sit- uated within this county (i/ jurisdiction of the estate has al- ready been acquired by any Surrogate's Court to which court in that event the application must he made, say instead, e. J..' that on the day of proceedings were conunenced in this court on petition of for letters of adminis- PEOBATE OF HEIRSHIP 431 tration of the goods, chattels and credits of said de- ceased, and citation duly issued thereon whereby this court has acquired jurisdiction of the estate of said decedent). IV. And your petitioner further shows that he is interested in the said real property of the decedent being entitled, as your petitioner is informed and verily believes, to a j^^ share thereof under the statute of descent and distribution being the (state relationship to decedent) of the said deceased. V. And your petitioner further shows, upon information and belief, that all the other heirs of the decedent entitled to share in his said real property so far as they are known or can be ascertained by your petitioner are as follows: Name Age Residence Relationship Wherefore, your petitioner prays for a decree of this court establishing your petitioner's right of inheritance in the property above described, and that a citation issue directed to all the heirs of the decedent to attend the probate of that right. (Date.) (Signature.) (Verification.) § 423. The citation. Citation; appearance of persons interested. The citation must set forth the name of the decedent and of the petitioner, the interest or share which the petitioner claims, and a brief description of the real property. Any heir of the decedent, who has not been cited, may never- theless appear at the hearing, and thereby make himself a party to the special proceeding. But this section does not affect a right or interest of such a person, unless he becomes a party. § 2656, Code Civil Proo. The form of the citation should be substantially as follows: The People of the State of New Yokk To A. B., C. D., and E. F., heirs of late of deceased, send Greeting : Whereas of has lately applied to our Sur- rogate's Court of the county of to have his right of inheritance in the real property of late of deceased, situated in are bounded and described as follows (here insert brief description of the real property). Now, therefore, you and each of you are hereby cited per- sonally to appear before our said Surrogate at his office in 432 subrogates' courts on the day of 19 at o'clock in the noon of that day, then and there to attend the probate of heirship of the heirs of said deceased in the real property aforesaid. § 424. Extent of the inquiry. — Section 2656 regulates the nature and extent of the inquiry to be made by the Surrogate and the facts to be cov- ered by the decree. Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heirship of a party, or respecting the share to which a party is entitled, as an heir of the decedent, the surrogate must dismiss the proceedings. If there is no such contest, he must inquire into the facts and circumstances of the case. The petitioner must establish, by satisfactory evidence, the fact of the dece- dent's death; the place of his residence at the time of his death; his intestacy, either generally or as to the real property in question; the number of heirs entitled to inherit the property in question; the name, age, residence and relationship to the decedent of each, and the interest or share of each in the property. The surrogate, where these facts are established, must make a decree, describing the property and declaring that the right of inheritance thereto has been estabUshed to his satisfaction, in accordance with the facts, which must be recited in the decree. § 2656, Code Civil Proc. The decree should be substantially as follows: Surrogate's Court Caption. Present : Hon. Surrogate. Decree under § 2666, C. C. P. Title. On reading and filing the petition of of one of the heirs-at-law of late of praying for a decree estabhshing the right of inheritance of the heirs of said decedent in the real property within the state of which he died seized in fee, together with due proof of the service of the citation issued thereon upon all the heirs of the decedent to whom it was directed and (here note the appearances upon the hearing), and there being no contest respecting the heirship of any party or the share to which any party is entitled as an heir of the decedent; and the Sur- rogate having inquired into the facts and circumstances of the case and the petitioner having established by satisfactory evidence (a) The fact of the decedent's death on the day of 19 (b) The place of his residence at the time of his death in in the state of PROBATE OF HEIRSHIP 433 (c) His intestacy (or his intestacy as to the real property described in the petition). (cO The number of heirs entitled to inherit the property in question as (four). (e) The name, age, residence and relationship to the de- cedent of each as follows: Name Age Residence Relationship (/) The interest or share of each in the property, as follows : it is now, on motion of attorney for the said peti- tioner, Ordered, Adjudged and Decreed, that the said late of deceased, died on the day of seized in fee of the following real property situated in the State of New York and bounded and described as follows: (here give description) that the said left no will (or will devising his said real property to specific persons) ; and it is 'further Ordered, Adjudged and Decreed, that the right of inherit- ance of and the heirs of said deceased, has been established to the satisfaction of the Surrogate in accordance with the facts above recited and that said heirs above named are severally entitled to the following interests or shares in such property, to wit: That C. D., E. F., G. H., and I. K., the children of said decedent, are entitled severally to one undivided fourth part or share of such real property. (Signature.) Surrogate. It is manifest that the decree, which can only be made where there is no contest, being to all intents and purposes a decree upon consent, will not award costs to any of the parties as against any of the others. § 425. Effect of decree. — Practically the only object of this proceed- ing, namely, to get presumptive evidence of the facts established thereby, is provided for by § 2657, which is as follows: Decree to he recorded; effect thereof. An exemplified copy of a decree, made as prescribed in the last section, and of the proofs taken thereupon, may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is pre- 28 434 surrogates' courts sumptive evidence of the facts so declared to be established thereby. § 2657, Code Civil Proc. § 426. Petition to vacate or modify the decree. Any person, other than a party to a special proceeding, instituted as pre- scribed in this article, or the heir, devisee, or assignee of such a party, may, ■ at any time within ten years after a decree establishing the right of inheritance is made therein, present to the court a written petition, duly verified, showing that he has a right, title, or interest in the real property, or a part thereof, which is injuriously affected by the decree ; stating that the decree is erroneous in some material particular, specified therein; and praying that the decree may be set aside or modified in that particular, and that all the persons, whose heirship was established by the decree, may be cited to show cause, why the prayer of the petition should not be granted. If an hgir has since died, or has conveyed the share or interest so established, by a deed duly recorded in the county, the petition must state that fact; and must pray that the persons, who have succeeded to his interest, may be also cited. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. § 26S8, Code Civil Proc. This section, the provisions of which may be available any time within ten years after the decree has been made, has undoubtedly operated to dis- suade practitioners from resorting to the provisions of this article except incidentally. However, it must appear upon an application to vacate or modify the decree, that the applicant's interest is: (a) Injuriously affected by the decree; (6) That the decree is erroneous, in some material specified part. Upon an application, therefore, to vacate or modify such a decree, the Surrogate has the usual preliminary jurisdiction to determine whether the applicant has "a right, title, or interest in the real property, or a part ^thereof " or that such right, title, or interest is injuriously affected by the decree; and then if upon the hearing the decree is proved erroneous, it may be vacated or set aside. That the error must be shown to be material is ap- parent from the provisions of § 2659, which is as follows: Petition to vacate or modify decree; when granted. Where a petition is presented as prescribed in the last section, and it ap- pears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding, the decree or a part thereof could not have been legally made, as prescribed in this article, the surrogate must vacate or modify the decree accordingly. An exemplified copy of the decree or order, so vacating or modifying the original decree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded. § 2659, Code Civil Proc. It is clear from this section that the error must be such that had the atten- tion of the court been called to it in the original proceedings, the decree could have been legally made in the form in which it was made. CHAPTER VIII THE CONSTRUCTION OP WILLS § 427. The Stirrogate's right to construe wills. — ^The power of a Sur- rogate to construe wills is derived from two sections of the Code. The only- express power given is by virtue of § 2624, which is as follows: Validity and construction of testamentary provisions. But if a party expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of personal property, contained in the will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree; unless the decree re- fuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section. § 2624, Code Civil Proc. It will be noted, from this section, that the right which it confers is lim- ited to making a determination upon: (a) The validity, construction or efifect, (6) Of a disposition of personal property, (c) In a will executed within the State, (d) By a resident of the State, (e) Provided the will is probated. The advantages of securing a construction on probate of a will, not ex- plicit and clear, are obvious, but the words " must determine " are not man- datory, in the sense that all questions possible or even likely to arise may be required to be determined in advance. The Surrogate may reserve or postpone the consideration of questions so presented to him until they are of practical import or until their disposition is necessary. Matter of Mount, 185 N. Y. 162, 166. § 428. The incidental power, — ^The incidental power of the Surrogate is derived from the provisions of § 2472 of the Code of Civil Procedure, which provides, that the Surrogate has jurisdiction "to direct and control the conduct, and settle the accounts of executors, administrators and testa- mentary trustees. ... To enforce the payment of debts and legacies, the distribution of the estate of decedents, and the payment or delivery by executors, administrators and testamentary trustees, of money or other property in their possession, belonging to the estate. ... To administer justice in all matters relating to the affairs of decedents according to the provisions of the statutes relating thereto." And in § 2481 it is provided, among other things, that "the Surrogate may exercise such incidental powers as are necessary to carry into effect the powers expressly conferred." The Surrogate has jurisdiction over the settlement of accounts of ex- 435 436 surrogates' courts ecutors and administrators; and in § 2743 it is provided, that, "when an account is judicially settled, as prescribed in this article, and any part of the estate remains, and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the person so entitled, according to their respective rights." As incident to the duty thus cast upon the Surrogate, he liiust have jurisdiction to construe wills, as far as needful, at least to determine to whom legacies shall be paid; and this, it is believed, is a power which the Surrogates of this State have always ex- ercised. . . . They possessed such a power under the provisions of the Revised Statutes before the Code of Civil Procedure, and it was clearly not the intention of the Code to narrow or diminish the jurisdiction of Surro- gates, but rather to enlarge it. See Matter of Verplanck, 91 N. Y. 439, 449. § 429. The right of construction a limited one. — It is very clear then that the Surrogate has now no general jurisdiction in the construction of wills. So, where the record shows that the construction was neither neces- sary nor incidental to the exercise of a conceded power, it is void, and will be disregarded. Matter ofBurdick, 98 App. Div. 560. So also where it affects rights of persons not parties to the proceeding. Matter of Mount, 185 N. Y. 162,,aff'g 107 App. Div. 1. It is equally clear that on accountings and in decreeing distribution Surrogates have exercised the power to construe testamentary dispositions of property under the broad grant of powers incidental to those conferred by § 2472, Code Civ. Proc, and formerly involved in § 71, 2 R. S. 95. There have been many cases in the Court of Appeals on a,ppeal from de- cisions of Surrogates on final accountings which involve the interpretation and construction of wills and the determination of which involved and recognized the power of the Surrogate to construe a will when necessary to such accounting and distribution. See Riggs v. Cragg, 89 N. Y. 480, 492, citing Stagg v. Jackson, 1 N. Y. 206; N. Y. Institution, etc., v. How's Exrs., 10 id. 84; Parsons v. Lyman, 20 id. 103; McNaughton v. McNaughton, Mid. 201; Bascom v. Albertson, 34 id. 584; Whitson v. Whitson, 53 id. 479; Cush- man v. Norton, 59 id. 149 ; Hoppock v. Tucker, id. 202 ; Teed v. Morton, 90 id. 502; Lawrence v. Lindsay, 68 id. 108; Luce v. Dunham, 69 id. 36; Wheeler v. Euthven, 74 id. 428; 30 Am. Rep. 315; Ferrer v. Pyne, 81 N. Y. 281. And the Court of Appeals held (Garlock v. Vandervort, 128 N. Y. 374, 378), "Though a judicial officer with limited and prescribed jurisdiction and powers, yet it is not open to question that in a proceeding before him, hav- ing for its object the settlement of tin executor's accounts and to obtain a decree directing the distribution of the fund in his hands, and with all the parties in interest present, the Surrogftte may construe the provisions of the will and determine the meaning and validity of them, whenever such a de- termination is necessary in order to make his decree as to distribution. Such a jurisdiction is, of course, not general; but it is one which is incidental to his office, and which flows clearly from the authority conferred upon him by the statute. See § 2473 of the Code of Civil Procedure. THE CONSTRUCTION OF WILLS , 437 " Subdivisions 3, 4 and 5 of the section of the Code cited would have little meaning and force, if such a judicial exercise of the Surrogate's au- thority were not impliedly granted." See also Purdy v. Hayt, 92 N. Y. 446, and Cahil v. Russel, 140 N. Y. 402; Matter of Bolton, 149 N. Y. 257; Bald- win V. Smith, 3 App. Div. 341 ; Matter of Young, 17 Misc. 680, 684. § 430. Exercise of the express power to construe — It is limited to per- sonalty. — The language of § 2624 above quoted is unambiguous. There is no existing provision of law giving the Surrogate authority upon probate to inquire into the validity of a devise of real estate. Matter of Will of Mer- riam, 136 N. Y. 58, 59; Prive v. Foucher, 3 Dem. 339; Matter of Schweigert, 17 Misc. 186, 193 ; Matter of Wilcox, 55 Misc. 170. If both real and personal estate is involved the Surrogate's power extends only so far as relates to personalty. Matter of Davis, 59 Misc. 310. In 1870 (ch. 359, Laws of 1870), power was given to the Surrogate of the county of New York, which the Surrogates in the State at large did not possess, to pass upon and determine the true construction, validity and legal effect of any disposition contained in a will of real or personal estate. The provision was as follows: " In any proceeding before the said Surrogate (that is, before the Surrogate of the county of New York) to prove the last will and testament of any deceased person, as a will of real or personal estate, in case the validity of any of the dispositions contained in such will is contested, or their construction or legal effect are called in question by any of the heirs or next of kin of the deceased, or any legatee or devisee named in the will, the Surrogate shall have the same power and jurisdiction as is now vested in and exercised by the Supreme Court, to pass upon and determine the true construction, validity and legal effect thereof." Section 2624 is now substituted for this section of ch. 359 of the Laws of 1870 as appears from the annotations in Throop's Code, where he says un- der § 2624: "This section has been taken from L. 1870, ch. 359, § 11, which confers such a power upon the Surrogate of the city and county of New York. It has been so framed as to confine its .application to a strictly domestic will, .... and to a will of personal property. . . . As thus amended, the provision has been extended to all Surrogates' Courts." Since the adoption, therefore, of § 2624, Surrogates throughout the State have power to construe wills in probate cases provided they are strictly domestic wills of personal property. We have in another connection noted the limitation which Judge Rollins {Jones V. Hamersley, 4 Dem. 427) laid down as to what persons were en- titled to insist that the court should exercise the power possessed by it un- der § 2624. The Surrogate held that no one had a right to raise academic issues under this section, and that the Surrogate would not exercise the power except at the instance of a party whose actual rights under the will would be affected one way or another by the determination. And so where Surrogates have been called upon to exercise this express power they have limited themselves or been limited by the Appellate Court to the clear in- 438 surrogates' courts tent of the section. And in a recent case {Matter of Robertson, 23 Misc. 450, 452) it has been held that an executor was not such a party as is con- templated by the section. Surrogate Ingalsbe interpreting § 2624, says, " under the reading of this clause it is claimed that Mr. Reid (the executor) can present this issue, for he is a party to the proceeding. But he is one of the proponents. He is not a legatee or next of kin. His primary duty is to see that the will is probated, and not that it is declared invalid either in whole or in part. He has no interest in the estate except as an executor of the will." And the Surrogate adds (page 453) : " It would seem on gen- eral principles of interpretation that no person should be entitled to an adjudication under this section as to the vahdity of a will, unless he claims some interest under it, in the personalty bequeathed, or, that by reason of some invalid disposition of such personalty, he is entitled to a share of the same under the statute of distributions. . . . Mr. Reid occupies neither of those positions. ... He has no such interest as to enable him to invoke the jurisdiction of this court under § 2624." Surrogate Sherman in In re Mardal's Estate, 15 N. Y. Supp. 89, derived in an elaborate opinion a jurisdiction in Surrogates' Courts to give con- struction to wills on probate relating to both real and personal property. He derived his conclusion from § 1866, providing for an action to deter- mine the validity, construction or effect under the laws of the State of a testamentary disposition of real property situated within the State, the provision being as follows: "This section does not apply to a case where the question in controversy is determined by the decree of the Surrogate's Court duly rendered upon allegations for the purpose as prescribed in art. 1, of title 3, of ch. 18, of this act, where the plaintiff was .duly cited in the special proceeding in the Surrogate's Court before the commencement of the action." Section 2624 is certainly contained in art. 1, of title 3, of ch. 18. But the language of § 2624 is as certainly explicit. The decision in the Marcial case does not appear to have been followed or approved except by the same Surrogate in a case decided in the same year {In re Smith's Estate, 18 N. Y. Supp. 174), where he remarks, "It has been held that §§ 2622, 2623, 2627, 2629, 2481, subd. 11, and 2482, give Surrogates' Courts au- thority to construe wills on probate relating to real estate." To this pro- position he cites the Marcial case and Matter of Look, 5 N. Y. Supp. 50, affirmed without opinion in 125 N. Y. 762. But upon examination the latter case decided by the same Surrogate seems to be a construction of a bequest and not of a devise and its affirmance in the Appellate Courts does not appear to have involved the extreme principle to support which it is cited. It doubtless, however, does seem anomalous that the Surrogates should be denied the right to exercise a jurisdiction for which their judicial experience ought especially to fit them ; and if those seeking the office of Surrogate were required by law to have the same preliminary professional experience as is expected in the case of a justice of the Supreme Court, it might not prove unwise to extend the jurisdiction of Surrogates ' Courts in THE CONSTRUCTION OF WILLS 439 this respect so as to make their determination on' questions of testamentary construction conclusive; although it might be necessary still to continue the provisions of the Code in regard to the partial conclusive effect other- wise of decrees admitting to probate wills of real property in respect of questions as to which it is proper to preserve for parties their right to a trial by jury in an action. See Cooley v. McElmeel, 149 N. Y. 228, 237. § 431. Same subject, — If the intent of the Marcial case above referred to, was merely to hold that the fact that a will purported to dispose of real property as well as of personal, does not divest the Surrogate of jurisdiction, it would undoubtedly embody the correct rule; but whatever the pro- visions of the will the construction by a Surrogate is brutum fulmen as to any devise of real property. It is undoubtedly true that devises disposing of real property, and bequests disposing of personal property, may be pre- cisely similar in their wording, and the determination by the Surrogate, that the bequest of personal property is invalid for whatever reason, would naturally, if his reasoning were sound and his conclusions correct, be perti- nent in passing on the devises; but practically it can have no such effect un- der the limitations imposed upon the Surrogate's jurisdiction; and this principle is carried to this extent, that where the bequests and devises are not clearly distinct, or distinguishable, one from the other, the Surrogate will not have power to construe. Thus, where there is no disposition of personal property except as it is connected with the disposition of real es- tate so that it would be impossible to separate the disposition of the per- sonal property from that of the real estate and they are essentially con- nected and not separable, it was at first held that the Surrogate is without power to construe. See Matter ofShrader, 63 Hun, 63, where Macomber, J., says, " We are of opinion, under § 2624 of the Code, and under the common- law limitation of the power of the Surrogate's Court, that the Surrogate has no jurisdiction to make a construction of this will, or pass upon the validity of any of its parts, because there was no disposition of personal property independent of and separate from the disposition of the real estate." But in the recent case of Matter of Trotter, 182 N. Y. 465, a trust was created in which realty and personalty were inseparably blended. Held, Surrogate could declare it void as to personalty. As the Shrader case was cited by appellant it is thus overruled. Similarly the Matter of Morgenstern, 9 Misc. 198; Matter of Bogart, 43 App. Div. 583, 586; Matter of Austin, 35 App. Div. 278. See also Matter of Davis, 59 Misc. 310, and cases cited at p. 314. The rule thus is not to exclude jurisdiction where the exercise of such power by the Surrogate as to the validity of a bequest does not necessarily (even though there be such a blending as Surrogate CofHn described in the Morgenstern case) involve real estate. See Matter of Vowers, 113 N. Y. 569, 573, rev'g 45 Hun, 418. And whatever the effect of his decree may be, into which is incorporated his decision, whether as to the personal property or as to the parties to the proceeding interested therein, those interested in the real property are not concluded thereby but may pursue their reme- 440 surrogates' courts dies in the Supreme Court in regard to the same in the manner provided by law, the effect of the probate decree being limited by § 2627 above dis- cussed. See Corse v. Chapman, 153 N. Y. 466, 475; Cooley v. McElmeel, 149 N. Y. 228. Attention is called to the important rule No. 5, adopted in the Surrogate's Court of the County of New York, which embodies a wise principle, and provides a reasonable and necessary safeguard. The rule is as follows : " Wherever a party shall put in issue on probate the validity, construction, or effect of any disposition of personal property under § 2624 of the Code, if it shall appear that all persons interested in such construction are not before the court, the determination of such question shall be suspended until such per- sons shall be made parties; and the executor named in the will shall not be held to represent the legatees therein for the purpose of such construction." This rule was laid down by Surrogate Calvin (Currin v. Fanning, 13 Hun, 458, at page 465) in an opinion adopted by the General Term of the First Department, where he says: "I entertain no doubt of my authority, as an incident to the performance of that duty, to bring in all the parties inter- ested for that purpose; but I am equally clear in the opinion, that, when a case has been submitted to me without such parties being called in, I should refuse to exercise the jurisdiction, except so far as it may become necessary for the purpose of passing upon the probate of the instrument in question, as a will of real and personal property, until such parties shall be brought in." If the will deals with real and personal property, and upon probate it is construed as wholly invalid as to personalty, it must be, nevertheless, upon proof of due execution, admitted to probate as a will of real property, Matter of DeWitt, 113 App. Div. 790. § 432. Same —Further limitation. — The power to construe a will is also conditioned on its being probated (see § 426, ante). Probate logically pre- cedes construction. Matter of Davis, 182 N. Y. 468, aff'g 105 App. Div. 222. Houghton, J., in the opinion below well states the rule. This case was peculiar in that the sole legatee, devisee and executrix predeceased testatrix. Hence it was claimed the paper was a nullity. Held (a) it must be probated on due proof of the factum, (b) The question who would take the property was not incidental to probate, (c) Therefore the Sur- rogate had at that time no power to construe it. § 433. Same —Extent of power. — When the power exists its extent is adequate. Thus, it is proper to ask on probate a determination as to the validity of a bequest alleged to be in violation of § 6, ch. 319, Laws 1848 (see Laws 1903, ch. 623, § 1) now § 19 of Decedent Estate Law. Matter of Cooney, 112 App. Div. 657; Pearson v. Collins, 113 App. Div. 657. This statute prohibits devises or bequests to (as it now reads) "any institution or corporation formed under Laws of 1848, ch. 319," of more than half the estate of a person leaving "a wife, or child, or parent." Such devise or bequest is valid to the extent of such one-half, but only if made "at least two months before the death of the testator." But if the conditions con- THE CONSTRUCTION OF WILLS 441 templated by the statute do not exist, the power to construe may not be invoked. Matter of Talmage, 59 Misc. 130. § 434. Summary statement. — The decisions in respect to the exercise of the express power granted by § 2624, may be thus briefly summarized: 1. It is limited to dispositions of personal property. See Matter of Schroder, 63 Hun, 36; Seaman v. Whitehead, 78 N. Y. 308; Matter of Trotter, 182 N. Y. 465. 2. The provisions to be construed must be contained in the will of a resident of the State, executed within the State, for a Surrogate has no jurisdiction in probate proceedings, to pass upon the validity of disposi- tions of personal property, contained in a will executed without the limits of this State. Tiers v. Tiers, 2 Dem. 209. See also Smith v. Central Trust Co., 12 App. Div. 278. 3. The usual rules as to what constitutes residence will govern so far as they are not limited by express statutory provisions. For example, the provisions of § 2611, which provide that the validity of the execution of a will, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execu- tion of the will. 4. This express power can be exercised in probate proceedings only, and proceedings to revoke probate are not to be included thereunder. Bevan V. Cooper, 72 N. Y. 317; Matter of Ellis, 1 Connoly, 206; Matter of Wilcox, 55 Misc. 170. 5. The issue must be raised by a party to the proceedings, that is to say, a person duly cited whether by original or supplemental citation. See § 2624, Code Civ Proc; Jones v. Hamersley, 4 Dem. 427. 6. And the power will be exercised only at the instance of a person whose rights will be affected by the adjudication of the Surrogate (Matter of Robertson, 23 Misc. 450, 452; Matter of Campbell, 88 Hun, 374), such as, a widow {Matter of Vowers, 113 N. Y. 569), or a residuary legatee, or any heir entitled to a share in the estate, in the case of the entire or partial invalidity of the will. See McKeown v. Ofjicer, etc., 25 N. Y. St. Rep. 319. See also Harris v. Am. Bible Society, 4 Abb. N. S. 421. 7. The question of construction must be raised by "expressly putting in issue" the validity of the provision; that is to say, the party must file an answer with distinct and specific allegations, that certain provisions of the will are illegal and void; this raises an express issue, and calls for the determination of the Surrogate. See Matter of Fuller, 20 N. Y. St. Rep. 352. See Matter of Will of Keleman, 126 N. Y. 73, 78; Matter of Talmage, 59 Misc. 130. It was expressly held by Surrogate Rollins, that no such issue was raised as required by § 2624, where, upon probate, the testatrix's husband filed a petition, asserting his claim and title to the property of v/hich she died possessed, and asking that no disposition of such property be made as expressed in the will offered for probate. The learned Surrogate ignored this paper in admitting the will to probate. McClure v. Wooley, 1 Dem. 574. 442 surrogates' courts 8. And the Surrogate is confined to the distinct issue raised by such an- swer and cannot pass upon any questions other than those involving th^ validity, construction or legal effect o^ the dispositions above described. Thus for example in Matter of Walker, 136 N. Y. 20, 24, the Court of Appeals held that the investigation which the Surrogate was empowered to make under § 2624 was limited to questions arising out of the terms of the will, and expressly denied him the right to pass upon the questions submitted to him for adjudication, as to the ownership by the testator of certain funds, as to his indebtedness to one of the heirs in a given amount, and other like questions. And it has been held that the mere fact, that the parties had consented to this improper exercise of jurisdiction could not confer juris- diction. Matter of Walker, supra, at page 29, citing Chemung Canal Bank V. Judson, 8 N. Y. 254. § 435. Exercise of implied power to construe. — Much of the confusion which has appeared in the cases involving the right of the Surrogate to construe wills, has arisen from the failure to emphasize the clear distinc- tions made in the Code. The express power is limited to probate proceed- ings, and is subject to the limitations already noted. The incidental power (see § 2 above) is a power which must be exercised as any other incidental power, that is to say, only in so far as it is necessary in order to carry out the express power to which it is incidental. See Baldwin v. Smith, 3 App. Div. 350, 353; Garloch v. Vandeoort, 128 N. Y. 374; Purdy v. Hayt, 92 N. Y. 446; Matter of Merriam, 136 N. Y. 58. It is clear from what has been already stated, that the power to construe a will upon accounting and decreeing distribution, is necessarily incident to the exercise of those powers. The Court of Appeals has extended this incidental power of the Surrogate to construe wills, to cases arising under the provisions of the Collateral Inheritance Tax Law. Matter of Ullmann, 137 N. Y. 403, 407. This power. Judge O'Brien says in his opinion, is in- cidental to that provision of the statute, under which the tax was assessed which provides that, "The Surrogate's Court in the county of which the decedent at the time of his death was a resident shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act . . . . " and he accordingly observes: "The Surro- gate must decide whether any property of a deceased person has passed to another under a will or under the laws of intestacy, before he can perforin the duty imposed upon him. It may sometimes happen that the property of the deceased passes in both ways. The fact that there is a will, and that it has been admitted to probate, does not necessarily determine the owner- ship or the transmission of the property. When the Surrogate looks into the will some of its dispositions may be so clearly void as to warrant him in holding that nothing has passed by virtue of them, but that the property embraced therein has passed to heirs or next of kin under the statutes of descent or distribution. In the numerous cases that have been passed upon by this court recently, arising under the statute, we have held that the Surrogate was clothed with power, and that it was his duty to decide ques- THE CONSTRUCTION OF WILLS 443 tions arising under wills or under the statutes quite as intricate and impor- tant as those arising out of the residuary clause of the will in this case, citing In re McPherson, 104 N. Y. 306; In re Enston, 113 id. 174; In re Sherwell, 125 id. 379; In re Romaine, 127 id. 80; In re Stewart, 131 id. 274; In re Wolfe, 137 id. 205; In re Prime, 136 id. 347; In re Svnft, 137 id. 77. " In the settlement of the accounts of executors and the distribution of the personal estate under a will, the Surrogate is empowered to determine the validity of testamentary proijisions under statutes that are not more explicit or comprehensive than the one now under consideration. Code, §§ 2472, 2481, 2743; In re Verplanck, 91 N. Y. 439; Purdy v. Hayt, 92 id. 446; Riggs v. Cragg, 89 id. 479; Garlock v. Vandevort, 128 id. 378; In re Wagner, 119 id. 32; In re Cager, 111 id. 343. "The jurisdiction conferred by the statutes upon the Surrogate to hear and decide all questions in relation to the tax imposed by its provisions upon persons to whom property has passed from a decedent is, we think, broad enough to warrant the Surrogate in holding, in a case like this, that the property which is the subject of the tax has not passed to the legatees or devisees under the will, but the heirs-at-law or next of kin." However, it was held by the Court of Appeals in the Fayerioeather case (Amherst Col- lege V. Ritch, 151 N. Y. 322, 343), that the adjudication by a Surrogate in transfer tax proceedings, in this connection, must be limited with reference to the object for which it is made, and merely ampunts to an adjudication, that, for the purpose of taxation under the act in question, a certain amount of property actually passed to specific persons by virtue of the will; and Jtidge Vann writing the opinion of the court says, that the Surrogate's legitimate inquiry necessarily stopped at that point; that, "the adjudica- tion was necessarily limited to the subject of taxation, and if conclusive at all, was not conclusive upon the rights of the parties arising from matters outside of the will," citing Matter of Wolfe, 137 N. Y. 205, 211; Matter of Ullmann, 137 N. Y. 403, 407. § 436. Same subject. — The exercise of this implied power to construe wills, has been held to be proper in any proceeding where it may become necessary in order to enable the Surrogate to carry out powers expressly conferred on him. See Kelsey v. Van Camp, 3 Dem. 530, 534. See also Matter of Owens, 33 N. Y. Supp. 422. Subject to the limitations indicated, this is unquestionably true. Matter of Bruchaeser, 49 Misc. 194. These hmitations, apart from express statutory provisions, such for ex- ample as those in § 2624, have been stated by the Court of Appeals in the form of a general rule (Washbon v. Cope, 144 N. Y. 287, 295), where Peck- ham, J., observes: "As a general rule, the Surrogate has no jurisdiction to construe the pro- visions of a will excepting so far as it may be necessary for him to do so in order that he may properly perform some other duty which has been im- posed upon him by law. There is no general and inherent power vested in him or in his court to construe devises or bequests as a distinct and inde- pendent branch of his or its jurisdiction. Even a court of equity vested 444 surrogates' courts « with general jurisdiction over equitable subjects has no such inherent power as that, and its only power to construe the provisions of a will is based upon, and is incident to, its jurisdiction over trusts. Mellen v. Mellen, 139 N. Y. 210, and cases cited in the opinion of Andrews, Ch. J. The statute itself provides for the effect of a judicial settlement of the accounts of the exec- utors. See §§ 2742 and 2743, Code Civ. Proc." See, as to effect of decree improperly made, Pfiester v. Writer, 33 Misc. 701. Sometimes it may be necessary for thg Surrogate to construe the provi- sions of the will in order that upon the final accounting of the executors thereof he may decree distribution to those who, by the provisions of the will, are entitled to any portion of the proceeds remaining undistributed, or where distribution by the executors has already been made, may, upon their accounting, determine whether they have or have not, erroneously and improperly made distribution of some of the estate, and if they have, the Surrogate may hold them liable in their accounts. But generally it is for the purpose of determining the correctness of the accounts of the exec- utors or of decreeing the proper distribution of the estate, that this juris- diction to construe the terms of a will becomes necessary, and may be exer- cised for the purpose of carrying out the jurisdiction actually conferred upon the Surrogate. There is no question as to the Surrogate's power within the limitations noted, to construe a will upon an accounting for the purpose of properly determining questions necessarily arising thereon. Garlock v. Vandevort, 128 N. Y. 374, 378, citing Matter of Verplanck, 91 N. Y. 439, 449; Riggs v. Cragg, 89 N. Y. 179. See Matter of Young, 17 Misc. 680, 684; Will of Hd- vms, 8 Misc. 574; Matter of Metcalf, 6 Misc. 524; Matter of French, 52 Hun, 303. And it must be noted that, if the Surrogate has' rightly assumed juris- diction, and undertaken to construe a provision in a will, in a proper case, the jurisdiction of the Surrogate being equal to and concurrent with that of the Supreme Court, the rule is applicable that the Surrogate's Court, as the tribunal which first obtains jurisdiction of the subject-matter and of the persons, retains and exercises the jurisdiction to the exclusion of the Supreme Court, that is to say, that while it is not an exclusive jurisdiction on the part of the Surrogate to start with, the Supreme Court will not, when he has rightly assumed jurisdiction in a given case, entertain an action in- volving the same questions brought in the Supreme Court. Schuehle v. Reiman, 86 N. Y. 270; Garlock v. Vandevort, supra, page 379. If the construction of a will is necessary to determine questions arising on the accounting, jurisdiction to construe attaches as incident to the pro- ceedings, and it is not only proper for the Surrogate to entertain jmisdic- tion to construe the will but it will be held error if he refuses to do so. See Purdy V. Hayt, 92 N. Y. 445, 446, 450. The same rules of law must be ap- plied by him as would govern the Supreme Court. In ruling on the passing of property he must distinguish between lex fori and lex rei situ as applica- ble to personalty or realty. Thus in Mount v. Tuttle, 40 Misc. 456, the tes- tatrix (New York) made a will creating a trust of personalty to be executed THE CONSTRUCTION OF WILLS 445 in a foreign State. Held, the law of that State must govern, and that the trust being defective thereunder a curative New York statute would not save it. This was a special term case. § 437. Same subject. — The power of the Surrogate to construe the provisions of a will and determine their meaning and validity, in order to make a decree of distribution, after judicially settling the accounts of an executor, or administrator with the will annexed, is thus very clear under the decisions. See Matter of Vandevort, 8 App. Div. 341, 353, citing Purdy V. Hayt, 92 N. Y. 446; Garlock v. Vandevort, 128 N. Y. 374; Cahill v. Russell, 140 N. Y. 402; Matter of Bolton, 146 N. Y. 257; Baldwin v. Smith, 3 App. Div. 350. Whether this accounting by the executor is voluntary or com- pulsory, makes no difference as to the power of the Surrogate (see Estate of Metcalf, 6 Misc. 524) ; while the Surrogate has power to make such con- struction on settling the accounts of an administrator with the will an- nexed, he has not that power upon the original application for such letters of administration. See Matter of Smith, 18 N. Y, Supp. 174, 175; Du Bois V. Brown, 1 Dem. 317, and Matter of Thompson, 5 Dem. 117. This power to construe a will for the purpose of making the distribution, requires a passing reference to § 2743, which permits a Surrogate upon the judicial settlement of an account, where the validity of the debt, claim, or distrib- utive sh^re, is admitted, or has been estabUshed upon the accounting, or other proceeding in the Surrogate's Court, or other court of competent jurisdiction, to determine by the decree, to whom it is payable, the sum to be paid by reason thereof and other questions concerning the same. This section, as will be noted later on, contains the sole statutory authority where- under the Surrogate has jurisdiction to determine disputes as to third par- ties' demands; but incidental to this power it may be absolutely essential for the Surrogate to construe the will for the purpose of determining to whom legacies shall be paid. See Verplanek's Estate, 91 N. Y. 439; Tappen V. M. E. Church, 3 Dem. 187, 191. Where the right to a legacy depends upon a question of construction, it must be determined before a decree for distribution can be made, and the Surrogate has jurisdiction to determine such construction as incident to the authority to make the distribution. See Riggs v. Cragg, 89 N. Y. 479. § 438. When exercise of incidental power denied. — The exercise of this incidental power has also been denied in the following cases: Upon an application to compel payment of a legacy under § 2722 (former § 2717). Rank v. Camp, 3 Dem. 278, Rollins, Surr. And the Court of Appeals (Riggs v. Cragg, supra, 480, 492) has intimated that the reason for a denial of the power in such a case was that the application for pay- ment of a legacy was in the nature of a special accounting to which all par- ties interested in the estate are not necessarily cited, and that it would not be proper for the Surrogate to proceed to a determination which might afifect the rights of other legatees, or persons interested in the estate, with- out the presence of all such parties to be affected by such adjudication, and that therefore the final accounting, when the right of the Surrogate in this 446 surrogates' courts regard was fully recognized, was the proper occasion for the exercise of the power to construe. The power has also been denied upon an application requiring an exec- utor to show cause why he should not make, file and return an inventory and an account of his proceedings under the statute, and in default thereof ito show cause why he should be attached and removed from office. Wilde V. Smith, 2 Dem. 93, 96. Where the Surrogate, however, does exercise the power to construe the will, this construction should be embodied in some directory clause of the decree, otherwise, as was held by the Court of Appeals (Washbon v. Cope, 144 N. Y. 287, 296), his decision will be nothing more than an opinion as to the proper construction of the will upon which he bases no action and makes no decree. § 439. Construction by the Surrogate. — It is impracticable in a work of this character to discuss at length the rules of law governing the Surro- gate as a judicial officer in exercising his power to construe wills. This sub- ject has been elaborately discussed in text-books devoted specially to the subject. The Surrogate is of course bound by the same rules of construc- tion and interpretation, which would govern the Supreme Court in the ex- ercise of similar power, with the limitation, however, that in the exercise of the power as incidental and necessary to effectively exercise an express power conferred upon him by law, the incidental power should be exercised only to the extent of enabling him to perform the express power; this is illustrated by the limitation placed by the Court of Appeals upon the right of the Surrogate to construe a will in proceedings under the transfer tax law. See § 435, supra, where the adjudication of the Surrogate was held to be necessarily limited to the subject of taxation, and to have a conclusive effect only, in so far as that matter was involved. However, an effort has been made to condense and set in compact form with adequate references the principal rules of construction as they have been formulated and developed by the courts. This is shown here as else- where throughout this work largely in the very words of the cases. § 440. Multiplicity and confusion of precedents. — Confusion exists among the vast multitude of cases relating to the construction and inter- pretation of wills. To a very large extent this confusion may be considered as the natural result of the policy of the law in refusing to subject this class of instruments to as rigid rules of construction as are applied to deeds and other instruments affecting the property of living persons, wherein we find a more precise terminology and forms of expression, whose well-established meaning is clearly adhered to by the courts. " To lay down any positive and definite rules of universal applibation in the interpretation of wills, must continue to be as it has been, a task, if not utterly hopeless, at least of extraordinary difficulty. The unavoidable imperfections of human- lan- guage, the obscure and often inconsistent expressions of intention, and the utter inability of the human mind to foresee the possible combination of events, must forever afford an ample field for doubt and discussion, as long THE CONSTEUCTION OP WILLS 447 as testators are at liberty to frame their wills in their own way, without being tied down to any technical and formal language." Mr, Justice Story in Sisson v. Seabury, 1 Sumn. 235. § 441. Testator's intention the primary guide. — Where a will is the subject of construction, it is the manifest intention of the testator and not any rule of construction which is to govern, when they come in conflict. Matter of James, 146 N. Y. 78; Miller v. Gilbert, 144 N. Y. 68, 70; Delaney V. Van Aulen, 84 N. Y. 16. Any other rule " is subordinate to this primary canon of construction, that the intent, to be collected from the whole will, must prevail." Matter of Brown, 154 N. Y. 313; Goebel v. Wolf, 113 N. Y. 405. Where the language is plain and the intention of the testator is clearly expressed, the court will not look into extraneous circumstances in giving its construction. Champlin v. Champlin, 58 N. Y. 620. (Full report in 1 Sheld. 355.) Thus, in such a case it will not inquire into testator's motives {Rowland v. Union Theological Seminary, 5 N. Y. 193), nor into the rea- sonableness of the provisions if they violate no principle of law or morality. Bolton V. De Peyster, 25 Barb. 539; Watson v. Donnelly, 28 Barb. 653. So also, when the language is unskillful or inaccurate, but the intent can be clearly collected from the writing, it is the duty of the court to give effect to that intent. Masterson v. Townsend, 123 N. Y. 458; Roe v. Vingut, 117 N. Y. 204; Bliven v. Seymour, 88 N. Y. 469. § 442. Of the canons of construction. — It follows from what has been said that the courts will strive as far as possible to carry out the real objects of the testator, limiting themselves, however, to the intention deducible from the words of the will, but in no cases exceeding or amplifying such in- tention. Whatever rules may be formulated as guides in testamentary con- struction are of limited scope and validity, and are applicable only to par- ticular words, phrases and testamentary provisions, in the absence of a contrary intention appearing in the will. Canons of construction may, therefore, be viewed as means of collecting a testator's intention, where there is a doubt or uncertainty as to the meaning of any expression or pro- vision contained in his will. Without them the courts would be free to re- sort to conjectural interpretations, unfettered by any fixed principles or established precedents, and a latitude would thus be given to the judicial imagination, inconsistent with the stability of the law. GENERAL RULES OP CONSTRUCTION L Intention is to be collected from the whole will taken together and not from any detached portions alone, and such a construction given, if possible, as to form one consistent whole. Norris v. Beyea, 13 N. Y. 273; Roe v. Vingut, 117 N. Y. 204, 212; Taggart v. Murray, 53 N. Y. 236; Trask v. Sturges, 170 N. Y. 482, 496; Kelley v. Hogan, 71 App. Div. 343. This rule is extended to cover, (1) introductory terms (Clark v. Jacobs, 56 How. Pr. 519; Youngs v. Youngs, 45 N. Y. 254) ; (2) a codicil taken with the will as part of the same instrument (Wescott v. Cady, 5 Johns. Ch. 334; 448 subrogates' courts Crazier v. Bray, 120 N. Y. 366, 374) ; (3) those portions admittedly void or inefficient to dispose of property. Tilden v. Green, 130 N. Y. 29, 55; Mor- ton V. Woodbury, 153 N. Y. 243; Kiah v. Grenier, 56 N. Y. 220. II. Where the intention is left uncertain or doubtful, that construction should be adopted which is nearest in accord with public policy and with the law. Chwatal v. Schreiner, 148 N. Y. 683 ; Crooke v. County of Kings, 97 N. Y. 421; Manice v. Manice, 43 N. Y. 305; Hopkins v. Kent, 145 N. Y. 363. III. Where a particular intent is inconsistent with a general intent, the latter is subordinated to the former. Spofford v. PearsaU, 138 N. Y. 57, 68; Hoey V. Gilroy, 129 N. Y. 132, 138. IV. An intent, inferable from the language of a particular clause of a will, may be quaUfied or changed by other clauses thereof, evincing a differ- ent intent. Hoppock v. Tucker, 59 N. Y. 202; Moffet v. Elmendorf, 152 N. Y. 475, 484. So where the primary devise is to A, and B is to take in case A die, the presumption is that testator meant " if A die before me. " Matter of Cramer, 170 N. Y. 275. But if a life estate intervene ahead of A's fee there is room to consider whether the contingency of A's death may not relate to the end of the life estate and not to testator's death. Matter of Denton, 137 N. Y. 433; Matter ofBaer, 147 N. Y. 354; Coonv. Coon, 38 Misc. 693, and cases cited. V. Where two clauses are so inconsistent and irreconcilable that they cannot possibly stand together, the one that is posterior in position will pre- vail, as indicating a subsequent intention. Van Nostrand v. Moore, 52 N. Y. 12; Vechten v. Keator, 63 N. Y. 52; Sweet v. Chase, 2 N. Y. 79. This rule, of course, will not apply when the later provision is void. Austin V. Oakes, 117 N. Y. 577. It has frequently been criticised as not founded on a very satisfactory reason and is not to be blindly followed un- less the court can find nothing else to aid it in ascertaining the testator's intention. Ogsbury v. Ogsbury, 45 Hun, 388; Covenhoven v. Shuler, 2 Paige, Ch. 123. VI. Where of several provisions in a will, some are lawful and others un- lawful, each being complete in itself, and independent of and separable from the others, the legal provisions will be preserved^ if not inconsistent with the manifest intent of the testator, and if they would not lead to a result con- trary to the purpose of the will or work injustice among the beneficiaries. Tildm V. Green, 130 N. Y. 29; Van Schuyver v. Mulford, 59 N. Y. 426; Kalish V. Kalish, 166 N. Y. 368. But where material provisions of a will are illegal and cannot be separated from the other parts, without defeating the testator's general intention, the legal provisions must fail with the illegal. Hqfner v. Hafner, 62 App. Div. 316; Benedict v. Webb, 98 N. Y. 460; Harris v. Clark, 7 N. Y. 242. VII. Such a construction as will prevent partial intestacy will be favored, the law presuming that a testator did not intend to die intestate as to any of his property. Schult v. Moll, 132 N. Y. 122; Kelkyv.Hogan, 71 App. Div. 343; Byrnes v. Baer, 86 N. Y. 218. VIII. The law favors that construction which permits descent to remain THE CONSTRUCTION OF WILLS 449 in the line of ancestral blood. Knowlton v. Atkins, 134 N. Y. 313, 321; Quinn v. Hardenbrook, 54 N. Y. 83; Matter of Boyce, 37 Misc. 146. IX. Express words, or necessary implication, are requisite in order to disinherit an heir-at-law. Haxtun v. Corse, 2 Barb. Ch. 521 ; Chamberlain v. Taylor, 105 N. Y. 185; Scott v. Guernsey, 48 N. Y. 108; Brown v. Quintard, 177 N. Y.' 75. Mere words of disinheritance, without devise to others, are insufficient to effect that purpose. Gallagher v. Crooks, 132 N. Y. 338, 342, and cases cited; Lynes v. Townsend, 33 N. Y. 558, 561. X. The law favors equality among children of the testator and their issue, in the distribution of estates, and in cases of doubtful construction it selects that which would lead to such a result. Stokes v. Weston, 142 N. Y. 433; Matter of Miller, 18 App. Div. 211, aff'd on opinion below, 155 N. Y. 646; Brown's Estate, 93 N. Y. 295; Button v. Button, 57 App. Div. 297. XI. Provisions for the benefit of a wife are construed liberally in her favor. Mojfat v; Elmendorf, 152 N. Y. 475; Thurber v. Chambers, 66 N. Y. 42, 48; Stimson v. Vrooman, 99 N. Y. 74, 80. XII. The law favors the vesting of estates at the earliest time. Stokes v. Weston, supra; Byrnes v. Stilwell, 103 N. Y. 453; Trask v. Sturges, 170 N. Y. 482; Campbell V. Beaumont, 91 N. Y. 464. XIII. Where an interest is given or an estate conveyed in one clause, it cannot be cut down or taken away by raising a doubt from other clauses, but only by express words or clear implication. Freeman v. Coit, 96 N. Y. 63; Banzer v. Bamer, 156 N. Y. 429; Trask v. Sturges, 170 N. Y. 482, 492. XIV. A will speaks as of the date of the testator's death. Brundage v. Brundage, 60 N. Y. 544; Lynes v. Townsend, 33 N. Y. 558, 564. But when a testator refers to an actually existing state of things, his language should be understood as referring to the date of the will and not that of his death.. Rogers v. Rogers, 153 N. Y. 343, and cases cited. See Matter of Hopkins, 102 App. Div. 458. XV. An expressed intention in a codicil to make a change in a will in one particular negatives, by implication, an intention to alter it in any other respect. Redfield v. Redfield, 126 N. Y. 466; Wetmore v. Parker, 52 N. Y. 450. § 443. Interpretation of words and phrases. — In addition to the forego- ing general rules the courts have enunciated a number of rules of lesser scope, applicable to individual words and phrases. Of these, the more im- portant are the following: I. Words in general are to be taken in their plain, usual and primary sense, unless a clear intention to use them in another sense can be collected, and that sense ascertained from the instrument. Carpenter v. Carpenter, 2 Dem. 534; Harvey v. Olmstead, 1 N. Y. 483, 489; Matter of Woodward, 117 N. Y. 522; Wylie v. Lockwood, 86 N. Y. 291. II. Technical words are presumed to have been used in their technical sense, but when it appears from the context or from extraneous facts, that the testator used them in their common and popular sense, this overcomes 29 450 surrogates' courts the presumption. Lawton v. Corlies, 127 N. Y. 100; Luce v. Dunham, 69 N. Y. 36; Gush-man v. Horton, 59 N. Y. 151. III. The natural sense in which words are used, always prevails over both punctuation and capitals. Kinkele v. Wilson, 151 N. Y. 269; Arcularius v. Sweet, 25 Barb. 406. IV. Rules of grammar are considered and will be followed, excepting when they contravene the clear intendment. Staats v. Stoats, 11 Johns. 337; Abbey v. Aymar, 3 Dem. 400; De Notteback v. Astor, 13 N. Y. 98. V. Words may be transposed, rejected or supplied so that the will may express the intention of the testator (Starr v. Starr, 132 N. Y. 154, 158; Phillips V. Dairies, 92 N. Y. 199) , but not so as to devise a new scheme or to make a new will. Tilden v. Green, 130 N. Y. 29. See, as to words transposed, Wager v. Wager, 96 N. Y. 164, 172; Coven- hoven v. Shuler, 2 Paige's Ch. 122. Words rejected, Walter v. Ham, 68 App. Div. 381; Benjamin v. Welsh, 73 Hun, 371. Words supplied, Roseboom v. Roseboom, 81 N. Y. 356; Mumford v. Rochester, 4 Redf. 451; Matter of Schweigert, 17 Misc. 186. Words changed, Roome v. Phillips, 24 N. Y. 463; Miller V. Gilbert, 144 N. Y. 68, 74. VI. Where certain things named are followed by a phrase which need not but might be construed to include other things, it will be confined to arti- cles of the same general character as those enumerated. Matter of Reynolds, 124 N. Y. 388, 397. VII. Precatory words and expressions, accompanying a devise or a be- quest are primn facie obhgatory, and create a trust, unless the intention is clearly apparent that they are to be regarded as advisory or recommenda- tory only. Bliven v. Seymour, 88 N. Y. 469; Manice v. Manice, 43 N. Y. 305; Matter of Gardner, 140 N. Y. 123. VIII. Particular words or clauses may, in the light of other words or clauses, be so construed as to mean more or less than they import con- sidered singly or by themselves. Freeman v. Coit, 96 N. Y. 63. IX. The construction given to a word or phrase in one will is no positive criterion for construing the same expression occurring in another (Smith v. Bell, 6 Pet. 68, per Marshall, C. J.) ; and the same word may be construed in different senses in the same will. Morrow v. McMahon, 35 Misc. 348, con- struing " issue " variously as to their interest in income and principal of estate. § 444. Interpretation of particular words and phrases. — As may be readily inferred from the last rule above mentioned, there are a very large number of decisions defining the meaning of certain words and expres- sions as they are used in the particular instruments under consideration. In them, various shades of meaning, often widely divergent, will be found. But the same word or expression in different wills may require essentially different constructions; so unless two wills can be found approximately identical, disposing of similar property under similar circumstances, such precedents lose much of their force. Convenient lists of adjudged cases, containing such verbal interpretations, will be found in the digests. THE CONSTRUCTION OF WILLS 451 § 445. Admissibility of extrinsic evidence. — When there is no am- biguity in a will, extrinsic evidence is inadmissible to show the testator's intention, for plain and unambiguous language leaves no room for construc- tion. Bradhurst v. Field, 135 N. Y. 564; Sanford v. Sanford, 58 N. Y. 69. It is only when the testator's meaning is doubtful, after a critical scrutiny and comparison of the several provisions of his will, that external assist- ance may be accepted and collateral facts and surrounding circumstances may be inquired into, to elucidate what is uncertain, and assist in the con- struction of the instrument. Lefevre v. Lefevre, 59 N. Y. 434. In Mann v. Mann, 1 Johns. Ch. 231, which is often referred to as the leading New York case on this subject, the rule is stated by Chancellor Kent, as follows: "Parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases : (1) where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described; and (2) to rebut a resulting trust." While this rule has generally been followed, it may be remarked, in this connection, that the distinction between patent and latent ambiguities is no longer considered by the courts. In either case, where the instrument itself appears ambiguous or where collateral facts and circum- stances give rise to the ambiguity, the court will seek, by an inquiry into all the material facts, to place itself as nearly as possible in the position of the testator, when the will was made. Lefevre v. Lefevre, supra; Fisk v. Hvbhard, 21 Wend. 651, 659, opinion by Cowen, J., commenting on the rule of Lord Bacon, that " anibiguitas patens is never holden by averment" and qualifying it. Extraneous circumstances may be considered in aid of the terms of the will. Hoyt v. Hoyt, 85 N. Y. 142, 146. The language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered. McCorn v. McCorn, 100 N. Y. 511, 513, citing LeFevre v. Tool, 84 N. Y. 95; Hoyt v. Hoyt, supra; Scott v. Stebbins, 91 N. Y. 605. But, it cannot be received to interpret anything not written in the will, e. g., where a will makes no disposition of real estate, extrinsic parol evidence cannot be used to bolster a construction that testator intended to charge his realty with the payment of legacies. Fries v. Osborn, 190 N. Y. 35. § 446. Evidence of intention. — The intent of the testator must be found in the will, either expressed or implied in its terms, or drawn by fair inference from other manifest intentions expressed in the will. Lippen v. Eldred, 2 Barb. 130. Extrinsic evidence of whatever kind, whether it bear directly or indirectly on the testator's intention, must be considered as merely subsidiary to the language of the instrument and received only as an aid in disclosing its real purpose. It cannot be used to put new language in the will, to the extent of interpolating a provision or materially qualify- ing its terms. Matter of Wells, 113 N. Y. 396; Stimson v. Vrooman, 99 N. Y. 74, 79; Armstrong v. Galusha, 43 App. Div. 248, 262. Thus it may be stated as a general rule that declarations of a testator, before, contemporaneously 452 surrogates' courts with, or after the making of a will, are inadmissible to affect its construc- tion. Williams v. Freeman, 88 N. Y. 561. And it has been held that parol evidence of the intention of a testator is not admissible to fortify a legal presumption raised against the apparent intention, or to create a presump- tion contrary to the apparent intention where no such presumption is raised by law. Reynolds v. Robinson, 82 N. Y. 103. An apparent exception to this rule with respect to direct evidence of the testator's declarations of his intention is found in a class of cases where there are several persons or things to which the terms of the will might apply with equal certainty. In these cases, such evidence is received; but its purpose then is not primarily to affect the intention, but to disclose, if possible, what the intention really is. Matter of Wheeler, 32 App. Div. 183, 187, aff'd 161 N. Y. 652; St. Luke's Home v. Ass'n for Indigent Females, 52 N. Y. 191, 198; GaUup v. Wright, 61 How. Pr. 286. It seems also that when an attack upon the will is made by the introduction of extrinsic evidence to affect its construction or application, the scope of the defense is enlarged, and evidence of the testator's declarations may be given in rebuttal, in order to show that the intention is correctly expressed on the face of the will. Tillotson v. Race, 22 N. Y. 122; Matter of Wheeler, supra. § 447. Unattested writings and memoranda. — The statute which re- quires wills to be expressed in writing, attested in a prescribed form, precludes any other proof of them except the writing, and such facts and circumstances as are necessary to its intelligent reading. An un- attested paper of a testamentary nature cannot be taken as part of the will, even though referred to by that instrument. Booth v. Baptist Church, 126 N. Y. 215, 246, and cases cited; Vogel v. Lehritter, 139 N. Y. 223. It was held in Tonnele v. Hall, 4 N. Y. 140, that a map appearing after the signature upon a will and which was referred to in the body of the will, did not require the signature to follow it in order to make it a part of the will. But it is to be observed that the will in that case was complete without such addition, the map being referred to merely to identify the subject devised, and not as containing a testamentary provision. An interesting discus- sion of the law as to the incorporation of extrinsic writings in wills will be found in Dyer v. Erving, 2 Dem. 160, wherein the Surrogate summarizes his conclusions as follows: "First. That words of reference in a will will never suffice to incorporate the contents of an extraneous paper, unless it can be clearly shown, that at the time such will was executed, such paper was actually in existence. Second. That an extraneous paper produced as and for a paper so referred to in a will and shown to have been in existence when such will was executed, may be adjudged to form part of such will and be admitted to probate as such, under these circumstances and no others, to wit: When, by satisfactory and conclusive evidence, it has been proved to be the selfsame paper which the testator by his words of reference designed to indicate." See also Matter of Reins, 59 Misc. 126. § 448. What may be shown by extrinsic evidence. — It may be stated as a broad and general rule that evidence which is admissible in explanation THE CONSTRUCTION OF WILLS 453 of a will may relate to every material fact, which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument, and to identify the persons and things to which it refers. These may be considered under the general heads of explication, referring to the reading of the verbal text of the will, and application, showing its applicability to the subject or the object of the devise or bequest. § 449. Explication. — If the instrument is written in a foreign language or in shorthand, a competent witness may translate it, and whatever is necessary to possess the court of an understanding of the language or character in'which the will is written may be suppUed by extrinsic evidence. Abb. Trial Ev., 2d ed., p. 169. A nickname or a name by reputation given by the testator and current in his family or neighborhood may be thus explained; or terms with which, as a member of a particular trade or call- ing, the testator is familiar. In all such cases persons acquainted with the meaning of the words may be called as witnesses to translate or define them. Ryerss v. Wheeler, 22 Wend. 148, and cases cited. So also obvious clerical errors appearing on the face of the will may be corrected (Dubois v. Ray, 35 N. Y. 162; Paige v. Bergh, 10 Paige's Ch. 140); and evidence aliunde is allowable to aid in determining the real name of a beneficiary in cases of misnomer. Leonard v. Davenport, 58 How. Pr. 384; Gallup v. Wright, 61 How. Pr. 286; Lefevre v. Lefevre, 59 N. Y. 434. All such evi- dence is received, however, not for the purpose of showing the intent in the particular case, but in order to enable the court by inference from the facts thus established, to correctly read the will. It would appear that technical terms of known legal import present an exception to this general rule. They must have their legal effect, unless it is perfectly clear from the context that the testator did not mean to use them in their technical sense. Then they can only be construed in the light of the other parts of the instrument. Rule II, ante, and cases cited; Moore v. Lyons, 25 Wend. 119, 154; Campbell v. Rawdon, 18 N. Y. 412, 417. § 450. Application. — In applying the will the court may consider all the circumstances surrounding the testator when he made the will. Stim- son V. Vroman, 99 N. Y. 74, 79; Williams v. Jones, 166 N. Y. 522, 533. The intent thus existing, when ascertained, must have effect, and may not be varied by after-occurring events. While a will is in some sense am- bulatory as to the objects and subjects with which it deals, yet it is not ambulatory as to the meaning of the language used by the testator when he executed the will. Morris v. Sickley, 133 N.Y. 546. But in order to ascertain the intention and purpose existing at the time of the execution of the will, the court may inquire into the situation of the testator's family and the nature and value of his estate (Bumpus v. Bumpus, 79 Hun, 526; Matter of Woodward's Will, 167 N. Y. 28) ; his education and intelligence {Lytle V. Beveridge, 58 N. Y. 592); his business transactions (Tillotson v. Race, 22 N. Y. 122); his religious affiliations, his charitable benefactions and zeal for certain charitable agencies. Hornbeck v. Am. Bible Society, 2 Sand. Ch. 133; Lefevre v. Lefevre, 59 N. Y. 434. In short, it may resort to 454 SUBBOGATES' COURTS extraneous evidence of such facts or circumstances as will enable it to identify the person sought to be designated or the property to which the language of the will is to be applied. Thus a beneficiary need not be de- scribed by name, if any other designation or description be given, by which he can be clearly identified with the aid of parol evidence. Holmes v. Mead, 52 N. Y. 332; Lefevre v. Le/evre, sujyra. Parol proof may in like man- ner be resorted to in order to identify property which is described in the will in such meager, ambiguous or uncertain terms, that it cannot be exactly located. Ryerss v. Wheeler, 22 Wend. 148. But on the other hand, the courts are firm in excluding extrinsic evidence when it seeks to change or enlarge a specific and explicit designation of the property. Waugh v. Waugh, 28 N. Y. 94; Mann v. Mann, 1 Johns. Ch. 231. CHAPTER IX ESTABLISHING "WILL BY ACTION § 451. How a will may be proved outside the Surrogate's Court. — Wills may be divided into three classes as regards the Surrogate's jurisdiction to grant letters testamentary under them. In the first class are the wills which may be proved in a Surrogate's Court. Such wills, it is prescribed by former § 2611 (now §§ 23-25 of Dec. Est. Law), include: (a) A will of real or personal property executed as prescribed by the laws of the State. (6) A will of personal property executed without the State but within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or the country where it is or was executed. (c) Or a will of personal property executed by a person not a resident of this State according to the laws of his residence. There is a fourth kind, namely, wills of United States citizens dying while domiciled or resident, in the Kingdom of Great Britain and Ireland or any of its dependencies. Chapter 731, Laws, 1894, provides that if such will has been probated at the place of domicile and afifects property in this State, it may be admitted to probate in a Surrogate's Court here on notice merely to the beneficiaries named in the will. (Quoted ante, § 27.) In the second class are wills specified in § 2621 as lost or fraudulently destroyed upon their having been established as provided by § 1865. And in the third class are wills of personal property made by a person a nonresident at the time of executing it, or a nonresident at his death, the will being duly executed according to the laws of the State or country where it was executed, or of the §tate or country where the testator re- sided at the time of his death but not coming within the permissive provis- ions of § 2611 and consequently not provable before a Surrogate. The foregoing proposition must be clearly understood to be limited to a statement of the Surrogate's right to issue letters testamentary. The jurisdiction in this regard is exclusively confined to the Surrogate's Court; but, it will be noted that as to the three classes of wills above described a further differentiation can be made. As to the first the Surrogate has exclusive jurisdiction to admit the same to probate. As to the second (lost or fraudulently destroyed wills) the Surrogate has power to admit the same to probate under § 2621, in a case where a judgment establishing the will could be rendered by the Supreme Court as prescribed in § 1865. Thus the Supreme Court and the Surrogate's Court both have jurisdiction, 455 456 subrogates' courts the one of the proceeding for probate, the other of the action to establish, but in this case the jurisdiction of the Supreme Court is Umited to entering the judgment establishing the will, while the issuing of letters thereupon remains with the Surrogate. See § 1864. As to the third case, the jurisdiction is exclusively committed to the Supreme Court with the same limitation, to wit : that its power ceases with the entry of judgment, the letters testamentary issuing under § 1864 by the Surrogate only. § 452. Establishing a will by action. — The jurisdiction of the Supreme Court over a civil action to establish a will is defined by § 1861 of the Code. This section is as follows: An action to procure a judgment, establishing a will, may be maintained by any person interested in the establishment thereof, in either of the follow- ing cases: 1. Where a will of real or personal property, or both, has been executed, in such a manner and under such circumstances, that it might, under the laws of the state, be admitted to probate in a surrogate's court; but the original will is in another state or country, under such circumstances that it cannot be obtained for that purpose; or has been lost or destroyed, by accident or design, before it was duly proved and recorded within the state. 2. Where a will of personal property, made by a person, who resided with- out the state, at the time of the execution thereof, or at the time of his death, has been duly executed, according to the laws of the state or country in which it was executed, or in which the testator resided at the time of his death, and the case is not one, where the will can be admitted to probate in a surrogate's court, under the laws of the state. § 453. Subdivision 1. — Subdivision 1, it will be noted, requires for its full understanding, reference to former § 2611, the provisions of which have been recited above. If it appears that the will is one coming within the purview of § 2611, and it appears in addition that the original will is in another state or country, and in addition that it cannot be obtained for the purpose of probate here by reason of its having been lost or destroyed by accident or design, a clear case would then be made for an action under subd, 1 . The wills, therefore, which could be established under this subdivi- sion come under two classes: first, wills remaining in another jurisdiction so that they cannot be brought here for probate. Second, lost or destroyed wills. The case covered by Laws, 1894, ch. 731 (quoted, ante, in § 27 under "Jurisdiction") would be an exception to the first class. In that case, though the will cannot be brought here, a copy, with consular certificate, together with the proofs similarly certified can be probated, and letters issued thereunder without resort to an action in the Supreme Court. In Matter of Law, 80 App. Div. 73, Hatch, Surr., points out the difference between the probating of a resident's will and its establishment by action. Comparing §§ 1861 and 2620 it is clear that when the will cannot be pro- duced before the Surrogate, but was executed in this State, by a resident, before New York witnesses, and is shown to be in existence the Surrogate ESTABLISHING WILL BY ACTION 457 is powerless to probate it. Ibid, citing Matter of Cameron, 47 App. Div. 120, aff'd 166 N. Y. 610. § 454. Wills retained in another jurisdiction. — The case of Younger v. Duffie, 28 Hun, 242, aff'd 94 N. Y. 535, illustrates a case under subd. 1. The action was brought under this section, and the complaint averred that the testator, a United States consul in Spain, temporarily residing at Cadiz, but being an inhabitant of and domiciled in the county of Richmond and State of New York, died on the 8th day of November, 1880, in Cadiz, being possessed at the time of his death of personal property in the State of New York. The plaintiff was a legatee under the will, which it was alleged had been executed in the city of Cadiz, signed, published, declared and executed before a notary and three witnesses, and containing similar allegations respecting the subsequent execution of a codicil to the will, a copy of which will and codicil were annexed to the complaint. The com- plaint further alleged that the original will and codicil were in the Spanish language, were duly executed in conformity with the Spanish law, and were actually on file among the archives of the notarial office of the city of Cadiz, from which they could not be removed for the purpose of being ad- mitted to probate under the laws of the State of New York, or for any other purpose whatsoever, by reason of the laws of Spain. This complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled at a special term, and the action of the special term affirmed at the General Term and in the Court of Appeals. The General Term held that the allegations of the complaint were broad enough to admit proof at the trial of all the surrounding circumstances required by our statutes, and that the will was one which could be admitted to probate in the Surrogate's Court if the circumstances that it could not be obtained for that purpose did not exist. And Davis, P. J., adds in his opinion (28 Hun, 245) : "That where such circumstance does exist, the Code expressly provides that the action may be maintained for the purpose of establishing the will," citing Russell v. Hartt, 13 N. Y. Weekly Digest, 309, January 6, 1882; Caul-field v. Sullivan, 85 N. Y. 153. In the Court of Appeals Judge Earl (95 N. Y. at page 540) also held that the will alleged was one provable in the Surrogate's Court of Richmond County, but for the fact that it could not be procured for that purpose and hence was a case under § 1861. It will be noted that the unquestionable jurisdic- tion of a Surrogate to grant probate of a will not actually produced be- fore him except in the form of an exemplified copy thereof, provided that it is executed as prescribed in § 2611, is not interfered with by this section. Matter of De Laplaine, 45 Hun, 225; Russell v. Hartt, 87 N. Y. 19 (see opinion of Judge Finch); Caulfield v. Sullivan, 85 N. Y. 153. But this section does not authorize the bringing of an action to prove and es- tablish the will of a resident of another State which has been duly pro- bated therein. This section is a re-enactment of §§ 63, 64, 67 and 68 of title 1, eh. 6, part 2, of the Revised Statutes by which it appears that 458 surrogates' courts the term "establishing a will" means the same as proving a will, and such is the obvious meaning of the term as used in the section of the Code re- ferred to, which has no relation to wills which have been duly proved. Article 7, of title 3, of ch. 18 of the Code of Civil Procedure provides a complete scheme for establishing and giving effect within this State to wills duly probated in other States. Clark v. Poor, 73 Hun, 143, 144. § 455. Lost or destroyed will. — Subdivision 1 provides that the action may be brought to establish a will, which could have been admitted to probate in a Surrogate's Court, where it "has been lost or destroyed by accident or design before it was duly proved and recorded within the State." In connection with this, § 1865 provides as follows: But the plaintiff is not entitled to a judgment, establishing a lost or de- stroyed will, as prescribed in this article, unless the will was in existence, at the time of the testator's death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. It must be at the outset noted, that the provisions of this section which embody the former provisions of the Revised Statutes (2 R. S. 67, § 676) do not affect the rule of evidence formerly obtaining and still obtaining in actions in which it might become necessary to prove a lost will or lost deed. The rule in such actions remains the same, namely, that such a lost will can be proved by a single credible witness. See Jackson v. La Grange, 19 Johns. 386; Dan v. Brown, 4 Cowen, 483; Jackson v. Belts, 6 Cowen, 377. The additional requirement as to proof has been held to be limited to the direct proceeding or action contemplated by §§ 1865 and 2621, and the intent of the legislature has been said to be only to provide a rule of evi- dence applicable to the proceedings thereby authorized to prove and es- tablish a lost or destroyed will; and the rules of evidence in relation to proving the execution and contents of lost instruments, upon trials at law or in equity, remain unaffected; and parties acquiring rights under a lost or destroyed will, may establish those rights by the same kind of evidence as was allowed prior to the enactment providing for the probate of such wills. See Harris v. Harris, 26 N. Y. 433, 439, approved in Matter of Kennedy, 167 N. Y. 163, 172. (See § 457, below.) The importance of this distinction will be seen from the fact that it has been held that if parties bring a suit in which they seek to establish a will lost or destroyed, and are dismissed, they are not concluded by the dis- missal of this suit from setting up and estabUshing their title, in another action involving their rights, by sufficient common-law evidence of the existence or fraudulent destruction of the will. See Harris v. Harris, supra. An action had been brought for the purpose of having a will proved as a lost and destroyed will; this action was duly tried and judgment entered therein dismissing the complaint. An action was subsequently brought for the partition of the real property which the plaintiff in the former ESTABLISHING WILL BY ACTION 459 action had claimed an interest in, by virtue of the alleged lost will; this interest was alleged in the answer in the partition suit. And the provisions or contents of the will and the factum of the will were proved distinctly and clearly by one credible witness. The Court of Appeals held that the defendants were not concluded by the former decree from setting up this right and that the evidence was sufficient to prove as well the existence as the destruction and contents of the alleged will. See opinion of Wright, J., in Harris v. Harris, at page 437 et seq. § 456. Procedure in the action. — ^The complaint in an action under § 1865 should contain distinct averments of all the necessary facts warranting the plaintiff in invoking the jurisdiction of the court. (See below.) It has been distinctly held that if the plaintiff is without knowledge sufficient to enable him to frame his complaint he is entitled to an order for the examination of the defendant to take his deposition for the purpose of enabhng him to frame his complaint. Blatchford v. Paine, 24 App. Div. 140, 143. § 457. Nature of proof required,— Section 1865, it has been held, should be liberally construed. See Early v. Early, 5 Redf. 376, 380, following Hook V. Pratt, 8 Hun, 102, 109; Will of De Groat, 9 N. Y. Supp. 471, 473. Judge Beekman stated this rule {Kahn v. Hoes, 14 Misc. 63) with its proper limitations, as follows: "While the statutory provisions under which such an action is main- tainable are remedial in their nature and benignant in their purpose, and should, therefore, be liberally construed and applied, still it is not to be forgotten that the law has in this State always exacted great particularity of proof in respect to testamentary acts and the observance of formalities intended to make the proof as nearly as may be a demonstration that the testator was capable and fully concious of the nature of his act. This extreme caution obviously arises from the essential privacy of the act itself, which does not become the subject of proof until the mouth of the chief actor is closed by death, and the consequent ease and safety with which fraudulent wills might be concocted and maintained. As little as possible is left to the uncertainty of recollection or the operation of fraudulent design in the requirements that the will should be in writing, subscribed and published by the testator and authenticated by two wit- nesses, selected by him and subscribing their names in his presence in attestation of due execution. It will be seen that the chief value of these precautionary requirements rests upon the production of the document itself when rights are asserted under it, and that its absence opens the door to the uncertainties and fraudulent designs against which the statute was intended to provide. Experience, however, has demonstrated the necessity of providing for the cases where wills which had been duly executed were lost or fraudulently destroyed, and could not, therefore, be produced for probate, and in order that the rigor of the statute should not defeat a duly executed testamentary act, or in its operation to prevent one kind of fraud work another, provision has been made for the establishment of wills where, 460 surrogates' courts through loss or destruction by accident or design, the paper cannot be produced. But in so doing the legislature has also sought in soriie measure to provide against the dangerous consequences imnainent upon this relaxa- tion of the rule by prescribing a special quality of proof in such cases." After quoting § 1865 of the Code of Civil Procedure he continues as follows: "The burden of proof rests upon the plaintiff, and reason as well as the policy of the law demands that the proof should be clear and convincing, not only in respect to the provisions of the will, but as well that it was in existence at the time of the testator's death. The plaintiff is confronted at the outset by the presumption of revocation in which the law indulges where a will shown to have been made cannot be found after decease, a presumption which he must overcome by evidence satisfactorily account- ing for the absence of the paper upon some other theory." § 458. Two witnesses necessary only as to contents, not factum. — The provision of § 1865 as to proof by two credible witnesses is distinctly limited thereby to the provisions of the will. The other necessary facts can be proved by any competent evidence. By "provisions of the will" is meant those which affect the disposition of property. Early v. Early, supra. But as to these the statute has been strictly construed to mean, that each of the witnesses must be able to testify to all of the disposing parts of the will; it will not suffice to prove one provision by two or more witnesses and another provision in the same way by others, nor can the proven declaration of its contents by the testator be regarded as of any weight. Matter of Ruser, 6 Dem. 31, 33, citing Collyer v. Collyer, 4 Dem. 53. And consequently the evidence of a witness who is shown not to have read the entire will or otherwise to have known all its provisions is of no appreciable value. Ibid. See headnote and opinion at page 34. The Ruser case was peculiar in that counsel on both sides sought to cure the uncertainty in the testimony as to the contents of the will by stipulat- ing its provisions; this stipulation was very properly disregarded. by the court. The words, "two credible witnesses," have apparently been construed, further, to mean two independent witnesses, each testifying to the main facts and to all of such facts. Surrogate Lapham held that a witness who was merely a supporting witness corroborating another witness who alone could be properly called an independent witness in regard to details of his testimony, was not one of such two credible witnesses as is contemplated by the section. Matter of WaUron, 19 Misc. 333, 337. The Surrogate observes, " the two credible witnesses which the statute requires respecting the contents of a lost will need not necessarily have been witnesses also to the execution of the will. But it is reasonable to read the statute as mean- ing that they must both be able to speak of an actual will from personal knowledge and not of a possible will. ... If two reliable persons had be- come possessed of the contents without any part in the execution of the instrument, they might equally well constitute such witnesses. But could ESTABLISHING WILL BY ACTION 461 they be such witnesses if their knowledge of the contents of the instrument was limited to what they supposed or believed it contained only because somebody had told them that a draft they had seen of a will, had been executed thereafter and had become a will? " The Surrogate properly held that this was not sufficient, citing McNally v. Brown, 5 Redf. 372; Colly er V. Colly er, 4 Dem. 53; Sheridan v. Houghton, 6 Abb. N. C. 234. And the usual rule as to credibility, of course, will obtain; and if the will depends upon the plaintiff's testimony in whose favor the will is claimed to have been made, the court will subject his testimony to a most critical examina- tion. Kahn v. Hoes, 14 Misc. 63, 67. This same rule, of course, applies where the existence of the will at the testator's death depends upon the same kind of testimony. IMd. The facts as to the execution, the existence at the testator's death, or the fraudu- lent destruction, must all be clearly Established to the satisfaction of the court although the only expressed hmitation as to character of proof is in regard to the disposing provisions of the will. See Kerry v. Dimon, 37 N. Y. Supp. 92; Kahn v. Hoes, supra. In Matter of Hughes, 61 Misc. 205, it was held a will was not " destroyed " when although testator had directed its being torn up, the tearing of his signature had not been done in his presence, and the will was actually in testator's custody at his death and was produced for probate. This fact of existence at the testator's death is most important, for the presumption is a proper one and will usually be entertained that a will was destroyed by the testator animo revocandi, if the only facts shown are that the decedent made a will which was last seen in his possession or under his control, and which after his death cannot be found upon proper search. See Hard v. Ashley, 88 Hun, 103, 107, citing In re Florence, 2 Bradf. 281; Idley V. Bowen, 11 Wend. 227. The Court of Appeals in the Colly er case, 110 N. Y. 486, stated the rule as follows: "There is no direct proof that Mrs. Collyer destroyed her will; but the proof that the will was not found after her death is sufficient proof that she destroyed it animo revocandi. When a will previously executed cannot be found after the death of the testator there is a strong presump- tion that it was revoked by destruction by the testator, and this presump- tion stands in place of positive proof. Belts v. Jackson, 6 Wend. 173; Knapp V. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 id. 653; Hatch v. Sigman, 1 Dem. 519. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish in- testacy had an opportunity to destroy the will. He must go further, and show by facts and circumstances that the will was actually, fraudulently destroyed. In Loxley v. Jackson, 3 Phill. Rep. 126, the will was last seen in a small box in the bedroom of the deceased, but was not found after her death, and it was held that the presumption of law was that the testa- trix destroyed it animo revocandi; that the law did not presume fraud, and that the burden of proof was on the party claiming under the will. 462 surrogates' courts In Knapp v. Knapp, supra, it was held that proof that a will executed by a deceased person was said by him a month previous to his death to be in his possession in a certain desk in his house, and that he was then very aged and feeble, that his housekeeper was a daughter having an interest adverse to the will and that the same could not be found on proper search three days after his death, is not sufficient evidence of its existence at the testator's death or of a fraudulent destruction in his lifetime, to authorize parol proof of its contents. The authorities are uniform, and no further citations are needed." In Hard v. Ashley, supra, being, however, an action for partition. Judge Ward observes (at page 105), "It is true that proof of a lost will is neces- sarily secondary, and the law accepts the best evidence that the nature of the case admits of as to its valid execution and contents, and in such a case as this the defense may establish the will by a single credible witness," citing Harris v. Harris et al., 26 N. Y. 433, yet it must be shown that the will was executed with all the formalities required by the statute, and that the testator was of sound mind and under no restraint. § 459. Who may bring the proceeding. — It is very clear from § 1861 that only a person interested in the establishment of a will may bring this action. See Matter of Hamersley, 7 N. Y. St. Rep. 292. The Court of Appeals in Anderson v. Anderson, 112 N. Y. 104, held that a devisee of the legal estate in possession of the property devised could not maintain an action to establish the will against the heirs-at-law. See headnote at page 104. § 460. Fraudulent destruction. — Where the plaintiff relies upon fraudu- lent destruction of a will in the testator's lifetime, the evidence by which it is sought to establish such a destruction must be substantially clear and convincing; such a destruction would be a crime, and a person should not be convicted of such an act upon suspicion or surmise. Hard v. Ashley, 88 Hun, 103, 107. See also Matter of De Groot, 2 Connoly, 210; Perry v. Perry, 21 N. Y. Supp. 133. § 461. The complaint. — In view of the wide diversity of opinion among practitioners as to matter of form and allegations in pleading, it hardly seems necessary to suggest the form of a complaint in an action brought tmder § 1861. It is merely necessary to lay stress upon the fact that the practitioner having determined whether the facts of the case bring him within subd. 1 or sudb. 2 of the section, and that the plaintiff is a person interested in the estabhshment of the will sought to be established, should concisely allege every jurisdictional fact required by the particular sub- division. The following skeleton is suggested for a complaint under subd. 1: First. Allege the execution of a will of real or personal property, stating dale, place and circumstances of such execution, bearing in mind that they must be such as would sustain its probate in a Surrogate's Court in this ESTABLISHING WILL BY ACTION 463 State; give also name of testator and allege his residence at the time of executing the will, as well as the time and place of his death; state what property, whether real or personal, belonged to the testator at his death, within the county in which the action is brought. Second. Allege that the will cannot be obtained for the purpose of pro- bate in a Surrogate's Court, stating the circumstances why it cannot be so obtained. Third. Allege that the plaintiff is a person interested in the establish- ment of such will, showing his rights or claims, under the will, and if necessary state why it is necessary for him to bring the action. Fourth. Allege facts showing that the will is a live will, by allegations showing that it has never been revoked or canceled, either by act of the testator, or by operation of law. Fifth. Allege that the will has not yet been proved or admitted to probate. II Where the will sought to be established is lost or fraudulently destroyed, the allegations should be substantially as follows: First. Allege the execution of the will, describing it, stating facts suf- ficient as to the manner and circumstances of its execution as would be necessary in a petition for its probate in a Surrogate's Court. Second. Give the name of the testator, allege his residence at the time of execution, and the fact of his death, giving date and place. Third. Allege the interest of the plaintiff in the establishment of the will and his rights or claims thereunder. Fourth. Allege concisely the facts as to the loss" or fraudulent destruc- tion of the will. The words in subd. 1 of § 1861, "has been lost or de- stroyed by accident or design," are covered by the phrase "fraudulently destroyed," for the destruction of the will without the testator's consent or direction is, as to the testator, fraudulent, within the meaning of the statute whether such destruction were by accident or design. It is proper to add to this paragraph of the complaint a positive allega- tion, that the will was not in fact revoked, canceled or annulled, by any act of the testator or by operation of law. Fifth. Allege the failure to prove or to offer to prove the said will on the part of the executor claimed to have been named therein. The prayer for relief in either of these complaints will demand judgment that the will alleged in the complaint be established and proved as the last will of the testator named, and that the will be admitted to probate as a will of real or personal property or both. It is not essential that the prayer for relief should pray for the issuance of letters testamentary, for § 1863 provides that the final judgment estab- hshing the will must, in a proper case, direct that an exemplified copy thereof be transmitted to the Surrogate having jurisdiction and be recorded in his office, and further that letters testamentary or letters of administra- tion with the will annexed be issued thereupon from the Surrogate's Court 464 surrogates' courts in the same manner and with Uke effect as upon a will duly proved in that court, but it is usual to insert in the prayer such a request, naming the ex- ecutors to whom letters are prayed to be issued, and particularly if there is uncertainty as to the executor's name in the alleged lost or destroyed will, in which case the plaintiff may ask for letters of administration with the will annexed and should pray for their issuance " to the plaintiff or to the person entitled thereto." See fost, part IV, ch. II, § 473. § 462. Judgment. — The provision, as to the form and contents of the judgment establishing the will, is contained in § 1862, which is as follows; If, in such an action, the facts necessary to establish the validity of the will, as prescribed in the last section, are satisfactorily proved, final judgment must be rendered, establishing the will accordingly. But where the will of a person, who was a resident of the state at the time of his death, is established as pre- scribed in the last section, the judgment establishing it does not affect the construction or validity of any provision contained therein; and such a ques- tion arising with respect to any provision, must be determined in the same action, or in another action or a special proceeding, as the case requires, as if the will was executed within the state. § 1862, Code Civil Proc. Where the parties to the action, who have appeared or have been duly summoned, include all the persons, who would be necessary parties to a special proceeding, in a Surrogate's Court for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have hem proved in a surrogate's court; the final judgment, rendered as prescribed in the last section, must direct, that an exemplified copy thereof be transmitted to the Surrogate having jurisdiction, and be recorded in his office; and that let- ters testamentary, or -letters of administration with the will annexed, be issued thereupon from this court, in the same manner, and with Uke effect, as upon a wiU duly proved in that court. § 1863, Code Civil Proc. A copy of the will so established, or, if it is lost or destroyed, the substance thereof, must be incorporated into a final judgment, rendered as prescribed in the last section; and the Surrogate must record the same, and issue letters thereupon, as directed in the judgment. § 1864, Code Civil Proc. § 463. Action for construction of a will relating to real property.— It will have been noted under § 1862, that the judgment establishing a will in an action brought under § 1861, does not affect the construction or validity of any provision contained in the will, and that such questions with respect to the disposing provisions of the will must be determined, (a) In the same action, or, (b) In another action or special proceeding as the case requires "as if the will was executed within the State." Section 1866 contains the provisions of the Code whereunder to secure the interpreting of wills relating to real estate to determine whether pro- visions therein are vaUd or invalid, and to determine also the nature and extent of the interest in the property thereby devised which various par- ties interested would take if the devise is sucessfully impeached. The sec- tion is as follows-' ESTABLISHING WILL BY ACTION 465 The validity, construction or effect, under the laws of the state, of a testa^ mentary disposition of real property situated within the state, or of an in- terest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed, purporting to convey land, may be determined. The judg- ment in such an action may perpetually enjoin any party, from setting up or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires. But this section does not apply to a case, where the question in controversy is determined by the decree of the Surrogate's Court, duly rendered upon allegations for that pur- pose, as prescribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited, in the special proceeding in the Surro- gate's Court, before the commencement of the action. § 1866, Code Civil Proc. This section, it has been held, extends the remedy previously provided for the construction of wills so as to include suits for the construction of devises in behalf of heirs claiming adversely to a will. Read v. Williams, 125 N. Y. 566. And the Court of Appeals in the case last cited held that it would not be consistent with the spirit of the legislation embodied in this section, to narrow the jurisdiction in cases of bequests of personalty. Judge Andrews remarks at page 566: " The jurisdiction of a court of equity to entertain an action in behalf of the next of kin of a testator for the construction of a will disposing of per- sonal estate where the disposition made by the testator is claimed to be invalid or inoperative for any cause was asserted by the chancellor in Bowers v. Smith, 10 Paige, 200, and was maintained in Wager v. Wager, 89 N. Y. 161, and in Holland v. Alcock, 108 N. Y. 312. And he adds: "In such cases the next of kin claim in hostility to the will, but the ex- ecutors, in case the disposition made by the testator is invalid or cannot take effect, hold the personalty upon a resulting trust for those entitled under the Statute of Distribution, and thereby the jurisdiction to bring an equitable action for construction and to have the resulting trust declared by the court attaches as incident to the jurisdiction of equity over trusts." § 464. Who may bring action. — ^The power to construe devises is not inherently vested in courts of equity as a distinct and independent branch of jurisdiction, only as incident to their jurisdiction over trusts. Mellen v. Mellen, 139 N. Y. 210, citing Bowers v. Smith, 10 Paige, 193; Monarque v. Monarque, 80 N. Y. 320; Wager v. Wager, 89 N. Y. 128; Kalish v. Kalish, 166 N. Y. 368, 371, citing Brady v. McCosker, 1 N. Y. 214; Read v. Wil- liams, 125 N. Y. 560; Voshally. Clark, 123 App. Div. 136. ,A, a testamentary trustee, died. His executor, becoming possessed of the trust fund, was held entitled to bring an action to construe the will creating the trust, in which action direction of court could be secured as to his proper disposition of the fund. Leggett v. Stevens, 185 N. Y. 70. The cases of Chipman v. Montgomery, 63 N. Y. 221, and Horton v. Cant- well, 108 N. Y. 255, in which the right to bring the action was denied, were cases where the plaintiffs had no interest in the property disposed of by the 30 466 BtJRROGATBS' COUKTS ::H' will, whether the clauses challenged were valid or invalid. Section 1866 of the Code has been repeatedly declared to enlarge the previous powers of the courts. Sections 1$66 and 1867 now furnish the whole statutory law upon the subject of which they treat. Anderson v. Anderson, 112 N. Y. 104, 111. In the case last cited, Judge Peckham draws a helpful distinction. He points out that where the Code provides for an inquiry into the question of the proper execution of the testamentary instrument by a competent tes- tator, i. e., for an inquiry into the factum of the will, the court describes the instrument as a "will," but, when the validity of the will, etc., separate from the instrument which creates it, is alone to be inquired into, "the tes- tamentary disposition of real property " is the expression used. PART IV LETTERS AND BONDS CHAPTER I LETTERS TESTAMENTARY § 465. Executors. — An executor is he to whom another man commits by will the execution of his last will and testament. 2 Bl. Comm. 494. Usually every will designates some one or more persons to whom the testa- tor entrusts the carrying into effect of his testamentary desire; and papers have been upheld as wills and deemed entitled to probate which have ; merely named an executor without making any disposition of property whatever. See 19 Am. & Eng. Encyclopedia of Law 178; Matter of Davis, 45 Misc. 306, aff'd 182 N. Y. 465. But the mere failure to designate any ex- ecutor in a will does not affect the validity of the will; for, as will be seen below, the court has power to grant letters of administration with the will annexed. Blackstone's definition may be modified to read : " An executor is he who, nominated by a testator to carry out his will, receives from a court of probate jurisdiction letters of authority so to act." For the testamentary act is statutory. It differs from a vested property right. Hence the testator is limited by law as to substance, form, benefi- ciaries even. So, while the courts respect testamentary wishes as to choice of an executor, the statutory rules will override them if they conflict. And, if testator names one whom the statute says is not competent, let- ters will be denied; or, if inadvisedly granted, they will be revoked. Mat- ter of Davis, supra. So, in Matter of Avery, 45 Misc. 529, a foreign trust company, named in a will, was held incompetent to receive letters. See opinion. § 466. Powers of executor prior to letters. — The authority of the ex- ecutor is derived from the will, and not from the letters testamentary, issued by the Surrogate. Hartnett v. Wandell, 60 N. Y. 346, 350. The letters give him his status and ratify the testator's selection. And the Code provides: "No executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the tes- tator except to pay funeral charges, nor to interfere with such estate in any 467 468 surrogates' courts manner further than is necessary for its preservation." 3 R. S. 71, § 16, and Code Civ. Proc. § 2613, in part; Matter of Marcellus, 165 N. Y. 68, 77. § 1 12 of the Decedent Estate Law reads : ' ' Executors de son tokt abol- ished: No person shall be liable to an action as executor of his own wrong, for having received, taken or interfered with, the property or effects of a deceased person; but shall be responsible as a wrongdoer in the proper action to the executors or special administrators of such deceased persons, for the value of any property or effects so taken or received, and for all damages caused by his acts, to the estate of the deceased.' ' The letters are merely the authenticated evidence of the power conferred by the will and are founded upon the probate of that instrument. The Code section just quoted does not affect the character of the office or detract from the efficacy of the will as the source of his power; the executor derives his office from the testamentary appointment as an administrator derives his from the appointment of the Surrogate. Hartnett v. Wandell, 60 N. Y. at p. 350, citing 1 Williams on Executors, 239. Since the interest of the executor in the estate is derived from the will itself, the subsequent issuance of letters relates back to the time of the testator's death. Pearsall v. El- mer, 5 Redf. 181, 186, Calvin, Surr., citing Willard on Executors, 147. See also Humbert v. Wurster, 22 Hun, 405; People v. Commissioners, 31 Hun, 235, 237, citing Matter of Greeley's Will, 15 Abb. N. S. 395; Valmtine v. Jackson, 9 Wendell, 302; Williams on Executors, 239; Dayton on Execu- tors, 232; Priest v. Watkins, 2 Hill, 225; Ex parte Faulkner, 7 Hill, 181; Vroom V. Van Home, 10 Paige, 549, 559. The section above cited does not prohibit such possession of the property under the will as may be necessary for its safety until the probate of the will, but merely inhibits the exercise of any power of disposition over the estate or any interference with the estate. But, if it were necessary, for example, to take actual possession of the personal estate for its protection in any respect, the executors would be justified in doing it as the legal effect of their appointment, in the absence of any proof showing their intention not to act or qualify as executors. People V. Commissioners, supra', opinion of Brady, J., at page 237. See also Van Schaack v. Saunders, 32 Hun, 515, 520. It has, however, been held (Matter of Flandrow, 28 Hun, 279, Daniels, J.), that the statute deprives a person named as executor in a will from so acting as to become the repre- sentative of the deceased person. In this case a special administrator had been appointed, pending the issuance of letters testamentary or of adminis- tration. In such a case, of course, for the time being, the person named in the will as executor would have no right to interfere in any manner with the estate, for the purpose of the statute is obviated by the appointment of the temporary administrator. It has been held, where the testator was a partner at the time of his decease and the partnership agreement provided for an election by the surviving partner within a given time after the de- cease of the other partner within which to acquire title by purchase of the interest left by his deceased partner in the firm property, that, in case the will should not have been probated and letters issued within the LETTERS TESTAMENTARY 469 period limited by the partnership agreement, the executors named in the will of the deceased partner had the power to accept the offer, or to take security for its performance, by virtue of their appointment under the will, and that such an act would be for the preservation of the estate of the decedent, within the meaning of § 2613 of the Code. Hull v. Cartledge, 18 App. Div. 54, 61, 62, Bradley, J., citing People v. Commissioners, 31 Hun, 235; Hartnett v. Wandell, 60 N. Y. 350; Matter of Murray, 40 Misc. 433; People ex rel. Gould v. Barker, 150 N. Y. 52. So the Court of Appeals, in the case last cited, held that, for the purpose of an assessment for taxation on the personal estate of a decedent, such an estate was to be deemed in the possession and control of the person designated in the will as executor from the death of the decedent, and the court remarked, per O'Brien, J. : "The executor derives his appointment and his title to the estate from the will, though he is without any substantial power of disposition or ad- ministration until the probate court grants him authenticated evidence of his title and of his right in the form of letters testamentary upon proof of the will. "The will is the source of the executor's title and general powers. The letters testamentary, founded upon the probate of the will, do not create the executor nor confer title upon him, but are the authentic evidence of the power conferred by the will and which existed before they were granted. Hartnett v. Wandell, 60 N. Y. 346. The property of the testator is in the legal custody of the executor appointed by the will, before the probate, and he may exercise many of the powers of an owner over it. He cannot dispose of it, but he may take it into his manual possession for safekeeping. Van Schaack v. Saunders, 32 Hun, 515; Smith v. Northampton Bank, 4 Gush. 1. " In this case, after the death of the testator, no one had in fact or in law any possession or control of the personal estate except the relators. It consisted of certain securities which were deposited in a vault in the city to which they had access. They could exercise every power over the property that is conferred upon executors by the will or by law before probate and no one else could. The probate of the will and letters testamentary re- moved the prohibition of the statute against disposing of the property or interfering with it except for its preservation, but in all other respects the rights and powers of the relators were the same before as after the probate, though in some respects they may have been held in abeyance by force of the statute. The title, possession and control, which the deceased owner had, passed from him at the moment of his death, under and by virtue of the will, to the executors and beneficiaries. The temporary restrictions upon the power of disposition, imposed by the statute for the protection of the estate had no effect upon the actual possession and custody of the property. They had all the possession and control that was usual under such circum- stances and reasonably possible, considering the great magnitude of the esjate and the nature and character of the property. The possession and custody which the testator had was continued in the relators by force of his will for every purpose of taxation as well as protection. Any other conclu- 470 surrogates' courts sion would involve the anomaly that seventy millions of property could exist in full view of the commissioners without any power on their part to include it in the assessment rolls." See Matter of Brintnall, 40 Misc. 68; Heaton, Surr., and Matter of Murray, 40 Misc. 433, both cases of attack on executors for acts done pending letters. § 467. Executor acting before letters cannot later set aside his act un- less inequitable. — Where the act done before the issuing of letters by an executor or administrator is an equitable one, and done in good faith, such executor or administrator cannot, after qualifying, set aside the settlement or transaction on the mere ground of his own lack of power; it must clearly appear that the act was prejudicial to the estate. Conse- quently, where it was manifest that the settlement or adjustment was not attended by any fraud or deceit, and that it was equitable, and that the creditor obtained no more than was her due from the intestate under the contract had by such creditor with the intestate, the Appellate Division refused to allow the administratrix "to overhaul the settlement which she deliberately made without any fraud." Bennett v. Lyndon, 8 App. Div. 387, 389, Hardin, P. J., citing Vroom v. Van Home, 10 Paige, 549, 557; Priest V. Watkins, 2 Hill, 225. In Packard v. Dunfee, 119 App. Div. 599, before probate the one nominated as executor ill-advisedly indorsed a note "as executor." Held, he could not bind the estate, citing Schmittler v. Simon, 101 N. Y. 554. § 468. Letters testamentary. Where a will, which is admitted to probate, names one or more persons to be executor or executors thereof, upon a contingency, the surrogate must in- quire into the facts, and, if the contingency has happened, that fact must be recited in the decree. Immediately after a will has been admitted to probate, the person or persons named therein as executors, who are competent by law to serve, and who appear and qualify, are entitled to letters testamentary thereupon; unless, before the letters are granted, a creditor of the decedent, or a person interested in the estate, files an affidavit, specifying his demand, or how he is interested, and either setting forth specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and befieves that there are such objections, and that he intends to file a specific statement of the same. Where such an affidavit is filed, the surrogate must stay the granting of letters, at least thirty days, or until the matter is sooner disposed of. A specification or statement of an objection, made as prescribed in this section, must be verified by the oath of the objector, or his attorney, to the effect that he believes it to be true. § 2636, Code Civil Proc, The Surrogate, under the qualifications of this section, must issue letters testamentary to the persons named as executors; and, as appears from the wording of the section, if one or more persons are designated in the will or codicil to act upon a certain contingency, the Surrogate must before he issues letters be satisfied that the contingency has or has not happened. Inquiry on this point may be had before the Surrogate or before a referee LETTERS TESTAMENTARY 471 appointed for the purpose. The fact of the happening of the contingency will appear in the decree which fixes by express designation the persons who are entitled to letters. If it appear that the contingency named has happened, the Surrogate must issue letters to such person. The contin- gency that is quite frequently provided for in wills is to designate an execu- tor to act in case of the death of the person first named as executor. Where a testatoE appoints an executor and so provides that, in case of his death, another should be substituted, if it appear to have been the testa- tor's intention that the substitution should take place on the death of the original executor whether happening in the testator's lifetime or after- wards, the executor so substituted may be admitted to the office even though the original executor has proved the will and qualified. Dayton on Surrogates (3d ed.), p. 209; Matter of Cornell, 17 Misc. 468; Matter of Alexan- der, 16 Abb. Pr. N. S. 9 ; Hartnett v. Wandell, 60 N. Y. 346. § 469. Effect of appeal from probate decree. — Where appeal is taken from a decree admitting a will to probate or granting letters testamentary, the appeal does not stay the issuance of letters if, in the opinion of the Surrogate, manifested by an. order, the preservation of the estate requires that the letters should issue. See § 2582, quoted and discussed, ante, eh. 5, "Appeals"; Matter of Gihon, 48 App- Div. 598, and post, under temporary administration. We merely requote the language (discussed under " Appeals"); Letters, so issued, confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities' of an execu- tor .... in an ordinary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or to satisfy a legacy, or distribute the unbequeathed property of the decedent, until after the final determination of the appeal. § 2582, Code Civil Proc, in part. If letters actually issued before the appeal was taken the Surrogate may, by order, give the executor similar limited control, pending the appeal. § 470. Who entitled to letters. — Section 2636 provides that the person or persons named in a will, which has been admitted to probate, as execu- tors are entitled to letters testamentary, provided, first, that they be com- petent by law to serve; and second, that they appear and qualify. Any person is qualified to serve as executor who is not disqualified by the provisions of § 2612, which provides: No person is competent to serve as an executor who, at the time the will is proved, is: 1. Incapable in law of making a contract. 2. Under the age of twenty-one years. 3. An alien not an inhabitant of this state; or 4. Who shall have been convicted of an infamous crime; or 5. Who, on proof, is found by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding. If any such person be named as the sole executor 472 surrogates' courts in a will, or if all the persons named therein as executors be incompetent letters of administration with the will annexed must be issued as in the case of all of the executors renouncing. A surrogate, in his discretion, may refuse to grant letters testamentary or of administration to a person unable to read and write the English language. § 2612, Code Civil Proc. Under this section there have been few cases where a Surrogate has exercised his discretion in excluding a person named as executor or applying for letters for illiteracy; and it is a difficult question to determine just how far an inability to read or write would necessarily disqualify from perform- ing the duties of executor or administrator, and consequently the discre- tion of the Surrogate is largely invoked by such an application, particularly where the person applying for letters of administration is entitled under the statute; for the statute makes it the duty of the Surrogate to issue letters to persons in the order named therein if they are by law competent to serve. The general rule seems to be that every person is competent unless declared to be incompetent by statute, and that no new cause of disqualification may be added to those prescribed by statute. Where the widow of an intestate decedent applied for letters of administration, and the Surrogate found that she was unable to read or write the English language, that "her illiteracy was further burdened by a density hard to comprehend," and that she was unable even to count money, it was held that such a person was deficient in capacity to manage, or ability to per- form the duties that would be incumbent upon her, and that it was a proper case for her exclusion by the Surrogate. Matter of Haley, 21 Misc. 777, 779, Marcus, Surr. § 471. Same subject. — It seems hardly necessary to add that the one applying must identify himself with the one designated in the will. Yet such a case arose in Westchester County. Matter of Stikeman, 48 Misc. 156. Testator named as his executor a banking corporation. Later this corporation was merged in a "title guarantee and trust" company and went out of business. Held, this new company wa,s not the one in tes- tator's mind and could not receive letters. See § 473, below. § 472. Same subject. — So the appointment of a minor, or a person in- capable in law of making a contract, is void. Knox v. Nobel, 77 Hun, 230. So where objection is made to the appointment of an executor or adminis- trator on the ground of the existence of a disqualification specified in §§ 2612 or 2661, as the case may be, the courts in construing the statute have determined that not every degree and grade of vice or defects men- tioned will disqualify. See below. In Matter of Avery, 45 Misc. 529, letters were inadvisedly issued to a foreign trust company, and revoked on discovery of the fact. In Emerson v. Bowers, 14 N. Y. 449, the Court of Appeals says: "All departures in conduct from the principles of rectitude, including all abuses of trust, are unwise and inexpedient, and, therefore, in a certain sense improvident, but they do not constitute the kind of improvidence which the legislature had in view in these enactments; a very careful, shrewd LETTERS TESTAMENTARY 473 and moneymaking person may be guilty of negligence or abuse in a fidu- ciary capacity, but such a person is not improvident in the sense of the sti^'tute; the words with which the term is associated, 'drunkenness/ 'want of understanding/ are of some importance in arriving at its true construction; the term evidently refers to habits of mind and conduct which become a part of the man and render him generally and under all ordinary circumstances unfit for the trust or employment in question." In case of Coope v. Lowerre, 1 Barb. Ch. 45, it appeared that the applicant had shortly before applied for a discharge under the Insolvent Act; that he was grossly negligent in the management of his property and affairs, and in contracting debts, and in indorsing for parties without responsibility; that he had had a verdict against him in an action for seduction, and other serious imputations were made against his moral character; but the chancellor, upon appeal from the decision of the Surrogate appointing the applicant, held that no degree of moral guilt or delinquency would be sufficient to exclude him, unless he had been actually convicted of crime. This case is cited and approved in Emerson v. Bowers. In Matter of Raynor, 48 Misc. 325, Belford, Surr., held that the pardon of one, convicted of an infamous crime, removed the disability. He cites Matter of Deming, 10 Johns. 232: "The effect of the pardon was to acquit the offender of all the penalties annexed to the conviction, and to give him a new credit and capacity." See other cases in opinion. It has been held that vicious con- duct, improper and dishonest acquisitions of property, and even loose "habits of business, did not constitute "improvidence" within the meaning of the statute; nor the fact that the petitioner was indebted to the estate. Cogge- shall V. Green, 9 Hun, 471. Improvidence and lack of understanding, in order to disqualify, must amount to a lack of intelligence. Shilton's Estate, 1 Tucker, 73. Habits of intemperance do not disqualify unless they amount to habitual drunkenness in the legal sense of the term. Elmer v. Kechele, 1 Redf. 472; Matter of Manley, 12 Misc. 472, 474, Davie, Surr. §473. The word "executor" not essential. — To entitle a person to qualify as executor he need not be so described in the will. It is not necessary, that the appointment should nam.e a person in so many words as executor of the will, but any provision in the will showing that the testator intended that the duties of executor should be discharged by the person named is sufficient to constitute such person an executor according to the tenor thereof, and to entitle him to letters testamentary thereon. Matter of Blancan, 4 Redf. 151, Calvin, Surr. In this case the will was substantially as follows: "Wishing to give to my husband a proof of my sincere affection I constitute him my general and universal legatee, and I dispense with his giving security for the possession of my property in which he shall have only a life interest." It appeared that the will was executed in France and that by the use of the words, " general and universal legatee," the law of France devolved upon such a legatee both the rights and duties of an executor, and the Surrogate held that it was manifest from the wording of the will that the testatrix intended her husband to perform the 474 SURROGATES COURTS duties of executor because she dispensed with his giving security for the estate, showing conclusively that she contemplated and intended that he should have the possession, control and management thereof. So "in another case (Ex parte McDonnell, 2 Bradf. 32) Judge Bradford held where the brother of a testator was directed by the will to convert the property into cash, to invest the proceeds and transmit the interest to the testator's father, that this was a sufficient designation of the brother as executor and that the use of the word "executor" was not essential to the appointment and that letters testamentary should issue. See also fia; parte McCormick, 2 Bradf. 170. It is not necessary that the testator should designate his executor or executors by particular names so long as his designation is sufficiently definite to be capable of being made certain. Thus, in Matter of Hardy, 2 Dem. 91, the Surrogate of Kings County up- held a designation appointing "The trustees for the time being of Magnolia Lodge No. 166, Independent Order of Odd Fellows to be executors of this my last will and testament." All that is necessary in such case is that the Surrogate be able to ascertain who are the persons corresponding to the designation. In the case cited, the practice indicated was that the persons constituting the trustees for the time being of the society named, should make written application; for letters upon which the Surrogate could take proof in the premises, and having ascertained that they were the persons claimed, letters were issued accordingly. Surrogate Rollins expressed a doubt (Stolzel v. Cruikshank, 4 Dem. 352) as to the effect of the designa- tion of a sole executor in a codicil to a will which in turn named an in- dependent sole executor. The will having been proved, the Surrogate declined to withhold the issuance of letters testamentary to the executor named in the will on the ground that the codicil might never be proved, but intimated a doubt as to whether in case of its probate and the issuance of letters to the person named in such codicil the functions of the executor already qualified would cease or whether both executors would act jointly. See cases cited in opinion. § 474. Oath of executor.— By the word "qualify" used in § 2636 ("ex- ecutors who appear and qualify") is meant the taking of the oflScial oath required by law. This oath must be filed with the Surrogate before letters are issued. The character of the oath is prescribed by the Code. The official oath or affirmation of an executor, administrator, or guardian, to the effect that he wiU well, faithfully and honestly discharge the duties of his office, describing it, must be filed with the surrogate before letters are issued to him. The oath may be taken before any officer, within or without the state, who is authorized to take an affidavit, to be used in the supreme court. Where it is taken without the State, it must be certified as required by law, with respect to an affidavit to be used in the supreme court. § 2694, Code Civil Proc. LETTERS TESTAMENTARY 475 Surrogate's Court, County of Oath of executor. In the Matter of the Probate of a paper writing pur-porting to be the Last Will and Testament of Deceased. County, I I, of the of County of Execut named in the last will and testament of late of the of County of deceased, do solemnly swear and declare that I will well, honestly and faithfully discharge the duties of Execut of said last will and testament according to law. Sworn to before me this day of 19 (Post-office address.) There is a time specified, see § 488 below, within which executors must qualify just as there is, for example, in the ease of testamentary guard- ians, who are directed to qualify within thirty days, unless for good cause their time be extended to 3 months by the Surrogate. In the case of such an officer, he must qualify within the time limited or extended or he will be deemed to have renounced the appointment under § 2852. And accordingly it was held by Ransom, Surr., that where the appoint- ment of a testamentary guardian was conditioned to take effect upon the happening of a certain contingency, such as the attaining by a per- son named of his majority, the 30 days or 3 months would begin to run from the date of the happening of the contingency. Matter of Constan- tine, 5 N. Y. Supp. 554. It is important that executors should qualify as promptly as possible. And it may be said to be their duty, in cases of contests which appear to promise a long deferring of the issuing of letters testamentary, to secure the appointment of a temporary administrator. This rule is suggested for the reason that contracts may be extant made by the deceased under which his representative may be required to do some particular act within a time therein specified. This is particularly true in regard to policies of insurance under which a loss may occur at any time. For the courts have most strictly upheld the rights of the insurer to hold the assured to the terms of the contract of insurance in respect of the time within which proofs of loss must be submitted. And the court will not write into the contract of insurance where the time is limited from the occurrence of the fire such words as, "vrithin sixty days," or whatever the time may be, "after letters testamentary are issued." There is no ques- tion, however, that an executor would have the power (and his exercise thereof would be upheld by the courts) if he presumed to act although letters have not been issued, in furnishing necessary proofs of loss under a policy of fire insurance. The rule in such a case would seem to be as follows: 476 surrogates' courts First. To make an application for letters of temporary administration. Second. If they are granted, promptly to file proofs of loss in his capacity as temporary administrator. Third. If his application is denied, he should assume. the responsi- bility of furnishing proofs under his qualified power under § 2613 to pre- serve and protect the estate and the interest of creditors, legatees and all others whom by the will he is designated to represent. See Matthews v. American Central Insurance Co., 9 App. Div. 339, opinion of Green, J., at page 344. § 475. Renunciation. — A person named in a will as executor may be perfectly competent to serve but cannot be compelled to serve. Pro- vision is made by the Code in this connection as follows: A person, named as executor in a will, may renounce the appointment by an instrument in writing, signed by him, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or attested by one or more witnesses, and proved to the satisfaction of the surrogate. Such a renunciation may be retracted by a like instrument, at any time before letters testamentary, or letters of administration with the will annexed, have been issued to any other person in his place : or, after they have been so issued, if they have been revoked, or the person to whom they were issued has died, or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made, letters testamentary may, in the discretion of the surrogate, be issued to the person making it. An instrument specified in this section must be filed and recorded in the surrogate's office. § 2639, Code Civil Proc This section is clear. But it has been held that an oral remmciation made in open court, and in person, by the executor is valid, and cannot be orally recalled. Matter of Baldwin, 27 App. Div. 506, 509. If he changes his mind he must petition the Surrogate for leave to retract. Ibid. The Surrogate is permitted to exercise his discretion in issuing letters to an ex- ecutor who has renounced but revoked his renunciation. The rule is a sound and just one and enables the Surrogate to consider in determining whether a person so renouncing and retracting his renunciation is a fit per- son to administer the estate regardless of the disqualifications imposed by § 2612. So where a widow of testator was 70 years of age, had twice been stricken with paralysis, was bedridden, and obliged to expend large sums of money for medical care and physicians' attendance, the Surrogate held that it would be an improper exercise of his discretion to place her as execu- trix in charge of a large estate involving railroad, banking, and real estate interests, after she had once renounced. Matter of Cornell, 17 Misc. 468, 471, Betts, Surr. § 476. Renunciation not a resignation. — The renunciation contem- plated by § 2639 is a renunciation of the appointment and not of the office. That is to say, one named in a will as executor may file a formal document of renunciation waiving the right to administer the estate and dechne to receive letters testamentary. LETTERS TESTAMENTARY 477 The following precedents amplify the text: Court. Renunciation by Tifip executor. I, of the of New York, Execut appointed in and by the Last Will and Testament of late of the of County of Erie, New York, deceased, do hereby renounce said appointment and all right and claim to letters testamentary of and under said Last Will and Testament, or to act as Execut thereof. Dated this day of 19 2 Witnesses. Person renouncing to sign here. Acknowledgment. Note. This is affidavit of identification required in Erie State of New York, ) County and seems County of Erie. ps.: (iVote.) re 'SrXXonr^'^ °^ ^^^ ''°''''*^ °^ ^^^ ^°*' ''^'"^ M Th" R ^^^^ sworn deposes and says that he is well acquainted with nunciation must be the person mentioned in the foregoing Renunciation, acknowledged or ^^'^ "^^^^ ^ manner and style of handwriting, having often proved, and certified seen h write, and that deponent verily beheves that the in like manner as a signature purporting to be the signature of the aforesaid per- deed to be recorded son signed to the said Renunciation, is the true and genuine in the county, or handwriting and signature of the aforesaid person, attested by one or (Note.) more witnesses and g^orn to before me, this ) proved to the satis- ^ ^^ ^g } faction of the Sur- rogate by affidavit. If taken before an ' ofiicer residing in an- Person making affidavit to sign here, other county, attach certificate of county clerk. Officer taking affidavit to sign here. Retraction of a Renunciation. Court. Title. I of the city of New York, one of the executors named and appointed in and by the last will and testament Note. Where the of late of the city of New York, deceased, (note) do right to administer hereby retract the Renunciation of my said appointment, and has been renounced, of the right and claim to letters testamentary on said will or 478 surrogates' courts the retraction should of administration, as the case may he), and the right to act as specify the relation- one of the executors thereof, which was by me made and ac- ship and priority of knowledged on the day of 19 and filed in right of the one ^j^e office of the Surrogate of county; and pray retracing. ^j^^^ letters testamentary {or letters of administration) may be granted to me, according to law, as one of such executors thereof. (Date.) (Signature.) This retraction must be acknowledged or proved and certified in like manner as a deed to be recorded in the county, or attested and proved to the satisfaction of the Surrogate by affidavit. (Procure county clerk's certificate when necessary.) § 477. Resignation contrasted with renunciation.^^But once letters have been issued and an executor has qualified, the only way in which he can be relieved of the duties of the office is by a resignation which must be acted upon by the Surrogate. The word resignation is here used in the sense of an appfication by an executor for a revocation of his letters under § 2689 hereinbelow discussed, for it has been held that an executor or ad- ministrator has no power to resign. Matter of Curtiss, 9 App. Div. 285, 295, aff'g 15 Misc. 545, upon opinions of Silkman, Surr. So in the case of Tilden v. Fiske, 4 Dem. 357, Judge Rollins held that, where a will pro- vided for the filling of vacancies that might be caused by death, neglect to qualify, disqualification, resignation or removal, that thie resignation con- templated was practically the qualified right which any executor has to the revocation of his letters upon compliance with the statute under §§ 2689 and 2690, Code Civ. Proc. There is no other way in which an executor can be relieved of the duties of his office. It is manifest that this is the mean- ing of the Code because of the provision that the renunciation allowed by § 2639 might be retracted any time before letters testamentary or letters of administration with the will annexed shall have been issued to any other person in his place, or where after they have been so issued they have been revoked, or the incumbent has died and there is no other acting executor or administrator. Surrogate Rollins declared, in the Matter of Suarez, 3 Dem. 164, 1.67, .that in no reported case had the right to retract a renuncia- tion been recognized by the courts save where the retractor had renounced absolutely, that is, had rejected his title of executor and refused to take and receive letters, citing Jvdson v. Gibbons, 5 Wend. 224; Robertson v. Mc- Geoch, 11 Paige, 640. Therefore one who has become invested with the office of executor cannot renounce the appointment. Matter of Suarez, supra. Moreover, one who has resigned and been discharged cannot re- tract his resignation. Matter of Beakes, 5 Dem. 128. It appears, therefore, that the ren,unciation must be made before the issuance of letters; resigna- tion may only be made after qualifying. Resignation may not be re- tracted, renunciation may be retracted in one of the cases provided for in § 2639, Code Civ. Proc. (Note that a retraction of renunciation must be executed with the same formality as the renunciation itself.) , So where LETTERS TESTAMENTARY 479 there were two executors named in a will and before letters were issued one renounced and thfe other qualified, and the latter was subsequently re- moved for cause, it was properly held that the former executor could re- tract his renunciation and ask for letters. Codding v. Newman, 63 N. Y. 639. But leave of the court must be obtained to retract a renunciation. Matter of Treadwell, 37 Misc. 584; Matter of Haug, 29 Misc. 36; Matter of Clute, 37 Misc. 710. The Surrogate has discretion to grant or withhold his permission. Matter of Cornell, 75 N. Y. St. Rep. 664; Matter of Baldwin, 27 App. Div. 506; Matter of Sanford, 100 App. Div. 479. The renunciation is thus a mere waiver, subject to a legal right of retraction at any time prior to rights having vested on the faith of, it. Casey v. Gardiner, 4 Bradf. 13; Matter of Wilson, 92 Hun, 318, 322. When one renounces and then asks leave to retract, the Surrogate in his discretion may take all the circum- stances into consideration, and is not limited, in refusing his consent, to the existence of statutory reasons for refusing letters. Thus, where A re- nounced, and coincidently assigned all his interest in the estate to B, it was held the Surrogate might decline to grant him leave to retract and take let- ters. Matter of Clute, 37 Misc. 710. On the other hand, revocation of letters completely terminates the functions of the executor. In such case he can- not be rehabilitated. The decree of revocation must be regarded as conclu- sive and final, unless obtained fraudulently or on some other ground which would warrant the court in setting aside or vacating it. Thus, where there were two executors named in a will and one alone qualified and was subse- quently adjudged to be a lunatic, whereupon the Surrogate made a decree revoking his letters, after which the second executor applied for letters which were accordingly issued to him, held, that although it subsequently appeared that the former executor had regained his sanity and had been judicially declared sane, there was no power in the Surrogate to reappoint this executor, and that even in case the executor then acting should for any reason cease to act, the only proper practice would be to have an adminis- tration with the will annexed. Matter of Bearing, 4 Dem. 81. The rule being that where letters have once been revoked the appointment of the executor ceases to exist just as completely as if he had never been named by the testator. So, if one of several refuses to act, the will should be read as if only those qualifying were named in it. In Draper v. Montgomery, 108 App. Div. 63, the will named three executors and trustees and the- power of sale was to them " and to any two of them. " Two renounced and refused to act! A deed by the only one who qualified was rejected as in- sufficient to give title. On an agreed statement the court held the deed good under § 2642 of the Code, which provides, in case of neglect of execu- tors or trustees to qualify, that "all sales, mortgages and leases, under said powers, made by the executors who shall qualify, shall be equally vahd, as if the other executor or trustees had joined in such sale. " Smith, Surr., says of the will, "there is no clearly indicated intention to make inap- plicable the provisions of § 2642. § 478. Executor need not be named in the will. — A will need not nee- 480 surrogates' courts essarily designate an executor by name; it may authorize someone desig- nated in the will to select an executor, in which case the procedure to be followed is distinctly regulated by the Code. Where the will contains a valid power, authorizing the selection, as executor thereof, of a person not named therein, the selection must be made, by the person appointed for that purpose, within thirty days after making the decree admitting the will to probate; in default whereof, the power of selection is deemed to have been renounced. Sjich selection must be made by an instru- ment in writing, designating the person selected, signed by the proper person, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or proved to the satisfaction of the surrogate, and filed in the surrogate's office. Where the will authorizes the person, so to be se- lected, to act with the executor or executors named therein, the issuing of letters must be delayed until the expiration of the period, fixed in this section for the exercise of the power of selection, and, if the selection is so made, for five days thereafter. § 2640, Code Civil Proc. The dictum of the Court of Appeals in Hartnett v. Wandell, 60 N. Y. 346, at page 356, that, where a testator constituted his wife executrix and re- quested, " that such male friend as she may desire shall be appointed with her as executor," she could take no measures for the designation and com- missioning of a coexecutor until she had qualified as executrix, must be deemed to be superseded by the language of § 2640, which regardless of the persons by whom the designation must be made prohibits the issuing of letters until the expiration of thirty days within which the selection is re- quired to be made. The opinion of Judge Grover at page 357 (in which Judge Folger joined), pointed out the danger in such cases before the Code, that the selecting of an executor under a power after the will had been pro- bated and other executors had quahfied, took away from those who other- wise might have a right to object to the qualifications of the persons so selected; this is completely met by the following provision: Within five days after a selection is made, as prescribed in the last section, any person may file an affidavit, verified as prescribed in section 2636 of this act, showing that he is a creditor of the decedent, or a person interested in the estate, and setting forth specifically one or more legal objections to grant- ing letters to the person selected. The proceedings to be taken thereupon are the same as prescribed in sections 2637 and 2638 of this act. If letters are not issued to the person so selected, the power of selection is deemed to be exhausted. § 2641, Code Civil Proc. § 479. Objections. — It has already been noted in § 2636 that a creditor of the decedent or a person interested in the estate may before letters tes- tamentary are 'granted file an affidavit specifying his demands or how he is interested in the estate, and either setting forth specifically one or more legal objections to granting letters to one or more of the executors, or stat- ing that he is advised and believes that there are such objections and that he intends to file a specific statement of the same. It will have been noted LETTERS TESTAMENTARY 481 that the provisions of § 2641 as to objections which may be filed to a per- son designated under a power are identical with these and they may be considered together. In the first place, any party interested may file such objections. Ferris's Estate, 1 Tucker, 15. But whether he be a creditor or a party interested, he must satisfy the Surrogate as to the particulars of his claim or the nature of his interest as the Surrogate is entitled to determine the question of in- terest in advance of passing on the objections. Burwell v. Shaw, 2 Bradf. 322. The objections must be specific, must state some legal reason why letters should not issue, such as that the person named in the will or desig- nated under the power is a minor, or non compos mentis, or an alien, or a nonresident, or has been convicted of an infamous crime, or is an habitual drunkard, or so dishonest, ignorant or improvident as to be incapable of executing the trust, or that his circumstances are such that they do not afford adequate security for the creditors or persons interested in the es- tate for the due administration of the estate. The affidavit whether con- taining the objections or a statement that the objector is advised and be- lieves that there are such objections, must be verified by the oath of the objector or his attorney to the effect that he beheves it to be true. § 2636, Code Civ. Proc. The effect of the filing of this affidavit is to stay the grant- ing of letters for at least 30 days or until the proceedings initiated by the affidavit are disposed of. The following precedents explain themselves: Surrogate's Court, County of Affidavit of inten- q^.,, ) tion to file objec- ' j tions against grant gtate of New York ) of letters. county of \ ^■'^ of the city of being duly sworn, says: I. I am (state relationship to decedent) whose last will and testament was, on the day of 19 duly ad- mitted to probate by the Surrogate of the county of and of which said will is named one of the executors. II. I am a legatee under the said last will (or say I am a creditor of the said decedent, or if a person interested state na- Note. Section 2636 m t to bp verified *'"''s "/ *w The Surrogate may inquire, in the case of executors, whether they are performing any testamentary trusts, and whether, in such case, their func- tions as executors and as trustees are separable and distinct. As testamen- tary trustees their right to resign is covered by other sections of the Code. § 2814, Code Civ. Proc; TiMm v. Fiske, 4 Dem. 357, 359. See Part VII, post. They are, it is true, by virtue of § 2819, entitled to obtain relief in both capacities by instituting a single proceeding for that purpose. But the courts have maintained a distinction between the relations to the estate administered of a trustee and of a mere administrator; they have shown more reluctance to release an executor or a trustee named by a testator, than to release an appointee of the Surrogate himself. The considerations stated by Rollins, Surr., in the Tilden case, 4 Dem. 357, illustrate the atti- tude of a careful Surrogate in this respect. Weight will be given to objec- tions to such discharge on the part of the cestuis que trustent. Baier v. Baier, 4 Dem. 162; Tilden v. Fiske, supra. In the case first cited the Surro- gate decUned to sustain as sufficient the reason that petitioner was "too busy with her own private matters, and no longer desired to be busied" with the trust. In the other case where the petitioner had for many years discharged every duty of the trust with fidelity, prudence and thorough- ness, and was about to remove his residence to another country, the re- quest for discharge was granted, even against the beneficiaries' desire. One who never was legally constituted an executor, as, for example, one who never actually qualified or received letters, has not the standing which entitles him to apply to a Surrogate for leave to resign. Matter of Richard- son, 8 Misc. 140, 142. Such a one is merely an executor de son tort, and sub- ject to all the consequences flowing from that relation. Ibid. The Surro- gate has not even power to remove him from an office he never legally held. 688 surrogates' courts The liability of such persons is defined by § 2706, which provides for holding them accountable for the full value of all property held or attempted to be administered by them, to every person entitled thereto; and they are by the same section prohibited from retaining or deducting, upon so accounting, any debt due them from the testator or intestate. § 670. One who has qualified and seeks discharge must proceed under §§ 2689, 2690. — ^These sections provide not only ample procedure but an exclusive procedure. An executor who has received letters cannot se- cure a discharge by renunciation. Renunciation and retraction of renun- ciation are by their very nature assumed to take place before letters are granted. Matter of Suarez, 3 Dem. 164. One who has exercised at any time the functions of executor loses thereby the right to renounce. Ihid., and cases cited. Moreover, a resignation acted upon by the Surrogate under §§ 2689 and 2690 cannot, after the discharge of the resigning executor, be retracted. Matter of Beakes, 5 Dem. 128, 130. § 671. Revocation of letters, as of course, without petition or cita- tion. — There are cases in which it is made the duty of the Surrogate to re- voke letters testamentary or of administration, upon the occurrence of the facts or conditions specified in § 2691 of the Code. That section is as fol- lows: In either of the following cases, the surrogate must make a decree, revoking letters testamentary or letters of administration, issued from his court, without a petition or the issuing of a citation: 1. Where the person, to whom the letters were issued, is not a resident of the state, or is absent therefrom; and, upon being duly cited to alccount, neglects to appear upon the return of the citation, without showing a satisfactory ex- cuse therefor; and the surrogate has not sufficient reason to believe that such an excuse can be made. 2. Where a citation, issued to such a person, in a case prescribed by law, ■cannot be personally served upon him, by reason of his having absconded or concealed himself. 3. Where, by reason of his default in returning an inventory, such a person has remained, for thirty days, committed to jail, under the surrogate's order, granted in proceedings taken as prescribed in § 2715 of this act. 4. In the case of a temporary administrator, where an order has been made :and served, as prescribed in § 2679 of this act, directing him to deposit money, or show cause why a warrant of attachment should not issue against him; and a warrant of attachment, issued thereupon, has been returned not served upon him. § 2691, Code Civil Proc. This power of summary removal vested in the Surrogate enables him to protect estates which are being administered by persons who have proved themselves unamenable to the Surrogate's authority. There is no occasion in such cases for the delay of proceedings to revoke the letters. The facts upon which he may act are brought to his notice directly, and require no additional proof beyond the afladavit of failure to serve the citation or REVOCATION OF LETTERS, ETC. warrant as the case may be. Under subd. 1 the Surrogate takes no- tice of the default of the person cited to account, upon the return day. Under subd. 2 he will doubtless require an affidavit setting forth the facts, in substance, sufficient to warrant the inference that the respondent has absconded or concealed himself. A verified petition alleging that re- spondent " has absconded and is a fugitive from justice " was held sufficient. Sutherland v. St Lawrence County, 42 Misc. 38, 44. Under subd. 3 no dif- ficulty can present itself. Under subd. 4 no prejudice can be wrought to the temporary administrator for the original order under § 2679 must have been duly served, so that his failure to attend and show cause which oc- casions the issuance of the warrant leaves him without ground of complaint. §672. Effect of revoking letters of one of two or more executors or ad- ministrators. Remaining executors may act, where letters of one revoked. Where one of two or more executors or administrators dies, or becomes a lunatic, or is convicted of an infamous offence, or becomes otherwise in- capable of discharging the trust reposed in him ; or where letters are revoked with respect to one of them, a successor to the person, whose letters are re- voked, shall not be appointed, except where such an appointment is neces- sary, in order to comply with the express terms of a will; but the others may proceed and complete the administration of the estate, pursuant to the letters, and may continue any action or special proceeding, brought by or against all. § 2692, Code Civil Proc. This section expressly prohibits the appointment of a successor to one of several executors or administrators, upon the revocation of his letters, unless such appointment is required by the express terms of a will. Hood v. Hayward, 124 N. Y. 1, 10. If not so required, it is only when all the executors or administrators die or become incapacitated, or the letters of all of them are revoked, that letters will be granted to one or more persons as their successors. Ibid. See also § 2693, Code Civ. Proc. 44 CHAPTER X BONDS OF EXECUTORS, ADMINISTEATOKS, ETC. § 673. Representative's bond. — Some representatives must before re- ceiving letters give a bond conditioned in a given sum, with proper security, for the faithful performance of the trust. Others need not do so, either before or after letters, except in the precise cases covered by law. The several classes are treated in the following sections. § 674. Bond of executor. — In 1867, Surrogate Tucker, in a case where a testator by his will directed his executors therein named to give security in the sum of $1,000, declared, that there was no provision in the statute under which he could require or receive a bond from executors to the people, as it neither appeared that there was any objection made to the executors by any person in interest, nor did it appear that the circumstances of the executor were such as not to afford adequate security for due administra- tion, but he had a perfect right to withhold letters testamentary until a bond should be given by the person applying for them conditioned to the legatees by name, in the penalty designated by the will, for the payment of all legacies and bequests and for the due administration of the estate. This decision seems to regulate the form of security which can be required where, under the will, the executor is required to give a bond. Matter of Shipman, 53 Hun, 511, 515. So Judge Barrett, after distinguishing executors from testamentary trustees, observed: "There is no rule of law or requirement of public policy which, under such circumstances (to wit: the circumstances of an ordinary executorship pure and simple) and in the absence, as matter of fact, of any necessity, authorizes the court to require security from the executor." In this case the Surrogate had required an executor as a con- dition of retaining the corpus of the estate to give security to protect the remaindermen, and in default of giving such bond to deposit the entire fund with the chamberlain. The court further declared, " It seems quite plain to us that this part of the decree was without authority. The Surro- gate thereby attached to the executorial office a condition imposed neither by law nor by the testatrix. The Surrogate's power is limited to the revocation of the letters testamentary for one of the causes specified in § 2685 of the Code of Civil Procedure." Where objections are filed to one or more persons named as executors in a will under § 2636 of the Code, and it appears upon the ensuing ex- amination into the facts by the Surrogate, that the objection is legal and sufficient, then, under § 2688 of the Code already discussed, the person named as executor may still entitle himself to letters under the will by giving a bond. These cases are two, . 690 BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 691 (1) Where the objection is, that his circumstances are such that they do not afford adequate security to the creditors or the persons interested in the estate for the due administration of the estate. (2) Where the objection is, that he is not a resident of the State and he is a citizen of the United States. See People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339, 347. In this latter case, however, if the person objected to has an office for the regular transaction of his business in person within the State and the will contained an express provision that he may act without giving se- curity, he is entitled to letters without giving a bond. Section 2638 of the Code. § 675. Same subject. — When proceedings have been initiated to revoke the letters of an executor upon the ground that his circumstances are such that they do not afford adequate security to the creditors or persons interested for the due administration of the estate, the Surrogate may, under § 2687 of the Code, dismiss the proceedings upon the executor giv- ing, within a reasonable time, not to exceed five days, a bond as pre- scribed in art. 1 of title 3. § 676. When bond required before letters. — When the occasion exists for requiring a bond of an executor, if the will contains explicit provision for a bond and specifies the amount thereof, the Surrogate is without dis- cretion and the will of the testator controls; the bond in such a case is, as has been stated, to the legatees, and not to the people. If the provision in the will as to a bond is or becomes onerous, while the Surrogate is probably without power to reduce the penalty of the bond except as hereinafter shown, the executor may either renounce, or resign if he has qualified, and the administrator with the will annexed can be required only to give the reasonable bond conditioned upon the amount of the property which constitutes the estate to be by him administered. But where either of the conditions mentioned in the first section exist- or occur, then the bond must be of the character and amount indicated in art. 1 of title 3, that is to say, the bond is to the people and is similar as to its form to that prescribed by § 2664 for an administrator. The language of the Code in this connection is as follows: An executor from whom a bond is required as prescribed in this article, or an administrator with the will annexed, must, before letters are issued to him, qualify as prescribed by law with respect tc an administrator upon the estate of an intestate and the provisions of article fourth of this title (which includes section 2664), with respect to the bond to be given by the administrator of an intestate apply to a bond given pursuant to this section; except that in fixing the "penalty thereof, the surrogate must take into consideration the value of the real property or of the proceeds thereof which may come to the hands of the executor or administrator (with the will annexed) by virtue of any provision contained in the will. § 2645, Code Civil Proc. See Holmes v. Cock, 2 Barb. Ch. 426. It must be borne in mind that the property which by its amount determines the penalty of the bond must be 692 surrogates' courts property, to the actual possession of which the decedent was entitled as the legal owner thereof; thus, where it was alleged that a decedent had divested himself of legal title in his lifetime, the transfer being procured by fraud, it was held by Surrogate CoflSn {Peck v. Peck, 3 Dem. 548, 551), that the Surrogate's Court being unable to try the question involved, the property so transferred, whether by fraud or otherwise during the decedent's lifetime, could not be taken into account in fixing the penalty of the bond. § 677. Reducing penalty of bond. — Whertf an executor is required to give security there is no provision in the Code for reducing the penalty of the bond from the full amount required by law as in the case of an administra- tor even upon consent of the legatees (see Estate of Weeks, 1 Civ. Proc. Rep. 164, referring to administrator's bond and equally applicable to executor's bond), except in the case provided for by § 2595, which is as follows: Deposit of securities to red/uce ■penalty of bond. In a case where a bond, or new sureties to a bond, may be required by a surrogate from an executor, administrator, guardian or other trustee, if the value of the estate or fund is so great, that the surrogate deems it inexpedient to require security in the full amount prescribed by law, he may direct that any securities for the payment of money, belonging to the estate or fund, be deposited with him, to be delivered to the county treasurer, or be deposited, subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive the same. After such a deposit has been made, the surrogate may fix the amount of the bond, with respect to the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no person, other than the county treasurer or the proper officer of the trust company, shall receive or collect any of the principal or interest secured thereby, without the special order of the surrogate, entered in the appropriate book. Such an order can be made in favor of the trustee appointed, only where an additional bond has been given by him, or upon proof that the estate or fund has been so reduced, by payments or otherwise, that the penalty of the bond originally given, will be sufficient in amoimt, to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund. § 2595, Code Civil Proc. In this connection must be noted Rule 15 of the rules of the Surrogate's Court of the county of New York, which is as follows : "The deposit of securities for the payment of money belonging to an estate or fund, as provided in section 2595 of the Code of Civil Procedure, for the purpose of reducing the bond of an executor, administrator or other trustee, shall be made, under the order of the Surrogate, in the United States Trust Company, the New York Life Insurance and Trust Company, Farmers' Loan and Trust Company, the Union Trust Company, the Mercantile Trust Com- pany, the Central Trust Company of New York, State Trust Company, or BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 693 Knickerbocker Trust Company, subject to the order of the trustee, to be coun- tersigned by the Surrogate, or the special order of the Surrogate, and not otherwise." In another connection under § 2678 we have noted that the depositary is jyro hac vice, an officer of the court, and if it pay out money in disregard of the safeguard of countersignature or special order, it may be joined in any proceeding against the representative and his surety, to establish or defend the legality of the payments. Matter of Rothschild, 109 App. Div. 546. The depositary is therefore entitled to compensation for faithful custody. Matter of Butman, 130 App. Div. 156. § 678. The procedure: precedents. Surrogate's Court, County of Petition for leave .pj+|g to deposit securi- ties to reduce pen- The petition of as executor under the last will alty of bond, under g^^^ testament of late of deceased, re- J Z696, t. C. P. spectf uUy shows to this court and alleges : I. That he is (one of) the executors named in the last will and testament of late of deceased, which was duly admitted to probate by the Surrogate of the county of on the day of and letters testa- mentary upon said will were duly granted to your petitioner, who has since continued to act thereunder. II. That such proceedings have been had in this court at the instance of (describe status of applicant) as that your petitioner has been directed by the Surrogate to give a bond conditioned for the faithful discharge of the trust re- posed in your petitioner as such executor, and for his obe- dience to all lawful decrees and orders of the Surrogate's Court touching the administration of the estate committed to him. III. Your petitioner further shows, that the estate com- mitted to him under the said last will and testament con- sists of the following property: (a) Of the personal property of which the decedent died possessed, consisting of stocks, bonds, goods and chattels, enumerated in schedule A hereto annexed and hereby re- ferred to as fully as if incorporated at length herein. (6) Of certain rights or causes of action granted to your petitioner as executor by special provision of law as set forth in schedule B hereto annexed and hereby referred to as fully as if incorporated at length herein. (c) Of real property the value of which or of the proceeds whereof may come to the hands of your petitioner as executor by virtue of provisions contained in the said will is set forth in schedule C hereto annexed and hereby referred to as fully as if incorporated at length herein (note). 694 surrogates' courts Note. Where the IV. Your petitioner further shows that as appears from application for the schedule A, hereto annexed, the value of stocks, bonds or reduction of the other securities for the payment of money to be administered bond is made prior j^y y^^yj, petitioner is upwards of thousand dollars, to the issuance of ^^^ ^j^^^ ^^ would be onerous for your petitioner to give letters, the allega- ^^^^^ -^^ ^j^^ f^y amount prescribed by law. tions respecting the „^ •' „ ,.^. , j- j. . , reduction of the pen- Wherefore, your petitioner prays for a direction of the alty of the bond need court that the securities for the payment of money enu- not be set forth in merated in schedule A as aforesaid and belonging to the a separate petition estate or fund, be deposited with a trust company but incorporated in duly authorized by law {or in N. Y. Co., designatec^ by Rule the application for 15 of this court) to receive the same, subject to the order of letters, and the alle- yom- petitioner, countersigned by the Surrogate of this county gations of t (c) may ^^^ ^^ deposited with the said Surrogate to be delivered to be changed, viz. ^j^^ county treasurer), and your petitioner further prays that . the Surrogate may fix the amount of the bond to be given or may yet come , ° . . •' . , , , ., , , ,, . into the hands " etc. "y y°™ petitioner with respect to the value of the remain- der only of the estate to be by him administered amounting to thousand dollars. (Signature.) (Verification.) Surrogate's Court Caption. Present: Hon. Surrogate. Title. I Order directing ) deposit of securi- On reading and filing the petition of as executor ties, under § 2595, under the last will and testament of deceased, veri- *'• ^* ^' fied the day of 19 and the schedules thereto annexed and made a part thereof by reference thereto, whereby it appears that the value of the estate is so great that the Surrogate deems it inexpedient to require security in the full amount prescribed by law, and whereby it further appears that said estate to the amount of about thousand dollars consists of securities for the payment of money. Now, oh motion of of counsel for the said as executor, it is Ordered, that the following securities be deposited with (here designate a trust company duly authorized by law to re- ceive the same, noting in New York County the provisions of. Rule 15, and in the oiUlying counties noting the provision 0} section 2595 permitting their deposit with the Surrogate to be delivered to the county treasurer) duly authorized by law to receive the same subject to the order of the said ^ executor, etc., duly countersigned by the Surrogate {or where deposit is made with the Surrogate to be delivered to the BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 695 county treasurer, say, subject to the further order and direc- tion of the Surrogate) ; and it is Further Ordered, that the securities thus deposited shall not be withdrawn from the custody of the said trust company {or of the county treasurer) and no person other than the said trust company by its proper oflScer (m- the county Note. It the pen- treasurer) shall receive or collect any of the principal or in- alty of the bond is terest secured thereby without the further and special order sufficiently large at ^f ^j^g Surrogate (note); and it is the^time that order further Ordered, that after such deposit has been made said . . ' i J. as executor shall execute and file a bond with two or to inGorporate a di'- - . . . , rection whereunder ™°''® sureties m the penal sum of thousand dollars the income of the (^^^ specify sum twice the value of the remainder of the estate securities may be "^ shown by the allegations of the petition and schedules after collected by the ex- deducting the securities to he deposited)- conditioned that the ecutor or collected said executor will faithfully discharge the trust reposed in by the trust com- him as such, and obey all lawful decrees and orders of the pany -aad paid- -to gujjogate's-Gourt touching the administration of the estate the executor without committed to him. further special di- /-«!;„„„+„,« \ ,. /,, „ (bignature.) rection of the Sur- °_ rogate. Surrogate. Where such a deposit is made the securities accompanied by a certified copy of the Surrogate's order should be delivered to the trust company and a formal receipt required of such company by the executor, specifying the several securities and acknowledged through the proper officer of the com- pany as a corporate deed is required to be acknowledged. This receipt, with proper copies of the papers in the proceeding, will serve as a formal voucher of the securities therein described until the accounting and decree of distribution. § 679. Form of bond. — The following official form of the Westchester Surrogate's Office can be adapted for use by executors, administrators, administrators with the will annexed, administrator de bonis nan, tempo- rary administrators and ancillary administrators. Know all Men by these Presents, that the Note. Or, in a are held and firmly bound unto (note) The People of the proper case, to the State op New York in the sum of dollars, lawful legatees and persons money of the United States of America, to be paid to the said interested under the people ; to which payment well and truly to be made, we bind will of deceased, ourselves, our and each of our heirs, executors and ad- ministrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of one thousand nine hundred and The condition of this obligation is such, that if the above boimden above to be appointed of the of 696 surrogates' courts late of deceased, shall faithfully execute the trust reposed in as administrat of all and singu- lar the goods, chattels and credits of said deceased, and obey all lawful decrees and orders of the Surrogate's Court of the County of New York touching the administra- tion of the estate committed to then this obligation to be void, else to remain in full force and virtue. Sealed and delivered in presence of i§ ° f^^ 3 m m -+3 j3 fe CO £ gj t. is OJ c^ 1; Ph ^ CQ If r^ - I --H I !• § .s - and foster parents. J Agreement made the day of by and between residing at (and re- siding at ) of the one part, hereinafter called the foster parents, and {here specify the parents of the child if legitimate, or the mother of the child if illegitimate, un- 740 surrogates' courts less the consent be unnecessary under the exceptions specified in section 3 above) (or, if the child has no father or mother living or whose consent is necessary then insert the name of a person Note. If the child of full age having lawful custody of the child). Note. has no father or Whereas the said foster parents are desirous of adopting, mother Uving and pursuant to the provisions of the Domestic Relations Law, a no person can be (fe) male child of the age of years, and to treat such found who has the c^ild as (his, her or) their own lawful child, and to extend to lawful custody of ^^^.j^ ^yj^ ^^jj ^^^ benefits, privileges and rights contemplated the child, it would , , , , , ^.u J f-u by such statute. ment should be mlde Whereas said parties of the second part approve of and with the child itself consent to said contemplated adoption of said minor: as the party of the Now, in consideration of the premises, the said parties second part. hereby mutually covenant, agree and consent as follows; that is to say : First. The said foster parents hereby covenant and agree and each of them for himself and herself hereby covenants and agrees to adopt and treat the said minor as his, her, or their, own lawful child, hereby extending and assur- ing to such minor all rights, benefits and privileges incident to such relation; and hereby severally assume and engage to fulfill all the responsibilities and duties of parents in respect to such minor. Second. And the said parties of the second part hereby consent (and each of them for himself and herself hereby consents) to such adoption, and covenants and agrees to acquiesce therein and to refrain from doing or causing to be Note. Note the *^°'^® ^''^ ^^^ '^^ thing whatsoever inconsistent or in any way provisions of section interfering with the rights, privileges or duties of such child 62 as to the written when adopted. consent of parent, In Witness Whereof the parties hereto have severally person or institution set their hands and seals the day and year first above written, having legal custody In presence of of the minor when Surrogate. nonresident or lo- c;„„o+,„„= « ~ ... ,, bignatures, e. g. cated in some other ■, i^ a ■.■• ,f . ,n , . . John Smith (foster parent), state or county. t i- » n ■ , ,^ Care should be taken ^"^^ ^^ S™*^ (^o^^"^ parent). as to county clerk's Charles Peters (Smith) (the adopted minor in case he is certificate and all over twelve years of age), the formalities re- Or David Peters and Maria Peters (parents), quired in the cer- Timothy Wells (person having lawful custody of- child, tification of convey- Note. Bi^oea, (Acknowledgment by aE before Surrogate.) ADOPTION 741 Surrogate's Court, County of Statement as to Title. age of minor child under section 62, State of New York, Domestic Relations County of ^^* being duly sworn deposes and says : That he is well acquainted with the minor child above Note. The Sur- named {state relationship of affiant if any to said minor) ; and rogate may supple- deponent further says on information and belief that said ment this affidavit (.yid ^^s born on about the day of 19 by further examina- j • „ c f and IS now years of age; or say: ,} ,. And deponent further says: That he has made diligent mg before him, par- . . ^ ^ . , .... , ., , , ^ , ticularlv if the aee '^l^'^y to ascertam the age of said minor child and as nearly of the infant approx- ^^ *^^ same can be ascertained such age is years imates twelve years, ^^^ months. (Here state source of deponent's in- in order to determine formation and belief, such as inquiry from the mother if any, whether or not the or from relatives.) consent of the child Sworn to before me, this to the adoption is day of 19 necessary. (jy^oie.) Surrogate's Court, County of Order under sec- In the Matter of the Adoption ) tion 63 of Domestic of a minor, by > Relations Law. and Foster Parents. ) Where petition is filed, recite the fact, and the papers presented therewith. If none is required then say, e. g. A and B, the foster parents above named having personally appeared before me and been examined in pursuance to the provisions of an act relating to the domestic relations con- stituting chapter 14 of the Consolidated Laws, and having presented to me an instrument containing substantially the consents required by said act, an agreement on the part of the foster parent (or parents) to adopt and treat said minor as (his, her, or) their own child, together with the statement of the age of such child as nearly as the same can be ascer- tained; and said instrument having been signed by said foster parents and by each person whose consent is necessary to the adoption, and severally acknowledged by said persons be- Note. If the child fore me (note) (excepting the consent of the person having has no father or legal custody of said minor residing at Philadelphia in the mother living and State of Pennsylvania, which consent was presented to me no person can be in writing, duly acknowledged and certified as conveyances foimd who has the a,re required to be certified to entitle them to record in any thl^chi ""' dte twf *'°"''*^ °^ *^'^ ^^""^^ ' . ^ ? ' , '^ ' ^ ' ^^'^ ^* appearing to my satisfaction from the examination had by me into the premises, that the moral and temporal 742 surrogates' courts interests of the child will be promoted thereby, because of the following reasons : (here recite the reasons, as fm emmple that the child is a foundling and likely to become otherwise a charge upon the county, or that the parents have aban- doned the child, or have been judicially deprived of the child on account of cruelty or neglect, or that the parents are indigent and unable to care for the child, or any other suffieient reason), it is Ordered and Adjudged that said adoption of said by and the said foster parents, be and the same is hereby in all respects allowed and confirmed, and it is hereby Further Ordered and Directed that said minor shall here- after be regarded and treated in all respects as the child of said and foster parents, with all the rights and privileges conferred by law. Surrogate. This order with the instrument and consent must be filed and recorded in the office of the county clerk. § 724. Adoption a statutory proceeding. — Care must be taken to follow the statute exactly. Matter of Thome, 155 N. Y. 140; Matter of Mac Roe, 189 N. Y. 142. From and after the 1st of October, 1896, when the Domes- tic Relations Law first went into effect, no child could or can be adopted " except in pursuance thereof." Section 60, now § 110. There is absolutely no method of adoption, now in this State, other than by statute, whereby a right of inheritance may be established. Carroll v. Collins, 6 App. Div. 106. The prior act governing adoptions (ch. 830, Laws of 1873) legalized all adoptions theretofore made pursuant to any method practiced in the State. See Hill v. Nye^ 17 Hun, 457; Simmons v. Burrell, 8 Misc. 388 (exhaustive discussion of prior practice as to adoption) ; Dodin v. Dodin, 17 Misc. 35, aff'd 16 App. Div. 42. § 725. Effect of adoption. — As to the effect on rights of both the foster parent and the adopted child, the statute provides by § 114: Effect of adoption. Thereafter the parents of the minor are relieved from all parental diUies toward, and of all responsibility for, and have no rights over such child, or to his property by descent or succession. Hence, if a second adoption be had, the natural parents thus ousted of all duty or right, need not be asked to consent in the new proceeding. Matter of Mac Rae, 189 N. Y. 142. Where a parent who has procured a divorce, or a surviving parent, having lawful custody of a child, lawfully marries again, or where an adult unmarried person who has become a foster parent and has lawful custody of a child, marries, and such parent or foster parent consents that the person, who thus becomes the stepfather or the stepmother of such child, may adopt such child, ADOPTION 743 such parent or such foster parent, so consenting, shall not thereby be relieved of any of his or her parental duties toward, or be deprived of any of his or her rights over said child, or to his property by descent or succession. The child takes the name of the foster parent. His rights of inheritance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the minor sustain toward each other the legal relation of parent and child and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other, except as the same is affected by the provisions in this section in rela- tion to adoption by a stepfather or stepmother, and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen. See note following Godine v. Kidd, 29 Abb. N. C. 37, at p. 49 (S. C, 64 Hun, 585), on the effect of adoption of children on law of succession. And Brantingham v. Huff, 174 N. Y. 53. In Matter of Hopkins, 43 Misc. 464, A left residuary to B, but if B died childless then to his surviving brothers and sisters. One of the latter died before time of distribution leaving adopted child C. Held C had no interest under A's will. See Matter of Cook, 187 N. Y. 253 as to 1% transfer tax on legacy to such child or its issue. The act of 1896, as the act of 1873, only applies to adoption made after its passage. Hill v. Nye, 17 Hun, 457. The child may enforce an agreement, made at the time of adoption, by the parent to make it his sole heir. Brantingham v. Huff, 43 App. Div. 414. This was reversed in 174 N. Y. 53, on the ground that the agreement sued on was oral, hence merged in a later written one, silent on this point. And though the agreement of adoption contains no recital thereof it may be proved by parol. Ibid. See also Winne v. Winne, 166 N. Y. 263, 270. But agreements with decedents stand on a special footing. They must be established clearly and convincingly. If in writing, the proof is easy. But if not, the claimant must prove there was an agreement, and every substantial fact thereof. And in such respects the court should require disinterested corroboration. Hamlin v. Stevens, 177 N. Y. 39, and cases examined. Also Rosseau v. Bouss, 180 N. Y. 116; Holt v. Tuite, 188 N. Y. 17. So a parol agreement to support, educate and maintain a child and give it a natural child's share in the adopted parent's estate will be specifi- cally enforced where there is performance sufficient to take it out of the Statute of Frauds. Healy v. Healy, 55 App. Div. 315. An adopted child shares with the natural children in the proceeds of a policy of insurance on the father's Ufe payable to the wife or her children, if the wife die before the husband. This right is not aflected by the fact that the policy had been issued before the child was adopted. Von Beck v. Thomson, 44 App. Div. 373. 744 surrogates' courts § 726. Transfer tax. — An adopted child has the same privileges under the Collateral Inheritance Tax as the lawful progeny of the testator. Matter of Cook, 187 N. Y. 253. This has been held even in the case of a child adopted under the laws of another State. Matter of BuUer, 58 Hun, 400. In this case, however, it appeared that the adoption proceedings in the adjoining State, Massachusetts, were substantially "in conformity with" the proceedings required by the law of this State; moreover, the decedent stood in the mutually acknowledged relation of a parent to the adopted child for over eleven years prior to his death. The Law relating to Taxable Transfers (see separate chapter, fost) contains the provision grouping with father, mother, husband, wife, child, brother, sister, etc., "any child or children adopted as such in conformity with the laws of the State of New York, or any person to whom the dece- dent for not less than ten years prior to death, stood in the mutually acknowledged relation of a parent." The Surrogate has power to pass upon the question whether a person claiming exemption under this part of the statute sustains the relation of an adopted child. See Matter of Comim, 9 App.'^Div. 492, holding that a Surrogate on a proceeding to compel the filing of an inventory, may investigate whether the petitioner's claim to be an adopted daughter is true. What facts will constitute sufficient proof that the decedent stood in the mutually acknowledged relation of a parent to the person interested, depends upon reasonable rules. Thus in a care- fully reasoned case by the Surrogate of Madison County {Spencer's Estate, 4 N. Y. Supp. 395), it was held that the legatee was entitled to exemption where it appeared that she had Uved with the testatrix, her aunt, for nearly twenty-eight years; that she had sustained to her a filial relation, "heeding and respecting her aunt's desires, confiding in her judgment, shaping her life and character under her control and influence, doing all that a child could have done for her comfort and happiness." In this case it was shown that the legatee had uniformly addressed the decedent as "Auntie," and never as "Mother," nor was she ever called "Daughter," but it also appeared that her father was living and that she had " sacrificed her home with her father in order to cheer the home of her aunt." The learned Surrogate says, in his opinion at p. 396, "the word home im- plies, 'the existence of parental relations,' and we cannot doubt (they) understood that in this exchange of homes, parental relations were to exist between them. That parental anxiety and solicitude would ever after be the duty of the aged [aunt] while she lived." The fact was also held to be material, that at no time had there been any suggestion or claim between the decedent and the legatee as to payment for her services. This case further substantially held that for the purpose of the Collateral Inheritance Tax there is a distinction between child and children, adopted as such in conformity with the laws of the State of New York and a person to whom the decedent stood in the mutually acknowledged relation of a .parent; as to the latter it was held that such acknowledgment may be established by any mode of proof which would satisfy the court, i. e., by ADOPTION 745 an agreement in writing, or any verbal declarations, or statements in public, or to each other, or by evidence of life, acts and conduct of the parties. See also Matter of Butler, 58 Hun, 400. § 727. Adoption from charitable institutions. An orphan asylum or charitable institution, incorporated for the care of orphan, friendless or destitute children, may place children for adoption, and the adoption of every such child shall, when practicable, be given to persons of the same religious faith as the parents of such child. The adoption shall be effected by the execution of an instrument containing substantially the same provisions as the instrument provided in this article for voluntary adop- tion, signed and sealed in the corporate name of such corporation by the officer or officers authorized by the directors thereof to sign the corporate name to such instruments, and signed by the foster parents or parent and each per- son whose consent is necessary to the adoption; and may be signed by the child, if over twelve years of age, all of whom shall appear before the (county judge or) surrogate of the county where such foster parents reside and be examined, except that such officers need not appear; and such (judge or) surrogate may thereupon make the order of adoption provided by this article. Such instru- ment and order shall be filed and recorded in the office of the county clerk of the county where the foster parent resides and the adoption shall take effect from the time of filing and recording. § 115, Dom. Rel. Law. § 728. Residence of foster parents. — The language of the statute seems to intimate by the words, " county judge or Surrogate of the county where such foster parent resides," that the intent of the statute is at least im- pliedly to exclude nonresidents of the State from those entitled to exercise the act of adopting under its provisions. No such hmitation is imposed by the words of § 110 which defines who are entitled to adopt a minor in pursuance of art. 7. While, of course, if the intent of the act was clear, a reason for the act might be found in the advantages to be gained from the permanent super- vision by the Surrogate having jurisdiction over the first proceedings, over the future interests of the child adopted, yet this is not a sufficient reason on which to base the assertion of a rule which might work a good deal of hardship. The word "residence" has been variously interpreted according to the circumstances of particular cases. See Cinn., H. & D. R. R. v. Ives, 20 N. Y. St. Rep. 67. See definitions in opinion. Anderson's Dictionary of Law says: "Reside .... may import temporary sojourn or permanent domicil." It has been held in some connections that there must be a settled fixed abode and intention to remain permanently at least for a time for business or other purposes. Matter of Austin, 13 App. Div. 247, 249, citing Frost v. Brisbin, 19 Wend. 11; Matter of Thompson, 1 Wend. 45; Bartlett v. Mayor, 5 Sandf. 44; Douglas v. Mayor, 2 Duer, 110. The word "permanently" in such a connection is used as the converse of transient. " It expresses the idea of an abode, which may be temporary, but is not transient; that is, an abode where one settles down with some 746 subrogates' courts business or other object which requires it, and with the intention of re- inaining steadily in the place until the object is accomplished." Ibid., at p. 249. For the purpose, therefore, of this act, nonresident parents (in prospectu) can acquire a residence temporary, but not transient, with the object of accompUshing the voluntary adoption of an infant within the State of New York, and an adoption had under the act whereby such nonresidents be- come foster parents would undoubtedly be sustained provided the circum- stances were such that the Surrogate is satisfied that the interests of the child will be furthered by the adoption. There seems to be no case bearing directly on this point in the New York Reports. There is a Pennsylvania case (Sankey's Case, 4 County Court Reports, 624), where an order of adoption was made on petition of one alleging that he was a resident of San Francisco, California, but temporarily resident in Williamsport, Pennsylvania, and that as such latter resident he was desirous of adopt- ing, etc. An adoption having been had in compliance with the statute in other regards, a motion was subsequently made that the decree be vacated, on the ground that the petitioner was not properly a resident of the county in which the decree was made. The court denied the application and held distinctly, that the statute contemplated a temporary as well as a perma- nent residence; that it did not require a residence for any specific time nor a residence amounting to citizenship. This decision was affirmed by the Supreme Court in Matter of Wolf's Appeal, 22 W. N. C. 93. The reasoning of this decision appears sound, and it would seem that in such a case in our courts, it would merely be incumbent upon the Surrogate to inquire more narrowly into the facts required to satisfy him under § 63, that the moral and temporal interests of the child will be promoted by such adop- tion. Naturally in such a case the practitioner will be careful to inquire into -the laws of the State of the permanent residence of the foster parents, so that the necessary confirmatory proceedings may be there taken to secure to the child its rights of inheritance in that State. 'By ch. 264 of the Laws of 1898 (vol. 1, p. 780), the legislature by an act entitled, "An act to prevent Evils and Abuses in connection with the placing out of Children," provided that destitute children (i. e., an orphan, abandoned, or destitute minor, under the age of sixteen years, who is an inmate of a public or private charitable institution, or is maintained by or dependent upon public or organized charity), should not be placed out by any person or corporation other than a charitable or benevolent in- stitution, society or association, or society for the prevention of cruelty to children duly incorporated under the laws of the State, or by a local officer charged with the relief of the poor, and placing out in the manner now provided by law, unless such person or corporation should he duly licensed under this act to place out destitute children. The term "place out" is defined as meaning the "placing of a destitute child in a family other than that of a relative within the second degree ADOPTION 747 for the purpose of providing a home for such child." The following limi- tation is contained in § 2 of the act: "Nor shall any local officer charged with the reUef of the poor, directly, or indirectly, place out any child or children into a family not residing within the State." So far, therefore, as such local officers are concerned, they are restricted to dealings with resident families. In view of the obvious purposes of the act, which is evidenced in § 5 relating to visitation of children so placed out by the State Board of Charities, it is doubtful whether the rules above discussed re- lating to persons acquiring a temporary residence here for the purpose of securing such an adoption, would be held applicable when children are "placed out." Chapter 264, L. 1898, however, does not even purport to relate to adoption, under the Domestic Relations Law. § 729. Abrogation of voluntary adoption. — A minor may be deprived of the rights of a voluntary adoption by the following proceedings only: The foster parents, the minor and the persons whose consent would be necessary to an original adoption, must appear before the county judge or surrogate of the county where the foster parent resides, who shall conduct an examination as for an original adoption. If he is satisfied that the abroga- tion of the adoption is desired by all parties concerned, and will be for the best interests of the minor, the foster parent, the minor, and the persons whose consent would have been necessary to an original adoption shall execute an agreement, whereby the foster parent and the minor agree to relinquish the relation of parent and child and all rights acquired by such adoption, and the parents or guardian of the child or the institution having the custody thereof, agree to reassume such relation. The judge or surrogate shall in- dorse, upon such agreement, his consent to the abrogation. The agreement and consent shall be filed and recorded in the office of the county clerk of the county where the foster parent resides, and a copy thereof filed and recorded in the office of the county clerk of the county where the parents or guardians reside, or such institution is located, if they reside, or such institution is located, within this state. From the time of the filing and recording thereof, the adoption shall be abrogated, and the child shall reassume its original name and the parents or guardians of the child shall reassume such relation. Such child, however, may be adopted directly from such foster parents by another person in the same manner as from parents, and .as if such foster parents were the parents of such child. § 116, Dom. Rel. Law. § 730. Application in behalf of child for the abrogation of an adoption from a charitable institution. A minor who shall have been adopted in pursuance of this chapter or of any act repealed thereby, from an orphan asylum or charitable institution, or any corporation which shall have been a party to the agreement by which the child was adopted, or any person on the behalf of such child, may make an application to the county judge or the surrogate's court of the county in which the foster parent then resides, for the abrogation of such adoption, on the ground of cruelty, misusage, refusal of necessary provisions or clothing, or inability to support, maintain or educate such child, or of any violation of duty on the part of such foster parent toward such child; which application 748 SURBOGATBS' COURTS shall be by si petition setting forth the grounds thereof, and verified by the person or some officer of the corporation making the same. A citation shall thereon be issued by such judge or surrogate in or out of such court, requiring such foster parent to show cause why the application should not be granted. The provisions of the Code of Civil Procedure relating to the issuing, con- tents, time and manner of service of citations issued out of a surrogate's court and to the hearing on the return thereof, and to enforcing the attendance of witnesses, and to all proceedings thereon, and to appeals from decrees of surrogates' courts, not inconsistent with this chapter, shall apply to such cita- tion, and to all proceedings thereon. Such judge or court shall have power to order or compel the production of the person of such minor. If on the proofs made by him, on the hearing on such citation, the judge or surrogate shall de- termine that either of the grounds for such appUcation exists, and that the in- terests of such child will be promoted by granting the application, and that such foster parent has justly forfeited his right to the custody and services of such minor, an order shall be made and entered abrogating the adoption, and thereon the status of such child shall be the same as if no proceedings had been had for the adoption thereof. After one such petition against a foster parent has been denied, a citation on subsequent petition against the same foster parent may be issued or re- fused in the discretion of the judge or surrogate to whom such subsequent petition shall be made. § 117, Dom. Rel. Law. It is held that this provision gives exclusive jurisdiction to the county judge or Surrogate to order the abrogation of the adoption, and as between the two the power to abrogate rests with the court which made the order. Matter of Trimm, 30 Misc. 493. And it was intimated in the same case that if the'one court made an order of abrogation from which no appeal was taken, it was improper for the other court subsequently to make a new order adopting the child to the same foster parents whose adoption of it had been abrogated because of their unfitness. § 731. Application by foster parent for the abrogation of such an adop- tion. A foster parent who shall have adopted a minor in pursuance of this chapter or of any act repealed thereby, from an orphan asylum or charitable institur tion, may apply to the county judge or surrogate's court of the county in which such foster parent resides, for the abrogation of such adoption on the ground of the wilful desertion of such child, from such foster parent, or of any misdemeanor or ill-behavior of such child, which application shall be by peti- tion, stating the grounds thereof, and the substance of the agreement of adoption, and shall be verified by the petitioner; and thereon a citation shall be issued by such judge or surrogate in or out of such coifft, directed to such child, and to the corporation which was a party to such adoption, or, if such corporation does not exist, to the superintendent of the poor of such county, requiring them to show cause why such petition should not be granted. Un- less such corporation shall appear on the return of such citation before the hearing thereon shall proceed, a special guardian shall be appointed by such judge or court to protect the interests of such child in such proceeding, and the foster parent shall pay to such special guardian such sums as the court ADOPTION 749 shall direct for the purpose of paying the fees and the necessary disbursements in preparing for and contesting such application on behalf of the child. If such judge or surrogate shall determine, on the proofs made before him, on the hearing of such citation, that the child has violated his duty toward such foster parent and that due regard to the interests of both require that such adoption be abrogated, an order shall be made and entered accordingly; and such judge or court may make any disposition of the child, which any court or officer shall then be authorized to make of vagrant, truant or disorderly children. If such judge or surrogate shall otherwise determine, an order shall be made and entered denying the petition. § 118, Dom. Rel. Law. § 732. Indenture of child as apprentice. — It is sometimes convenient where a child is in an incorporated, or charitable or reformatory or other institution to resort to the expedient of indenture by the commissioners under the Poor Law or in the city of New York under §§ 664 et seq., of the charter. Extended discussion of these laws is not necessary in this book as the Surrogate has no relation to the matter. See art. 8 of Dom. Rel. Law, entitled "Apprentices and Servants," being §§ 120-127 inclusive, of that law. See also People v. Weissenbach, 60 N. Y. 385. Attention may properly be called in this connection to §§211 and 215 of the Penal Code, which are important in this connection only as bearing upon the conducting of these proceedings in bad faith. It has been held {People V. Bloedel, 4 N. Y. Supp. 100), that precise compliance with the terms of such an act as this, is not essential to the validity of the proceed- ing unless so declared by the statute, and in the absence of bad faith a substantial compliance with the terms and intent of the law suffices to sustain the proceedings upon a subsequent attack. And Surrogates where the question comes up before them, as, for example, where the right of the adopted child to share in the parent's estate is put in issue, will undoubtedly follow this liberal rule of construction,, particularly where there is nothing in the circumstances of a suspicious character. This right to pass upon the status of the alleged adopted child is unquestionable. For example, where an alleged adopted daughter made an application to a Surrogate to compel the filing of an inventory, and her status as an adopted child was put in issue, the Appellate Division held {Matter of Comins, 9 App. Div. 492) that the Surrogate should inquire into the facts and determine her status before proceeding to make an order in the premises. PART VI ADMINISTRATION BY EXECUTOR AND ADMINISTRATOR CHAPTER I ASCERTAINING THE ESTATE § 733. How the estate to be administered is ascertained. — After letters have been issued to an executor or administrator, it becomes his duty to ascertain the character or amount of the estate which he is to administer. There are three proceedings in this connection to be noted. (o) Proceedings to discover property withheld. (&) Inventorying and appraisement of the estate, and (c) Proceedings for the appraisement of the estate with a view to fixing the transfer or succession tax. This latter is the subject of a separate chapter. If the existence of assets comes to his knowledge it is his duty to try to reduce them to possession, and if he does not do so he is chargeable with neglect of duty. Matter of Johnston, 60 Hun, 516; Matter of Millard, 2 Connoly, 91. Thus he is entitled to a savings bank deposit of his testator. If the pass book be lost he may nevertheless demand payment, and cannot be required to idemnify the bank as the book is not a negotiable instrument. Mills v. Alh. Exch. Sav. Bk., 28 Misc. 251, 253, and cases cited. He may be excusable, if in good faith he refrains from acting upon the reasonable belief that it would be useless to do so. Matter of Hall, 16 Misc. 174. See O'Connor v. Gifford, 117 N. Y. 275. But the onus is upon the executor to show a fair reason why he did not commence proceedings to collect a debt. O'Connor v. Gifford, 117 N. Y. 271, at p. 279. In Harrington v. Keteltas, 92 N. Y. 40, it was held that an executor, hearing of a debt due the estate was bound to active dihgence for its collection, and should not wait for a request from the distributees. An executor, accused of a devastavit in failing to collect in a debt, may show the absolute, irretrievable and hopeless in- solvency of the debtor (^O'Connor v. Gifford, supra), or such lack of legal proof as not to warrant his suing on the claim in the judgment of his counsel. Ibid. This duty is not confined to New York assets. It is the executor's duty to "seek for assets where they may be found." Estate of Stewart 750 ASCERTAINING THE ESTATE 751 Newell, 38 Misc. 563. Attention is called to the variorus provisions of Decedent Estate Law, ch. XIII of Consolidated Laws, in art. 4 relating to Executors, Administrators and Testamentary Trustees, especially in relation to actions by or against them on contract or in tort. See par- ticularly §§ 116, 117 and 118. § 734. Proceedings to discover property withheld. — But apart from actions by executors and administrators against debtors of their decedents, they are provided by the Code with a remedy, summary in its nature, to discover and to reduce to possession assets of their decedent. It is first provided: Every person becoming possessed of property of a testator or intestate, without being thereto duly authorized as executor or administrator, or with- out authority from the executor or administrator, is liable to account for the full value of such property to every person entitled thereto, and shall not be allowed to retain or deduct therefrom any debt due to him. § 2706, Code Civil Proc. In Koenig v. Wagener, 126 App. Div. 772, it was held, with two dissents, that the administrator of a deceased legatee, whose share had been di- rected to be paid by a decree which the defendant administrator had failed to perform, could sue on the decree in the Supreme Court for the amount. That § 1913, prohibiting actions on a judgment between "origi- nal parties" did not apply to the representatives of such parties, citing Smith V. Britton, 2 T. & C. 498; and that § 2706 did not afford any sum- mary or exclusive method that ousted the Supreme Court of jurisdiction. § 735. How to proceed to discover. — The provisions of the Code de- fining the procedure for this discovery of property withheld, are contained in §§ 2707 et seq. Section 2707 is as follows: An executor or administrator may present to the surrogate's court, from which letters were issued to him, a written petition duly verified, setting forth, on knowledge or information and belief, any facts tending to show that money or other personal property which should be delivered to the petitioner, or included in an inventory or appraisal, is in the possession, under the control or within the knowledge or information of a person who withholds the same from him; or who refuses to impart knowledge or information he may have concerning the same, or to disclose any other fact which will aid such executor or administrator in making discovery of such property, so that it cannot be inventoried or appraised; and praying an inquiry respecting it, and that the person complained of may be cited to attend the inquiry and be examined accordingly and to deliver the property if in his control (so amended in 1903). The petition may be accompanied with an affidavit or other evidence, written or oral, tending to support the allegations thereof. If the surrogate is satisfied, on the papers so presented, that there are reasonable grounds for the inquiry, he must issue a citation accordingly; which may be made returnable forthwith, or at a future time, fixed by the surrogate, and may be served at any time before the hearing. Where the person, or any of the persons, to be cited does not reside, or is not within the county of the surrogate, the citation, in the surrogate's discretion, may require him to appear at a specified time and place 752 subrogates' courts within the county where he resides or is served, before a judge, a justice of the peace, or a referee, designated in the citation, or before the surrogate of that county. § 2707, Code Civil Proc. § 736. Intent of the Code.— The proceedings under §§ 2707 to 2709 of the Code of Civil Procedure are intended to provide a summary mode of discovering and reaching the property of the decedent in the hands of a third person {Matter of Carey, 11 App.Div.289,290, citing Matter of Stewart, 77 Hun, 564. See Matter of Walker, 136 N. Y. 29), and of enabling the executor or administrator of a decedent to obtain an order for the sur- render and delivery of such money or other property belonging to his decedent's estate, as may be discovered to be in the hands or under the •control of such person not lawfully entitled to possession thereof. Matter €f Knittel, 5 Dem. 371, 372. But the procedure contemplated by this section is not designed to enforce the collection of debts, which can be collected by action. Matter of Nay, 6 Dem. 346; Matter of Stewart, 77 Hun, 564; Matter of Cunard, 2 Connoly, 16, aff'd 27 N. Y. St. Rep. 128, 129. See also Matter of White, 119 App. Div. 140, where payment of savings bank balance was sought to be compelled; the refusal being because bank was merely decedent's debtor (see cases cited at p. 142) nor to determine title (Matter of Richardson, 31 Misc. 666; Matter of Curry, 25 Hun, 321; Matter of Walker, supra; Matter of Scott, 34 Misc. 446; Matter of Knittel, 5 Dem. 372; Matter of Stewart, 77 Hun, 564), but a summary means of discovery, and in case of a mere naked possession of decedent's "money or other personal property" to compel delivery. Ibid. But possession is not necessary in the respondent. Section 2707 says, "is within the knowledge or information of a person who withholds the same." So dis- covery of information can be had hereunder. Matter of O'Brien, 34 Misc. 436, 438, aff'd 65 App. Div. 282; Matter of Richardson, 31 Misc. 666. See also Matter of Gick, 49 Misc. 32, aff'd 113 App. Div. 16. Section 2707 contemplates a special proceeding, having for its object a trial and a decree; and therefore it has been held, that if there is more than one executor or administrator, the proceeding should be taken in the names of all the representatives. Matter of Slingerlavd, 36 Hun, 575, 577, 579. § 737. Discussion of § 2707. — Keeping in mind the object of this special proceeding, the following points should be noted: The Surrogate must be satisfied upon the showing made by the petition and such affidavits as are filed with it, that there are reasonable grounds for the inquiry. And if the petition shows on its face, that the applicant is not entitled to the relief w^hich he seeks, the petition should be dismissed. For example, a deposit of a certain sum of money had been made by a third person in trust for the benefit of a decedent, in the Bowery Savings Bank, and the administratrix of the decedent's estate instituted a proceed- ing, looking to the citation of the president of such bank to be examined in order that the petitioner might be fully advised as to said moneys and the detention by said bank of the same with a view to the payment of the ASCERTAINING THE ESTATE 753 amount to such administratrix. Surrogate Rollins dismissed the proceed- ings upon the ground that it appeared upon the face of the petition, that assuming the truth of its allegations, it was clear, that no disclosure could be made upon the examination of the person sought to be cited, which would justify an order under these provisions of the Code; that the de- posit with the bank merely created a liability on the part of the bank to pay thereafter an amount equal to the deposit, with interest thereon according to the terms of the contract under which the deposit was made; and that, to allow the petitioner to proceed, would be to give the repre- sentative of an estate, the right to examine a debtor of a decedent merely for the sake of ascertaining the nature and extent of such debtor's liabili- ties to the estate. This, he held, was not the object of the Code in these sections. Matter of Knittel, 5 Dem. 371, 373, Rollins, Surr.; Matter of Carey, 11 App. Div. 289, 290. See Matter of O'Brien, 65 App. Div. 283, and Matter of White, 119 App. Div. 140. The allegations of the petition may be upon information and belief; this is now distinctly provided by the section; but Surrogate Rollins had held in 1884 (Walsh v. Dovms, 3 Dem. 202) that he could direct the cita- tion to issue, and cause the parties cited to be examined, whenever he was satisfied, that there were reasonable grounds for the inquiry, "and he may properly be satisfied of that fact, by allegations on the part of the petitioner of any circunistances which tend to show that property of a decedent's estate is in the possession or under the control of the respondent, and that too, whether the petitioner positively alleges the existence of such facts or merely avows his belief of their existence, because of in- formation received by him from sources that he fails to reveal." The language of § 2707, "a written petition setting forth on knowledge or information and belief any facts tending to show," etc., does not re- quire the statement by the petitioner in his petition of the grounds or sources of .his information and belief. Ibid., and Mead v. Sommers, 2 Dem. 296. § 738. The petition. — The following is suggested as a form containing the substantial allegations: Surrogate's Court, Petition under sec- " tion 2707. Title. To the Surrogate's Court of the County of The petition of of respectfully shows: I. That he is the (sole) executor of the last will and testa- ment of late of deceased, and that letters __. ., testamentary were issued to your petitioner by this court on Note. Where the ^, •' , , m /xr . \ J . , the day of 19 (Note.) petition IS made by " "^ •' , . , . an administrator !!• Your petitioner further shows on information and be- modify description lief that certain personal property consisting of (here describe accordingly. it). (Note.) See next page. 48 754 surrogates' courts Note. "The main- (Or say that certain moneys amounting to the sum of tenance of these pro- dollars) (note) and which should be delivered to the ceedings is oontem- petitioner or included in his inventory (or included in the in- plated only where ^gntory or appraisal of the estate of the decedent, to be by e c arac er o e ^^ administered), is in the possession (or under the control, . . J •+ ' or within the knowledge or information) of C. D. of ownership undis- ^^° withholds the same from your petitioner (m- puted.'' Matter of who refuses to impart knowledge or information he may have Carey, 11 App. Div. concerning the same or to disclose any other fact which will 289, 290 . aid your petitioner in making discovery of such property) so that the said property (or money) cannot be inventoried or appraised. III. That your petitioner has made dihgent search and inquiry in regard to such property and is informed and verily believes, that the same was in the possession of the Note. See section decedent within two years prior to his death (note) and came 2709. into the possession of the said at a time and under Note. If the circumstances unknown to this petitioner. (Note.) circumstances are IV. Your petitioner has demanded of the said the known, allege them ,jelivery of the said property (or that he impart knowledge concisely, noting ^^ information he may have concerning the same, or disclose ^ , ^ ^ h^^ ^°t^ ^^y other fact which will aid your petitioner in making dis- show alright on^the ^"^^^^ °^ ^^'^^ property) but that the said has part of the executor '^^holly neglected and refuses to deUver the same (or to im- to a discovery of the P^'rt such knowledge or information, etc.). property by the re- V. (// corroborative affidavits are to be presented with the spondent, and must petition it is proper to add a clause referring to the same as the not be such as to sources of the petitioner's information and grounds for his show merely a debt igiigf; lut under the decision above noted it is not essential that of the respondent ^y^f^ g^-gunds be disclosed, and in the absence of such corrohoror to the estate, bee ^^^^ affidavits such a paragraph is not vital.) ' ^ ' Wherefore your petitioner prays for an inquiry respecting such property so withheld under article 1 of title' 4 of chapter 18 of the Code of Civil Procedure; and further prays that the said the person hereby complained of may be cited to attend such inquiry and be examined accordingly, and that he be directed to deliver such property, if in his control; and that your petitioner have such further relief in the premises as may seem just. Signature. § 739. Object of proceeding to be kept in view. — Section 2707 evi- dently contemplates that the representative of the estate is to be by this proceeding put in possession of the property, or of information which will enable him to cause it to be inventoried and appraised. It has conse- quently been held, that where the representative had already inventoried the estate, and the securities in regard to which information is sought, or the delivery of which is asked for, are afterwards specified in a petition under § 2707, the application will be denied. Matter of Cunard, 6 N. Y. Supp. 883, aff'd 27 N. Y. St. Rep. 128. ASCERTAINING THE ESTATE 755 As these sections are intended merely to provide a machinery for dis- covery, they are not a substitute for the remedy by accounting, or for an action for the collection of a debt (see Matter of Nay, 6 Dem. 346, and § 736, supra), so that where a respondent appears to have come rightly into pos- session of the assets in question or to have a right of disposition of the same, and especially if it appears that the possession of the assets after the dece- dent's death was with the knowledge or consent of the representative, the proceeding will of course be dismissed. Matter of Cunard, supra, citing In re Wing, 41 Hun, 452. See as to where facts do not present occasion for this specific relief. Matter of Haniman, 50 Misc. 245. In this proceeding the Surrogate is confined to a determination of the question of possession. He has no right to pass upon the question of title. Mr. Throop in his note to § 2712, states: "Care has been taken to con- fine the decree to a determination of the question of possession." The de- cree which the Surrogate can make is only that possession be delivered to the representative of the deceased party ; and he can only make such decree where it clearly appears that such possession is wrongfully withheld. See Matter of Curry, 25 Hun, 321, Davis, P. J. But since the amendment in 1903 (see italics in section as quoted above), it has been held that, although title is asserted by the one in possession, the Surrogate, having power to direct delivery, may proceed with the examination of the respondent. Matter of Gick, 113 App. Div. 16. The court says, "Of course, the Surro- gate can make no order adverse to the person cited affecting the property in question, unless it conclusively appears as matter of law from the evi- dence produced that his claim of title is not well founded. The purpose of the statute is to enable the Surrogate to say whether the claim of title .... rests on a sound foundation, or is a mere subterfuge .... to deprive the executor . . . . of the property or of information, etc." Mat- ter of McGuire, 106 App. Div. 131, is distinguished, since there the order directed delivery without any examination, though respondent answered setting up his claim of title. The Matter of Beebe, 20 Hun, 462, was decided under the provisions of ch. 394 of the Laws of 1870, which was subsequently held unconstitutional and void. The present sections under discussion are a re-enactment with modifications of the provisions contained in that act. The prayer of the petition should follow the language of the Code sub- stantially, in which case the Surrogate can grant all relief which the Code authorizes. Where the prayer was that the respondent should account for, and deliver over, all personal property, etc., in his possession, etc., the peti- tion was properly dismissed. Estate of Cornan, 5 N. Y. St. Rep. 442. Where prior proceedings of the same character have been had and never actually determined by a decree or order of discontinuance, it is compe- tent for the Surrogate if the facts warrant it, and he is satisfied that there are reasonable grounds for further inquiry to make an order requiring a further attendance. Matter ofSpreen, 1 Civ. Proc. Rep. 375. § 740. The citation. — " If the Surrogate is satisfied, on the papers so pre- 756 subrogates' courts sented, that there are reasonable grounds for the inquiry, he must issue a citation accordingly." § 2707, Code Civ. Proc; Matter of Paramore, 15 N. Y. St. Rep. 449. The citation issued under § 2707 should be addressed to the person by whom it is claimed the property or information is withheld, and should command him to attend before the Surrogate at a given time and place upon the inquiry by said Surrogate and to be examined fully and at large respecting property of the decedent, or of which the decedent had posses- sion at the time of or within two years before his death, alleged to be within the possession or under the control of the respondent. This citation, it is provided by § 2707, may be made returnable before a judge, justice of the peace, referee, or Surrogate of another county, if it appears that the re- spondent resides in such county and not within the county of the Surro- gate. It is manifest that this citation is not a citation to which the representa- tive is entitled as a matter of course. The Code expressly provides, that the Surrogate must be satisfied upon the papers presented that there "are reasonable grounds for the inquiry." Consequently, the question whether in any particular case, a citation should or should not be issued, is one for the decision of which the judicial power of the Surrogate is invoked, a power which of course cannot be delegated to any of his subordinates; the clerk, therefore, cannot issue the citation by virtue of the powers conferred upon him by § 2509 of the Code of Civil Procedure. V>ee Mauran v. Hawley, 2 Dem. 396, where Judge Rollins held that in such a proceeding as this no citation can properly be issued until the Surrogate has directed its issuance, after examination of the petition, and a determination that there are rea- sonable grounds for the inquiry sought to be made. In addition to the citation it is provided that the Surrogate must annex to, or indorse upon, the citation an order requiring the parties cited to at- tend personally at the time and place therein specified. This is provided by § 2708, which is as follows: The surrogate must annex to or indorse upon the citation an order requir- ing the party cited to attend personally, at the time and place therein specified. The citation and order must be personally served, and service thereof is in- effectual, unless it is accompanied with payment or tender of the sum required by law to be paid or tendered to a witness who is subpoenaed to attend a trial in the supreme court. This order, as provided, needs only to be indorsed upon the citation and may be substantially in the following form: Surrogate's Court, County of Order under sec- tj+Ip tion 2708. It is hereby Ordered that the party cited by the within citation attend personally at the time and place herein specified. ASCERTAINING THE ESTATE 757 Or, as is the frequent practice, the direction and signature without cap- tion or title, is quite sufficient. § 741. Mode of service to be strictly observed. — The provisions of § 2708 have been somewhat strictly construed. It has been held that where the order is not annexed to, or indorsed upon, the citation, and properly served as required by § 2708 and by § 2520, it is proper for the respondent to appear and move to dismiss the proceedings. Mauran v. Hawley, 2 Dem. 389, 396. In the case just cited, Surrogate Rollins held, that the citation must be served as required by § 2520; and that, as to the order, the original order must be exhibited if it is desired to bring the party served into contempt because of his disobedience of its directions, citing Rowland v. Ralph, 3 Johns. 20; Billings v. Carver, 54 Barb. 40; Gross v. Clark, 1 Civ. Proc. Rep. 25, affirmed in Court of Appeals, 1 id. 469. The provision in § 2708 that a failure to attend as required by a citation and order personally served may be punished as a contempt of court refers only to cases where the citation and order are duly served according to the provisions of the Code. Reference should be had to § 2520, which provides the mode of service. But it should be noted that this proceeding is one coming within the exception specified in § 2520 "except where special pro- vision is otherwise made by law," for it is expressly provided by § 2707 that the citation made be made returnable "forthwith or at a future time fixed by the Surrogate, and may be served at any time before the hearing." § 742. The hearing. — Section 2709 was materially amended in 1903, oh. 526, and, to note the changes, they are italicized: On the attendance of a person to whom a citation is issued, as prescribed in this article, he may submit an answer duly verified shomng cause why the examination should not proceed. The surrogate may then dismiss the proceed- ing or direct the examination to proceed. In the latter case Tie must be sworn to answer truly all questions put to him, touching the inquiry prayed for in the petition; and he may be examined fully and at large. respecting property of the decedent, or of which the decedent had possession at the time of or within two years before his death. A refusal to attend or be sworn, or to answer a question which the sun'ogate determines to be proper, is punishable in the same manner as a like refusal by a witness subpoenaed , to attend a hearing before the surrogate. The extent of the examination shall he in the discretion of the surrogate. If the witness is examined concerning any personal communi- cation or transaction between himself and the decedent, all objection under section eight hundred and twenty-nine to his testimony as to the same in future litigation is waived. Either party may produce further evidence, in like manner and with like effect as on a trial. § 2709, Code Civil Proc. The changes thus are: (a) Surrogate is not necessarily ousted of juris- diction by a verified answer. Matter of Gick, 113 App. Div. 16; Matter of Packard, 53 Misc. 163. In Matter of Stiens, 60 Misc. 631, it is said: "This section clothes the Surrogate with power to prosecute the inquiry to the point of determining the verity of the allegations of the answer." 758 surrogates' courts (6) Part of former § 2708 is put appropriately in this section. (c) The part as to § 829 is important. The waiver results, whoever in- terrogates. Thus in Killian v. Hdnzerling, 114 App. Div. 410, the evi- dence was elicited by the Surrogate himself, while seeking the information requisite to enable him to decide the issues raised. The waiver, moreover, lives, and can be asserted in "any other action" or proceeding respecting that property or transaction. Ibid. § 743. Discussion of amended section. — ^The first point to note under this section is that the rule that the proceedings must be dismissed as to the property claimed, if the person cited interpose a written answer duly verified claiming title, or a right to possession, or a lien, or special property in the property sought to be discovered is now repealed, making inapplica- ble cases cited in former editions, to that effect. Matter of Walker, 136 N. Y. 29; Matter of O'Brien, 65 App. Div. 283, aff'g 34 Misc. 436; Estate of Hastings, 6 Dem. 423; Public Administrator v. Elias, 4 Dem. 139; Estate of Seaman, 16 Wkly. Dig. 118. Even when the rule was that a verified answer ended the matter in the Surrogate's Court the courts were not very strict in insisting upon the formality of the answer. These cases may still apply as to the formality of the answer now permitted. The Surrogate determines whether the an- swer filed is sufficient under the statute. A mere denial by the person cited that he has in his possession property of the decedent is not enough, as the Surrogate is to determine that upon his examination under oath. Matter of O'Brien, 65 App. Div. 283, 290; Matter of Seaman, 16 N. Y. Wkly. Dig. 118. The power to grant leave to amend has been exercised. Public Ad- ministrator V. Elias, supra. And answers which have not conformed to the exact wording of the section or have been " inartificially drawn," were sustained where they were sufficient to raise an issue as to title of the prop- erty, because of the original limitation by the decisions of the power of the Surrogate to the mere inquiry into the question of possession. See Matter of Wing, 41 Hun, 452,, 453; Matter of Master ton, 6 Dem. 450. In Matter of Wing the respondent's answer recited only that the property in question was placed in his hands by the decedent under an agreement that it should be held as security for advances made and to be made to the decedent, which advances were never repaid, and that respondent under the agreement disposed of the property in the hfetime of the decedent, and applied the whole of the proceeds towards his own reimbursement, and that none of such property remained in his possession. The Surrogate's order dismissing the proceeding was affirmed by the General Term. See Estate of Cunard, 2 Connoly, 16. Under the section as it now stands, and in view of the discretion to dismiss the Surrogate has, it is advisable for the respondent claiming a right of title or possession to assert it specifically and on adequate allegations of fact. For, if he makes a primn facie case of unimpeachable right the Surrogate will dismiss, and remit the petitioner to an action. In other words, using the obverse of the language of Matter of Gick, 113 App. Div. 16, if it conclusively appear as matter of law from the ASCERTAINING THE ESTATE 759 sworn allegations of respondent's answer that his claim of title is well founded, the Surrogate may decline to try the question of title. But see § 746, below, under "Decree" as to "consent" to Surrogate's trying ques- tion of title. § 744. Return day. — Hearing. — The requirement of the citation that the respondent appear and be examined is one the operation of which ter- minates with the hearing, unless it is duly and formally adjourned, in which case the respondent is bound to attend upon the adjourned day. If formal adjournment is not had, or noted, the respondent cannot be punished for contempt for failure to appear at a subsequent date, and com- plete the examination. Nevertheless, the Surrogate's jurisdiction is not divested, he retains his jurisdiction until the proceedings determine in a decree or in a discontinuance; and if the respondent has been released from obligation to attend by inadvertent omission to take an adjournment, it will only be necessary to secure a further direction from the Surrogate re- quiring him to attend upon another return day. Matter of Spreen, 1 Civ. Proc. Rep. 375. § 745. The answer. — If the person cited has refused delivery because he is the "owner of the property, or entitled to possession thereof, by virtue of a lien thereon, or special property therein," the Code formerly permitted him to file a duly verified answer which ended the proceeding. But since the change in 1903 he is given greater latitude, in a sense. He may set up, by such answer, any facts "showing cause why the examination should not proceed." In Matter of Gick, 49 Misc. 32, the Surrogate points out the development of the proceeding, its increasingly inquisitorial character, and yet the protection of respondent in opening his mouth to testify to transactions with decedent in case he be examined on his assertion of title. It is also noted in the opinion that delivery of the property is only one form of the relief. Information respecting it, for inventory or appraisal, is also obtainable. Therefore, we repeat, the respondent would better "put his best foot forward" in his answer, if he appeals to the discretion of the Surrogate. For that discretion is not only exercisable at the time of answer, but also where "the person who withholds" or who is " complained of " or "to he cited" becomes "the witness"; for at this stage "the extent of the ex- amination shall be in the discretion" of the Surrogate. The answer may be substantially in the following form: Surrogate's Court County of Answer under sec- tion 2709. Title. I The answer of the respondent in the above en- titled proceeding respectfully shows to this Court and alleges : 1. That he has been served with a citation and order requiring him to attend personally at the time and place 760 surrogates' courts Note. The allega^ therein specified and to be examined concerning certain tion of ownership money {or other personal property) of late of was formerly held deceased, alleged to be in the possession or under the control sufficient wHihout ^^ ^j^j^ respondent. s owing 2_ -pjig respondent further shows that he is the owner of came the owner; spe- " -u j ■ it, ^-i- ;::i j i. cific details were *^® property described in the petition filed herein upon only required where which said citation was issued by reason of the following: the right to posses- {Note.) sion is claimed by [2a. Or if the respondent does not claim ovmership but merely virtue of a lien, etc. the right to the possession of the property, state: and the respond- See, below, Metropol- ent further says, that he admits that property described itan Trust Co. v. Rod- [^ ^;jjg petition upon which said citation was issued is in gers, 1 Dem. 365. j^jg possession; but he avers that he is entitled to the Now, It is ad visa e p^ggession thereof by virtue of a hen thereon {or special ° ^ ^ . „ ', property therein) arising out of and existing by reason of the Hariiman 50 Misc following facts: {here state concisely the circumstance entiUing 245, respondent al- him to such possession) . {Note.)] leged an agreement The respondent therefore alleges that the foregoing facts in writing, vesting constitute cause why the examination in this Court should title in him. not proceed {add if desired) in that respondent is not willing Note. See Matter to consent to the determination of his rights, if disputed, in of Motz, 5 N. Y. St. this Court. He, therefore, prays that the proceeding be Rep. 343; Delamater dismissed. V. M'Caskie, 4 Dem. (Dated.) (Signature.) 549, 553, and Matter (Verification.) of Hastings, 6 Dem. 423. § 746. The decree. If the facts admitted by the witness show that he is in the control of property to whose immediate possession the petitioner is entitled, the surrogate may decree that it be delivered to the petitioner. If the witness admits having the control of the property, but the facts as to the petitioner's right are in dispute, the proceeding shall end, unless the parties consent to its determina- tion by the surrogate, in which case it shall be so determined. § 2710, Code Civil Proc. This section is part of the amendatory scheme of 1903. It emphasizes the discretion of the Surrogate. Under Matter of Gick, 113 App. Div. 16, delivery may be decreed (a) if admitted facts show witness to be in control; (6) of property to the immediate possession of which petitioner is entitled. That is, it "conclusively appears as matter of law, that respondent's claim is not well founded. But, conceding possession or control, respondent may still be asserting right to the property, which is disputed. Here the proceeding " shall end," unless by consent of both parties the Surrogate is asked to determine the issue. In that case "it shall be so determined." This gives the one withholding the property a material advantage. For he may resist the proceeding, perhaps, merely to secure the benefit of the ASCERTAINING THE ESTATE 761 waiver of § 829, and under this case just cited, he may assert the waiver in "any action" which is necessitated by his refusal to consent under § 2710. The decree which the Surrogate is authorized to make in such a proceed- ing is based upon the examination had and other testimony taken. The Surrogate acts judicially, and the examination must proceed under the or- dinary rules of evidence. Tilden v. Ormsbee, 70 N. Y. 609, aff'g 10 Hun, 7. The following precedent is suggested: Surrogate's Court Caption. Decree under Title. § 2710, Code Civil Proc. The petition of executor under the last will and testament of deceased, verified the day of having been presented to this court, from which letters testamentary duly issued to such executor, setting forth on knowledge (,or information and belief) facts tending to show that money {or personal property) which should be delivered to such executor {or, included in an inventory or appraisal) , was in the possession of (or under control of) who withholds the same from such executor, so that it can- not be inventoried or appraised; (or was within the knowledge or information of who refused to impart knowledge or information by him possessed concerning the same) and praying an inquiry respecting such property; and that the person complained of should be cited to attend the inquiry Note. If affidavits and be examined accordingly. (Note.) or other evidence, And the Surrogate, being satisfied on the papers so pre- written or oral, tend- sented, that there were reasonable grounds for the inquiry, ing to support the al- having issued a citation accordingly; now on the due return legations of the peti- ^^ ^^^^ citation, and on filing due proofs of the personal serv- redte^''thr^s^^e as '"^ "P°'' ^^'"^ °^ ^""'^ '''*^*'°'' ^°^^ °^ *^^ "^^^"^ °^ h ■ b ad and *^® Surrogate indorsed thereon requiring the party cited to ^gj attend personally at the time and place therein specified on said return day, and the parties cited having attended as required by said citation and having submitted an answer duly verified praying that the examination should not pro- Note. If the Sur- ceed. (Note.) And the Surrogate, having directed the ex- rogate, under, § 2709, amination nevertheless to proceed, and said dismiss at this step, having thereupon been duly sworn and examined fully and provide accordmgly. ^^ j^^.^^ rggpgg^ing the property of the decedent, or of which ' '^^ . J the decedent had possession at the time or within two years precedent suggested. „,,..,,. j ,, •' of the time of his death ; And it appearing from the facts admitted by the said the witness that he is in the control of the following property (specify) (A) to the immediate possession of which the peti- tioner is entitled: Now, on motion of attorney for said executor, it is Ordered, Adjudged and Decreed that the said de- 762 surrogates' courts liver possession of the following property {or pay- dollars) to the said as executor of the last will and testament of deceased; and it is further Note. See De La- Adjudged and Decreed (here insert directions as to costs mater v. k'Caskie, 5 and disbursements). {Note.) Dem. 8. Fifty dol- Or, in proper case, substitute after (A) but the facts as to lars held reasonable the petitioner's right being in dispute, and the parties not as costs. consenting as provided in section 2710 of the Code of Civil See also, Estate of Procedure, it is, on motion of attorney for said iVic/cerson,2Connoly, Ordered, Adjudged and Decreed that the proceeding be and the same hereby is dismissed (with costs, etc.). If the consent be given, modify the decree above by proper recital thereof, followed by such direction as the determination made by the Siurogate requires. (Signature.) It is important that the decree should specify distinctly the property to be delivered; accordingly, an order including in addition to specific items ■" all other property, goods, chattels, credits and effects of deceased, in the possession or under the control of the respondent" will not be up- held. The order and the warrant issued under § 2710 must both be specific. Tilton V. Ormsbee, 10 Hun, 7, 9, aff'd 70 N. Y. 609. §747. Ascertaining the estate; inventory and appraisal. — The sec- ond proceeding, above specified (see § 733), in ascertaining the estate is by inventory and appraisal. The making of an inventory and the appraisal of the personal property exhibited thereby, is required and provided for by § 2711 of the Code, which is as follows: On the application of an executor or administrator, the surrogate, by writ- ing, must appoint two disinterested appraisers, as often as may be necessary, to appraise the personal property of a deceased person, who shall be entitled to receive a reasonable compensation for their services, to be allowed by the surrogate, not exceeding fot each, the sum of five dollars for each day actually employed in making appraisement, in addition to expenses actually and necessarily incurred. The number of days' services rendered, and the amount of such expenses, must be verified by the affidavit of the appraiser, delivered to the executor or administrator, and adjusted by the surrogate before pay- ment of his fees. The executors and administrators, within a reasonable time after qualify- ing and after giving a notice of at least five days to the legatees and next of Mn, residing in the county where the property is situated, and posting a notice in three of the most public places of the town, specifying the time and place at which the appraisement will be made, must make a true and perfect in- Tentory of all the personal property of the testator or intestate; and if in dif- ferent and distant places two or more such inventories as may be necessary. Before making the appraisement, the appraisers must take and subscribe an oath, to be inserted in the mventory, that they will truly, honestly and impartially appraise the personal property exhibited to them, according to the best of their knowledge and ability. ASCERTAINING THE ESTATE 763 They must in the presence of such of the parties interested as attend, esti- mate and appraise the property exhibited to them, and set down each article separately with the value thereof in dollars and cents, distinctly, in figures opposite to the articles respectively. Service of the notice above mentioned may be either personal, or in the manner prescribed by section 797, subdivi- sion 1, and section 798 of this act. § 2711, Code Civil Proc. § 748. Precedents suggested. — The application of the executor or ad- ministrator for appointment of appraisers may be in the following form: Surrogate's Court, County of Westchester. Application for In Matter of the Estate of appointment of ap- Deceased. praisers. Tq the Hon. FRANK V.' MILLARD, Surrogate: AppUcation is hereby made by as of the estate of late of the of deceased, to have appraisers appointed to estimate and appraise the personal property of said deceased, which consists of Dated 19 The order of the Surrogate is thereupon entered and may be substanti- ally in the following form: Surrogate's Court Caption. Present : Hon. Surrogate. Order appointing In the Matter of the Estate of appraisers. Deceased. Upon the application of the of the of late of the of in said County of Erie, deceased. It is Ordered, that and two disinterested persons, be and they are hereby appointed appraisers of the personal property of said deceased. Surrogate. The notice which the executor or administrator is required to give to the legatees and next of kin, under § 2711, may be in the following form: To all persons interested in the estate of late of the Notice under sec- of County of Erie, N. Y., deceased: tion 2711. Notice is hereby given that the undersigned, as the of the of said deceased, with the aid of the appraisers appdfnted by the Surrogate of said County, will on the day of 19 at o'clock in the noon at the late residence of the said deceased, in said pro- 764 surrogates' courts ceed to make an appraisement and inventory of all the goods chattels and credits of said deceased, according to law. Dated this day of 19 The oath of the appraisers is usually printed at the head of the official form of inventory furnished by most of the Surrogates' Courts, and is to the effect that the appraiser "will truly, honestly and impartially appraise the personal property of the decedent which shall be exhibited to him, ac- cording to the best of his knowledge and ability." § 749. The inventory. — ^The inventory as it appears from § 2711 must be made by the executors or administrators within a reasonable time after qualifying. It is the duty of an executor or administrator to make and file an inventory. So far as the representative is concerned, it consists of a statement of the assets, but prior to its being returned and filed, it must include the appraisal by the appraisers appointed by the Surrogate under § 2711. In preparing the inventory, posting the notice, giving notice to the legatees and next of kin, and other proceedings required by the statute, care must be taken to conform to the requirements of the Code* If any of the steps required are dispensed with, the appraisement is invalid, and the disbursements made by the representative for an invalid appraisal, will not be allowed, but must be borne by the representative personally. Salomon r. Heichel, 4 Dem. 176, Rollins, Surr. The statute regulating these provisions for the preparation and return of the inventory, do not seem to contemplate any interference by legatees or next of kin with the action which the executors or administrators aided by the appraisers are required to take. Vogel v. Arbogast, 4 Dem. 399, 401. The representative must act upon his own responsibility and under the sanction of his official and special oath. The only right of persons interested to interfere is provided by § 2715 discussed below, whereunder a creditor or person interested may present to the Surrogate's Court proof by affidavit, that the representative has failed to return an inventory, or a sufficient in- ventory, in which case the Surrogate is authorized to require performance of this duty by order. See Forsyth v. Burr, 37 Barb. 540; Schmidt v. Heusner, 4 Dem. 275. Therefore, where parties interested desire to im- peach the accuracy of an inventory, they cannot do so in a direct proceed- ing for the purpose. If the inventory is properly verified by the oath of the executor or administrator, the proper practice is to await the accounting, whereupon all disputed questions respecting the existence of assets or their valuation can be determined. Vogel v. Arbogast, swpra, at p. 403, citing Thomson v. Thomson, 1 Bradf. 24; Montgomery v. Donning, 2 Bradf. 220; Waring v. Waring, 1 Redf. 205; Sheerin v. Public Administra- tor, 2 Redf. 421. Section 2714 provides what the inventory must contain and is as follows: The inventory must contain a particular statement of all bonds, mortgages, notes and other securities for the payment of money belonging to the de- ASCERTAINING THE ESTATE 765 ceased, known to the executor or administrator; with the name of the debtor in each security, the date, the sum originally payable; the indorsements thereon, if any, with their dates and the sum which, in the judgment of the appraisers, is collectible on each security; and of all moneys, whether in specie or bank- bills, or other circulating medium, belonging to the deceased, which have come to the hands of the executor or administrator, and if none have come into his hands, the fact shall be stated in the inventory. The naming of a person executor in a will does not operate as a discharge or bequest of any just claim which the testator had against him ; but it must be included among the credits and effects of the deceased in the inventory, and the executor shall be liable for the same as for so much money in his hands at the time the debt or demand becomes due, and he must apply and distribute the same in the payments of debts and legacies, and among the next of kin as part of the personal property of the deceased. The discharge or bequest in a will of a debt or demand of the testator against an executor named therein, or against any other person is not vaUd as against the creditors of the deceased ; but must be construed only as a specific bequest of such debt or demand; and the amount thereof must be included in the inventory and, if necessary, be applied in the payment of his debts; and if not necessary for that purpose, must be paid in the same manner and proportion as other specific legacies. If personal property not mentioned in any inventory come to the possession or knowledge of an executor or administrator, he must cause the same to be appraised as herein required, and an inventory thereof to be returned within two months after the discovery thereof; and the making of such inventory and return may be enforced in the same manner as in the case of a first in- ventory. § 2714, Code Civil Proc. THE FORM OF THE INVENTORY. Surrogate's Court, County of Inventory and ap- In the Matter of the Inventory^ praisement. and Appraisal of the Goods, Chattels, and Credits which were of late of Deceased.^ State of New York, )^_. ^^^^ ^^^^^^^ County of ) Note. Each ap- j ^f ^he Town of in said County, Ap- praiser must take a pj-^iser, dulv appointed by the Surrogate of the said County separate oath. ^^ ~^^ and declare that I will truly, honestly, and impartially appraise the personal property of late of the said County of deceased, which shall be for that purpose exhibited to me, to the best of my knowledge and abiUty. Sworn to this day of A. D. 19 before me. A true and perfect inventory of all the goods, chattels, and 766 surrogates' courts Note}- Where a man having a fam- ily shall die, leaving a widow or minor child or children, the following articles shall not be deemed assets, but shall be included and stated in the Inventory of the Estate, without being appraised. Spianing Wheels. Knitting Machine. Weaving Looms. 1 Sewing Machine. All Stoves put up or kept for use. One Family Bible. All Family Pictures and School Books. Library Books, value S50. 10 Sheep, their Fleeces. Yarn and Cloth from same. One Cow. One Table. Six Chairs. Twelve Plates. One Sugar Dish, Two Swine, and Pork of such Swine. All necessary -Weaiv ing Apparel. Beds. Bedsteads and Bed- ding. Necessary Cooking Utensils. All Family Clothing. credits which were of late of the Town of in the County of deceased, made by the Adminis- trat of the said deceased, with the aid, and in the pres- ence of of the said County of they having been duly appointed and sworn Appraisers; containing a full, just and true statement of all the personal property of the said deceased, which has come to the knowledge of the said Ad- ministrat and particularly of all moneys, bank bills, and other circulating medium belonging to the said deceased, and of all just claims of said deceased, against said Adminis- trat and of all bonds, mortgages, notes, and other se- curities, for the payment of money belonging to the said de- ceased, specifying the names of the debtors in each security, the date, the sum originally payable, the endorsements thereon, with their date and the sum which, in the judgment of the Appraisers, may be collectible on such security. Upon the completion of this Inventory, duplicates thereof have been made, and signed at the end thereof by the Ap- praisers. (a) List of exempted articles. (Here specify, having reference to section 2713 of the Code, all items of property, preferably in the order of the subdivi- sions of that section, which the widow and children are en- titled to have exempted, bearing in mind the limitations as to number or value fixed by that section.) {NoteS) Necessary food for Swine, for sixty days after the death of to wit: Necessary food for Sheep, for sixty days after the death of to wit: Necessary food for Cow, for sixty days after the death of to wit: Necessary provisions and fuel for the Widow, or Child, or Children, for sixty days after the death of to wit: And also the following articles of Household Furniture, not exceeding One Hundred and Fifty Dollars ($150) in value: Dollars. Cts. Dollars. Cts. In addition to the within enumerated articles exempt from ASCERTAINING THE ESTATE 767 All Clothes of the Widow, and her Orna- ments, proper for her station. One Teapot. 12 Knives and Forks, 12 Spoons. 2 Tea-cups and Sau- cers. One Milk Pot. Note.^ T-he widow is entitled to the exemption of prop- erty under subdivi- sion 5 even though under the will she has been given all the household prop- erty. Matter of Fra- zer, .92 N. Y. 239, 246. See also Lj/en- decker v. Eisemann, 3 Dem. 72, 73. Note.3 Here give full schedule of the furniture and other household chattels, scheduling them un- der the various rooms of the house so as to be capable of identification by the appraisers upon their being exhibited to them. The inven- tory should be so ruled as to allow of the amounts being inserted by the ap- praisers opposite the respective items. Note* Specify whether this is spe- cie, bank bills, or other circulating me- dium; and state where each is. appraisal, the Appraisers, in the exercise of their discretion, pursuant to the Statute, set apart the following articles of necessary Household Furniture, Provisions, and other Per- sonal Property, for the use of the Widow and minor Chil- dren of the testator, the same not exceeding in value One Hundred and Fifty Dollars ($150) : (NoteJ^) Dollars. Cts. BOLLARS. Cts. (6) Articles of household furniture. {Note?) Aeticlb. Room in which Contained. Value. (c) Particular statement of all bonds, mortgages, notes, and other securities for the payment of money under section 2714. Nature op Sbcokitt. Debtor. Date. Sum Originally Payable. (c ') Promissory notes. Debtor. Date. Sum Originally Payable. Names of Indorsers, Amounts Col- lectible. (c)' Moneys belonging to the deceased which have come to the hands of the executor or administrator. {Note}) id) (Here include any lease, estate or interest in lands, crops, produce, accrued rents, goods, wares, merchandise, or other assets described in section 2712 not already enumer- ated.) (e) Accounts receivable, considered good. Name. Original Amount Due. Present Amount Due. Date op Last Payment. Amount op Last Payment. (/) Accounts receivable, not considered good. Name. Original Amount Due. Present Amount Due. Date op Last Payment. Amount op Last Payment. {g) Chattels having no ascertainable value. Under this head include all items not properly falling under any head previously described herein, unless they are of a character not to be readily appraised. Under this head will naturally come collections of autographs, butterflies, geo- graphical specimens, having merely a local or special interest; if, however, the collection be one of stamps or of coins hav- VI, § 16, 8th ed., p, 2558. 768 surrogates' courts ing a regular market value, the appraisers should take the trouble to estimate its value at least approximately. (h) Debts due by representative. Under this head exhibit any just claims of the deceased against the representative, if there are any, specifying the date, amount due, original amount, as required by section 2714. (Signature.) Note, See 2 R. S., Oath to Inventory. (Note.) r> f',^'*^-./' ^•''■P- State of New York County of being duly sworn, says : I am the executor of the last will and testament of late of deceased; the foregoing inventory by me made is in all respects just and true, it contains a true statement of all the personal property of the deceased which has come to my knowledge, and particularly of all money, bank bills and other circulating medium belonging to the deceased, and of all just claims of the deceased against me, according to the best of my knowl- edge. (Signature.) Sworn to before me, this day of 19 § 750. What shall be deemed assets. — The Code provides distinctly ■what should be deemed assets and what articles are to be exempted from appraisement; this is by virtue of §§ 2712 and 2713. The following shall be deemed assets and go to the executors or adminis- trators, to be applied and distributed as part of the personal property of the testator or intestate, and be included in the inventory : 1. Leases for years; lands held by the deceased from year to year; and estates held by him for the life of another person. 2. The interest remaining in him, at the time of his death, in a term of years after the expiration of any estate for years therein, granted by him or any other person. 3. The interest in lands devised to an executor for a term of years for the payment of debts. 4. Things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the w;all of a house so as to be es- sential to its support. 5. The crops growing on the land of the deceased at the time of his death. 6. Every kind of produce raised annually by labor and cultivation, except growing grass and fruit ungathered. 7. Rent reserved to the deceased which had accrued at the time of his death. 8. Debts secured by mortgages, bonds, notes or bills; accounts, money, and bank bills, or other circulating medium, things in action, and stock in S,ny corporation or joint-stock association. ASCEBTAININ6 THE ESTATE 769 9. Goods, wares, merchandise, utensils, furniture, cattle, provisions, moneys unpaid on contracts for the sale of lands and every other species of personal property not hereinafter excepted. Things annexed to the freehold, or to a building, shall not go to the executor, but shall descend with the freehold to the heirs or devisees, except such fixtures as are mentioned in the fourth subdivision of this section. The right of an heir to any property, not enumer- ated in this section, which by the common law would descend to him, is not impaired by the general terms of this section. § 2712, Code Civil Proc. It may be observed that there is an additional statutory "asset" for the recovery and distribution of which an administrator may be appointed, to wit, a cause of action for decedent's death. See §§ 1902, 1903, Code Civ. Proc. § 751. What has been deemed assets. — Policy of life insurance: assets where "debtor" resides. Steele v. Conn. Gen. Life Ins. Co., 22 Misc. 249, 253. See Morschauser v. Pierce, 64 App. Div. 558. The corporation's res- idence being determined for administration purposes by its representation within the State by an agent upon whom process may be served. Id., and Sulz V. Mutual R. F. L. Asso., 145 N. Y. 563, 571. See Leonard v. Harney, 173 N. Y. 352, as to executor's title to an assign- able policy willed to her "after the satisfaction of a debt" specified in will. How question affected by physical location of policy. See Holyoke v. Union, etc., Ins. Co., 22 Hun, 75, aff'd 84 N. Y. 648; Morrison v. Mutual Life, 57 Hun, 97; Johnston v. Smith, 25 Hun, 171. Policy on life of husband and assigned to wife is an asset in her estate. Morschauser v. Pierce, supra; Geoff roy v. Gilbert, 154 N. Y. 741 ; Matter of Knoedler, 140 N. Y. 377; GriswoU v. Sawy&r, 125 N. Y. 411, 414. See Domestic Relation Law, § 52 (old number 22) as to rights of widow under insurance on husband's life to extent of insurance, paid for by hus- band, in premiums up to $500 a year. The excess is to be deemed a special fund in the husband's estate and primarily liable for his debts. See Kittel v. Domeyer, 175 N. Y. 205, rev'g 70 App. Div. 134. Of course if there are no debts, or a surplus left after paying them, the balance goes to the wife. Ibid. But the excess is not assets. It neither belonged to the husband in life, nor is it a part of his estate. The words in Kittel v. Domeyer, supra, holding them applicable to creditors "in the event of the other assets" being in- sufficient are an inadvertence of the reporter in the headnote based on the language at p. 213 of the opinion. Matter of Thompson, 184 N. Y. 36. See p. 45, substituting "all the assets" for "the other assets." The Surrogate has no power to try the question whether any part of the proceeds is charged with this statutory lien. Ibid. Doubtless if the excess is paid to the representatives as indicated in Kittel V. Domeyer, the wife could require him to account for the "special fund " if any be undisposed of. When payable to "legal representatives." Sviz v. Mutual R. F. L. Asso., supra. 49 770 surrogates' courts Partnership property: only the net balance due decedent after partner- ship accounting. Montgomery v. Donning, 2 Bradf. 220; Campbell\, Camp- bell, 16 N. Y. Supp. 165. Proceeds of milk taken from decedent's farm by farmers working it for decedent "on shares," is "avails of the personal estate of the intestate" and hence assets in the administrator's hands. Matter of Strickland, 10 Misc. 486, 489. Commissions on transaction payable to decedent, but accruing after death. Matter of Goss, 71 Hun, 120. Checks given to wife at time of decedent's death, unless gift or payment is proved. Matter of James, 146 N. Y. 78. Rents accrued at decedent's death. Miller v. Crawford, 14 N, Y. Supp. 358. This includes rents payable in advance and thus due when he dies. Re Weeks, 5 Dem. 194. Arrearage of rents and water rates. Lyons v. Dorf, 49 Misc. 652. Damages appraised before decedent's death for property taken under condemnation proceedings. Ballou v. Ballou, 78 N. Y. 325. Corn and other annual crops " produced by care and cultivation, and not growing spontaneously." Matter of Chamberlain, 140 N. Y. 390, 392; 1 Williams on Executors, p. 70; 2 R. S. 82, § 6, subd. 5; State v. Wilbur, 77 N. Y. 158; Bradner v. Faulkner, 34 N. Y. 347. But if not needed to pay debts they go to the devisee. Such residue of the proceeds of a mortgage the testator's widow had a right to use for her support during her life, but remaining unexpended at her death became assets of the testator's estate. Matter of Clark, 34 N. Y. St. Rep. 523. Rents and all proceeds of real estate is assets in executor's hands where all the residuary estate is made one fund and the realty subjected by the will to an equitable conversion. Smith v. A. D. F, T. Founding Co., 16 App. Div. 428. Ornament^ of the wife are assets of her estate. Matter of Whiting, 19 Misc. 85. Good will of business sold by representative. Matter of Silkman, 121 App. Div. 202; though not, it seems for purposes of transfer tax (q. v. post). § 752. What has been deemed not assets. — Proceeds of policy by its terms payable to "children." Senior v. Ackerman, 2 Redf. 302. Fire in- surance policy proceeds on loss after assured's death bfelong to heirs. Matter of Kane, 38 Misc. 276, 280. While the administrator may sue on same he holds sum recovered as trustee for the heirs. Lawrence v. Niagara F. I. Co., 2 App. Div. 267. Funeral benefits from a beneficial association. Leidenthal v. Corrdl, 5 Redf. 267. See also MaUer of S'mith, 42 Misc. 639. Benefits payable to family "of deceased" or to a specific beneficiary. Matter of Palmer, 3 Dem. 129, 134, citing Brovm v. Catholic Mutual, etc., 33 Hun, 263. See Hellenberg v. Ind. Order of B'nai B'rith, 94 N. Y. 580; Matter of Gordon, 39 N. Y. St. Rep. 909. ASCERTAINING THE ESTATE 771 Whether proceeds of policy go to particular beneficiary or to the estate may depend not only on policy but on by-laws of company. Sulz v. M. R. R. L. Asso., 145 N. Y. 563, 568. So even when payable to " legal representatives " they will not be deemed assets if intent be shown that other than ordinary meaning be given to such words. Griswold v. Sawyer, 125 N. Y. 411; Bishop v. Grand Lodge, 112 N. Y. 627, 636. Moneys deposited by a decedent in his lifetime "in trust" for desig- nated beneficiaries. Matter of Walker, 17 N. Y. Supp. 666; Matter of Collyer, 4 Dem. 24; Anderson v. Thompson, 38 Hun, 394; Crowe v. Brady, 5 Redf. 1. Deposit in savings bank for testator and his wife, upon proof it was to go to survivor it is not deemed part of decedent's assets. Matter of Meehan, 28 Misc. 167, 169. Growing grass and fruits. Kain v. Fisher, 6 N. Y. 597; 2 R.' S. 82, § 6, subd. 6; Matter of Chamberlain, 140 N. Y. 390, 392. See Matter of Clemens, 2 Connoly, 237. Rents accruing after testator's death go to heirs, not to representative. Priester v. Hohloch, 70 App. Div. 256. Mortgage payable to A and B " executors of and trustees under " a certain will, not necessarily assets if words are merely "descriptio personarum." U. S. Trust Co. V. Stanton, 76 Hun, 32. See as to when mode of transfer not sufficient to make property assets. Van Slooten v. Wheeler, 76 Hun, 55; Frost v. Craig, 28 N. Y. St. Rep. 157; Tompkins v. Rice, 55 Hun, 563. Proceeds of promissory notes handed by a testator to his executors just before his death with the request to collect and expend upon his funeral ex- penses and a monument, is not assets so that a widow can claim any part of it. Matter of Hildebrand, 1 Misc. 245. Funds set apart for specific purposes. Fisher v. Fisher, 1 Bradf . 335. Assigned estate not assets in hands of administrator of a deceased as- signee for benefit of creditors. Hayne v. Sealy, 22 Misc. 243. Moneys deposited by decedent "as executor" with stockbrokers as mar- gin for stock deals, when it did not appear that he was really executor of any estate, and he expressly stated he was not. Mittnacht v. Bache, 16 App. Div. 426. § 753. Exemption for widow and children. — (See post, under Account- ing, as to neglect to set apart exempt property.) If a man having a family die, leaving a widow or minor child or children, the following articles shall not be deemed assets, but must be included and stated in the inventory of the estate without being appraised : 1. All spinning-wheels, weaving-looms, one knitting-machine, one sewing- machine, and stoves put up or kept for use by his family. 2. The family Bible, family pictures and school-books, used by or in such family, and books not exceeding in value fifty dollars, which were kept and used as part of the family library. 772 surrogates' courts 3. Sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same; one cow, two swine, and the pork of such svrine and necessary food for such swine, sheep or cow for sixty days, and all neces- sary provisions and fuel for such widow, child or children for sixty days after the death of such deceased person. 4. All necessary wearing apparel, beds, bedsteads and bedding, necessary cooking utensils, the clothing of the family, the clothes of the widow and her ornaments proper for her station; one table, six chairs, twelve knives and forks, twelve ijlates, twelve tea cups and saucers, one sugar dish, one milk- pot, one tea-pot and twelve spoons and other household furniture not exceed- ing one hundred and fifty dollars in value. 5. Other necessary household furniture, provisions or other personal property, in the discretion of the appraisers, to the value of not exceeding one hundred and fifty dollars. Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with and provides for such minor child or children. If she ceases so to do, she shall be allowed to retain as her own, her wearing apparel, her ornaments and one bed, bedstead and the bedding for the same, and the property specified in subdivi- sion five; and the other articles so exempted shall then belong to such minor child or children. If she lives with and provides for such minor child or children until it or they become of full age, all the articles and property in this section mentioned shall belong to the widow. If there be a widow and no minor child, all the articles and property in this section mentioned shall belong to the widow. // a married woman die, leaving surviving her a husband, or a minor child or children, the same articles and personal property shall be set apart by the appraisers with the same effect for the benefit of such husband or minor child or children. § 2713, Code Civil Proc. See Matter of Koch's Estate, 9 N. Y. Supp. 814, opinion of Ransom, Surr., discussing provisions of Revised Statutes. Subdivision 5 gives the widow absolute title where there is no minor child, to the articles and property mentioned in this section. See Crawford v. Nassoy, 173 N. Y. 163. The widow takes title absolutely by the express terms of the statute, and no discretion remains to be exercised by the ap- praisers. As to such property the administrator and appraisers are only entitled to reasonable, temporary possession or opportunity for inspection to enable them to enumerate the same in the inventory. An action for conversion of property of this class will doubtless lie against the administra- tor individually or in his official capacity if he converts such property to his own use, sells the same or declines to deliver the property to the widow after demand and a reasonable opportunity to inventory the same. Ibid., citing Fox v. Bums, 12 Barb. 677; Kapp v. Public Admr., 2 Bradf. 258; Vedder v. Saxton, 46 Barb. 188. Where the will of the testator leaves all his household property to the widow she is entitled to additional exemption out of other personal prop- erty available for the purpose. Matter of Accounting of Frazer, 92 N. Y. 239, 246. This was a case where, by the will, the widow was given "all of the household property in the dwelling house." Finch., J, held that this was ASCERTAINING THE ESTATE 773 broad enough to include coal and wood provided for the use of the family, and also the shotgun, in the absence of proof showing that it was not kept for the defense of the house. He further held, that a setting apart by the appraisers as exempt and for the use of the widow, of a horse, phaeton and harness, of the value of $150, was proper, and should be sustained. And he distinguished the case of Peck v. Sherwood, 56 N. Y. 615, where the Court of Appeals had held that the widow was not entitled to an exemption for household furniture where she had been left a life estate in all the real and personal property of her husband, except a certain legacy be- queathed him by a relative and not paid over at his death. So " house- hold furniture" has been held to include a piano. Matter of Allen, 36 Misc. 398. The language of § 2713 "if a man having a family die leaving a widow" covers any case where the relation of husband and wife continued un- broken by law to the time of the decedent's death. Consequently a mere separation by agreement of the parties, and not under any decree of the court, will not dissever the family within the meaning of the statute. See Matter of Shedd, 60 Hun, 367, aff'd 133 N. Y. 601. This was a case where the testator and his wife had ceased to live together for about ten years prior to his death; and for eight years preceding his death the hus- band had not contributed to the support of his wife. Nevertheless the Surrogate directed an inventory to be filed, on the ground that the dece- dent did have a family. This decision was affirmed in the General Term and in the Court of Appeals. The General Term declined to follow the decision of an Iowa court {hinton v. Crosby, 56 Iowa, 386), where it had been held, under a similar statute, that where a husband and wife had lived separate and apart for several years preceding his death, and he neither contributed nor was asked to contribute to her support, and boarded in the family of others, he was not at the time of his death a head of a family within the meaning and intent of the statute relating to exemptions in favor of widows and minors in that State. § 754. Pecuniary equivalent of nonexisting articles. — There has been some confusion as to whether the widow, or widower, is entitled to the money equivalent of exempt property, specified in the five subdivisions of § 2713, where as a matter of fact they are not in existence. Two considera- tions may have operated at first to allowing such equivalent. One is the increasing centering of living in cities, where families do not keep sheep, cows or swine. The other is the idea underlying the widow's quarantine (see below) or right to forty days, "food and fuel," ensuing the bereave- ment. At least, it is significant that the pecuniary equivalent was given un- der subd. 3, which gives "all necessary provisions and fuel for such widow, etc for sixty days." So, it was held if the specific articles named in subd. 3 do not exist, allowance may be made pecuniarily equivalent. Matter of Williams (2d Dept.), 31 App. Div. 617. The next case went further and held the same where there are none of the articles specified in subd. 4. Matter of Hembury, 37 Misc. 454. In this case the Surrogate al- ■774 SURROGATES' COURTS lowed $150 as equivalent to articles in subd. 4; $200 as equivalent to those in subd. 3, and $150 as equivalent to those in subd. 5. The next case, Matter of Perry, 38 Misc. 167, Reynolds, Surr., de- clined to follow these cases, and refused pecuniary equivalent of non- existent articles specified in subds. 1, 2, 3 or 4. He cited and relied on Baucus v. Stover, 24 Hun, 109, which the Williams case points out reversed the Surrogates, who had made pecuniary equivalent allowance which in turn was reversed by Court of Appeals, 89 N. Y. 1, on another point. The next case, Matter of Hulse, 41 Misc. 307, Petty, Surr., allowed pecu- niary equivalent under subd., 1, 2, 3 and 4. The next case. Matter of Keough, 42 Misc. 387, Woodbury, Surr., in a well-reasoned opinion, discussing the interpretation of statutes of exemp- tion, and the history of § 2713 came to the opposite conclusion. In Matter of Sprague, 41 Misc. 608, Simonds, Surr., guided by the prior discussion, refused pecuniary equivalent to articles in subds. 1, 2 and 4; limited the allowance under subd. 3 to "food and fuel" and under subd. 5, under "other personal property" (which includes cash?) to $150, in the discretion of the appraisers. Followed in Matter of Campbell, 48 Misc. 278 and Matter of Griffith, 49 Misc. 405. In Matter of Weaver, 53 Misc. 245, Thomas, Surr., without any discussion rejected pecuniary allowance under subds. 3 and 4. In Matter of Berns, 52 Misc. 426, Church, Surr., followed Matter of Wil- liams. The Ldholt case, 102 App. Div. 29 (2d Dept.) had in the meantime been decided. But this was under the Transfer Tax Law, and it was held to be a different principle entirely where, as against the State, exemption was de- manded under each subdivision, and the court refused to allow it. Then came the case of Matter of Griffin (3d Dept.), 118 App. Div. 515. Here the appraisers set off the specific items mentioned in subds. 1, 2,3 and 4. Under subd. 4 there was only $28.40 in value of household furniture, and this they pieced out by $137.60 worth of cows and "other property." Then under subd. 5 they set off $150 of "other property." The appellate Division reversed the $137.60 allowance in "cows and other property" as not equivalent to household furniture. § 755. Summary statement.— It seems, that leaving out transfer tax cases, and dealing only with the family right, the rule in the Sprague case is correct. In brief, pecuniary equivalent ought to be allowed for articles specified in subd. 3, under " food and fuel " theory even though nonexistent. And, also, under subd. 5 under "other property," which reasonably in- cludes cash. Whereas under subds. 1, 2 and 4, the remedy under the law as it reads, as remarked by one court, is with the legislature and not with the courts. This rule, I find, is embodied in Matter of Baird (2d Dept.), 126 App. Div. 439. Where decedent's property was held jointly with another, then at his ASCERTAINING THE ESTATE 775 death no "setting apart," delivery or money equivalent can be made. Matter of Hallenbeck, 119 App. Div. 757, 761. § 756. Widow's quarantine. — Goodrich, P. J., in the Williams case, supra, traced the doctrine of a widow's quarantine back to Magna Charta, (ch. VII) (see opinion). He compares the evident object of the dower quarantine statute and of § 2713. They are equally addressed to " provide in all cases a reasonable support for a short time for the widow and children dependent upon a husband and father, and left without means of support other than his estate. This quarantine is given by § 204 (formerly § 184) of Real Property Law (ch. 50 of Consolidated Laws) which provides, that "a widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same; and in the meantime she may have her reasonable sustenance out of the estate of her husband." In the Williams case, above cited, it was held that as testator died seized of no real estate, this section was not applicable. But the court, holding that remedial statutes are to be construed largely and beneficially, decided that a pecuniary equivalent to articles which might have been (but were not) set apart under subd. 3 of § 2713 could be allowed and paid to the widow. This was "reasonable sustenance." Thus, for forty days after the death of a husband a widow has a right, called the right of quarantine, to occupy the main dwelling house owned by the decedent at his death: This right is said to be confined to lands in which the widow is entitled to dower (see Voelckner v. Hudson, 1 Sandf. 215), as well as to the husband's actual residence. See Kerr on Real Property, p. 737. So Mr. Kerr says (Ibid.) : "A woman living separate and apart from her husband at the time of his death is not entitled to quarantine. . . . Where a wife is entitled to quar- antine, it is not subject to be taken on execution, because it is a mere per- sonal right, and gives her no estate in the lands subject to levy on execu- tion." And the same author says (see p. 836) : " After the expiration of the quarantine, the heir could at any time put the widow out of possession and drive her to her suit for dower, but the wife's mere right to occupy the dwelling and farm attached of her deceased husband, until dower is as- signed her, gives her no estate in the lands." See Corey v. The People, 45 Barb. 262. See also 4 R. S. (8th ed.) 2556, § 17. This right of quarantine is a personal right. Thus Chancellor Walworth (Johnson v. Corbett, 11 Paige, 265, 276), says: "The allowance is only in- tended to apply to the sustenance of the widow herself. No provision is made by law for the maintenance of the children of her deceased husband out of an insolvent estate beyond the exempt articles allowed to the widow for that purpose." But the chancellor expressly held that the provisions of the Revised Statutes (1 R. S. 745, § 17), were general and must be con- strued as applicable to the case of a solvent as well as an insolvent estate. The Court of Appeals (Peck v. Sherwood, 56 N. Y. 615) held where the testator devised a life estate in all of his real and personal property except- 776 surrogates' courts ing solely a legacy coming to him from the estate of a relative; and where riter his death the widow remained in the dwelling house enjoying the use of the personal property and received additional moneys from the estate, that she was not entitled either to an allowance of her quarantine or to the $150 for household furniture. See headnote, p. 616; cf. Matter of Frazer, 92 N. Y. 239, 246. See Matter of Schroeder, 113 App. Div. 204, where widow was allowed to remain while lease of house was expiring. But, if a widow accepts a devise "in Ueu of dower and all statutory allowances" she waives all these exceptions under § 2713 and under " Quarantine." Matter of Mersereau, 38 Misc. 208. Query, since quarantine is personal to widow, this seems correct; but as to children, if any, can she cut off their rights under § 2713? § 757. The duty of the appraisers. — The duty of the appraisers is set forth in their oath, namely, that they "will truly, honestly, and im- partially appraise the personal property of the deceased which shall be exhibited to them for that purpose according to the best of their knowledge and ability." See § 2711. The Code provides that the legatees and next of kin are entitled to notice of the appraisement; this notice must be given by the executor or adminis- trator, within a reasonable time after quaUfying, and must be a notice of at least five days; it must be either personal, or "in the manner prescribed by § 797, subd. 1, and § 798," of the Code. The parties interested are en- titled to attend at the appraisement, and the appraisers in their presence must estimate and appraise the property exhibited to them. The executor is under no obligation to set any estimate of value opposite the items in- cluded in the inventory. The only duty of the representative is to make a true and perfect inventory of all the personal property of the testator or intestate. Section 2711, and Matter of McCaffrey, 50 Hun, 371. The Surrogate has no authority to direct the appraisers as to the manner in which they are to estimate the value of the property. Matter of Mc- Caffrey, supra. But § 120, Dec. Est. Law (formerly L. 1891, ch. 34, § 1, in part) directs that they shall value "all such property, stocks, bonds, or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the markets and the average of prices as thus found, running through a reasonable period of time. Where the deceased was a member of a partnership, his interest in the partnership may be estimated in the inventory, but the Surrogate has no power to compel the surviving partner to produce and deposit for inspec- tion in the Surrogate's office the partnership books; nor have the ap- praisers the right to interfere with, or require the production of, the part- nership assets, for the purpose of including the same in the inventory; it is sufficient for all purposes if the fact appear in the inventory that there is such a partnership interest, but the right of possession of the partnership property and the winding up of the partnership affairs at the decedent's death devolves upon the surviving partner. The interest of the estate in ASCERTAINING THE ESTATE 777 the partnership is usually fixed by means of an accounting or settlement of the partnership affairs. See Thomson v. Thomson, 1 Bradf. 24; War- ing V. Waring, 1 Redf. 205, 207; Camp v. Frazer, 4 Dem. 212. See Matter of Weir, 59 Misc. 320, Ketcham, Surr. When the executor or administrator comes to make his account, it is then competent for parties in interest to prove. that he has not charged himself with all the property that came or should have come into his hands, or with the true value thereof. Vogel v. Arbogast, i Dem. 399, 403. But it is his inventory as executor that is there the basis of account and attack; not the inventory he may previously have made in another capacity, e. g., as temporary administrator. Matter of Tisdale, 110 App. Div. 857. The appraisers can only appraise existing assets. Consequently where there are no assets to be appraised it is useless to require the filing of an in- ventory or the appointment of appraisers. Surrogate Calvin accordingly held {Matter of Bobbins, 4 Redf. 144) upon a motion to compel an adminis- tratrix to file an inventory, that it would be a farce to grant the motion when it appeared that all the assets which had come into the administra- trix's hand, and of which she had any knowledge, had been disposed of in paying funeral expenses and claims against the estate. And he observes: "The only remedy in such a case, appears to be to require the representa- tives of an estate thus situated to make, under oath, a statement, in the na- ture of an account, of the property that came into their hands as such, its value, and its disposition, and what has become of the proceeds. This seems to have been done by the administratrix in this case. If the parties interested desire to test the accuracy of her statement, they may require her to account in the usual way, and, in the absence of any inventory, it will be incumbent upon the administratrix to show what she has received, and the disposition thereof, which any parties interested may contest and falsify. The affidavit of the administratrix, in this matter, should stand as her statement of the value of the assets which came to her hands." In the later case of Silverbrandt v. Widmayer, 2 Dem. 263, upon an ap- plication for an attachment against the administrator for failure to file an inventory, where the administrator filed an affidavit stating that, with the assent of the next of kin and before his appointment, he had sold the furni- ture, stock in trade, and the lease of saloon belonging to the decedent, and had applied the proceeds upon certain indebtedness owing to himself from the decedent, and that there were no other assets to be inventoried. Surro- gate Rollins held, that this affidavit did not show sufficient cause why the petition should be denied and overruled the decision of Surrogate Calvin in Matter of Bobbins, saying, "the late Surrogate seems to have overlooked the case of Butler's Estate, 38 N. Y. 397." This, however, does not seem to bear upon the exact point at issue. The question involved in that case be- ing, "can an executor of a deceased resident of this State holding domestic letters testamentary be required to include in his inventory assets belong- ing to the deceased situate in another State." The objection raised in that case was that, as the statute required the appraisers to appraise personal 778 surrogates' courts property exhibited to them, and as such personal property out of the State could not be exhibited to them, therefore they could not be required to appraise it. The Court of Appeals very properly held that there was no restriction or qualification in the statute as to the actual production of assets before appraisers, but merely that all the goods, chattels and credits of the testator should be exhibited upon the inventory. The correctness of this decision is manifest from the character of the property deemed as- sets under § 2712 and the securities for the payment of money required to be included in the inventory under § 2714. The decision in the Robbins case, therefore, does not seem to be inconsistent with the decision in the Matter of Butler's Estate, and whether they are as a matter of fact inven- toried here or elsewhere the remedy of any person interested to compel the filing of an account of assets, claimed to have been disposed of by the ad- ministrator, is a sufiicient remedy for his protection. But in the case be- fore Surrogate Rollins the administrator claimed to have paid his own claim only. This distinguishes the case from the Robbins case, where the assets were shown to have been applied generally to pay decedent's debts and the funeral expenses. An application to compel the filing of an inventory was not allowed when made thirty years after the death of the testator. Thomson v. Thomson, 1 Bradf . 24. § 758. Power of appraisers as to oaths. — It seems that the appraisers have no power to administer oaths. As, for example, for the purpose of ascertaining the ages of widows of husbands dying intestate so as to esti- mate the value of their dower interest under Rule 70 of the Supreme Court. Steward's Estate, 10 N. Y. Supp. 24, 28. This is a judicial act and the mat- ter should be ascertained by the Surrogate as incident to the order appoint- ing the appraisers. Ibid. And the order should contain a recital of the Surrogate's finding to serve as instruction to the appraisers. In this re- quest they differ from appraisers in transfer tax proceedings, who have this power expressly by statute. See chapter on Transfer Tax. § 759. Return of inventory. Duplicates of the inventory must be made and signed by the appraisers, one of which must be retained by the executor or administrator, and the other returned to the surrogate within three months from the date of the letters. On returning such inventory, the executor or administrator must take and subscribe an oath, indorsed upon or annexed to the inventory, stating that the inventory is in all respects just and true, that it contains a true statement of all the personal property of the deceased which has come to his knowledge, and particularly of all money, bank bills and other circulat- ing medium belonging to the deceased, and of all just claims of the deceased against him, according to the best of his knowledge. Any one executor or administrator, on the neglect of the others, may return an inventory; and the executors or administrators so neglecting shall not thereafter interfere with the administration or have any power over the personal property of the deceased; but the executor or administrator so returning the inventory shall have the whole administration, until the delinquent return and verify an iA- ASCERTAINmG THE ESTATE 779 ventory, in accordance with the provisions of this article. § 2715, Code Civil Ptoc. The importance of making and returning the inventory is emphasized by the provisions about to be noted, whereby the making and returning of the inventory can be compelled under § 2716. The inventory is not con- clusive against the successor of the executor and does not bind him pre- sumptively. Solomons v. Kursheedt, 3 Dem. 307, 313. But in all actions and special proceedings affecting the estate, the inventory is presumptive evidence of the amount and value of the estate, both for and against the executor. It would often be extremely difficult, if not impossible, to prove what property came into his possession, if he were to be excused from mak- ing and returning an inventory thereof. Consequently, it has been held that it is against public policy to provide by will that the executors shall not be obliged or compelled to file with the Surrogate any inventory of the estate. Potter v. McAlpine, 3 Dem. 108, 128. See Brainerd v. Birdsall, 2 Dem. 331. If a testator were allowed to dispense with the making of an inventory by his will, many of the safeguards thus thrown around the es- tate which comes to the hands of an executor would be thrown down and fraud and misappropriation of the trust property would be rendered much easier and less liable to detection than at present. Ibid. It is perfectly competent before the inventory is returned, to amend it by striking out items improperly inserted or by inserting items inadvertently omitted. See Matter of Payne, 78 Hun, 292. The importance of returning a true and accurate inventory is not only shown by the rule above stated that it will be presumptive evidence both for and against the executor; but because, also, if shown to be insufficient or inaccurate, the filing of a new inventory can be compelled and, if the errors in the first inventory are shown to be gross or negligent errors, the costs of the proceedings may be imposed per- sonally upon the executor. Moreover, an accurate inventory with a fair appraisement is a protection to the executor in dealing with the persons interested in the estate; "and the omission to exhibit an inventory, which every executor ought, espe- cially in a deficient estate, is an imputation against him, which always in- clines the court to bear harder on such an executor." Hart v. Ten Eyck, 2 Johns. Ch. 62, 80. § 760. Debts of the representative to the decedent. — (See provision of § 2714, ante, and discussion under accountings, post.) It is the duty of the executor to include in his inventory any just claim which the dece- dent had against him (Burkhalter v. Norton, 3 Dem. 610) or against a firm of which such executor is a member. Matter of Consalus, 95 N. Y. 340. See § 2714. An administrator is under the same obligation. Matter of Griffith, 49 Misc. 405. Where the representative includes in his inventory such a debt there is a strong presumption raised that the debt is a subsist- ing and valid one (Lloyd v. Lloyd, 1 Redf. 399) ; and if there is any vaUd set-off or defense to the indebtedness in favor of the executor he should for his own protection specify it in the inventory, for while he might not be 780 surrogates' courts estopped from setting up subsequently a defense in bar of the claim, such as payment or satisfaction, nevertheless the unexplained omission of any set-off in the inventory which specifies the claim, would be conclusive evi- dence against the executor, that at the time the inventory was made he did not think of setting up any clairn as against the indebtedness. Lhyd V. Lloyd, 1 Redf. 399, 404. The strong presumption furnished by the in- ventory in the absence of any set-off or defense therein stated, would have to be overcome by clear and convincing evidence, if subsequently, as upon his accounting, the executor claimed a reduction or discharge of the debt by reason of some set-off or defense. Bellinger v. Potter, 36 N. Y. St. Rep. 601. This rule is illustrated by the fact that the courts have held, that if an executor or administrator includes in his inventory a note from himself to the decedent, against which the Statute of Limitations may have run, and does not set forth this fact in the inventory, his act in including it among the credits will operate as a sufficient written acknowledgment to remove the bar, and the executor or administrator will not be heard later, as upon his accounting, to set up the statute. See Matter of Daggett, 1 Misc. 248, Davie, Surr., at p. 252, citing Ross v. Ross, 6 Hun, 80; Morrow y. Morrow, 12 Hun, 386; Clark, Adm., v. Van Amburgh, 14 Hun, 557; Bryar V. Willcocks, 3 Cow. 159; Stuart v. Foster, 18 Abb. Pr. 305. See as to power of Surrogate, nevertheless, to try the issue upon the accounting, Matter of Leslie, 3 Redf. 280. So if the executor or administrator is insolvent he must nevertheless return his debt as an asset. Baucus v. Stover, 89 N. Y. 1. Upon his ac- counting his insolvency can be shown and the debt can be adjudged un- collectible. Burkhalter v. Norton, 3 Dem. 610. Or, if ordered to pay, it may be set up in relief against arrest under § 2286; Matter of Strong, HI App. Div. 281. But the representative stands in the same position as any other debtor, so that should he become possessed of means subsequently to pay the indebtedness he may be compelled by the parties in interest to account for, and pay over, the amount thereof in the same manner as if he had after an accounting recovered a doubtful claim from a third person for which he had received credit on the accounting. 3 Dem. supra 612. § 761. Compulsory filing of inventory. — Of the two dupUcate inven- tories made and signed by the appraisers, § 2715, supra, requires the exec- utor to retain one and to return the other to the Surrogate within three months from the date of his letters. The penalty for faiUng to return the inventory is that the executor so failing has no power to deal with the per- sonal estate, nor in any way to interfere with the administration of another executor who has joined in the inventory. Section 2715. This embodies a rule formerly declared by the courts. Jeroms v. Jeroms, 18 Barb. 24. Where both «xecutots join in the inventory it will be evidence sufficient to sustain a finding by the Surrogate, that they received and hold the assets therein specified jointly. Gladus v. Fogel, 88 N. Y. 434. But it will not be conclusive against either of them so as to preclude inquiry, by other evi- dence, as to the actual fact, that one or the other of them received the en- ASCERTAINING THE ESTATE 781 tire fund. Taylor v. Shuit, 4 Dem. 528, 530. Where, however, the exec- utor or administrator neglects to comply with the requirements of the statute as to the return of the inventory, he may be compelled to do so by virtue of § 2716 of the Code, which is as follows: Return of inventory; how compelled. A creditor or person interested in the estate may present to the surrogate's court proof, by affidavit, that an executor or administrator has failed to return an inventory, or a sufficient inventory, within the time prescribed by law therefor. If the surrogate is satisfied that the executor or administrator is in default, he must make an order requiring the delinquent to return the in- ventory, or a further inventory, or in default thereof, to show cause, at a time and place therein specified, why he should not be attached. On the return of the order, if the delinquent has not filed a sufficient inventory, the surrogate must issue a warrant of attachment against him, on which the pro- ceedings are the same as on a warrant issued for disobedience to an order, as prescribed in title twelfth of chapter seventeenth of this act. A person committed to jail on the return of a warrant of attachment, issued as pre- scribed in this section, may be discharged by the surrogate or a justice of the supreme court, on his paying and delivering, under oath, all the money and other property of the decedent, and all papers relating to the estate under his control, to the surrogate, or to a person authorized by the surrogate to receive the same. § 2716, Code Civil Proc. In the county of New York it is provided by Rule 13 that, "no costs will be allowed to the petitioner who takes proceedings to compel the filing of an inventory by an executor or administrator, unless such executor or ad- ministrator shall have unreasonably delayed to make and file such inven- tory after having been duly requested to do so by or in behalf of the peti- tioner." § 762. By whom return can be compelled. — Section 2716 provides that & " creditor " or "person interested " may compel the fihng of the inventory. With regard to a person interested, it must be again noted, that under subd. 11 of § 2514 the person interested need only submit an allegation of his interest duly verified. This serves although his interest is disputed, unless he has been excluded by a judgment, decree, or other final determin- ation, and no appeal therefrom is pending. The word "creditor" is in the same section, subd. 3, defined as, "every person having a claim or demand upon which a judgment for a sum of money could be recovered in an ac- tion." In Matter of Huntington, 39 Misc. 477, Thomas, Surr., held that a stockholder, claiming that decedent as director had made improper profits which he was seeking to recover, was not within the intent of the Code a " creditor " of his estate. See opinion as to Surrogate's power to compel in- ventory, even on petition of creditors on unproved or rejected claim. Where a creditor, therefore, applies for the compulsory return of an inven- tory, and his allegation of interest is disputed, and the indebtedness under which he claims is put in issue, the Surrogate is without power to pass upon the validity of the claim, but the Surrogate will not for that reason decline 782 surrogates' courts to entertain the application although he will require some proof of the facts upon which the applicant bases his claim. Creamer v. Waller, 2 Dem. 351, 353, Rollins, Surr., citing Wever v. Marvin, 14 Barb. 376; Burwell v. Shaw, 2 Bradf. 322; Thomson v. Thomson, 1 Bradf. 24; Cotterell v. Brock, 1 Bradf. 148. In the last case Surrogate Bradford held, that the establishment of a prima facie claim showing an apparent interest, was all that could be rea- sonably considered as requisite to justify the institution of such a proceed- ing. And he says at p. 150, "The creditor does not seek for payment, but shows he has a demand, which if uncontradicted, may be recovered in another court. He thus becomes interested in having the estate preserved safely in the hands of a responsible executor." But he miist distinctly declare himself to be such a creditor or allege facts which show him to be entitled as such. Pendle v. Waite, 3 Dem. 261, 263. The inventory which can be required under this section is the statutory inventory. Where a testatrix by will prescribed the making of an inven- tory by her executors, with a view to the appraisement thereon being final and conclusive against the heirs, representative and legatees, and limiting the liability of the executor, such an inventory is not one which the Surro- gate has power under the Code to enforce at the instance either of a cred- itor or person interested in the estate. See Brainerd v. Birdsall, 2 Dem. 331, 332. The only condition requisite to secure the order compelling the return of the inventory is, that the Surrogate be satisfied that the executor or administrator is in default. That is to say, that he has filed no inven- tory at all, or that the inventory filed is not sufficient. See § 2716. The motive of the creditor in making the application is wholly immaterial. Forsyth v. Burr, 37 Barb. 540. But he may be denied the right if he delay unreasonably, as, for example, thirty years. Thomson v. Thomson, 1 Bradf. 24. § 763. The procedure. — The application for a compulsory return of inventory is begun by an affidavit containing allegations sufficient to sat- isfy the Surrogate that the executor or administrator has failed to return an inventory or a sufficient inventory within the time prescribed by law therefor. It should be substantially in the following form: Surrogate's Court, Coimty of Affidavit under In the Matter of the Estate ) section 2716. of late of J Deceased. ) being duly sworn, deposes and says : I. That he resides in and is a creditor of the decedent above named, by virtue of two certain promis- sory notes made by said decedent, on the day of and the day of respectively. (Add details of the notes, or otherwise describe the nature of his daim or demand by virtiie of which he is a creditor^ ASCERTAINING THE ESTATE 783 II. That on the day of 19 letters testa- mentary on the estate of said decedent were granted by the Surrogate's Court of the county of to and executors named in the last will and testament of said under a decree of said Surrogate made and entered on the day of granting probate of said will. III. That the said executors above named have not nor has either of them returned any inventory of all the personal property of the said testator as required by section 2711 of the Code of Civil Procedure, and that more than three months, have expired from the date of the issuance of the said letters testamentary. Or, where an inventory has been filed hut is claimed to he in- sufficient, say: Ilia. That on the day of the said executors above named returned an alleged inventory purporting to contain a true statement of all the personal property of the said decedent which had come to their knowledge, and par- ticularly of all moneys, bank bills and other circulating medium belonging to the deceased; and of all the just claims of the decedent against said executors; but that, as the de- ponent is informed and verily believes, the said inventory was not a sufficient inventory of all the personal property of said deceased, as required by section 2711 of the Code of Civil Procedure, in that it wholly failed to contain any state- ment of the sum of dollars belonging to said dece- dent; and now, as deponent is informed and verily believes (/sere state where the money is alleged to he), and in that further it failed to set forth as required by law a certain debt or demand of the testator against one of the executors above named in the sum of dollars, which amount as deponent is informed and verily beUeves was justly due from the executor above named to the said decedent at the time of his death. (Jurat.) (Signature.) While a prima facie allegation of interest of an enforceable claim or de- mand against the estate will be sufficient to make good the status of the applicant in these proceedings, it does not necessarily follow that the mere fact that the applicant has a sufficient status to warrant him in presenting the affidavit required by § 2716 deprives the Surrogate of discretion whether or not to make the order which he is authorized to make under the same section. This particular authority conferred upon the Surrogate, is one of those powers which the Surrogate has to direct and govern the con- duct of an executor or administrator; it is therefore subject to the limita- tion that the Surrogate may only order him to do what is just and lawful, and the Surrogate, therefore, cannot be required to direct him to return an inventory under this section where it does not appear either just or reason- 784 surrogates' courts able that he should do so. Consequently, if the executor upon such an ap- plication shows in opposition thereto that the estate has been settled, and satisfies the Surrogate that the provisions of the will have been executed; a,nd all the beneficiaries therein named have receipted for their shares and released the executor, it is obviously the duty of the Surrogate in the exer- cise of his discretion to deny the application. Matter of Wagner, 119 N. Y. 28. See opinion of Gray, J., and cases discussed. The order made upon this affidavit should be substantially as follows: Surrogate's Court Caption. Present : Hon. Surrogate. Order to compel Title filing of inventory under section 2716. Upon reading and filing the affidavit of verified the day of whereby it appears to the satisfac- tion of the Surrogate that and executors of the last will and testament of deceased, have failed to return an inventory (or a sufficient inventory) of all the personal property of said deceaaed, within the time prescribed by law therefor and are in default. Now on motion of attorney for the said a creditor (or person interested in) the estate of said deceased, it is Ordered, that the said and executors as afore- said, return an inventory of all the personal property of said testator, as required by law, within days after the per- sonal service of a (certified) copy of this order upon them and each of them ; and it is Further Ordered, that in default of such return by said executor they and each of them show cause before me on the day of at o'clock in the noon, at my office in why a warrant of attachment should not issue against them and each of them. (Signature.) It is to be noted with respect to the order that it must be personally served. For the order for which § 2716 provides is one of those mandates which must be issued as the result of a judicial determination. White v. Lewis, 3 Dem. 170, citing Mauran v. Hawley, 2 Dem. 396. The inventory required by this order to be filed is of course such an in- ventory as is contemplated by the Code to be originally returned by the executors. Consequently the fifing of an unverified list of assets by the executor will not be deemed a compUance with the order. Loesche v. Gn/- fin, 3 Dem. 358. The application to compel the return of the inventory should be timely. Where an application was made twenty-nine years after the administra- ASCERTAINING THE ESTATE 785 tion of the estate commenced it was held that a formal inventory could not be compelled. Leroy v. Bayard, 3 Bradf . 228. It was, however, in this case held, that if it was alleged that there were assets recently realized and properly applicable to the payment of the claim of the creditor, he should be permitted to examine the executors per- sonally touching their administration of the estate, and the then existence of assets, personal or real. But upon an application to compel the filing of a further inventory, it was held that the application must be denied if the executor or administrator denied the existence of assets other than those already inventoried. Matter of Mclntyre, 4 Redf . 489. The reason for this was stated to be, that the inventory required must be under oath; that the court cannot order assets to be inserted in an inventory without such oath, nor could it compel the executor or administrator to swear to assets, pos- session of which he denies. Accordingly, Surrogate Calvin held, that § 2715 not having changed the rule previously existing (see Thomson v. Thomson, 1 Bradf. 24), the court had no power to require any examination of the parties or witnesses for the purpose of testing the correctness of the inven- tory filed, and that any errors in the inventory must be corrected at the accounting, and that the answer of the administrator duly verified alleging that he had already included in his first inventory all the property that belonged to the estate of the decedent was a complete defense to the appli- cation and the petition should be dismissed. So, where, on an application to compel an inventory, the answer put in denies that the property sought to be included belongs to the estate, the Surrogate must postpone adjudi- cating upon such issue until the accounting. Matter of Goundry, 57 App. Div. 232. The form of answer for the executor or administrator may be substan- tially as follows: Surrogate's Court, County of Answer of exec- Title I utor or adminis- j trator upon appli- of being duly sworn deposes and says : cation to compel j fhat he is the executor of the last will and testament the return of in- ^^ deceased; that on the day of he was ventory un er sec- pgjgQjj^y served with a copy of the order made by the Surrogate of the county of requiring deponent to re- turn an inventory (or a further inventory) of the personal property belonging to the estate of deceased, or in default thereof to show cause why he should not be attached. II. And deponent further says, in answer to the allegations of the affidavit of verified the day of upon which said order purports to have been made, that this de- ponent included all the personal property of the said deceased which has come to deponent's knowledge in the true and perfect inventory thereof by him duly made and signed as required by law and returned to the Surrogate of the County of 50 tion 2716. 786 surrogates' courts on the day of 19 (and that the alleged assets specified in the said aflJdavit of do not in fact form part of the personal property that belonged to the estate of the said decedent). III. And deponent asks accordingly that the application be denied with costs. (Jurat.) (Signature.) It is competent for the executor or administrator upon the application to compel the filing of an inventory to allege in such answer, if such be the fact, that distribution or division of the estate has already been had by common consent of all persons interested; this would certainly be a com- plete answer to the application, which should in such case be denied with costs (see Ledyard v. Bull, 119 N. Y. 62), unless it be made to appear that theretofore undiscovered assets have been discovered and taken into pos- session by the representative. § 764. Conclusiveness of inventory. — It has been noted that the in- ventory returned by the executor may not be impeached in proceedings in relation to the inventory itself, but upon the accounting of the executor or administrator it is entirely competent for legatees, next of kin or creditors, to impeach it, by proving omission of assets received or which ought to have been received. Montgomery v. Dunning, 2 Bradf. 220. But even on an accounting where it is attempted to falsify the executor's inventory of assets incorporated into his accounting, the one seeking to surcharge hijn, has the burden of proof. Marre v. Ginochio, 2 Bradf. 165. The values estimated by the appraisers are prima facie to be taken as the actual value of the items appraised. But they do not conclude creditors (WiUoughby v. McCluer, 2 Wend. 608), and not always the executors. Ames V. Downing, 1 Bradf. 321. Where, therefore, upon the subsequent accounting, it appears that certain items have realized much less than their inventoried value the executor or administrator, in order to avail himself of the rule that he should "sustain no loss by decrease without his fault of any part of the estate, but shall be allowed for such property perished or lost without his fault, upon the settlement of his account," must show affirmatively the facts in regard to the alleged depreciation or loss. Under- hill V. Newburger, 4 Redf. 499, 507, citing Matter of Jones, 1 Redf. 263. The rule as to the conclusiveness of an inventory may be reduced to the simple proposition, that, whoever seeks to overcome the presumption as to value raised by recitals in the inventory, must substantiate his claim by affirmative proof. The Court of Appeals has stated the rule to be, that the inventory is ■prima facie evidence both as to the extent and value of the personal prop- erty left by the decedent, and casts the burden upon one seeking to im- peach it, to show either that articles were omitted therefrom, or that a greater sum was realized than the appraised value. Matter of Rogers, 153 N. Y. 316, 328, citing Matter of Mullon, 145 N. Y. 98. See also Matter of Van Sise, 38 Misc. 155. ASCERTAINING THE ESTATE 787 § 765. The Surrogate's power. — The Surrogate has no power, as has been already stated, to try any question of title, in proceedings relating to the inventorying and appraisal of the estate (see Matter ofGoundry, 57 App. Div. 2S2 ; Greenhov^h v. Greenhough, 5 Redf. 191; Vogel v. Arbogast, 4 Dem. 399) ; and where a Surrogate assumed to make an order requiring an admin- istrator to inventory certain bonds of the decedent's estate, it was held, that the administrator was not thereby concluded from asserting and prov- ing his personal ownership of the securities. See Young v. Young, 5 Wkly. Dig. 109. (Affirmance in 80 N. Y. 422, did not involve the point under dis- cussion.) The General Term modified the order of the Surrogate in this case, which required the administrator to amend his inventory and insert the bonds by striking out all findings of fact and law contained therein, and ordered that the decree be amended by adding at the end thereof, that it was without prejudice to any claim or right of Young, the administrator to the same, which claim or demand the administrator was at liberty to state in his inventory thereof, if he chose so to do, and to prosecute and have determined in any court having cognizance thereof. Judge Board- man, in delivering the opinion of the court, said, that it was going very far in guarding the rights of the contestants, to permit the order to stand re- quiring a description of the bonds to be put in the inventory, even "with- out prejudice" to the rights of the claimants, and even with the specifica- tion of the nature and extent of the claim. See Greenhough v. Greenhough, supra, at p. 194. It is of course competent for the Surrogate upon an application to com- pel the return of an inventory, to determine whether the applicant comes within the description of persons entitled under the Code to compel the return. Therefore, where the applicant claims to be an adopted daughter, and her claim is put in issue by next of kin, the Surrogate has full power to determine the right of the petitioner to the remedy sought and prayed for, before entering an order upon the application. See Matter of Comins, 9 App. Div'. 492. In the case cited, the Surrogate had granted the application of a person claiming to be an adopted daughter and only heir-at-law or next of kin of the intestate, upon the ground that he was bound to act upon the simple statement of the petitioner without any other proof, by reason of the pro- visions of § 2514, subd. 11. The Appellate Division reversed the order and remitted the matter to the Surrogate to determine judicially whether or not the appUcant was the adopted daughter of the intestate. See opinion of Judge Patterson at p. 494, and Matter of Wagner, 118 N. Y. 28. One of the reasons for this decision was that, prior to the act of 1887, the act of adoption gave no inheritable right, and that the applicant was presumably a stranger in blood, and would have no right in the prem- ises, unless there were an adoption valid in the law to give her a proper status. Where the appUcant claims by virtue of a provision in the will of the decedent, and his rights thereunder are put in issue, it is doubtless compe- 788 surrogates' courts tent for the Surrogate to determine judicially whether or not the applicant has such a status under the will as entitles him to make the application. In the case of Wilde v. Smith, 2 Dem. 93, the applicant claimed to be a beneficiary, by virtue of a certain clause of the will containing precatory words, which it was claimed constituted a trust in favor of the applicant. Surrogate Bergen expressed a doubt as to his power to construe the will upon such an appUcation. It is, however, submitted, that it is perfectly competent for the Surrogate so far to construe the will as to determine the status of the appUcant, although it is certainly questionable whether the determination as to the status of the petitioner would be conclusive upon the accounting and in framing the decree of distribution. § 766. Attachment of the representative. — Section 2716 gives the Sur- rogate power to punish a delinquent executor or administrator by warrant of attachment. The proceedings are the same as upon a warrant issued for disobedience to an order. See, accordingly, part II, ch. IV. It is only proper here to note, that preliminary to proceedings for such punishment, it must appear that the order requiring the representative to return the inventory, was actually personally served upon him. White v. Lewis, 3 Dem. 170. § 767. Dealing with decedent's debtors ; prudent settlements. — Among the assets to be administered by the representatives of a decedent are moneys due and owing to such decedent, or payable to his estate. These the representatives must collect in with all convenient speed, and may of course, when advisable and necessary, bring actions to that end. This duty of pursuing estate debtors carries with it the power to discharge _and release such debtors upon payment being made. Cognate to the power, discussed in the next section, but independent of statute, the executor has power to make "honest and prudent settlement." The headnote of Matter of Thomas, 39 Misc. 223, well states the rule: "Disbursements honestly and properly made by a personal representa- tive, in asserting by litigation a right of the estate or in defeating an attack upon it or in buying peace for it, should be allowed the representative." This is true on accounting, as well as on the appraisal under the Transfer Tax Law. See cases cited by Thomas, Surr., on p. 225. But, on the other hand, the representative, finding notes or other evi- dences of indebtedness or receiving them, is at once chargeable with them as assets. He must be diligent in collecting them. If he fails in this duty and in consequence the amount is lost he will be Uable. Matter of Kemp, 49 Misc. 396, citing Shultz v. Pulver, 11 Wend. 363; Harrington v. Keteltas, 92 N. Y. 40. The burden of proving the insolvency of a debtor or that of each and every joint debtor is always on the representative. Id. citing Mat- ter ofHosford, 27 App. Div. 427; O'Connor v. Gijford, 117 N. Y. 275. § 768. Power to compromise and compound debts. — By statute, the representatives of decedents, whether testate or intestate, are given power to realize on uncollectible, stale or doubtful debts for less than their full amount. The original statute read: ASCERTAINING THE ESTATE 789 "Executors and administrators may be authorized by the Surrogate, or the officer authorized to perform the duties of Surrogate, in the county where their letters, testamentary or of administration, were issued, on application, and good and sufficient cause shown therefor and on such terms as such Surrogate or officer shall approve, to compromise or com- pound any debt or claim, or to sell at public vendue, on such notice of sale as said Surrogate or officer may prescribe, any uncollectible, stale, or doubt- ful debt or claim, belonging to the estate of their testator or intestate." L. 1847, ch. 80, as amended by L. 1888, ch. 571. " § 2. Nothing in this act contained shall prevent any party, interested in the final settlement of said estate, from showing, on the final settlement of the accounts of said executor or administrator, that such debt or claim was fraudulently, or neghgently compromised or compounded." Ibid. This act was amended by ch. 100, L. of 1893, by adding to § 1 the words, "or to compromise or compound any debt or claim owing by the estate of their testator or intestate." This act went into effect March 8, 1893. On May 11, 1893, ch. 686 of the Laws of that year became operative, which repealed ch. 80 of the Laws of 1847 and ch. 571 of the Laws of 1888, explicitly, and therefore impliedly repealed ch. 100 of the Laws of 1893. This appears, now, from revisers' schedule to Decedent Estate Law. Chapter 686 of 1893 amended § 2719 of the Code, providing for the payment of a decedent's debts, the latter part of which section was evidently in- tended to be a substitute for the acts repealed and reads as follows: "The Surrogate may authorize the executor or administrator to com- promise or compound a debt or claim, on application, and for good and sufficient cause shown, and to sell at public auction, on such notice as the Surrogate prescribes, any uncollectible, stale or doubtful debt or claim belonging to the estate; but any party interested in the final settlement of the estate may show on such settlement that such debt or claim was fraud- ulently or neghgently compromised or compounded." This statute as embodied in the Code is the source of the Surrogate's power to authorize a representative to accept less than the whole of a debt due his decedent and to discharge the whole. But it is held that it confers no new power on the representative himself, but merely affords him addi- tional protection when acting in good faith in the exercise of his common-law powers. Gillespie v. Brooks, 2 Redf. 349, 362, citing Chateau v. Suydam, 21 N. Y. 179; Matter of Scott, 1 Redf. 234. So where executors made a settlement with testator's surviving partners in good faith, it was held to bind the estate, and to be conclusive against creditors. Sage v. Woodin, 66 N. Y. 578. On the other hand, where one executor pays his coexecu- tor's claim, which had not been proved to or allowed by the Surrogate, and to much of which defenses were available, he was held chargeable. Matter of Burr, 48 Misc. 56. To compromise or compound a debt means to accept a part in satisfaction of the whole. Matter of Loper, 2 Redf. 545, 546. Consequently, the entering into a creditor's composition deed is not within this definition. Ibid. 790 surrogates' courts Nor does the act confer on the Surrogate the power to enforce an execu- tory agreement by an executor to pay a specific sum in compromise and satisfaction of a judgment against his testator. Matter of Bronson, 69 App. Div. 487. The duty resting on the executor is to act as a discreet and prudent man would act if the debt were his own. Leland v. Manning, 4 Hun, 7, 11; Matter of Scott, 5 Legal Obs. 379; Murray v. Blatchford, 1 Wend. 583. In the case first cited, Brady, J., said: "An executor has not only the power, but is bound, to compound and release a debt, if the interest of the estate requires it." (In- that case the compromise was of several litigated and other claims for a lump sum, for which the executors accepted the debtor's note. This was not disapproved.) But the duty to compromise is one in performing which the executor is upheld if he exercise honest judgment, even though it subsequently appear the estate would have benefited more if he had acted differently — thus, where an executor refused to compromise a debt and subsequently fails to collect it at all the inquiry will be whether he used a sound discretion, or was guilty of culpable neglect. In re Scott, 1 Redf. 234, 236. If an executor chooses to act on his own responsibiUty, and without ap- plying to the Surrogate, under the statute quoted, for his approval, it will be his duty upon his accounting to establish affirmatively the propriety of the compromise, if objection be filed to it. In re Quinn's Estate, 9 N. Y. Supp. 550, 552, Ransom, Surr. In the absence of such proof, in such a case, the objection will be sustained. Ibid. In this case the executor held a judgment for his claim. If the executor asks leave of the Surrogate, he must upon the application give the Surrogate the same evidence, to inform his mind, as if the com- promise had been made and were being attacked upon the accounting {In re Richardson's Estate, 9 N. Y. Supp. 638) ; for the very reason that the statute permits any party interested in the estate to attack the compro- mise for the causes specified upon such accounting, regardless of the Sur- rogate's preliminary approval. § 769. Asking leave of Surrogate to compromise. — Therefore, upon an application under the statutes, facts, not conclusions, must be alleged. In the Richardson case, supra, the executor, in his petition, alleged that "after a thorough examination of the questions involved in the suit, and the responsibility of the defendant therein, and upon the advice of his attorney, he was fully satisfied that it was for the interest of the estate to accept the compromise." The affidavit of such attorney was also offered alleging that he had examined the questions involved, and considered the probability of collecting judgment, if any, and that he was satisfied, etc. Ransom, Surr., properly held that the statute contemplated good and suffi- cient cause being shown to satisfy the Surrogate, and to induce his approval. The Surrogate can base his judgment only upon facts, such as insolvency of debtor, unsettled state of la-w making prosecution of suit doubtful, lack of evidence or death of witnesses. These ought to be concisely alleged. ASCERTAINING THE ESTATE 791 The Surrogate may require, when obtainable, the consent of the parties in- terested in the fund. If the claim is in Utigation, the pecuniary interest of the attorney in the result should be disclosed. Ibid. The Surrogate must know what the net result to the estate may be expected to be. When, as is increasingly the case, the compromise relates to an action brought by the representatives to recover damages for occasioning the decedent's death, the Surrogate may be influenced by the fact that the decedent left his family without means, that they are in great need, and that the sum real- ized by the compromise submitted for his approval, will meet their pressing needs, while, if it be rejected; the delays and risks of litigation may entail severe suffering. Consequently the insolvency of the debtor is not a pre- requisite. It was at first held so. Howell v. Blodgett, 1 Redf . 323. But this rule is no longer applied. The considerations above specified supply the reason. Berrien's Estate, 16 Abb. Pr. N. S. 23; People v. Pleas, 2 Johns. Cas. 376; Shepherd v. Saltus, 4 Redf. 232. § 770. Precedents. — The following will serve as precedents: Surrogate's Court, County of Petition for leave Tiflp I to compromise a ' j *^*''°* A. B. as executor of the last will and testament of deceased, for his petition to this court respectfully alleges : First. Your petitioner is the executor of the last will and testament of the decedent above named, which was duly probated, and your petitioner received letters testa- mentary thereunder on the day of 190 Second. That your petitioner filed his inventory of the estate committed to him on the day of 19 {Note.) Note. See Jeroms Third. That among the assets of the said estate is a certain v^ ero s, . pj.Qmiggory note (here describe note, or state what the claim is which it is sought to compromise, giving full details of its character, amount and status. If it is in action state whether at issue, or whether an appeal is pending.) Fourth. That the debtor above named resides at and {here state as nearly as possible the pecuniary condition of the debtor or defendant, his solvency or insolvency, whether there are prior judgments, whether there is an assignee or re- ceiver in possession of his property. This may be done fuUy, or by reference to affidavits to be handed up with the petition). Fifth. And your petitioner further shows that an offer has been made by {or on behalf of) said debtor {or defendant) to pay to your petitioner as executor as aforesaid the sum of in consideration of the execution and delivery by your petitioner, as such executor, of a release of said claim in full. Sixth. Here state reasons additional to those above indicated, if any, why it would be to the best interests of the estate that the offer be accepted, as: And your petitioner further shows that 24. 792 surrogates' courts he is without funds to pay two certain legacies under said will (describe them) aggregating ; that more than a year has elapsed since the granting of said letters testamentary Note The attor- ^^'^ interest is accruing on said legacies, and your petitioner ney's aflB.davit may '^ advised by his counsel and verily believes (note) it to be be also submitted. advantageous and to the best interests of the estate to accept this offer at the present, and not to incur the risks of litiga- Tj „, tion (or not to suffer the disadvantages and possible risks of for citation of per- delay). sons interested is not Wherefore, your petitioner prays an order of the Surrogate necessary. They are granting him leave to compromise the claim aforesaid at the to be cited only if sum aforesaid. (Note.) the Surrogate re- (Signature.) quire it. (Verification.) Surrogate's Court County of O""**"- Title. A petition having been presented to me, the Surrogate of the county of under section 2719, Code of Civil Proce- dure, by the executor of the last will and testament of the above named decedent, praying for an order of the Surrogate authorizing him to compromise a certain claim (describe it) for the amount of f wherefrom, and from the affidavits of verified the day of 19 and of verified the day of 19 it appears to my satisfaction that good and sufficient cause is shown for the making of such order (and if the Surrogate examined the executor or anyone in the -premises, or referred the matter for the purpose, recite the facts). Now, on motion of attorney for said petitioner. It is Ordered, that executor of be and he hereby is authorized to compound or compromise the said claim for the amount of $ (upon the following terms and conditions, specifying them), and to make, execute and deliver to the said debtor (or defendant) a release in full therefor upon receipt of the said amount. Dated the day of 19 Surrogate. § 771 . Apportionment of rents, annuities and dividends. All rents reserved on any lease made after June seventh, eighteen hundred and seventy-five, and all annuities, dividends and other payments of every description made payable or becoming due at fixed periods under any in- strument executed after such date, or, being a last will and testament that takes effect after such date, shall be apportioned so that on the death of any person interested in such rents, annuities, dividends or other such payments, or in the estate or fund from or in respect to which the same issues or is derived, ASCERTAINING THE ESTATE 793. or on the determination by any other means of the interest of any such person, he, or his executors, administrators or assigns, shall be entitled to a -proportion of such, rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, as the case may be, including the day of the death of such person, or of the determination of his or her interest, after making allowance and deductions on account of charges on such rents, annuities, dividends and other payments. Every such person or his executors, administrators or assigns shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, dividends and other payments, when the entire amounts of which such apportioned parts form part, become due and payable and not before, as he or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but the persons liable to pay rents reserved by any lease or demise, or the real property comprised therein shall not be resorted to for such apportioned parts, but the entire rents of which such apportioned parts form parts, must be collected and recovered by the person or persons who, but for this section, or chapter five hundred and forty-two of the laws of eighteen hundred and seventy-five, would have been entitled to the entire rents; and such portions shall be re- coverable from such person or persons by the parties entitled to the same under this section. This section shall not apply to any case in which it shall be expressly stipu- lated that no apportionment be made, or to any sums made payable in policies of insurance of any description. § 2720, Code Civil Proc. It was the uniform and unbending rule of the common law, recognized both by courts of law and equity, that annuities were not apportionable in respect of time. Kearney v. Cruikshank, 117 N. Y. 95. This rule of the common law has been changed from time to time by statutes making annuities apportionable in respect of time. The legislature of this State changed the rule in 1875 (Laws of 1875, ch. 542), but only as to annuities, dividends and other payments, made payable or becoming due at fixed periods under an instrument executed after the passage of that act. This statute was superseded by § 2720 of the Code of Civil Procedure, which by its terms is likewise confined in its operation to certain sums made paya- ble or becoming due at fixed periods under an instrument executed since the passage of the act of 1875. Matter of Kane, 64 App. Div. 566, 569. § 772. Same subject. — In the case last cited, the testator had by agree- ment with his daughters an interest in certain dividends "declared upon said stock for the term of his life." He died November 15, 1897, having received a dividend October 28th. A dividend of $200 a share was de- clared November 24, 1897, and paid to the daughters. It appeared that the company paid dividends when earned, not necessarily at a fixed day, but in point of fact as a rule monthly. The Appellate Division reversed the Surrogate who charged the executors with seventeen-thirtieths of this dividend, and held that these dividends were not apportionable under § 2720. 794 subrogates' courts In Hopper v. Sage, 112 N. Y. 530, 533, the court said: "That when a divi- dend is declared it belongs to the owner of the stock at that tijne, but that until such declaration the profits form part of the assets, and ah assignment by a stockholder before such declaration carries with it his proportional share of the assets, including all undeclared dividends." In Hyatt v. Allen, 56 N. Y. 553, 558, the learned judge who spoke for the court said: "A gift of the profits and dividends of stock for life would not, I think, be held to carry dividends declared after the death of the benefi- ciary, although made from profits accrued during his life." This rule was also announced in Hill v. Neunchawaniak Company, 8 Hun, 459, aff'd 71 N. Y. 593; Jermain v. Lake Shore & M. S. Ry. Co., 91 N. Y. 483; Matter of Kernochan, 104 N. Y. 618. The declaration of a dividend is in legal contemplation a separation of the amount thereof from the assets of the corporation, which holds such amount thereafter as the trustee of the stockholder at the time of the dec- laration of the dividend. Hopper v. Sage, supra. CHAPTER II ASCERTAINING THE DEBTS § 773. Duty of the executor or administrator. — After the estate has "been inventoried and appraised, and before the proceedings to fix the amount of transfer tax payable are initiated, it is the duty of the repre- sentative to ascertain the debts of the decedent. Matter of Warrin, 56 App. Div. 414. It is advisable to do this before the transfer tax proceedings, because of the deduction to which the estate is entitled by reason of such debts, in fixing the net amount of the tax payable. In the chapter on Accountings, post, will be found the discussion of the topic of disputed claims against the estate coming up upon the accounting for the estate. It is unfortunate that the power of the Surrogate to deal with claims against decedents' estates is so limited, and in so artificial a manner. His power upon accounting is compUcated by restrictions. His power under § 2718o, a new section, is limited by consent required. His jurisdiction, laboriously invoked, may often be ousted, by its appearing that the claim is one he is powerless to determine. The legislature ought to confer on this able and thoroughly qualified class of judges, of a court of record, comprehensive powers to adjudicate whenever necessary all claims against decedent's estate. It would save time, money and costs, and facilitate administration. The limited jurisdiction in this respect is an anachronism. This chapter deals with the topic of the executor's or ad- ministrator's duty to ascertain his decedent's obligations as a preUminary to administration. § 774. Ascertaining the debts. — The Code prescribes the manner, in which the debts are to be ascertained, by § 2718, which is as follows: The. executor or administrator at any time after the granting of his letters, may insert a notice once in each week for six months in such newspaper or newspapers printed in the county as the surrogate directs, requiring all per- sons having claims against the deceased to exhibit the same, with the vouchers therefor, to him, at a place to be specified in the notice, at or before a day therein named, which must be at least six months from the day of the first publication of the notice. The executor or administrator may require satis- factory vouchers in support of any claim presented and the affidavit of the claimant that the claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of the claimant. If the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter 795 796 subrogates' coubts in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the supreme court in the county in which the parties or either of them reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the supreme court. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in which such court might, by law, direct a reference. In determining the question of costs the referee shall be governed by sections eighteen hundred and thirty-five and eighteen hundred and thirty-six of this act. Judgment may be entered on the report of the referee and such judgment shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process, and the practice on appeal therefrom shall be the same as in other civil actions. If a suit be brought on a claim which is not presented to the executor or administrator within six months from the first pubUcation of such notice, the executor or administrator shall not be chargeable for any assets or moneys that he may have paid in satisfaction of any lawful claims, or of any legacies, or in making distribution to the next of kin before such suit was commenced. § 2718, Code Civil Proc. Under this section there are three points requiring discussion: (a) The notice for claims. (6) The presentation of claims. (c) The reference of disputed claims. § 775. A new, additional remedy. — But, at this point, should be noted the new summary remedy (inserted by L. 1904, oh. 386; in effect Sept. 1, 1904) and entitled: Claims (igainst executor or administrator. Upon the petition of an executor or administrator, after notice of publica- tion to the creditors to present claims has been completed, a citation may be issued against any claimant directing him to present his claim to the surrogate for determination at a date not less than three months from the service of the citation upon him. If he shall not have commenced an action against the petitioner upon his claim prior to the return day, the claim shall be deemed forever barred unless on the return day he shall consent to its determination by the surrogate, in which case it shall be so determined. The word claimant within the meaning of this section shall be deemed to include every person claiming to be a creditor of the estate or claiming a right in or lien upon any personal property in the custody of the petitioner or any claim against the petitioner by reason of any act of his in the administration of the estate, or in his representative capacity. § 2718a, Code Civil Proc. By use of this remedy the executor can expedite matters, and force the creditor's hand, either compelling him to sue at once, or to submit to the Surrogate's award. This section is clear and explicit. But, it is a pity that many of these elaborate and sometimes confusing and intricate provisions ASCERTAINING THE DEBTS 797 are not eliminated by conferring, by constitutional amendment, if need be, full, unlimited jurisdiction on Surrogates' Courts to adjudicate all matters arising in connection with decedents' estates, even to the con- struction of wills of real property. The limitations on the Surrogate's jurisdiction, once proper, and even necessary, are now neither. That a Surrogate in New York County is competent to construe a will as to a million of personalty, and not one affecting a thousand in realty is no more an anachronism than that a Surrogate up the State can decide as county judge what as Surrogate he cannot. § 776. The notice for claims. — Recurring to § 2718, the importance of giving the notice provided for by § 2718, is indicated in the closing para- graph of the section, to wit: If suit be brought on a claim which is not pre- sented to the executor or administrator within six months from the first publication of the notice, "the executor or administrator shall not be chargeable for any assets or moneys that he may have paid in satisfaction ■of any lawful claim, or of any legacies, or in making distribution to the next of kin before such suit was commenced." This means the executor or administrator shall not be chargeable therefor as executor, nor required to account therefor to such creditor. It does not mean, however, that the ■debt against the estate shall not be liquidated by a formal judgment. Mayor v. Gorman, 26 App. Div. 191, 197, 199. Read opinion of Barrett, J., pp. 197 et seq., on history of this legislation. The provision of the Code is merely for the protection of the represent- atives, and there is no absolute legal obligation to give the notice or adver- tise for claims against the estate. Fliess v. Buckley, 90 N. Y. 286, 292, citing Bullock v. Bogardus, 1 Denio, 276. In the case last cited, it was held, that the executor is not bound to give this notice in any case, and that he violates no duty by its total omission. He may give notice for his own protection or for the benefit of the estate. And it was consequently held that costs could not be imposed upon the ex- ecutor merely because he had pubUshed no notice for claims. Id., note A. on p. 278. The hability imposed upon the executors of a deceased stockholder, who was liable upon his stock under the statute, imposed by the Court of Ap- peals, in the case of Veeder v. Mudgett, 95 N. Y. 295, was a liabiUty growing out of the provisions of the Manufacturing Corporation Act of 1848 and turned on the failure of the executors to comply with the statutory re- quirement, and is not inconsistent with the proposition above stated. The notice to present claims should follow the statute. It appears first from § 2718 that application must be made to the Surrogate for his direc- tion as to the newspaper or newspapers "printed in the county in which the notice is to be published." The function of the Surrogate is not to determine whether or not the notice should be pubUshed; that rests exclu- sively in the discretion of the representative, as does also the time when the publication of such notice shall commence, "which is any time after the granting of letters," but the Surrogate has power to designate the paper 798 surrogates' courts in which the notice must be inserted. The application, therefore, need not be verified but may be substantially in the following form: Surrogate's Court, County of Westchester. Application for In the Matter of the Estate"^ order designating of }■ newspapers in which Deceased, j to publish notice ^^^^ ^f deceased, hereby appi -„.. - ^J^ ^ for an order of the Surrogate of the County of Westchester, section 2718 of the , . .. ., . u- u <■ uv i. *• ^ c d f r' '1 p designating the newspaper in which to publish notice to cedure creditors of said deceased, to present their claims according, to law. Note. Here state g^j^j deceased, at the time of death, resided in the such facts m regard , n j. c -nr j. i. t. j j , ,, , . ?^, of County of Westchester, and was engaged to the business of the ■ , . •. decedent, its charac- '^ (note), ter and location, as Dated 19 to inform the Surro- (Signature.) gate of the probable residence of creditors, this being requisite in order that he may determine in his discretion whether addi- tional publication should be made in other counties of the notice for claims. The publication in such other counties is not imperative, but is within the power of the Surrogate to direct. In the blank appUcations provided in the Franklin County Surrogate's; Court appears an allegation by the executors, specifying the newspapers considered by him as likely to reach all creditors of the deceased. Such an allegation is helpful, but the designation of the paper is a "prerogative" of the Surrogate and he is not bound by the suggestion of the executor. Upon the presentation of this application the Surrogate will make an order designating the newspaper or newspapers in which the notice is to be inserted. Surrogate's Court Caption. Present : Hon. Surrogate. Order designating Title. \ ' paper in which to ' ^ pubUsh notice for On reading and filing the appUcation of execu- claims. ^.qj, ^f ^jjg ^g^ ^y ^j^^ testament of deceased, for an order of the Surrogate designating the newspapers in which to publish the notice to creditors of said decedent to present their claims according to law, it is hereby Ordered, that published in and pub- lished in be and they hereby are designated as the newspapers in which the said executor may insert a notice once in each week for six months, requiring all persons hav- Note. The order ing claims against the said deceased to exhibit the same, with may if desired spec- vouchers therefor, to such executor at a place to be specified ASCERTAINING THE DEBTS 799 ify the time and in such notice, at or before a day therein named (which must place of presenta- he at least six months from, the day of the first publication of tion of claims; but such notice) (note) and it is the form suggested Further Ordered (here insert provisions, if deemed'necessary IS m e anguage o j^y ^^^ Surrogate, for publication in papers not published in the tr. . . county of the Surrogate for the purpose of notifying creditors in other counties.) As soon as the order designating the newspaper has been entered publi- cation of the notice may commence. The notice should recite the order of the Surrogate requiring persons having claims against the decedent to present them to the executor or administrator in person (Hardy v. Ames, 47 Barb. 413) ; and it is customary to designate as the place for presenting the claims the place of business of the executor; this, however, is not necessarily the residence or regular place of business of the executor, but may be the office of his attorney. The time within which the claims are required by the notice to be presented must be at least six months from the date of the first pubUcation. It is proper that the notice shoiild be signed by the executor or administrator and it is customary that the names and addresses of his attorneys should appear thereon. The notice may be substantially as follows: SMITH, JOHN HENRY, In pursuance of an order of Ifotice to creditors. Hon. Surrogate of the county notice is- hereby given to all persons having claims against John Henry Note. By section Smith, late of deceased, to exhibit the same with the 2718 the executor vouchers therefor (note) to the undersigned executor of the is entitled to require j^^. ^jjj ^^^^ testament of said deceased, at satisfactory vouchers ^^^^^^ j^ ^j^^ ^^^^ ^^ ^^^^^^ ^_ ^ g_^ j^j^ attorneys (or 1 ■ ted 'th ^P^fy ^^ executor's residence or place of business if desired) an affidlvit of the <"i »' before the day of 19 claimant, that the Dated the day of 19 claim is justly due, Signature of that no payment has Executor, been made thereon, A. & B., that there are no Attorneys for Executor, offsets thereon to Office Address, the knowledge of the claimant. In prac- tice it is not cus- tomary to incorporate this requirement in the notice to creditors. The requirement can be made of the creditors when they file their proofs of claim. § 777. Presentation of claims on or before the day named in the pub- lished notice. — All persons having claims against the decedent should exhibit their claims to the executor or administrator at the place specified in the notice. The proof of claim should preferably be in the form of an account with the estate of the decedent, verified by an affidavit substan- tially in the language of § 2718, that the amount specified in the claim is justly due, that no payments have been made thereon (except as credited 800 SURROGATES COURTS in the statement), and that there are no offsets against the same to the knowledge of the claimant (or if there are, that they have been duly cred- ited). The object of requiring the affidavit is not to prove the existence of the debt, but to safeguard the estate against the exhibition of fictitious claims, or such as may have been actually or in part discharged by him in his lifetime. Osborne v. Parker, 66 App. Div. 277. See Matter of Goss, 98 App. Div. 489, 492. The following is substantially the form in use in the Surrogate's Court in Erie County: Estate of , Deceased. To E. g. Db. Date Item Amount 1906 May 2 1908 May 2 1 Promissory note Less payment on a/c Balance and interest at 6% since May 2/08 $ 00 200 $300 State of New York, "| Erie County, >-ss.: City of Buffalo. j being duly sworn, says that the foregoing claim against the estate of late of the of N. Y. deceased, is in all respects correct and justly due and owing this deponent; that no payments have been made thereon (other than those stated therein), that there are no offsets against the same to deponent's knowledge, and deponent is now the lawful owner of said claim. And deponent further says, that said claim, is not nor is any part thereof, secured by judgment, mortgage, or ex- pressly charged upon the real estate of said deceased. Subscribed and sworn ^ to before me, this >- day of 19 J Affiant Officer administering the oath to sign here. The failure of a creditor to present his claim within the time limited by the statutory notice operates to prevent any award of costs in his favor against the executor in subsequent proceedings to enforce his demand against the estate. Horton v. Brown, 29 Hun, 654; Bullock v. Bogardus, 1 Denio, 276. By service of his claim in due form, the creditor is put in the position of having his claim become a liquidated and undisputed debt against the estate, in case it is not rejected or disputed and referred under § 2718 by the executor or administrator. Lambert v. Craft, 98 N. Y. 342, 349, citing Underhill v. Newburger, 4 Redf. 499; Magee v. Vedder, 6 Barb. ASCERTAINING THE DEBTS 801 352; Matter of Prince, 56 Misc. 222. The claim need only be presented at the place and to the persons specified in the notice. If there are two ex- ecutors, service upon one of them is sufficient. Knapp v. Curtiss, 6 Hill, 388; Lambert v. Craft, supra. If a creditor present his claim he is deemed to present his full claim. So if his claim contain no demand for interest, and is allowed as presented, the claimant is not entitled to interest on the amount allowed. Matter of Warrin, 56 App. Div. 414. Judge Woerner in his treatise on the American Law of Administration, vol. 2, ch. 41, suggests, that the representative should require literal com- pliance with the terms of the notice, and exactness in the proof of claim, because of the fact that he is representative not only of the estate, but of all the other creditors interested, and that a waiver of technical rights in behalf of one might well be prejudicial to the rights of others. Therefore a creditor should not rely upon the fact or supposed fact that the executor or administrator has knowledge of the existence of his claim. Such knowl- edge on the part of the executor or administrator of the existence of a claim against the estate does not avoid the necessity of its due presenta- tion. See Matter of Morton, 7 Misc. 343, citing Livingston v. Gardner, 4 Redf . 517, and note. An administrator who has conformed to the require- ments of the statute and has published the prescribed notice has a right to assume that all persons having claims against the decedent which they intend to enforce have presented the same and demanded payment thereof; and if he thereafter distribute the assets to those entitled to them, or dis- tribute them in a manner to which they give approval and consent, he will not be held accountable for such distributed estate to a creditor who neither presented his claims nor took any legal proceedings to collect it while the funds were in the administrator's hands. See O'Connor v. Gifford, 117 N. Y. 275, 283; Erwin v. Loper, 43 N. Y. 521; Field v. Field, 77 N. Y. 294; Matter of Gill, 42 Misc. 457. An oral conversation by the creditor with the executor or administrator, is not a sufficient compliance with the statute; the exhibition of the claim contemplated by the Code is not a mere conversation. The statute plainly intends that the claim shall be presented or exhibited in some writing, stating its nature and the amount, the name of the creditor and a demand for its payment. The personal representative of the estate is put by such a paper in possession of information which enables him to act intelligently either in admitting the claim or in taking such steps as are necessary to protect the estate against it. See Matter of Morton, 7 Misc . 343 ; Cruikshank V. Cruikshank, 9 How. Pr. 350, 351; King v. Todd, 27 Abb. N. C. 149, 150; Robert v. Ditmas, 7 Wend. 523; Gansevoort v. Nelson, 6 Hill, 392. See Merino v. Munoz, 99 App. Div. 201, as to effect of subsequent reference of claim informally presented. § 778. Failure to present dangerous, not fatal. — It must not be inferred from the rules above laid down that the rights of the creditor are impaired or precluded by a mere omission to present his claim {Matter of Mullon, 145 N. Y. 98, 104), but his chances of being paid out of the estate may be 51 802 surrogates' courts lost. Without such presentation the creditor can still prosecute his claim after the notice to creditors has been published for the six months required, and his judgment when recovered against the executor or administrator is good as against the assets then in his custody. Cotter v. Quinlan, 2 Dem. 29, 33, citing Ermin v. Loper, 43 N. Y. 521 ; Baggott v. Boulger, 2 Duer, 160; 2 Story's Eq. Juris. §§ 1250 and 1251. So, in Matter of Gill, 183 N. Y. 347, notice was published. Creditor failed to present his claim. Executrix paid ou£ all in her hands pro rata to other creditors. She had never accounted, however. Held creditor could, under § 2726, compel an accounting. It is provided under §§ 1835 and 1836 of the Code, that in actions by creditors against the executor or administrator in which a judgment for a sum of money only is recovered, costs shall not be awarded against the representative unless it appears first, that the demand was presented within the time limited by the statutory notice duly published; and second, imless the executor unreasonably resisted or neglected the demand so presented. See Supplee v. Sayre, 51 Hun, 30; Horton v. Brown, 29 Hun, 654; King v. Todd, 27 Abb. N. C. 149, 150. A creditor sued the executors of his debtor for the amount of a note, which was to be delivered by one of the executors to the creditor in case of his death, but in case of his recovery from the illness from which he was then suffering, it was to be returned to the testator. The testator died in that illness, and the executor to whom it was delivered retained the note. The notice for the presentation of claims was duly published, but no proof of claim was made by the creditor except a demand made by him upon the executor to deliver up the note. The General Term held, that this was not a sufficient presentation of the claim against the estate to constitute a com- pliance with the requirements of the statute. Niles v. Crocker, 88 Hun, 312, 315, and cases discussed. § 779. Action by the executor or administrator upon the claim. — Before proceeding to the third subdivision of this topic, the reference of disputed claims, it is proper to note what the courts have held to be the effect of ac- tion by the executor upon claims duly presented to him. When a claim is presented the representative owes the duty to the estate, to the creditor and to the other creditors, all of whom, in a sense, he represents, to pass on the validity of the claim, and either allow or reject it. Matter of Warrin, 56 App. Div. 414; McNulty v. Hurd, 72 N. Y. 518. In ease of nonaction by the executor, it was held by the Court of Appeals, in Lambert v. Craft, 98 N. Y. 342, 349, that if after a reasonable opportunity for examination into the vaUdity and fairness of a duly presented claim, the executor does not offer to refer it on the ground that he doubts its justice or disputes it as unjust, it acquires the character of a Uquidated and undisputed debt against the estate. Danforth, J., citing Underhill v. Newburger, 4 Redf. 49, and Af agree v. Vedder, 6 Barb. 352. The case of Schutz v. Morette, 146 N. Y. 137, reversing 81 Hun, 518, although involving a different point, somewhat Umited the rule previously laid down. This was an action by a creditor as upon an account, stating his claim had been presented to the executor who ASCERTAINING THE DEBTS 803 acknowledged its receipt, and although he had a reasonable opportunity to examine into its validity and fairness, neither disputed nor rejected the same, although he declined to pay it. In this case, however, it appeared that the claim upon its face was barred by the Statute of Limitations, at least in part, at the time of the death of the testatrix. The Court of Ap- peals held, that the executor could neither by his promise nor acknowl- edgment, oral or written, revive a debt against the estate of his testator which was barred (citing Bloodgood v. Brum., 8 N. Y. 362), and that against such a claim so barred he was bound to plead the statute (citing Butler v. Johnson, 111 N. Y. 204) and Andrews, C. J., said (146 N. Y. at p. 143): "In view of the power and duty of an executor or administrator, the in- ference from his silence merely of an agreement on his part to pay a debt so situated, would be unreasonable. . . . The statutory system for the pres- entation and adjustment of claims against the estate of a decedent fur- nishes a summary and inexpensive method by which claims can be adjusted without action, or by reference. The executor or administrator may, on being satisfied of the justice of a claim presented, admit it, or if he doubts its justness, may reject it and leave the creditor to his remedy by action if a reference is not agreed upon. But the presentation of a claim, followed by inaction, the executor or administrator neither rejecting or admitting it, does not, we think, bind the estate as upon an account stated. It may be justly claimed that the executor or administrator ought, in the fair dis- charge of his duty both to the creditor and to the estate, to examine the claim within a reasonable time and make known his position in respect to it. But it would be hazardous, in view of the ignorance or inexperience of the persons called upon to act as executors or administrators, to construe mere silence on his part as an admission that the claim was a valid one. The creditor must see to it that the claim is admitted and allowed by the executor or administrator, and an implied admission from silence is not sufiicient. In Reynolds, Admr., v. Collins, 3 Hill, 36, it was held that the presentation of a claim imder the statute does not bar the Statute of Limi- tations, and if the executor neither allows nor rejects it, the creditor ' must take care to have the matter adjusted or commence his action within the period of the statute or he will be too late.' " See Matter of Goss, 98 App. Div. 489; Matter of Jacobs, 109 App. Div. 293; Matter of Van Voorhees, 55 Misc. 185. And in a still later case {Matter of Callahan, 152 N. Y. 320, 352), the same judge, referring to the case of Schutz v. Morette, remarked "we are of opin- ion that mere silence on the part of an executor or administrator after the presentation of a claim under the statute, accompanied by lapse of time, will not in any case preclude the representative from thereafter contesting its vahdity. See Matter of Pierson, 19 App. Div. 478; Matter of Whitehead, 38 App. Div. 319, 321; Matter of Brown, 60 Misc. 35. If the claim is not rejected, and on an accounting no objection is taken to its allowance, then the Surrogate will be authorized to treat it as an admitted claim and direct its payment. But the claim does not become established from mere silence 804 surrogates' courts of the executor or administrator. Matter of Brown, supra. See also Matter of Doran, 38 N. Y. Supp. 544. § 780. Forcing creditors to sue or submit to Surrogate. — Under § 271Sa, the executor may, if unwilling to allow a claim, expedite its judicial as- certainment. This is a distinct special proceeding, upon petition by the representative, and upon citation to be issued "against the claimant. The petition may be filed as soon as publication of notice has been completed. It prays (and the citation directs) the claimant shall present his claim to the Surrogate for determination at a date not less than three months after he is served. , Thereupon the creditor is confronted with the defeat of his claim. For it shall be forever barred on such return day, unless (a) He shall have commenced suit on that claim before such day, or unless (6) He shall then, on such return day, consent to its determination by the Surrogate. Since, to avoid the barring of his claim, where he has not begun suit upon it, the creditor must consent, it is very doubtful whether he can extend this limitation period by having the return day adjourned. The creditor should, therefore, be vigilant to sue or consent within the time limited. Secondly. We note the extended meaning, in § 2718a, given to "claim- ant." The Surrogate, by virtue of this notice, is given right to cite "any claimant." This is not limited to creditors of decedent who have pre- sented their claims. It is to include claimants against the estate or its representatives for his acts as such. This extends the Surrogate's power, in this particular, and by not limiting the jurisdiction to the accounting proceeding. The threefold course open to a creditor, who has had his claim rejected, is summarized in Clark v. Scovill, 191 N. Y. 8 as: (o) To refer, under § 2718; (b) To sue, under § 1822; (c) To consent to its determination by Surrogate on accounting. Now, however, without awaiting an accounting, he can, by consent, and the executor being the moving party, have a determination by the Surro- gate under § 2718a. Query, since the three months' limit of notice re- quired in the citation is obviously for the protection of the creditor, why can he not waive the issuance and service of the citation, under § 2528, and secure an immediate adjudication? § 781. Claims by the executor against the estate. — (See post, as to power of Surrogate upon the accounting to adjudicate such claims.) An executor or administrator in his individual capacity as creditor of the estate, has the same right with every other creditor of presenting his claim duly vouched and proven, and of being paid pro rata with the other creditors. Williams V. Purdy, 6 Paige, 166 ; Clark v. Clark, 8 Paige, 152. But this does not mean that he is to be paid on his mere verified claim. In fact, his verification of a written claim is held incompetent Under § 829. Matter of Smith, 75 App. Div. 339. ASCERTAINING THE DEBTS 805 It is expressly provided by § 2719, that "an executor or administrator should not satisfy his own debt or claim out of the property of the deceased, until proved to, and allowed by, the Surrogate; and it shall not have prefer- ence over others of the same class." There is this difference, however, that by § 2731 provision is made that "on the judicial settlement of the account of an executor or administrator he may prove any debt owing to him by the decedent." And if any contest arises between the accounting party ahd any of the other parties respecting a debt alleged to be due by the decedent to the accounting party, the contest must be tried and determined in the same manner as any other issue arising in the Surrogate's Court, except where the claim is made in a representative capacity, in which case it may be so tried. This section enacts the rule under the former statutes. See Barras v. Barras, 4 Redf. 263. It was held prior to the amendment of § 2719 in 1893, that a Surrogate had no power to entertain an individual proceeding for the purpose of es- tablishing a decedent's debt to the representative. Matter of Rider, 3 Silvernail, Ct. of Appeals, 607. But it is now settled that he may do so. Matter of Marcellus, 165 N. Y. 70, 75; Kyle v. Kyle, 67 N. Y. 400, 408; Shakespeare v. Markham, 72 N. Y. 400; Boughton v. Flint, 74 N. Y. 476. Claims which the executor may have against the estate fall under two classes, the first, claims for moneys advanced by him to pay legacies or debts before he has realized on the assets of the estate; and the second, debts owing to him as an individual by the decedent at the time of his death. In respect to the first class of debts it is to be stated that the payment of lega- cies or debts by an executor before ascertaining what is due to the creditors and thus, before being in a position to know whether the balance of the estate will be sufficient to pay both debts and legacies, is at his peril. Glacius V. Fogel, 88 N. Y. 434, 444. Surrogate Bradford, in Clayton v. Wardell, 2 Bradf . 1, 7, held, that where executors had made distribution of some part of the estate among children and legatees, and it subsequently appeared that the undivided residue was insufficient to pay all creditors, the executors were nevertheless liable to the creditors and should be allowed for such debts as they had paid in full only the amount to which the creditors so paid would be severally entitled rata- bly with the other creditors upon the final decree for the settlement of the account. He observed: "The losses suffered by the executors by these overpayments, could easily have been avoided by reserving the funds necessary to meet all claims of which notice had been received. The advertisement for claims under the statute, affords sufficient protection to the executor or administrator, if he pays or distributes after the period for the advertisement to run has expired. If he pays before, it is at his own risk, and he should suffer, in preference to an innocent creditor." Where an executor personally makes advances to legatees, so far as the estate is concerned he is entitled merely to be subrogated to the rights of the legatees and to a repayment from the shares of such legatees only, and 806 surrogates' courts if after the payment of debts it becomes necessary to scale down the lega- cies pro rata, the right of the executor, independently of his ultimate remedy against the legatee, is merely to that pro rata share of the assets available for distribution among the legatees to whom he has made advances. Ticket V. Quinn, 1 Dem. 425, 432. See also Estate of Randall, 8 N. Y. Supp. 652. But for advances made by an executor to pay debts of a solvent estate, he is entitled to reimbursement. Livingston v. Newkirk, 3 Johns. Ch. 312; Yeddo V. Whitney, 17 Weekly Dig. 120. In regard to the second class of claims, debts due to the executor or ad- ministrator by the testator at the time of his death, it may be observed first, that such debts will be scrutinized with great care. Wright's Ac- counting, 4 Redf. 345. They should be established by very satisfactory evidence, in the absence of which it is the Surrogate's duty to reject them. Matter of Marcellus, 165 N. Y. 70, 76; Matter of VanSlooten v. Wheeler, 140 ^N. Y. 624, 633; Matter of Furniss, 86 App. Div. 96; Matter of Arkmburgh, 58 App. Div. 583. Formerly the executor or administrator had a right to retain sufficient assets to satisfy his claim, for he then had no other way of satisfying it {Rogers v. Hosack, 6 Paige, 415; see Wood v. Rusco, 4 Redf. 380, 384), for he could not sue himself in any court; but the present rule, before quoted, prohibiting an executor or administrator from retaining any assets to satisfy his claim, until it should be proved to, and allowed by, the Surrogate, in the manner and at the time therein provided, puts him in a different position than that formerly occupied. The provision suspending the running of the Statute of Limitations from the time of the decedents' death to the time of the judicial settlement of the accounts of the executor or administrator, takes away the reason for the former rule. In scrutiniz- ing the claim of the representative, the court will regard it with some de- gree of suspicion where it is not based upon some written obligation of the decedent, and in view of the fact that the representative alone remains to give his version of the matter. The fact must be established to the satis- faction of the Surrogate by clear and convincing proof; this is what is con- templated by the words " proved to and allowed by the Surrogate." Wood V. Rusco, supra. Where the debt is based on a written obligation, the executor is entitled to the benefit of the usual presumptions. He is not bound, therefore, to prove affirmatively that the note has not been paid. Macomber's Estate, 11 N. Y. Supp. 198, citing Egan v. Kergill, 1 Dem. 464; McKyring v. Bull, 16 N. Y. 297; Lerche v. Brasher, 104 N. Y. 157, 161. It is perfectly competent for an executor to assign his claim against the estate, and the assignee may maintain an action thereon as any other cred- itor could, and is not confined to the remedy provided by the Code. This has been explicitly held by the Court of Appeals {Snyder v. Snyder, 96 N. Y. 88), where two brothers being the executors of the estate and one having a claim against the testator (their father) assigned it to his wife, who pre- sented the claim to the executors ; but the brother of the assignor refused to allow or refer the same. Danforth, J., observes (at p. 92): ASCERTAINING THE DEBTS 807 "If Philip (the husband) had not qualified, Sylvester would have been sole executor; and then, of course, his remedy for the debt due him would have been the same as that of any other creditor. Philip, the creditor, could have sued Sylvester, the executor, in the Supreme Court. Becoming executor, he forfeited no right as creditor, but assumed another character. He could not as creditor sue himself as executor. Before the statute, how- ever, he could have paid himself, but since the statute he could not do so. (2 R. S. 88, § 33.) A remedy was, however, provided by statute. Upon citation duly issued and served on parties interested he might have a hear- ing, and his claim, if just, might be allowed by the Surrogate. (Ibid., and also New Code, § 2739.) "The plaintiff, however, is under no disability. As Philip, in the case supposed, could have sued Sylvester, she could sue both, and either could defend. No reason, therefore, is perceived why the doors of the Supreme Court should be closed against her. She is the real party in interest— has the legal as well as the equitable right of her assignor, whose presence as party plaintiff is in no degree necessary to a complete determination of all the questions involved. She is personally qualified to sue in any court, and cannot be defeated because the person under whom she claims would, if he had sued as plaintiff, have been disqualified by reason of his relation to the parties named as defendants. It is immaterial, therefore, to inquire whether the debt accrued to the plaintiff by contract with the testator — she might have contracted with him — or by assignment from Philip Snyder through Barber." § 782. Reference of disputed claims. — Section 2718, supra, provides: If the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the supreme court in the county in which the parties or either of them re- side, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such an order the pro- ceeding shall become an action in the supreme court. § 2718, Code Civil Proc. In Bucklin v. Chajrin, Administratrix, 1 Lans. 433, it was held that a reference under the statute stands in place of an action, and the entry of an order to refer must be deemed its commencement. In Tracy v. Suydam, 30 Barb. 110, it was held that where parties agree to refer under the statute "the agreement to refer need not notice matters of defense to the claim. ^ The account presented is, in effect, the plaintiff's complaint, and there being no pleadings, and no provision in the statute for pleadings, the defendant is limited to no particular defense; and conse- quently, any and every legal defense against the claim must necessarily be available." And it was also said in that case: "And every species of legal proof adapted to show the injustice of the claim, or its invalidity as a whole, or in degree or amount, is admissible." And the executors are "at liberty SURROGATES COURTS to make any defense that their testator or intestate could himself make, if alive, and the same were properly pleaded, in an action upon such claim." In Roe V. Boyle, 81 N. Y. 305, 307, a similar reference had been ordered, and the court said: "This is not an ordinary proceeding. It is specially regulated by statute. 2R.S.89, 90. It cannot be commenced by summons. It can only be commenced by the consent of the parties and the approval of the Surrogate. It can be tried in no other way than before a referee. There are no pleadings, and the representatives of the estate proceeded against can prove against the claim any defense which they have without pleading it in any form." In Mowry v. Peet, 88 N. Y. 454, it was said that "in trying and adjudi- cating upon these matters which are within the scope of the reference, the statute (2 R. S. 88, § 36) confers upon the referee and the court the same powers as if the reference had been made in an action. But the proceeding is not an action." Section 36 of the Revised Statutes [vol. 3 (7th ed.), p. 2299] provided for an agreement being entered into and for the entry of an order; and § 37 provided that the referee should "proceed to hear and determine the matter," and that the proceedings should be the same in all respects, and the referee should have the powers and be entitled to the same compensa- tion and be subject to the same control "as if the reference had been made in an action in which such court might, by law, direct a reference." In references under that statute ft was held by the Court of Appeals in two cases that a bill of particulars could not be required {Townsend v. N. Y. Life Ins. Co., 4 N. Y. Civ. Proc. Rep. 401; Eldred v. Fames, 115 N. Y. 403), and in the latter case it was held that the referee "could not change the items of an account presented and referred. The exercise of such power by the referee would enable a claimant to obtain a reference of claims against an estate without the consent of the defendant or the approval of the Surrogate, which is made by the statute the condition of such a pro- ceeding. It is the claim which is rejected by the executor that may be referred and none other." See also Hermann v. Wagner, 81 Hun, 431. In Gilbert v. Comstock, 93 N. Y. 484, it was held that, prior to the Code of Civil Procedure, "a contestant of a claim presented by an executor against the estate was not required to present a written answer or formal objections; the claim was open to any answer or deiense, and was subject to be defeated if, at the testator's death, the Statute of Limitations had run against it." § 783. Same subject. — The eases referred to in the last section, indicate that, prior to the amendment of § 2718 by ch. 683 of the Laws of 1893, it was not competent to permit an amendment of the creditor's statement of claim in these proceedings; but the Code, as amended by that statute, now provides that "on entry of the order of reference in such a case the proceeding becomes an action in the Supreme Court." Fowler v. Hebbard, 40 App. Div. 108. And there is a further provision to. this effect, "The same proceedings shall be had in all respects. The referees shall have the ASCERTAINING THE DEBTS 809 same powers, be entitled to the same compensation and subject to the same control, as if the reference had been made in an action in which such court might by law direct a reference." See Code Civ. Proc. § 2718. This amend- ment, in the first place, extended the definition given to an action by § 3333 by including this proceeding, in which no pleadings are necessary or can be required. And it has been held also to have brought this proceeding within the provision of the Code, that the court may at any stage, before or after judgment, in furtherance of justice, amend any pleading or other proceeding by inserting any allegation material to the case. See Code Civ. Proc. § 723; Lounsbury v. Sherwood, 53 App. Div. 318, 319. So also the referee may pass on the question of costs. Jenkinson v. Harris, 27 Misc. 714. Moreover, it becomes also competent to issue a commission to take testimony, on oral or written interrogatories, of foreign witnesses. Deery V. Byrne, 120 App. Div. 6. See also Paddock v. Kirkham, 102 N. Y. 597. The method of instituting the proceeding remains as before the amend- ment. The reference by the approval of the Surrogate is made upon the agreement in writing of the creditor and personal representatives of the decedent, founded upon the presentation of the claim verified, and the doubt entertained by the latter of its justice. See Lee v. Lee, 85 Hun, 588, 590. In the case last cited it was suggested that caution should be exercised in allowing amendment of claims in such cases, and it should be done only when essential to the promotion of justice. See also Lounsbury v. Sherwood, supra. As soon as the order of reference has been entered, the proceeding be- comes an action in the Supreme Court; consequently the entry of the order has the same effect as the service of a summons under § 416 of the Code. All of the subsequent proceedings in the action thus commenced are subject to the exercise of every power of the court to which they would be subject in any other action referred to a referee for trial. See Adams v. Olin, 78 Hun, 309; Hustis v. Aldridge, 144 N. Y. 508. Consequently, if after the entry of the order under which three referees are designated, one or more of them should refuse to serve, the court must appoint another referee under § 1011 of the Code. The power, under that section, is not discretionary. The section is mandatory and the court must appoint. And it has consequently been held that, to vacate the origifial order of reference against the consent of the creditor or the executor would be beyond the power of the court and without warrant of law. Hustis v. Aldridge, supra. A proceeding to compel an executor to pay over moneys in his possession is not within the purview of § 2718. The remedy in such a case is by pro- ceeding before the Surrogate. This section is limited to claims accruing or existing against the decedent in his lifetime. Shorter v. Mackey, 13 App. Div. 20; Fowler v. Hebbard, 40 App. Div. 108, 109. It does not extend to claims against the representatives allowed by § 2718a. Nor does it extend to claims to be reimbursed for decedent's funeral 810 surrogates' courts expenses. Genet v. Willock, 93 App. Div. 588. This is now covered in § 2729, subd. 3. § 784. The procedure. — The form of the notice which the executor or administrator is required to give may be substantially as follows: In the Matter of the Admin-"] Notice of dispute istration of the Estate of V and offer to refer. Deceased. J To (name of creditor). You will please take notice, that I doubt the justice of your claim of dollars against the above named estate, and I hereby dispute the same and offer to refer the matter in controversy to one or more disinterested persons as referee or referees to be approved by the Surrogate. (Date.) (Signature and address of executor or administrator.) After service of such notice, it is proper to make the agreement in writing contemplated by § 2718. This should be in the form of an instrument, which should recite the presenting of the claim and the dispute thereof, and contain a stipulation or agreement, that the matter in controversy be referred to a person or persons named to hear and determine the same. It is proper under the decision in Hustis v. Aldridge, 144 N. Y. 508, 511, to provide by the agreement for alternate referees, in the event that the Teferee designated declined to serve. In the case cited, the Court of Appeals held that the provision of § 1011 of the Code, by which the court was bound to appoint a referee, if the referee named in the stipulation refuses to serve ■"unless the stipulation expressly provides otherwise," worked no hardship since it was always within the power of the parties to protect themselves by "inserting a precautionary provision in the stipulation.'' The form of the agreement may be substantially as follows: Memorandum of agreement between executor of the Agreement to re- last will and testament of deceased and a fer claim under Sec- creditor of said deceased made under section 2718 of the tion 2718. Code of Civil Procedure. Whereas the said creditor has presented to the said executor of the last will and testament of de- ceased his claim against the estate of the decedent for dollars, a copy whereof is hereto attached, together with vouchers in support thereof, and Whereas the said executor doubts the justice of such claim and has notified the said creditor of his wiUingness to refer the matter in controversy under section 2718 of the Code of Civil Procedure, It is hereby, in consideration of the premises, mutually stipulated and agreed that the matter in controversy be re- ferred to (here designate one or more disinterested per- sons) as (sole) referee, if approved by the Surrogate of the county of to hear and determine the same. ASCERTAINING THE DEBTS 811 (And it is further stipulated and agreed that if the said shall be unable or decline to serve that the matter in con- troversy be referred to in his place and stead.) (// it is desired to stipulate the details of the reference as to time and place of hearing, it is proper, though not necessary, to incorporate the stipulation in the agreement.) (Date.) (Signature.) It is customary for the Surrogate to indorse upon the agreement his ap- proval of the referee named and the date. After such approval of the Sur- rogate has been indorsed, the agreement must be filed in the office of the clerk of the Supreme Court in the county in which either of the parties reside; and upon such filing the clerk must enter the order of reference which gives the proceeding the character of an action in the Supreme Court. This order may be substantially in the following form: Supreme Court, County of Title. On reading and filing the agreement of executor, etc., of deceased, with a creditor of said deceased, dated the day of and the indorsed approval thereon of Hon. Surrogate of the county of by which agreement said executor and said creditor Note. If the stip- agree to refer the matter in controversy between them to ■ulation provides in as (sole) referee to hear and determine the same ; now, detail for the place, qjj motion of attorney for the said executor, it is dates, etc., of the Ordered, that the said Esq., be and he is hereby earing, i is proper appointed referee to hear and deterrhine the matter in con- -to incorporate such ^' , ., , . ., ^ i_ j. j ^-kt , s ... , troversy described m said agreement hereto annexed. (Note.) provisions in a lur- /n ^ ■ther clause of the (Date.) ^pjgr (Signature of the county clerk.) § 785. The hearing. — The rules governing the hearing upon the refer- «nce of a disputed claim against a decedent's estate are made, by virtue ■of § 2718, the same as those governing any reference to hear and determine in an action in the Supreme Court. This has been held, as elsewhere noted, to include the power to obtain the testimony of absent witnesses by com- mission. Deery v. Byrne, 120 App. Div. 6. See Paddock v. Kirkham, 102 N. Y. 597, 600, where the court held that this power was given not so much by the provision that in case of such reference "the referee shall have the same powers" as from the further express provision, "the same proceed- ings shall be had in all respects " as if a reference has been made in an action. See also Matt&r of Bingham, 127 N. Y. 296, 313. It is the duty of the referee to scrutinize closely the testimony introduced in support of a disputed claim. If the claim is not based upon any written instrument or evidence ■of claim, his duty is particularly clear under the decisions; but, if the evi- dence is satisfactory to the referee, in the absence of palpable error his 812 surrogates' courts findings will not be disturbed by the Appellate Courts. See O'NeiU v. Barry, 20 App. Div. 121, 123, citing Titus v. Perry, 13 N. Y. St. Rep. 237; Rossa V. Smith, 17 Hun, 138; Teeter v. Teeter, 47 N. Y. St. Rep. 580; Stanley V. National Union Bank, 115 N. Y. 122; Sackett v. Thomas, 4 App. Div. 448. It is also his duty to scrutinize with special care claims against the estate withheld during the life of the alleged debtor. Such claims, sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon very satis- factory proof. Kearney v. McKeon, 85 !N. Y. 137, 139; Ulrich v. Ulrich, 17 N. Y. Supp. 721, and cases cited; Ellis v. Filon, 85 Hun, 485, 487. If the claim is verified, the burden of proving payment is on the executor. Matter ofRowell, 45 App. Div. 323; Lerche v. Brasher, 104 N. Y. 157; Hicks v. Walton, 14 App. Div. 199. It is the object of the statute to protect estates "against unfounded and rapacious raids." Matter of Van Slooten v. Wheeler, 140 N. Y. 624, 633; Yates V. Root, 4 App. Div. 439. See also Kearney v. McKeon, 85 N. Y. 137; Rowland v. Howard, 75 Hun, 1. If the Statute of Limitations is set up by way of defense, the entry of the order of reference is deemed the date of commencement of the action as regards the statute. Hultslander v. Thomp- son, 5 Hun, 348; Leahy v. Campbell, 70 App. Div. 127, 129. § 786. Costs. — Section 2718 provides that the provisions of §§ 1835 and 1836 are applicable to proceedings upon the reference of disputed claims. These are the sections which provide that, where a judgment for a sum of money only is rendered against an executor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him except as provided in § 1836. Section 1836 is as follows : Where it appears in a case specified in the last section that the plaintiff's demand was presented within the time limited by a notice published as pre- scribed by law, requiring creditors to present their claims and that the pay- ment thereof was unreasonably resisted or neglected, or that the defendant did not file the consent provided in section eighteen hundred and twenty-two, at least ten days before the expiration of six months from the rejection thereof, the court may award costs against the executor or administrator, to be col- lected either out of his individual property or out of the property of the de- cedent as the court directs, having reference to the facts which appear upon the trial. Where the action is brought in the supreme court, or any county court, the fact must be certified by the judge or referee before whom the trial took place. § 1836, Code Civil Proc. It will be noted that these provisions for costs do not apply to testa- mentary trustees, suits against whom are on claims on contracts made by them after decedent's death. O'Brien v. Jackson, 42 App. Div. 171. In view of the fact that, by § 2718, the reference of a disputed claim against the decedent's estate is an action, these provisions would seem to be applicable even if not expressly referred to in that section. This was so held in- Henning v. Miller, 83 Him, 403. It is essential in passing on this ASCERTAINING THE DEBTS 813 question of costs to ascertain whether the executor or administrator has ■unreasonably resisted or neglected the payment of the claim successfully prosecuted upon the reference. It is manifest in the first place, that if the executor defeats the creditor upon the reference he is entitled to costs against such creditor as a matter of course. Adams v. Olin, 78 Hun, 309; Munson v. Howell, 12 Abb. Pr. 77; Boyd v. Bigelow, 14 How. Pr. 511; Lamphere v. Lamphere, 54 App. Div. 17. If, on the trial, the claim is materially reduced, either by amendment, or by proof, there can be no proper finding of "unreasonable resistance." Holcombe v. Nettleton, 41 Misc. 504. If the referee charges the executor or administrator with costs for unreasonably resisting or neglecting pay- ment, he must find such unreasonable resistance or neglect as a matter of fact, for on such finding alone can the imposition of costs be based. See Ellis V. Filon, 85 Hun, 485; Whitcomh v. Whiicomb, 92 Hun, 443; Matson v. Abbey, 141 N. Y. 179. While it need not be incorporated into his report, it must be made in some form. Brainerd v. De Graef, 29 Misc. 560, 563; Lounsbury v. Sherwood, 53 App. Div. 318. Thus, his certificate to that effect is adequate. Brainerd v. De Graef, supra; Darde v. Conklin, 73 App. Div. 590. The rule as to what will entitle a plaintiff to costs in such proceedings has been carefully and clearly stated in Niles v. Crocker, 88 Hun, 312, 314. "Under the statute two things are necessary to entitle the plaintiff to costs: First, that the demand must be presented within the time limited by a notice, published as prescribed by law; and.second, the demand must be unreasonably resisted or neglected," citing Supplee v. Sayre, 51 Hun, 30; Horton v. Brovm, 29 Hun, 654; King v. Todd, 21 Civ. Proc. Rep. 114. See also Radley v. Fisher, 24 How. Pr. 404. Where the refusal of an executor to pay a claim is based upon the fact that the claim includes a charge for interest, in excess of the legal rate, he will not be charged with costs if he succeeds in reducing the claim to the proper amount. Davis v. Myers, 86 Hun, 236; Daggett v. Mead, 11 Abb. N. C. 116. It has been held that it is proper for the representative to defend where suit is brought within the year given him in which to pay debts. Patterson v. Buchanan, 40 App. Div. 493, 497. Where a creditor whose claim was rejected by the representative, made a parol offer to refer, which was refused, and the creditor brought an action for the claim, in which he was successful, it was held he was entitled to costs. Roberts v. Pike, 19 Civ. Proc. Rep. 422. Prior to the amending of § 2718 in 1893 it was held that the costs in proceedings upon a reference of & disputed claim were not covered by §§ 1835 and 1836, and that the court could impose costs regardless of whether the claim was presented within the time limited by the notice. Denise v. Denise, 110 N. Y. 562, headnote. Section 1836 gives the court discretion as to whether to charge the estate or the executor personally with the costs. Osborne v. Parker, 66 App. Div. 277, 283. See Holcombe v. Nettleton, 41 Misc. 504, as to when mere re- fusal to refer will not involve personal costs. 814 surrogates' courts Section 1822, quoted at p. 816, provides a six months' limitation for beginning suit on a disputed or rejected claim unless "a written consent shall be filed by the respective parties with the Surrogate that said claim may be determined and heard by him upon the judicial settlement of the accounts of said executor or administrator as provided by § 2743." There- fore, § 1836 gives a right to costs unless the defendant filed such consent " at least ten days before the expiration of six months from the rejection" of the claim. That is, if within five months and twenty days the consent under § 1822 is not filed, the creditor has still ten days in which he may begin suit, with an absolute right to costs in the event of recovery. Hart v. Hart, 45 App. Div. 280; Hoye v. Flynn, 30 Misc. 636. If he sues prior to that time, he waives this statutory . right. Id., p. 282. Holcombe v. Nettleton, supra. Provided, however, the executor files the consents in due time. De Kalb v. Kelk, 30 Misc. 367. See Adler v. Davis, 31 Misc. 47. The executor is entitled to "one lawful trial" and to exemption from costs until he has had it. Benjamin v. Ver Nooy, 168 N. Y. 578, 583, modifying 36 App. Div. 581. Thus if he appears and a new trial is ordered, the executor cannot be directed to pay costs for the first trial, nor for the appeals resulting in the new trial. Ibid. This is so, in spite of fact that Court of Appeals order directing a new trial provided "costs to abide the event." "Event" in such a case means not only final success in the ac- tion, but also a valid award of costs under § 1836. Ibid. The creditor must recover more than $50 in order to get costs. Other- wise under § 3229 he must pay costs. The holder of a small claim should decline the reference and sue in a justice's court. Lamphere v. Lamphere, 54 App. Div. 17. § 787. The right to disbursements. — Section 317 of the Code of Proce- dure contained the following provision: "And whenever any claim against the deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law." Section 3, subd. 8, ch. 245 of the Laws of 1880, an act repealing the Code of Procedure, contained the following provision: "The repeal effected by the first section of this act (which included the Code of Procedure) is subject to the following qualifications: .... 8. It does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements, upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect." The provisions of art. 2, title 3, ch. 6, part 2 of the Revised Statutes, providing for and regulating the reference of a claim against the decedent, were not at that time repealed. While the law stood thus, it was held that upon such a reference the prevailing party was entitled to recover his necessary disbursements, and that the provisions of the Code of Procedure allowing such disbursements were not taken away by the repeaUng act ASCERTAINING THE DEBTS 815 of 1880, ch. 245, but the right thereto was preserved by subd. 8 of § 3 of that act. Larkins v. Maxon, 103 N. Y. 680. See also Hallock v. Bacon, 64 Hun, 90, and cases cited in the opinion of Hardin, P. J. In 1893 the legislature passed an act amending the Code of Civil Pro- cedure by making those provisions of the Revised Statutes a part of the Code of Civil Procedure, ch. 686 of the Laws of 1893. Section 2718 now contains substantially the same provisions as were contained in the Re- vised Statutes as to the reference of claims against the decedent, and the provisions of the Revised Statutes which related to such a reference were repealed. The question arose subsequently to this amendment of § 2718 (Niles v. Crocker, 88 Hun, 312) as to whether that section being substantially a re- enactment of the Revised Statutes by making them a part of the Code, and the part of the Revised Statutes so re-enacted being repealed, the rule was thereby changed in regard to referees' and witness's fees paid or incurred by the party on the reference of a claim against the decedent. The General Term in the Fourth Department by Judge Martin held as follows (at p. 316) : " We have found no statute which repeals the portion of § 317 of the Code of Procedure, to which we have referred, except ch. 245 of the Laws of 1880, and in that, as we have already seen, the right to referees' fees, witness's fees and other disbursements paid or incurred by the prevail- ing party on the reference of such a claim is preserved, nor have we been able to find that subd. 8 of § 3 of ch. 245 of the Laws of 1880 has been repealed. Assuming that these provisions of the statute are unrepealed the question is whether they apply to a reference under § 2718 of the Code of Civil Procedure. "We are disposed to think the provisions of those statutes are still in force. The purpose of the statute of 1880 was to retain the provision of the Code of Procedure which gave the right to a prevailing party to re- cover his necessary disbursements upon a reference of a claim against a decedent. It is true that the act added a description of the statutes under which such a reference might then be had; but when the legislature in substance re-enacted the same law, making it a part of the Code of Civil Procedure, and did not repeal the provisions of the Code of Procedure referred to, nor the provision of the repealing act of 1880, which pre- served the right to such fees and disbursements, we are inclined to the opinion that it indicated an intent upon the part of the legislature to leave the provisions as to disbursements, in such proceedings as they originally existed." So also, it is held that even where plaintiff is not allowed costs he may, in a proper case, recover his necessary taxable disbursements. Osborne v. Parker, 66 App. Div. 277, 283; Whitcombe v. Whitcombe, 92 Hun, 443, 447; Lounsbury v. Sherwood, 53 App. Div. 318. § 788. Action by creditor on rejected claim. — It is perhaps pertinent to refer in this connection to the provision of the Code with regard to the action which must be brought by a creditor whose claim has been rejected. 816 surrogates' courts although this is not cognizable in the Surrogate's Court. The provision is contained in § 1822 of the Code which is as follows: Where an executor or administrator disputes or rejects a claim, against the estate of a decedent, exhibited to him, either before or after the commencement of the publication of a notice requiring the presentation of claims, as pre- scribed by law, unless a written consent shall be filed by the respective parties with the surrogate that said claim may be heard and determined by him upon the judicial settlement of the accounts of said executor or administrator as provided by section twenty-seven hundred and forty-three, the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due; (A) in default whereof he, and all the persons claiming under him are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent's property. § 1822, Code Civil Proc. While this provision should be strictly construed (Potts v. Baldwin, 67 App. Div. 434, 437), nevertheless it has been held, under the provision of the Revised Statutes for which this section has been substituted, that the failure of the creditor to sue within the time hmited after his claim has been rejected not only bars his action against the executor or adminis- trator but also his action against the heirs and next of kin. Selover v. Coe, 63 N. Y. 438. It is to be noted, however, that a claim consisting of a judgment against the estate of a decedent, is not barred under this short Statute of Limita- tions. See Estate of Lyman, 60 Hun, 82. To avoid confusion § 2718a must also be read with § 1822. In effect it would read into § 1822 at the point marked (A) above, the words "or within three months of the service upon him of a citation issued pursuant to § 2718a, unless on the return day he shall consent to its determination by the Surrogate." § 789. Form of claim and of rejection. — Section 1822 refers to a claim "exhibited" to the executor or administrator. An oral claim is incapable of being so exhibited. Ulster Co. S. I. v. Young, 161 N. Y. 23, 33. So in Matter of Morton, 58 N. Y. S. R. 515, 517, it was said: "The statute plainly intends that the claim shall be presented or exhibited in some writing, stating its nature and amount, the owner's name and demanding its pay- ment. The personal representative of the estate is then in possession of information which will enable him to act intelligently, and either to admit the claim or take such steps to protect the estate against it as he shall deem prudent and necessary." The following cases are to the same effect: Cruikshank v. Cruikshank, 9 How. Pr. 350, 351; King v. Todd, 27 Abb. (N. C.) 149; Robert v. Ditmas, 7 Wend. 523; GansevooH v. Nelson, 6 Hill, 392; Niles v. Crocker, 88 Hun, 312. There is no statute or rule of law which requires the notice of rejection to be in writing, see Matter of Jacobs, 109 App. Div. 293, or in any par- ASCERTAINING THE DEBTS 817 ticular form. Peters v. Stewart, 2 Misc. 257, rev'g 1 Misc. 8. Here the claim had been presented orally and the rejection was oral. Judge Book- staver added: "If the agent presenting the claim had authority to pre- sent it to the administrator, it necessarily follows that he had authority to receive on plaintiff's behalf notice that he accepted, or disputed and rejected it. Where a creditor sends a person to collect a claim of a debtor, the latter certainly is authorized to receive and receipt for any money that may be paid to him on account of that claim; and where one sends an agent to make a demand of any kind, the answer of the person on whom the demand is made is good when given to the agent and in law is con- sidered as if given to the principal personally. 'Quifacit per alium facit per se ' is one of the oldest and best established maxims of the law. Hence we think the statute commenced to run at the time of the verbal notice that the claim was disputed and rejected." In Lockwood v. Dillenheck, 104 App. Div. 71, the notice of rejection was sent to the attorneys whose names were indorsed upon the claim. Held binding upon claimant, al- though her attorneys failed to notify her of such rejection. To same effect see Heinrich v. Heidt, 106 App. Div. 179; Gardner v. Pitcher, 109 App. Div. 106, citing also Cox v. Pearce, 112 N. Y. 637. Where the notice of rejection is actually received, on the other hand, it is immaterial whether it be directly from the executor, or from the execu- tor through his attorney. Wintermeyer v. Sherwood, 77 Hun, 193; Selover v. Coe, 63 N. Y. 438. Merely filing a notice of rejection in a proceeding to which creditor is a party raises no presumption that he received personal notice thereof. Potts v. Baldwin, 67 App. Div. 434, 437. The executor, of course, cannot revive a claim barred by the statute by any act under this section or any other; nor can the executor's agreement to refer subsequently made revive a claim barred under § 1822. Flynn v. Diefendorf, 51 Hun, 194, followed in Gardner v. Pitcher, supra: see also Matter of Neher, 57 Misc. 527. Sections 2817 and 1822 treat of entirely separate and independent sub- jects. Section 2817 provides for the case of a doubt in the executor's mind as to the validity of a claim, not sufficiently well established to justify its absolute rejection, and enables him, under such circumstances, to notify the claimant that he doubts the justice of his claim, for the purpose of effecting an agreement to refer the same. For this purpose, there is no limit of time and the agreement may be made at any time between the parties. If an executor desires to set in operation the short Statute of Limitations, his attitude towards the disputed claim must not be sus- ceptible of any doubt in the mind of the claimant, and his dispute or re- jection of the claim must be in the most absolute and unqualified terms. Matter of Eichman, 33 Misc. 322. Section 1822 in its present form is to be read and construed in connection with § 2743, not § 2718. IMd. If the executor seeks to rely upon the Umitation imposed by § 1822 he must prove an explicit or decisive rejection of the claim. A mere state- ment by the executor no matter how formally made, that he doubts the 52 818 surrogates' courts justice of a claim and invites a reference of it, is not the dispute or re- jection which is contemplated by § 1822 of the Code of Civil Procedure. Matter of Eichman, supra, citing Matter of Edmonds, 47 App. Div. 229. It has been held that the notice of rejection or dispute must be absolute and unequivocal. Hoyt v. Bonnett, 50 N. Y. 538. See Kidd v. Chapman, 2 Barb. Ch. 414; Reynolds v. Collins, 3 Hill, 36. And it is competent for the Surrogate to pass upon the question whether there has been such a rejection or dispute of the claim upon the judicial settlement of the execu- tor's account. Bowne v. Lange, 4 Dem. 350; Potts v. Baldwin, 67 App. Div. 434, 437; Matter of Miles, 33 Misc. 147; Matter of Vonder Lieth, 25 Misc. 255; Matter of Pfyfe, 5 N. Y. Leg. Obs. 331; Wilcox v. Smith, 26 Barb. 316, 334. So he may adjudge it to have been allowed, where it was duly presented and rejection was unduly delayed. Potts v. Baldwin, supra. This short Statute of Limitations must be pleaded as a defense by the executor. Williams v. Mclntyre, 16 Weekly Dig. 651. In Matter of Smith, 58 Misc. 493, the Surrogate of Franklin County held that serving the notice of rejection by mail doubled the creditor's time to sue or file his consent under § 1822. He based his decision on § 2538, which makes applicable to Surrogate's Court §§ 796-809 covering "Service of Papers" which is held applicable to notices of rejection in Peters v. Stewart, 2 Misc. 357. The writer does not concur in this view, nor believe that it applies to transactions between parties prior to there being any proceeding or action to the procedure in which the Code limitations could alone apply. § 790. The judgment. — With regard to the entry of judgment upon the report of the referee, the language of § 2718 is explicit, to wit: "Judgment may be entered on the report of the referee, and such judgment shall be valid and effectual in all respects, as if the same had been rendered in a suit commenced by the ordinary process, and the practice on appeal there- from shall he the same as in other civil actions." In order to the validity of a judgment entered upon the report of a referee upon the reference of a disputed claim against the estate of a decedent, there must be strict compliance with all statutory directions of the statute. Burnett v. Gould, 27 Hun, 366. But it does not invalidate the proceedings if the executor consents to refer the claim without first requiring a production of vouchers or an affidavit of the justice of the claim, for the estate would not be prejudiced thereby. Russell v. Lane, 1 Barb. 519. It has been held that no claim against the estate can be referred in this manner, unless they are such as had accrued or were accruing while the decedent was alive. Shorter v. Mackey, 13 App. Div. 20, 23, citing God- ding V. Godding, 17 Abb. Pr. 374; Smith v. PaUm, 9 Abb. N. S. 205; Skid- more V. Post, 32 Hun, 56; Matter of Van Slootm v. Dodge, 145 N. Y. 327, 332. And a claim for a tort committed by a decedent has been held to be referable under the statute. Brockett v. Brush, 18 Abb. Pr. 337. But the objection that the claim is not referable should be taken promptly or it may be held to have been waived. Wetter v. Weller, 4 Hun, 195. ASCERTAINING THE DEBTS 819 In this connection it must be borne in mind that the statute was de- vised for the summary and speedy determination of claims held against the decedent, and the whole proceeding being instituted exclusively for this purpose, the statutory limits are not to be transgressed. Claims, therefore, by an executor for disbursements made by him as executor are not referable under this statute. See Stewart v. O'Donnell, 2 Dem. 17, 18. § 791. Proceeding technical — Further discussion. — It must further be noted as primary to the validity of the judgment that the proceeding is essentially a voluntary one, in that it implies an agreement between the executor and creditor to refer. If the creditor declines to agree, he has his remedy by action, although in such a case he might lose his right to costs. If the executor declines to agree, the creditor is merely remitted to his right of action, and the executor may become liable for costs. If the executor offers to refer to a person objectionable to the creditor, he cannot force the creditor to accept the referee named, and such an offer will not relieve the executor from costs. In any event the suggestion of a referee must be approved by the Surrogate; but he is simply authorized to approve the name or to withhold his approval. If he approves the agreement, the order directing a reference is entered as of course in the Supreme Court. In Gorham v. Ripley, 16 How. Pr. 314, a creditor, whose demand against a decedent's estate had been rejected by an executor, offered to submit it to referees "to be approved by the Surrogate," employing, in such offer, the very words of the statute. The executors, instead of acceding to this proposal, offered to refer the matter to three particular persons, whom they themselves named, such persons "to be approved by the Surrogate." Neither party accepted the proffer of the other, and, in a subsequent action wherein the claimant was successful, it was held that the executors had "refused to refer," and so had become liable for costs. The court says: "The language of this pro- vision is not very explicit, but I think it was intended that the parties should mutually agree in writing to refer the claim, and in case they should fail to select referees for themselves, that the selection should be made by the Surrogate. It cannot be that it is a sufficient compliance with the statute for the executors to offer to refer the claim to three referees named by themselves. When this proposition was rejected, and it was proposed that the parties should appear before the Surrogate, for the purpose of having referees selected, it was the duty of the defendants to accept the offer. Their omission to do so has rendered them liable for costs." But where the creditor made an offer to certain executors to refer his claim against the estate as provided by law, to which the executors replied by their counsel, that they consented to refer the claim, and the parties presented a proposed order of reference, into which the Surrogate inserted the name of a referee, which order was signed by the Surrogate and filed in the office of the county clerk, it was properly held upon a motion to vacate said order, that the Surrogate had no authority to make selection 820 surrogates' courts in such a way or to sign such an order. Tilney v. Clendenning , 1 Dem. 212. But if the offer is made and accepted to refer the claim "to one or more disinherited persons to be approved by the Surrogate," and the parties by consent omit to designate the referee or referees, the designation of such referee or referees by the Surrogate is not so much an official act, as the act of the parties through him. His only official act required by the Code is the indorsement of the approval upon the agreement. The order of reference being a Supreme Court order is entered as of course by the county clerk. Where the disputed claim is thrown out by the referee, it has been held that he may report a counterclaim in favor of the estate, but as to such counterclaim or set-off he is limited to the amount of the creditor's claim; and the referee has no power to render an affirmative judgment for the executors and against the claimant, or to certify a balance in their favor and render judgment therefor. If the executors have a demand against the claimant exceeding the amount claimed by him, they cannot resort to this special proceeding for its recovery. Their accomplishment of that purpose must be either by bringing their own action or by putting the claimant to an action by not agreeing to refer under the statute. The provision of the Code in respect to counterclaims cannot be availed of in this proceeding. No mode is therein provided for setting up or giv- ing notice of a claim for affirmative rehef against the claimant or for bringing in additional parties. See Mowry v. Peet, 88 N. Y. 453, 457; Skidmore v. Post, 32 Hun, 54. § 792. The procedure in taking an appeal. — Section 2718 provides, in part: Judgment may be entered on the report of the referee and such judgment shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary practice; and the practice on appeal there- from shall be the same as in other civil actions. § 2718, Code Civil Proc. This section of the Code is new, and was intended to make definite the practice, which was formerly greatly confused by reason of the distinction between actions and special proceedings. A reference of a disputed claim had been held to be a special proceeding (Roe v. Boyle, 81 N. Y. 305); and it had been further held that § 1002 of the Code (requiring notice of motion for a new trial to be given before the expiration of the time within which an appeal could be taken from the judgment) did not apply upon an appeal from the judgment entered upon a referee's report. See Dmise v. Denise, 41 Hun, 9, aff'd 110 N. Y. 562. And it was held that the mo- tion for a new trial could be made within a reasonable time, and that what was a reasonable time depended upon the circumstances of each case. The provisions, however, of § 2718 conform the practice to that on appeal from the judgment in an action and make applicable those pro- visions of the Code which relate to appeals from a judgment entered after a trial by a referee. ASCERTAINING THE DEBTS 821 It is the usual and customary practice for the defeated party to move upon a case containing exceptions for a new trial at the same time that a motion is made for the confirmation of the referee's report. All the ques- tions involved, that is to say, the regularity of the proceedings and whether the conclusions of law are sustained by the facts appearing in the report as well as the rulings made upon the hearing in the admission and rejec- tion of evidence, and the question whether the evidence sustains and justifies the finding of fact, can all be determined upon the one motion. Eighmie v. Strong, 49 Hun, 18. But it seems that the motion for a new trial upon a case and exceptions need not necessarily be made at the same time but may be made after the referee's report has been confirmed or even after the judgment has been entered. Baumann v. Moseley, 63 Hun, 492, 493. In Smith v. Velie, 60 N. Y. 106, the Court of Appeals intimated that, to preserve the right to review upon an appeal from the judgment entered upon the report of~ a referee in these proceedings, the aggrieved party must move at Special Term, upon a case or otherwise, to set aside the report or for a new trial, or must appear and oppose its confirmation and take the proper exceptions. CHAPTER III PAYMENT OF DEBTS § 793. The representative having ascertained the estate, and the debts being known, either by presentation of verified claims, or by judgments on disputed claims, or decrees in special proceedings determining them by the Surrogate, the representative is still confronted with the relative priority of these debts, in case the estate is insufficient to pay them all. We pass over, for the time being, the transfer tax proceeding, often prior in time, and we defer to the chapter on Accountings the Surrogate's then disposition of claims still in dispute. We also cover, in a separate chapter (VII, below) the proceedings whereby the realty may be resorted to. § 794. Order of priority of debts. — The provisions of the Code as to the payment of debts and the preferential order in which they must be paid, are Contained in § 2719, which is as follows: Every executor and administrator must proceed with diligence to pay the debts of the deceased according to the following order: 1. Debts entitled to a preference under the laws of the United States. 2. Taxes assessed on the property of the deceased previous to his death. 3. Judgments docketed, and decrees entered against the deceased accord- ing to the priority thereof respectively. 4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts. Preference shall not be given in the payment of a debt over other debts of the same class, except those specified in the third class. A debt due and paya- ble shall not be entitled to a preference over debts not due. The commence- ment of a suit for the recovery of a debt or the obtaining a judgment thereon against the executor or administrator shall not entitle such debt to preference over others of the same class. Debts not due may be paid according to the class to which they belong, after deducting a rebate of legal interest on the sum paid for the unexpired term of credit without interest. An executor or administrator shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the surrogate; and it shall not have preference over others of the same class. Preference may be given by the surrogate to rents due or accruing on leases held by the testator or intestate at the time of his death, over debts of the fourth class, if it appear to his satisfaction that such preference wUl benefit the estate of the testator or intestate. The surrogate may authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown, and to sell at public auction, on such notice as the surrogate prescribes, any uncollectible, «tale or doubtful debt or claim belonging to the 822 PAYMENT OP DEBTS " 823 estate; but any party interested in the final settlement of the estate may show on such settlement that such debt or claim was fraudulently or negligently compromised or compounded. § 2719, Code Civil Proc. Apart from these statutory directions, there is a disbursement which it is the duty of the representatives to bear, namely, the funeral expenses of the decedent. § 795. Priority of funeral expenses, by the Code. — In 1901, by ch. 293, the legislature added to § 2729 relating to form of an account, etc., the following amendment: (See also § 797 below, for further provision.) 3. [Added 1901.] Every executor or administrator shall pay, out of the first moneys received, the reasonable funeral expenses of decedent, and the same shall be preferred to all debts and claims against the deceased. If the same be not paid within sixty days after the grant of letters testamentary or of administration, the person having a claim for such funeral expenses may present to the surrogate's court a duly verified petition praying that the execu- tor or administrator may be cited to show cause why he should not be required to make such payment and a citation shall be issued accordingly. If upon the return of such citation it shall appear that the executor or administrator has received moneys belonging to the estate which are applicable to the payment of the claims for funeral expenses, the surrogate shall, unless the validity of the claim and the reasonableness of its amount are admitted by such executor or administrator, take proof as to such facts, and if satisfied that such claim is valid shall fix and determine the amount due thereon and shall make an order directing the payment within ten days after the service of such order with notice of entry thereof, upon such executor or administrator of such claim or such proportion thereof as the money in the hands of the executor or adminis- trator applicable thereto, may be sufficient to satisfy. If it shall appear that no money has come into the hands of the executor or administrator the pro- ceeding shall be dismissed without costs and without prejudice to a further application or applications showing that since such dismissal the executor or administrator has received money belonging to the estate. Such application shall be made upon a duly verified petition stating the facts upon which the beUef of the petitioner that there are moneys in the hands of such executor or administrator applicable to the payment of his claim, is based. Upon such further application the issuance of the citation shall be in the discretion of the surrogate and no such application shall be made less than three months after the granting or denial of any previous application. If upon any accounting it shall appear that an executor or administrator has failed to pay a claim for funeral expenses, the amount of which has been fixed and determined by the surrogate as above set forth or upon such accounting he shall not be allowed for the payment of any debt or claim against the decedent until said claim has been discharged in full; but such claim shall not be paid before expenses of administration are paid. § 2729, Code Civil Proc. subd. 3. Why this provision was not prefaced to § 2719 where it belongs is an inscrutable problem. It, in effect, creates by statute a priority obtaining as above noted under the common law. It defines, however, the method , of compelling payment, which must now be strictly pursued. This act went into effect September 1, 1901, and hence was inapplicable 824 surrogates' courts to affect lawful acts of a representative prior to that day. Matter of Kalb- fldsch, 78 App. Div. 464. The amendment was a mere regulation of pro- cedure. Matter of Kipp, 70 App. Div. 567. § 796. Funeral expenses — General subject. — The following discussion will show how the rule, now embodied in § 2729, developed. The reasona- ble and necessary expenses of the interment of the dead body of the de- ceased are a charge against his estate although not strictly a debt due from him. See Patterson v. Patterson, and review of the cases by Folger, J., 59 N. Y. 574, 583. Where the owner of some estate dies the duty of the burial is upon the executor. Ibid. Thus in the case cited Judge Folger observed: Our Revised Statutes (2 R. S. 71, § 16) recognize this duty, in that the executor is prohibited from any interference with the estate until after pro- bate, except that he may discharge the funeral expenses. From this duty springs a legal obligation, and from the obligation the law implies a prom- ise to him who, in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expense thereof as is reasonable. Tugwell v. Heyman, 3 Camp. 298. It is analogous to the duty and obligation of a father to furnish necessaries to a child, and of a husband to a wife, from which the law implies a promise to pay him who does what the father or the husband, in that respect, omits. And so, in Rogers v. Price, 3 Younge & Jervis, 28, it was held that an executor, with assets, is liable to a brother of the deceased for the proper expenses of a funeral, ordered and paid for by the latter in the absence of the former. In Hapgood v. Houghton's Executors, 10 Pick. 154, it was held that the law raises a promise on the part of the executor or administrator to pay for the funeral expenses as far as he has assets, and that if he have np assets he should plead that fact in bar, and that if he has, the judgment must be against them in his hands. In Patterson v. Buchanan, 40 App. Div. 493, it is said that where an executor or adminis- trator has sufficient assets in his hands, and refuses to pay the funeral expenses of his decedent he may be held personally liable, citing Benedict v. Ferguson, 15 App. Div. 96. And in Adams v. Butts, 16 Pick. 343, it was held that an account for the funeral expenses of a deceased person might be set off by the defendant in an action against him by an administrator for the work and labor of the deceased in his lifetime. Price v. Wilson, 3 N. & M. 512, is sometimes cited as an authority that "there is no case which goes the length of deciding that if the funeral be ordered by another person, to whom credit is given, the executor is liable." Patterson, J., did there use the language. But in Green v. Salmon, 8 Ad. & E. 348, he' limits the expression, saying: "The judgment there probably means that the executor, where credit has been given to another person, is not liable to the undertaker; if it lays down more, the law stated is extra-judicial." See also Rappelyea v. Russell, 1 Daly, 214, where the subject of the liability of a personal representative is well considered by the learned chief justice of the New York Common Pleas. PAYMENT OF DEBTS 825 To a claim for the payment of such expenses by an executor, it is not a vahd objection, that the rule of distribution of assets will be improperly interfered with if the claim is allowed and paid. In the same case quoted from. Judge Folger observes (p. 584): "Unless there is some objection arising out of statutory provisions, these expenses must be preferred to all other debts (citing Toller on Exrs. 245) , not excepting debts due by record, even to the sovereign. . . . Even in the case of an insolvent estate the executor has been allowed the reasonable expenses of the funeral of his testator, on a plea of plene administravit," citing Edwards v. Edwards, 2 Cr. & M. 612. The statutory provisions above quoted (§ 2719) as to the priority of payment, although they include no provision for a priority of funeral expenses, were held not to abrogate the common-law rule. Patterson v. Patterson, supra, at p. 585. This was said to be on the theory that such expenses are not treated as a debt' against the estate, but as a charge upon the estate, the same as the necessary expenses of administration; on the same ground, that expenses of probate of the will are allowed to an execu- tor on an accounting, so should funeral expenses be, it being a matter of concern that the dead should have decent burial. The Revised Statutes impUedly gave discretion to the executor, even before probate, to pay the funeral charges; and notwithstanding the statute setting out the order of payment, if he pay such charges the amount must be allowed to him as part of his expenses of his trust, with the restriction always that the amount is no greater than is necessary. If, however, they be paid by another than the executor, and he reimburse such person, he is entitled to credit for such reimbursement precisely as if he had paid the amount himself. Ibid.; Blood V. Kane, 130 N. Y. 514, 520; Ferrin v. Myrick, 41 N. Y. 315; Austin v. Munroe, 47 N. Y. 360. This rule, however, is modified where a third per- son unnecessarily interferes and gives directions as to expenditures of interment; for such person may by his officiousness relieve the executor and the estate from liability and become personally and ultimately liable for the amount thereof. Quinn v. Hill, 4 Dem. 69, 70. See also Rap- pelyea v. Russell, 1 Daly, 214. It depends, therefore, on the circumstances of the case whether a third party can be made liable for such expenses, and it is the duty of the executors, where such circumstances exist, to avail themselves of the opportunity to relieve the estate from the dis- bursement. See also Appendix to 4 Redf. at p. 527. So it has been held that the law implies a promise on the part of an administrator having assets to reimburse a person by whom funeral expenses are paid. Matter of Miller, 4 Redf. 302, 304, citing Dayton on Surrogates, 285; McCue v. Garvey, 14 Hun, 562. This, of course, implies that the liability has not been assumed so as to relieve the estate by some third person. The further restriction must also be constantly borne in mind that necessary and reasonable expenditures alone will be allowed to the executor or adminis- trator as against creditors, and particularly in case of a small estate. So where an executor paid $250 to a commandery for parading at decedent's S26 SURROGATES' COURTS funeral, and it appeared the same had not been demanded, but was gra- tuitously paid, the executor was refused credit for the payment. Matter ■of Reynolds, 124 N. Y. 388. But the undertaker's right ex contractu against one assuming to employ him enables him to recover any part of his bill which the executor does not, or is forbidden to, pay. See Ruggiero V. Tufani, 54 Misc. 497 (App. Term). Where a brother and only next of kin of the decedent contracted for the burial of his brother with a cemetery association, and assigned in writing a part of a deposit left by his brother in a bank, it was held that this promise could be enforced in an action against the administrator of the decedent, on the theory that the instrument was operative as a valid assignment of the brother's interest as next of kin of the estate of the de- ceased, to the extent of the claim irrespective of whether an action would lie against the administrator in the first instance for services in the burial of the deceased, as the services were rendered, not on the credit of the ■estate but on that of the brother individually. Congregation S. L. A. Sakoler v. Sindrack, 15 App. Div. 82, 83, citing Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y. 574; Lucas v. Hessen, 17 Abb. N. C. 271. But where a claimant elected to present his claim for funeral "expenses to the administrator with the will annexed after they had ad- vertised for claims, it was held that he took his place as a creditor with other creditors and, consequently, that the enforcement of his claim was subject to the six months' Statute of Limitations, which it was the duty of the administrators to set up in defense. Koons v. Wilkin, 2 App. Div. 13. See opinion of Adams, J., at circuit, quoted at p. 15, in which opinion it is said: " By the terms of § 16, ch. 6, title 2 of part of the Revised Statutes, an executor is permitted to pay the funeral expenses of the testator even before taking out his letters testamentary. These expenses, while in one sense not a debt against the estate, are treated as a charge upon the estate, and as such it is quite proper that they should be assumed and paid by the personal representative of the decedent, whose duty it sometimes becomes to see that proper funeral services are rendered. This view of the ques- tion is quite clearly presented in the case of Patterson v. Patterson, 59 N. Y. 574, 585, and has been adopted by the General Term of this department ■as the correct and proper one. Dalrymple v. Arnold, 21 Hun, 110; Laird v. Arnold, 25 id. 4; Matter of Laird v. Arnold, 42 id. 136. That the plaintiff entertained the same idea is made apparent by the fact he presented the claim in suit to the defendants, as administrators, insisting that it was a demand against the estate of their testator which they were bound to pay; and if the authorities last cited are to be followed, Tather than those which adopt the contrary rule {Tracy v. Frost, 11 N. Y. "Supp. 561; Murphy v. Naughton, 68 Hun, 424), I can see no reason why he was not justified in taking this position. At all events, having elected to treat the claim as one against the estate, and, when it was rejected, having neglected to bring suit against the ad- ministrators within six months thereafter, it would seeta as though now PAYMENT OF DEBTS 827 he ought to be precluded from any right to maintain an action thereon against the defendants individually. See also Matter of Smith, 18 Misc. 139, 140; Griffin v. Condon, 18 id. 236, 238. See Kittle v. Huntly, 67 Hun, 617. The rules in this regard are summarized by Surrogate Arnold, in Matter of Flint, 15 Misc. 598, 599, where he recognizes the common practice to be for the executor or administrator to pay these expenses before any others. But in that case the Surrogate held that the holder of a claim for funeral expenses was not a creditor or person interested in the estate within the meaning of the Code (§ 2722) so as to be able to compel the representative to account and pay his claim. In Pache v. Oppenh&im, 93 App. Div. 221, the law is clearly reviewed by Patterson, J., and the court sustained the plaintiff (husband of decedent) in his suing in the Municipal Court. In Matter of Stadtmuller, 110 App. Div. 76, the estate of a husband who died shortly after his wife, having, however, paid her funeral expenses, was held entitled to be repaid the same from her estate, but doctors' bills paid by him for her last illness were refused as a charge, citing Free- man V. Coit, 27 Hun, 447. This Stadtmuller case also held that carriages, flowers, music and other incidentals of the funeral were proper, if reasona- ble, citing Matter of Ogden, 41 Misc. 158. In § 2749 of the Code which defines the claims which can be enforced by proceedings for the disposition of decedent's real property, the words "funeral expenses" are expressly defined as including a reasonable charge for a suitable headstone. In Ferrin v. Myrick, 41 N. Y. 318, the court illustrates this rule by example: Expenditure of $1,050 for a monument out of estate of $1,240 will not be upheld. Matter of Smith, 75 App. Div. 339. In spite of explicit directions in will. Executor incompetent to testify under § 829 as to testator's wishes. In Matter of Cauldwell, 188 N. Y. 115, an executrix was refused ■credit for purchasing a burial plot, it appearing there was one already belonging to decedent, with room for further interment, otherwise it is intimated the cost would have been a proper charge (id., p. 120, citing Patterson v. Patterson, supra). See also Matter of Woodbury, 40 Misc. 143, 152, when testator directed his burial in his father's plot and his widow assumed to buy a new one and bury him in that. The courts will, how- «ver, scrutinize disbursements of this character, having in mind not only the station in life of the decedent but also the amount of the estate. See Matter of Erlacher, 3 Redf. 8; Matter of Mount, id. 9n.; In re Wood, id. ■9n.; Matter of Rooney, id. 15; Matter of Chipman, 82 Hun, 108; Owens v. Bloomer, 14 Hun, 296. See also Murphy v. Naughton, 68 Hun, 424. See Matter of Primmer, 49 Misc. 413, where executor was himself the under- taker, and sought to pay himself for testatrix' funeral, and also an out- lawed bill, for her husband's funeral, eight years before, opinion by Heaton, Surr. § 797. Funeral bill practically a lien on proceeds of action under § 1903. — The legislature loves the undertaker for there is another and third source 828 surrogates' courts of authority for the payment of funeral expenses. Section 1903 of the Code as amended in 1904 provides that the damages recovered in an action by an administrator for the negligent killing of the decedent is to be distributed " as if they were unbequeathed assets. " But the plaintiff may deduct therefrom (a) The expenses of the action, (6) The reasonable funeral expenses of the decedent, (c) His commission upon the residue. Held, in Matter of McDermott, 49 Misc. 402, that "may deduct" should be read "must deduct," reading it with § 2729, subd. 3, and that a judgment creditor for such funeral expenses could have leave to issue execution upon such fund. But in Matter of McDonald, 51 Misc. 318, Heaton, Surr., held the language was not imperative, and there was no legislative intent to charge funeral expenses upon the proceeds if there were other general assets. Certainly, the Surrogate has power to fix and order paid the claims on the funds for funeral expenses {Alfson v. Bush, 182 N. Y. 393) and in any case to fix and allow the "expenses of the action." Matter of Snedeker, 95 App. Div. 149. The McDermott case seems to state the real intent of the legislature because § 1903 says the plaintiff, i. e., the representative, "may deduct the reasonable funeral expenses . . . .; which must be al- lowed by the Surrogate. ..." And the Alfson case seems to hold (p. 397) "the damages recovered .... are charged with .... the reasonable funeral expenses, etc." § 798. Mourning for decedent's family— Wakes. — Where the rights of creditors are not interfered with, a moderate allowance for mourning goods for the immediate family of the decedent has been sustained in England as a part of the funeral expenses. In Matter of Allen, 3 Dem. 524, the Surrogate held that while it was a question not covered by previous de- cisions in this State, he would sustain a reasonable item of this description incurred in providing mourning for the widow as incidental to the obli- gation on the part of the administrators or executors to bury the decedent according to the rank he occupied in life and according to the estate he left. He refers to McCue v. Garvey, 14 Hun, 562, where $47 was allowed as the expenses of a "wake." He also alludes to the provisions of § 2749 providing for the payment of funeral expenses including a reasonable charge for a headstone. (See case in previous section.) He held that funeral expenses are thus not necessarily confined to the mere interment of the remains and that where custom requires it and as it is the almost universal practice for the family of the decedent to wear mourning, "and a change of wearing appafel is thus rendered necessary as a part of the preparation for the funeral and as a mark of proper respect to the dead, this expense, when reasonably incurred by those whom he was bound to provide for during his lifetime, should be borne by his estate." He ac- cordingly held that as the estate was apparently ample to pay debts that expenditure for a bonnet, dress, gloves, veil, cloak, etc., not dispro- portionate to the circumstances in life of the decedent and his family, PAYMENT OF DEBTS 829 should be allowed. See also Matter of Weaver, 53 Misc. 244. But if not properly vouched, as any other expenditure must be, it may be disallowed. Matter of Menschke, 61 Misc. 9. The only other case, apparently, in the State is Matter of Wachter, 16 Misc. 137, 141, in which the same result is reached upon equally satis- factory grounds. The learned Surrogate, Davie, observed at p. 141: " The term ' funeral ' embraces not only the solemnization of interment but the ceremonies and accompaniments attending the same; such cere- monies are prompted by affection and their character are to some extent determined by the rehgious faith and sentiment of the friends of the deceased; their extent and magnitude depending upon the condi- tion of the estate and the station in life which had been occupied by the deceased, varying from the simpler bier to the imposing catafalque, from the informal Uturgical service or scripture reading for the humble to the elaborate orisons funebres attending the obsequies of the re- nowned. So, in McCullough v. McCready, 52 Misc. 542, the Appellate Term recognized the propriety of the expenses of a 'wake' 'suitable to decedent's condition in life and necessitated by the racial custom and sentiment' of the family. See opinion by MacLean, J., and dissent by Gildersleeve, J., "The wearing of suitable mourning apparel is commonly regarded not only as a proper, but almost indispensable mark of affection and evidence of grief; the distribution of a decedent's estate among his next of kin without providing therefrom for the usual and conventional ceremonies in memory of the dead would seem not only parsimonious, but utterly repug- nant to one's conception of justice and propriety." Matter of Wachter, supra. Where decedent had expressed a wish to be buried in her "best dress" and those in charge selected what they deemed to be such, and later it proved to be a dress specifically bequeathed to A: the Surrogate (Kings County) in a very interesting opinion upheld the executor in paying to A $500 as the equivalent of said gown used as a "burial Tobe" and charging it to "funeral expenses." Matter of Pullen, 52 Misc. 75. § 799. Compromising debts. — Chapter 80 of the Laws of 1847, amended by ch. 571 of the Laws of 1888 and ch. 100 of the Laws of 1893, provided authority for executors to compromise and compound debts due to their testator or intestate. These acts were repealed by ch. 686 of the Laws of 1883 as is pointed out in the chapter on the Ascertaining the Estate. A somewhat similar clause was substituted in § 2719 of the Code, which pro- vides for the payment of the debts of the decedent. This substitutionary clause reads as follows: The surrogate may authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown, and to sell at public auction on such notice as the surrogate prescribes, any uncollectible, stale or doubtful debt or claim belonging to the estate; but any party interested in the final settlement of the estate may show on such 830 SURROGATES' COURTS settlement that such debt or claim was fraudulently or negligently compro- mised or compounded. It has been suggested that this did not extend to claims against the estate. Redf. Surr. Pr. § 629. The contrary would appear to be the case; for, in the first place, the provision falls under the section dealing with the payment of the debts of the decedent, and in the second place the Surrogate is given power to authorize the executor or administrator to compromise or compound "a debt or claim," and "to sell at public auction, etc., any uncollectible, stale or doubtful claim belonging to the estate." This appears most clearly to be in contradistinction to the prior words "a debt or claim" identified as a debt of the decedent by virtue of the heading of the section, and the whole context in which the clause is found. In Matter of Gilman, 82 App. Div. 186, the executors claimed that their decedent was the owner of a business; H asserted per- contra that he was a partner of decedent, and brought a cross action enjoining the executors from interfering with the business. Held, Surrogate had power to ap- prove a compromise whereby the estate and H divided the stock resulting from a sale of the business to a corporation. Later, and after the fore- going text was published, in Matter of Gilman (1st Dept.), 92 App. Div. 462, the court held explicitly that § 2719 "confers upon a Surrogate the power to permit an executor or administrator to compromise and com- pound a claim against the estate. § 800. Arbitrating claims. — ^The summary htigation of claims against the estate by disputing and referring the same or by consenting to their determination by the Surrogate is elsewhere covered. It may be observed casually that the Court of Appeals has held {Wood v. TunnicUff, 74 N. Y. 38, 42, 43, and cases cited), that executors or administrators have the power to submit to arbitration disputed claims or demands in favor of or against the estate then represented, and that this right is founded upon, their legal title to the assets of the decedent, their power of disposition, and their authority to adjust and settle claims in which the estate they repre- sent is interested. The court points out that this right was a common-law right and is not taken away by the statutory provisions relating to the reference of disputed claims against the estate of a decedent. Id., at p. 43. The court observes that the settlement of disputes by arbitration is en- couraged, but it points out a rule which would probably discourage repre- sentatives from resorting to this very unsatisfactory method of adjusting a dispute. Andrews, J., observes: "They will be bound by an award made pursuant to a submission the same as other persons, although if the award is to the prejudice of the estate, as, for example, if the arbitrator gives to the executor less than is due, he will, it is stated, be accountable to the heirs or other' persons interested in the estate as for a devastavit." Should this procedure be resorted to, it may be interesting to note that the fundamental idea of arbitration is its finality, and the practice in re- PAYMENT OF DEBTS 831 gard thereto is very carefully reviewed in the recent case of Dobson v. The Central R. R. ofN. Y., 38 Misc. 582. § 801. Diligent payment of debts. — Section 2719 requires the executor or administrator to "proceed with diligence" to pay the debts of the de- ceased. This, however, must be taken with the reasonable restrictions which the foregoing discussion will suggest. An executor is not required to proceed to the payment of all debts until the full extent of the indebted- ness of the deceased has been ascertained. Therefore until the period for ascertaining debts has expired which the provision of the statute indicates, the executor or administrator cannot be charged with lack of diligence if he refrains from paying debts. On the contrary, if he pay legacies and debts in full before ascertaining the whole amount of the indebtedness, he does so at his peril, and may be held liable to later discovered creditors for the amount they would have been entitled to ratably with the other creditors who have been paid in full, in the event that the assets do not prove sufficient to pay all in full. Clayton v. Wardell, 2 Bradf. 1,7; Glacius V. Fogel, 88 N. Y. 434, aff'g 4 Redf. 516. Moreover, the safeguards provided by the statute by means of the ref- erence of disputed claims, enable the representative of the estate to secure an adjudication conclusive in its nature as to the validity of the claim and afford ample protection to the representative in the payment of it. The provisions of § 2719 of course contemplate the payment only of valid subsisting claims. It has been noted in another connection that an executor or administrator has no power to allow claims barred by the Statute of Limitations. Schutz v. Morette, 146 N. Y. 137, 143; Bloodgood v. Bruen, 8 N. Y. 362; Matter of Oosterhoudt, 15 Misc. 566; Spicer v. Raflee, 4 App. Div. 471. It is his duty to set up the Statute of Limitations or any proper legal defense available against any claim presented. Butler v. John- son, 111 N. Y. 204, cited in Schutz v. Morette, supra. Matter of Goss, 98 App. Div. 489. He should set it up by answer and not by motion to dismiss. Matter of Jordan, 50 App. Div. 244. The rule has been concisely stated by Surrogate Silkman {Matter of O'Rourke, 12 Misc. 248, 250), "An executor or administrator has no power to waive, as against the heirs-at-law or devisees, any legal defense, either under the Statute of Limitations or the Statute of Frauds, and if they do so, it is at their peril." So, in Matter of Burr, 48 Misc. 56, where an executor paid his coexecutor $38,485.96, a claim much of which was barred by statute, he was surcharged the amount he had no right to pay. But there is a plain distinction between the right of an executor tO' revive a claim so barred and his right to acknowledge or keep alive a valid and subsisting obligation by payments on account. Holly v. Gibbons, 176 N. Y. 520, 527, citing McLaren v. McMartin, 36 N. Y. 88; Butler v. John- son, supra. The law is well settled, that debts of the decedent become barred by the Statute of Limitations in six years and eighteen months from their maturity notwithstanding their presentation to and admission by the 832 surrogates' courts representative of the estate. Butler v. Johnson, supra. To revive or continue the contract after this period there must be an acknowledgment or promise contained in a writing signed by the party to be charged thereby (§ 395, Code Civ. Proc), or there must have been a payment made thereon within that period by the decedent, or by his executor or administrator. McLaren v. McMartin, supra. The acknowledgment in writing may be either the express acknowledg- ment primarily contemplated by the Code, or it may be based upon proceedings brought by the representative looking to the payment of the claim; thus the acknowledgment may be based upon the allegations in the petition acknowledging the claim as a valid claim; this was so held in Matter of the Estate of Rohbins, 7 Misc. 264, 266, where Surrogate Cole- man held, that a petition for leave to sell a legacy for the purpose of pay- ing certain claims against the estate was an acknowledgment, to the per- sons made parties to the proceeding, of their claims against the estate sufficient to take them out of the statute. But a decedent has perfect power by will to direct payment of a debt which has been barred by the Statute of Limitations. The executor has no option in such a case but to pay the debt if there are assets sufficient for the purpose. Gilbert v. Morri- son, 53 Hun, 442. But if the executor or administrator does not raise the •defense before judgment is entered, it is too late to raise it on appeal. Faburn v. Dimon, 20 App. Div. 529. § 802. Priority of debts discussed in detail. — Section 2719, supra, explicitly provides the order in which the decedent's debts must be paid. Aside from this statutory preference it is the intent of the whole statute relating to the payment of decedent's debts, that creditors shall stand upon an equality one with another. The representative, if he disregard a statutory order in paying claims against the estate, does so at his peril. 5 Am. & Eng. Ency. of Law, 236. Subdivision 1 gives the first preference to debts entitled to a preference under the laws of the United States. All question as to conflict between Federal and State law in respect to such priority is removed by this pro- vision of the statute. A disregard of this provision will subject the execu- tor or administrator to personal liability for the amount of the debt due the United States, in case the estate of the decedent is insufficient to pay the same. But if the executor pays the claims against the estate in due time and order, without knowledge of the existence of a debt due to the United States, he will not be held liable for a devastavit. U. S. v. Ricketts, 2 Cr. Cir. Ct. 553. Debts due the United States are mainly debts due upon bonds by which the deceased may have obhgated himself. Should the surety of the deceased on such a bond, discharge the liability by payment to the United States, he is subrogated to the rights of the United States under this section, and stands in the same order of priority as the United States would stand had the payment not been made. § 803. Same — Taxes. — "Taxes assessed on the property of the deceased previous to his death" stand next in the order of priority. The word PAYMENT OP DEBTS 833 "taxes" must be taken in connection with the subject-matter of the whole section, which is the payment of the decedent's debts. It is necessary, therefore, to distinguish between taxes which the decedent was personally liable to pay and taxes upon the property for which the property alone could be made to respond; this distinction has been carefully drawn in the decisions. Thus taxes assessed after decedent dies are not to be paid by an administrator. Matter of Sworthout, 38 Misc. 56. The Court of Appeals, Matter of Hun, 144 N. Y. 472, 477, have held that: "In the case of taxes imposed for the general purposes of government, there is a personal obli- gation upon the citizen to pay, which may be enforced by distress and sale of his goods and by other remedies in the courts." On the other hand, the courts say: "Local assessments, imposed under municipal authority upon particular property benefited by the improvement, as distinguished from a general tax, are not .... a general or personal charge, in the absence of some statute making them such, but are only in the nature of a lien upon the specific property assessed, and the proceedings for their collection are in rem." See opinion of O'Brien, J., p. 478, citing Cooley on Taxation, 675; Tiedeman on Mun. Corp. § 282; Ldtchfield v. Vernon, 41 N. Y. 134. The statute requiring an executor to pay taxes imposed on the property of the testator, prior to his death, refers to the former and not to the latter class of burdens. Matter of Hun, swpra. In a prior case {Smith v. Cornell, 111 N. Y. 554, 557) the court held that, under the statute the executor was bound to apply the personal estate in his hands to the payment of such taxes next after debts entitled to a preference under the laws of the United States; and the court held that the taxes unpaid at the time of the decedent's death were personal debts, citing Seabury v. Bowen, 3 Bradf. 207; Griswold v. Griswold, 4 id. 216. These decisions, however, are merely to the effect that "taxes due at the death of the deceased person are payable out of his personal estate, and taxes accruing subsequently are chargeable upon the land." But in none of these cases was it intended to be held that the class of taxes referred to in Matter of Hun, were entitled to any priority under the statute. In Seabury v. Bowen, supra, Surrogate Bradford held that a particular assessment upon decedent's premises, which had been duly confirmed prior to the decease of the testatrix, was by virtue of the statute under which it was made, not only a lien on the real estate, but also a personal debt of the testatrix, which she was liable to pay on demand, and which, in default of payment, could be recovered by levy and distress or by action, debt or as- sumpsit, citing Laws of 1813, ch. 86, § 186, vol. 2, p. 420. And the Surro- gate continues, "The Revised Statutes place the payment of taxes in the second class of preference for the reason (as stated by the revisors, 3 R. S. 641, revisors' note) that the personal property is liable to be sold for taxes in the county, while those assessed in another county are charges upon the land only." The decision in Matter of Noyes, 3 Dem. 369, 371, by Surrogate Rollins 53 834 surrogates' courts that taxes and assignments levied and confirmed before the death of the testator are "debts which the executor is required by law to proceed with diligence to pay," does not purport to place these taxes in the preferential class of subd. 2. See also Bates v. Underhill, 3 Redf. 372; Hone v. Lockman, 4 id., 61, 64. In Coleman v. Coleman, 5 id. 424, Surrogate Rollins held under the provisions of the Revised Statute^ for which subd. 2 of § 2719 has been substituted (3 R. S. 95, § 37, subd. 2) that taxes assessed during the life- time of the deceased upon certain real property in which he had a life estate, were debts of the deceased which the administrator was not merely re- quired to pay out of the personalty of the estate (see cases cited at p. 425), but were also taxes within the meaning of the statute entitled to prefer- ential payment under subd. 2. The Court of Appeals (Matter of Babcock, 115 N. Y. 450, 456), by Ruger, C. J., in construing the phrase "taxes assessed," defined it as referring to assessments for taxes made prior to the decease of the taxpayer. The statute for which the present section has been substituted read "taxes assessed upon the estate of the deceased previous to his death," the word "estate" now being substituted by the word "property-" See Coleman v. Coleman, 5 Redf. 524, 525. Judge Ruger observes of these taxes: "They are described as being made upon his 'estate'; clearly im- plying an intention to charge the estate with their payment." After dis- cussing the provisions of the New York tax law, he proceeds: "The plain meaning of the act is that assessments, so far completed that the name of the person named as owner cannot be changed or altered by the assess- ment officers before the death of such person, shall be payable' from his estate in due course of administration. Any other rule would deprive the State of the personal responsibility of parties liable to the payment of taxes, who should die between the first Monday of January and the first Monday in September in each year. Such a construction is opposed to the manifest theory of the laws relating to assessments for taxation, and can- not be entertained." See Kelly v. Pratt, 41 Misc. 31, and cases cited. See also Matter of hiss, 39 Misc. 123, as to "taxes due and payable before decedent's death." § 804. Same subject. — In a well-reasoned opinion, Thomas, Surr., Matter of Hoffman, 42 Misc. 90, discusses the matter in the aspect presented by a payment of taxes and a claim to deduction in transfer tax proceedings from the net quantum of the estate. The distinction between taxes which are entitled to preferential payment and taxes which are merely debts of the estate in the sense that they are entitled to be paid out of the per- sonalty, has been clearly drawn by Gaynor, J. (Krueger v. Schlinger, 19 Misc. 221, 222) : "An executor has only to pay the debts of the decedent. General land taxes in the city of Brooklyn are not debts of the owner. They are not enforcible against him, either by levy of the tax collector upon his chattels, or otherwise. They are cast upon the land itself. Their payment can be enforced only by the sale of the land. The statute (Code PAYMENT OF DEBTS 835 Civ. Proe. § 2719) requires that an executor or administrator 'must pro- ceed with diligence to pay the debts of the deceased' in an enumerated order of preference, the second being 'Taxes assessed on the property of the deceased, previous to his death.' It is to be noted that this provision relates only to the 'debts of the deceased,' and taxes upon the property which are such debts, are taxes which are leviable against the personal estate. This is the only reason why the executor or administrator is con- cerned with them at all. The general system of taxation in this State makes the taxes collectible out of the chattels of the owner, and lands are not salable for non-payment, except in the case of lands of non-residents. Chapter 427, Laws of 1855; ch. 711, Laws of 1893. The provision above cited for the payment of taxes by an executor or administrator, has ref- erence to that system, taxes under it being debts of the deceased." See Matter of Franklin, 26 Misc. 107, 109. § 805. Priority of judgments. — (See § 807, following.) The next class of debts entitled to priority are judgments docketed and decrees entered against the deceased according to the priority thereof respectively. The first point to note is that a judgment recovered against the executor does not give any priority to the judgment creditors. Schmitz v. Langhaar, 88 N. Y. 503; see opinion of Danforth, J., as to duty of judgment creditors of a decedent with reference to his claim. Sippel v. Macklin, 2 Dem. 219. A judgment against the representative for costs is not within §§2719 or 2722. Matter of Mahoney, 37 Misc. 472. Under the common law, one judgment against a decedent docketed previous to his death had no preference in payment over another, but the order of payment of the debts of the deceased person was regulated and prescribed by our Revised Statutes (2 R. S. 87, § 27), in language which is substantially the same as the language in § 2719 of the Code of Civil Procedure, except that the word "entered" follows the word "decree" in the Code of Civil Procedure instead of the word "enrolled," used in' the Revised Statutes; and the clause prohibiting preferences, except as to debts specified in the third class, is contained in a separate section in the Revised Statutes, while in the Code of Civil Procedure it is placed in the same section. That section of the Revised Statutes came under review by Chancellor Walworth, in the case of Ainslie v. Radcliffe, 7 Paige, 440. The chancellor decided that by the provision of the Revised Statutes judgments docketed and decrees enrolled are entitled to preference in payment out of the personal estate of the deceased debtor, according to the priority in point of time to docketing the judgment or of enrolling the decree, and without reference to any supposed lien of the judgment or decree, upon the real estate of the decedent. And a judgment which has been docketed or a decree which has been enrolled more than ten years before the death of the decedent is, therefore, entitled to be paid out of his personal estate in preference to a junior judgment or decree which has been obtained within the ten years. Matter of Townsend, 83 Hun, 200, 202. Section 2719 provides that a preference may be given in payment of 836 surrogates' courts debts over other debts of the same class in this third class alone. The priority of payment of one such judgment over another is determined by the ordinary rule of priority of such judgments. Where the decedent owns property at the time the judgments, between which there is a ques- tion of priority, were entered against him, the date of the docketing will determine the priority. To avoid confusion reference must be had to the provision of § 763 of the Code to the effect that, if either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties. Section 1210 provides that "where a judgment for a sum of money or directing the payment of money is entered against a party after his death, a memorandum of the party's death must be entered with the judgment in the judgment-book. . . . Such a judgment does not become a lien upon the real property or chattels real of the decedent, but it es- tablishes a debt to be paid in the course of administration." Surrogate Rollins discussing these sections and the provisions of the Revised Statutes corresponding to the present § 2719 of the Code, held, that where a judgment was entered after a party's death, an interlocutory judgment having been obtained against him before his death, such final judgment if duly docketed, had precisely the same force and effect that it could claim, if the deceased had died on the day after its entry. Matter of Clark, 5 Dem. 377, 381, citing Nichols v. Chapman, 9 Wend. 452, 456; Salter v. Neaville, 1 Bradf. 488; Bernes v. Weisser, 2 Bradf. 212; Ainslie v. Radcliffe, 7 Paige, 439. In Matter of Dunn, 5 Redf. 27, 31, Surrogate Calvin similarly held that a judgment entered against the decedent after his death, under the con- ditions contemplated by these provisions of the Revised Statutes, in- corporated in the section of the Code above quoted, comes within the provisions of the statute giving it a preference over ordinary liabilities of the estate. The judgment was held to relate back to the time of the verdict, citing Willard on Executors, p. 279. Surrogate Calvin called attention to the fact that there is nothing in the statute stating when the judgment should be docketed, or the decree enrolled; the only provision is that it should be against the deceased. See Mount v. Mitchell, 31 N. Y. 356. If the judgment be not duly perfected it can have no priority, but if the order for judgment has been made before the decedent's death and it only remains to tax the costs, the signing and filing of the record may be done after his death. Salter v. Neaville, 1 Bradf. 488. In Matter of Foster, 8 Misc. 344, Surrogate Abbott held that when the ownership of the land follows the docket of the judgment, the conclusion seems reasonable that such ownership should relate back to the lien of all the docketed judgments equally, because the event which creates the lien in that case, is not the docketing of the judgment but the acquisition of the land, citing Matter of Hazard, 73 Hun, 22. See opinion by Van Brunt. PAYMENT OP DEBTS 837 which held (see headnote) that, under the New York statutes, docketed judgments, where the judgment debtor has no property at the time of their respective docketing, become liens simultaneously on after-acquired real property of the judgment debtor. Consequently, where the property of the decedent can be shown to have been acquired after the docketing of several judgment claims against the deceased, the executor will not give priority to either of them as against the other, although they will all be entitled to priority as of the third class under § 2719 against inferior debts. § 806. Executors bound to observe this priority. — This statute as to priority of debts is mandatory. It is intended to be a direction to the executor and administrator as to the manner of performance of their duty, and it prescribes the order of preference to be observed by them in the payment of debts. This is its express object, and the executor and administrator, when they proceed to discharge their duty, are bound to obey this direction. Mount v. Mitchell, 31 N. Y. 356, 360. See Allen v. Bishop, 25 Wend. 414, opinion, Nelson, C. J. ; Matter of Chauncey St. John, 1 Tucker, 126. The priority between judgments, however, as affected by the rule above stated as to the property acquired subsequently to the entry of judgment, does not affect the priority to which a judgment creditor is entitled as against the personal property of the deceased. In Matter ofTownsexid, above cited (83 Hun, 200), where certain personal property had been acquired by the deceased prior to his death, the creditor whose judgment was prior in time, was held to be entitled to the satis- faction of his claim thereout ahead of the subsequent judgment creditor. And Matter of Hazard, 73 Hun, 22, was distinguished as relating to the lien of judgments against after-acquired real property. See also Matter of Foster, 8 Misc. 345. It was formerly held {Ruggles v. Sherman, 14 Johns. 446) that where creditors belonged to the same class as regarded priority, the one first commencing suit was entitled to priority of pay- ment^but that the administrator could give the other when he sued a preference by confessing judgment — and if the assets were insufficient, he could plead this judgment, satisfied, in bar. § 807. What judgments not entitled to priority. — It is clear from what has already been stated that to entitle a judgment creditor to priority under § 2719, he must bring his judgment clearly within the intent of the statute. The wording "judgments docketed and decrees entered against the deceased" does not include a judgment for a deficiency against the execu- tors and trustees under the will of the decedent; James v. Bessley, 4 Redf. 236; Matter of Wedner, 9 App. Div. 621; nor is a judgment included which is recovered against an administrator upon a claim not existing when decedent died; Hall v. Dusenbury, 38 Hun, 125; Matter of Foley, 39 App. Div. 248; nor are costs included in a judgment against the representative entitled to priority of payment; Shute v. Shute, 5 Dem. 1; Matter of Ma- honey, 37 Misc. 472; nor does it relate to judgments docketed elsewhere 838 surrogates' courts than in the State of New York. Brown v. Public Administrator, 2 Bradf. 103. Foreign judgments have no proper force of themselves here, except as prima facie, and perhaps with certain exceptions conclusive, evidence of a cause of action. Cummings v. Banks, 2 Barb. 602. In other respects they rank only as simple contract debts. Executors and administrators are not bound to take notice of such foreign judgments at their peril. These foreign judgments are not entitled to be docketed or enrolled in this State and therefore under the wording of § 2719 are not entitled to preference in payment. Judgments of justices' courts can only be given priority as to the date of their docketing under the statute, so that a creditor under a justice's judgment which has not been docketed in the office of the county clerk gains no priority; his judgment cannot be docketed nunc pro tunc; nor can he by subsequently docketing his judgment relate back his claim so as to secure a priority. Stevenson v. Weisser, 1 Bradf. 343. See also Sherwood V. Johnson, 1 Wend. 445. The assignment of a judgment does not affect its priority unless the circumstances be such as to extinguish the same, therefore a judgment by a surety who takes an assignment thereof for his own benefit does not disturb the right to priority contemplated by the statute. Goodyear v. Watson, 14 Barb. 481. § 808. Fourth class of preferred debts. — The fo.urth class of preferred debts are "recognizances, bonds, unsettled instruments, notes, bills, and unliquidated demands and accounts." The first thing to note in regard to this class is, that preference shall not be given in the payment of such debts over any other debts of the same class, nor are debts due and payable entitled to a preference to debts not due. See § 2719. As to the latter they may be paid according to the class to which they belong, after de- ducting a rebate of legal interest on the sum paid for the unexpired term of credit without interest. IHd. This same section permits the Surrogate " if it appear to his satisfaction that such preference will benefit the estate" to give preference over debts of this fourth class to rents due or accruing on leases held by the testator or intestate at the time of his death. He is to do this, however, only if satisfied that the estate will be benefited thereby. Hovey v. Smith, 1 Barb. 372. "Unliquidated demands and accounts" includes such as the representa- tive in that capacity must pay. So an administrator, who has no title to realty, is not to pay interest on a mortgage thereon which accrues after decedent's death. Matter of Sworthout, 38 Misc. 56. The bonds contemplated by subd. 4 of § 2719 are primary bonds, for a good and valid consideration, by which the deceased was obligated. Bonds, although voluntary and without valuable consideration, are nevertheless valid and operative against the estate unless they were obtained by fraud and undue influence, or unless the testator was non compos mentis at the time of giving them; but the Surrogate will not allow them to be paid in the course of administration in preference to claims of creditors having PAYMENT OF DEBTS 839 debts for a valuable consideration; the executor must postpone such bonds even to simple contract debts. Isenhart v. Brown, 2 Ed. Ch. 341, 344. The vice chancellor, however, held that in respect to legacies such bonds could have a preference, for the reason that "a bond, however voluntary, transfers a right in the lifetime of the obligor whereas a legacy arises from the will, which takes effect only from the testator's death, and, therefore, ought to be postponed to a right created in the testator's lifetime." In Matter of James, 146 N. Y. 78, 93, the Court of Appeals held that " a gift of bonds by a decedent to his wife, which were secured by mortgages upon real estate without the State, under which there had been a fore- closure, amounted simply to a promise on the part of the decedent to pay at some future day a given sum without any consideration to support that promise." It was held that such a promise could not be enforced against the executor or administrator of the donor, citing Pom. Eq. Juris. § 1148; Story's Eq. Juris. § 987. See opinion of Brown, P. J., in the case at General Term, 78 Hun, 121, 124, citing Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 N. Y. 64; Wilson v. Baptist Ed. Society, 10 Barb. 308; Anthony V. Harrison, 14 Hun, 198; Whitaker v. Whitaker, 52 N. Y. 368. The rule is now clear that an executory agreement supported by a meri- torious consideration only cannot now be enforced in this State in law or in equity. Wilber v. Warren, 104 N. Y. 195; Twenty-third St. Bap. Church v. Cornell, 117 N. Y. 601. While it has been held, as above noted, that a judgment against the executor or administrator is not such a judgment as to give priority, yet the recovery of a judgment against the executor or administrator by a creditor having a right of priority on his claim will not impair that right of priority which the creditor had at the time of the decedent's death. Hardenberg v. Manning, 4 Dem. 437, 441. § 809. Preference of landlord of deceased, over debts of the fourth class. — The preference above referred to which may be given by the Surrogate to rents due or accruing on leases held by the testator or in- testate at the time of his death, is one the granting of which rests entirely in the discretion of the Surrogate. The condition of his exercise of dis- cretion is that it shall be made to appear to his satisfaction that it shall be for the benefit of the estate; if he decide against the granting the preference, then the landlord will stand in precisely the same condition with any other creditor. The Surrogate should be satisfied by affidavits setting forth facts in detail showing how the benefit to the estate will result. The mere opinion of the executor or of his attorney will not be sufficient. See Harris v. Meyer, 3 Redf. 450, 455; Cooper v. Felter, 6 Lansing, 485, 488. In the latter case it was suggested that the fact that a valuable lease might be forfeited, was such as would tend to show that the payment might be beneficial; but where no proof at all was offered and no facts stated in the petition tending to prove that the estate would be benefited, the application should be denied. The petition in this case merely con- tained an allegation that the debt "was entitled to a preference in pay- 840 surrogates' courts ment under the statute, it being for the interest and benefit of said estate that the same be paid; " this was held insufficient. It must of course appear to the satisfaction of the Surrogate that the rent for which a preference is claimed over debts of the fourth class is of the character contemplated by the statute. For example, where the rent claimed to be due was pew rent payable to a church, it was held that they had no right to a preference unless it was on a lease of the pew for a term of years in which case the lease would go to the executor or administrator as a part of the personal estate. See Johnson v. Corbett, 11 Paige, 265, 276. § 810. Sale of personal property to pay debts. — The Code provides that an executor after ascertaining the debts may sell personal property, if he has not sufficient moneys in hand to pay the debts against the deceased person and the legacies bequeathed by him. This is by § 2717, which is as follows: If an executor or administrator discover that the debts against any de- ceased person and the legacies bequeathed by him cannot be paid and satisfied without a sale of the personal property of the deceased, the same, so far as may be necessary for the payment of such debts and legacies, must be sold. The sale may be public or private, and except in the city of New York, may be on credit not exceeding one year, with approved security. The executor or administrator is not responsible for any loss happening on the sale when made in good faith and with ordinary prudence. Articles not necessary for the support and subsistence of the family of the deceased, or not specifically bequeathed, must be first sold; and articles so bequeathed must not be sold until the residue of the personal estate has been applied to the payment of debts. § 2717, Code Civil Proc. It has been held that administrators have always had the right to sell personal property of their intestate. This was formerly by § 25, 2 R. S. 87, in lieu of which this section of the Code now stands. Sherman v. Willett, 42 N. Y. 146, 150. It was held, in the case cited, that they had such right to sell both for the payment of debts and legacies and for the purpose of distribution. It was further held, that where they sell for the purpose of paying debts or legacies, they are not required to get an order of the Surro- gate authorizing the same, and when they sell, it will be presumed, in the absence of any proof to the contrary, that they acted legally and that the exigencies existed authorizing the same. See also Matter of Robbins, 7 Misc. 264, 266. In Huck v. Kraus, 50 Misc. 528, it is held that irrespective of § 2717 executors may sell choses in action belonging to the estate; and that the title of a purchaser was valid. In a recent case {Matter of Woodbury, 13 Misc. 474), Surrogate Kennedy held that an executor has no right to sell upon credit under § 2717 except the sale be for the payment of debts and legacies of the deceased. There- fore, if an executor or administrator undertakes to sell upon credit, the necessity for the sale must be one capable of proof to the satisfaction of the Surrogate, otherwise the executor may be held responsible for loss happening on the same. PAYMENT OF DEBTS 841 The provision in § 2717, that the executor or administrator is not re- sponsible for any loss happening on the sale when made in good faith and with ordinary prudence contemplates of course a sale made within the intent of § 2717.' This would probably be held to indicate that the occasion for such a sale will not necessarily arise until the time for the payment of debts and of legacies arrives. It is clear that a sale by an executor upon credit immediately after the decedent's death, except, of course, of perishable property, would not be upheld, unless in the first place there were legacies requiring immediate payment and in the second place unless he discovered that such legacies could not be paid and satisfied without such sale. Moreover, the sale must be limited to sufficient personal property to meet the debts or legacies which have to be paid. As to sales upon credit, which are permissible outside of the city of New York, the Code requires "approved security." In Matter of Woodbury, supra, the court discussed at length the question of what will constitute such approved security (see 13 Misc. 477, 478), the gist of which is contained in the headnote of the case as follows: "The 'approved security' which an executor is required by § 2717 of the Code to take upon a sale on credit consists only of national and state bonds and mortgages on real estate, and does not include notes, stocks or bonds, and must be approved by the Surrogate before it is accepted." This limitation is based upon the distinction between security in com- mercial dealings and security in legal proceedings. In the latter the law requires security of a character over which the courts have control, that is to say, a security which makes the debt assured and its payment certain, and guarantees against loss from insolvency or otherwise. It is manifest that notes, bonds, stocks, and other forms of contract, which are accepted in commercial deahngs do not come up to this standard and should be excluded from the "approved security" which is required by this section. Attention should be called to the wording of §2717, to wit: "The sale .... except in the City of New York may be on credit." The section when thus enacted contemplated the city of New York as coterminous with the county of New York. The recent enlargement of the city of New York cannot be said to have contemplated any conflict of jurisdiction between the Surrogates of the county of New York with the Surrogates of any other county wholly or partially within the enlarged city. As to sales by executors or administrators subject to the jurisdiction of Surrogates in Richmond, Kings, or Queens counties, it is manifest that this restriction was not originally intended by the legislature to apply to them; and it is probable that the section will be amended by changing the word "city" to "county," which would remove all doubt in the premises. No forms need be suggested, as the proceedings are voluntary on the part of the representative and out of court. The property may be sold at public or private sale. The executor or administrator will be held liable by the Surrogate to the persons interested for good faith and diligence in regard to such sale; so that if they sell assets at an inadequate price they 842 surrogates' courts may be held chargeable for the reasonable value of the same. Matter of Saltus, 3 Keyes, 500. And they are of course answerable for whatever amount is received upon the sale, although it may have been largely in excess of the market value of the property; they must account for all the proceeds. Hashrouck v. Hasbrouck, 27 N. Y. 182; King v. King, 3 Johnson, 552. And so a sale by an executor or administrator may not be exercised in his own favor either directly or indirectly, and should he sell to himself below the inventoried price personal property of the estate, he will be charged with the full reasonable value of the property, unless he sustains in full measure the burden of showing that the sale was bona fide and the consideration adequate. Schenck v. Dart, 22 N. Y. 420; Orcutt v. Orms, 3 Paige, 464. §811. Payment of decedent's debts out of personal estate. — Section 2717 of the Code recognizes the rule that the personal property of a de- cedent constitutes a primary fund for the payment of his debts and legacies (see Jouffret v. Loppin, 20 App. Div. 455, 457), for it was a rule of the common law that land descended or devised was not liable to simple con- tract debts of the ancestor or testator. See Rice v. Harbeson, 63 N. Y. 493, 498. This rule, however, was not of universal application, and is now modi- fied by the provisions of the Code to be later on discussed providing for the sale of a decedent's real estate for the payment of his debts. But § 2717 practically contemplates that the personal property of a decedent shall be available for the payment of debts and legacies even though it be necessary to sell the same for the purpose of reaUzing funds with which the executor or administrator may pay and satisfy such debts and legacies. The section expressly provides, that articles bequeathed specifically must not be sold for the purpose contemplated by the section until the residue of the per- sonal estate has been applied to the payment of debts. One of the excep- tions to the general rule of the common law above noted was, that it should not be applied if thereby the payment of any legacies should be prevented. See Rice v. Harbeson, supra. Under a will the question is easily framed when there are debts and legacies, and the estate is both real and personal. After eliminating specific bequests it may be asked: is the personalty, or any part, so exonerated from the usual burden as to be free from ap- plication first to debts? This exoneration may be by express disposition ■of all the personalty leaving the realty as the only property applicable, or by charging the payment of debts or of particular legacies expressly •or by necessary implication upon the realty. This exoneration is the same in substance though reached in either way. See, e. g., Matter of Bergen, 56 Misc. 92. The exception in § 2717 is not only reasonable but explicit and must be observed by the executor or administrator. See Toch v. Toch, 81 Hun, 410. The whole estate, personal and real, is subject to the debts of the de- cedent; and all the provisions of the Code in this regard are consistently PAYMENT OF DEBTS 843 designed to protect creditors as against legatees, devisees, next of kin or heirs. See Young v. Young, 2 Misc. 381. Chancellor Kent observed, "It is too well settled to be questioned that the personal estate is to be first applied to the payment of debts and legacies and that a mere charge on the land will not exonerate the personal estate nor anything short of express words or a plain intent in the will of the testator." Livingstone v. Newkirk, 3 Johns. Ch. 312, 319. And he stated the further rule, that on failure of the personal estate land descending should be applied to the discharge of debts before land devised, and that if it became necessary to resort to lands devised they should be applied ■only so far as it was requisite to make up the deficiency. This order of application of assets has not been changed and will not be changed by the courts except in giving effect to an express declaration or plain manifesta- tion of interest on the part of a testator. See Rogers v. Rogers, 3 Wend. 503, 518. Chancellor Kent held in an early case (Cumberland v. Codrington, 3 Johns. Ch. 229, 252) that where a decedent had taken a conveyance of land subject to a mortgage covenanting to indemnify his creditor and save him, his heirs, executor, etc., harmless from all suit and demands by reason .of the bond and mortgage, he did hot thereby make the mortgage debt his own so far as to render his personal estate chargeable as the primary fund to be applied to its payment in exoneration of the land. As between the representative of the real and personal estate he held the land to be the primary fund and that the personal estate should be resorted to only as auxiliary. See discussion of English cases, pp. 252 et seq. Where the proceeds of lands without the State, devised to specific persons, are brought into the State, they are not thereby subjected to the demands of creditors, even though the New York assets are insufficient and the credit- ors' claim allowed, unless by the laws of the State where the lands were situated the decedent's debts are made a charge on the lands. Deyo v. Morss, 30 App. Div. 56, and cases cited. § 812. Same subject. — The claims of creditors of a deceased person are preferred to those of his legatees or devisees, for the only interest in his property that the testator can transmit to the latter is what remains after the payment of his just debts. Piatt v. Piatt, 105 N. Y. 488; Rosseau v. Bleau, 131 N. Y. 182. The right of a creditor to resort to any but the personal estate of the deceased debtor did not exist at the common law. McLaury v. Hart, 121 N. Y. 636. And at common law the heirs and de- visees took the real estate of a decedent free from his general debts. Kings- land V. Murray, 133 N. Y. 170, 174. And the real property can now be taken for the payment of debts only by virtue of the statute, the provisions of which must be strictly pursued. And, as will be more fully set forth in ch. 7, infra, it is a prerequisite to the proceedings under §§ 2759 et seq., that it be established to the satisfaction of the Surrogate among other things: "That all the personal property of the decedent, which could have been appUed to the payment of the decedent's debts and funeral ex- 844 surrogates' courts penses, has been so applied; or, that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral ex- penses; and that it is insufficient for the same." And the rule in this con- nection has been carefully stated by Judge Earl, in Kingsland v. Murray, 133 N. Y. 170, 174: " If the decedent at the time of his death left sufficient personal property which could have been applied to the payment of his debts and funeral expenses, in the exercise of reasonable diligence on the part of his executor or administrators, then resort cannot be had to the statutes for the sale of his real estate for the payment of his debts. In that event the personal property is the fund for the payment of his debts, and the creditors must resort to that through the executors or administrators. If they waste or squander the personal property so that it becomes insufficient for the payment of the debts, the only resort of the creditors is to them to enforce their personal responsibility, and they cannot in that case cause the real estate to be sold under the statutes referred to. But if the personal prop- erty left by the decedent at the time of his death was insufficient to pay his debts, or if the executors or administrators proceed with reasonable diligence in applying it to the payment of his debts, and it provgs insuf- ficient for that purpose, then, and then only, a case is made for the sale of the real estate. So in the language of this section, before the Surrogate can make a decree for the sale of the real estate the petitioner must estab- lish that all the personal property of the decedent which could have been applied to the payment of the decedent's debts and funeral expenses has been so applied. If he establishes that, then he need go no further, and the Surrogate is authorized to make the decree. If he cannot establish that, but establishes the other alternative, that the executors or administrators have proceeded with reasonable diligence in converting the personal prop- erty into money and applying it to the payment of the debts and funeral expenses, and that it is insufficient for the payment of the same, then, if it has not all been so apphed, at the time of the petition, the Surrogate is authorized to make the decree." See also Hogan v. Kavanaugh, 138 N. Y. 417, 422; O'Flynn v. Powers, 136 N. Y. 412; In re Powers, 124 N. Y. 361 ; Long v. Long, 142 N. Y. 545, 552. See also Matter of City of Rochester, 110 N. Y. 159, and cases discussed by Gray, J. The principle which has the greatest influence on the determination of this question, which has been uniformly supported by all the cases, is that it is not enough for the testator to have charged his real estate with or in any manner devoted to it the payment of his debts and legacies. The rule of construction is such as aims at finding not that the real estate is charged, but that the personal estate is discharged. In other words, it is not by an intention to charge the real, but by a plain intention to dis- charge the personal estate that the question is to be decided. Matter of Neely, 24 Misc. 255, 257, citing Williams on Executors (6th Am. ed.), p- 1810; Dodge v. Manning, 1 N. Y. 298; Kelsey v. Western, 2 id., 500. In a PAYMENT OP DEBTS 845 recent case, Little Falls Nat. Bk. v. King, 53 App. Div. 541, the court says: "The law is distinct in providing that in the transmission of the property ■of a deceased debtor to his heirs-at-law or devisees it is charged with the payment of his debts. {Hogan v. Kavanaugh, 138 N. Y. 317, 422.) The rights of creditors of a decedent attach to his real estate as a statutory lien immediately upon his death. {Rosseau v. Bleau, 131 N. Y. 177, 182; Piatt V. Piatt, 105 id. 488.) The order of payment is prescribed by statute, and the provision is express that ' preference shall not be given in the pay- ment of a debt over other debts of the same class,' except judgments docketed against the decedent. (Code Civ. Proc. § 2719.) If the decedent dies intestate the title of the heir-at-law is subordinated to the hen of the •creditors, which remains a burden for the period of three years after the issuing of the letters of administration. (Code Civ. Proc. § 2750.)" Aff'd ^ub nomine, Matter of Richmond, 168 N. Y. 385, 388. See Lediger v. Can- field, 78 App. Div. 596, as to will charging "all debts of my mother" on testatrix's estate. § 813. Debts contracted by the executor or administrator. — We note first a protective provision in § 113 of Decedent Estate Law : No executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum, or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorized. Where a creditor presents a claim to be paid out of the estate of a de- cedent and it appears that the liability to pay the claim was one not ex- istent or not complete at the time of the decedent's death, but is one which has been assumed by the executor or administrator in his repre- sentative capacity, it will be important to determine whether or not the liabihty must be discharged by the executor de bonis propriis or de bonis testatoris. Thus in an early case {Chouteau v. Suydam, 21 N. Y. 179), executors were sued upon a contract in writing, signed by them as such, in a matter concerning the estate and were held liable in their representative capacity as for money paid for the use of the estate. The question principally considered was as to the form of the execution of the contract, and whether the contract was the contract of the executors as such, or whether it was in form the personal contract of the defendants. The series of cases in this State decided before and since that case, are uniformly to the effect that a contract made by an executor upon a new consideration or for serv- ices to be rendered, although for the benefit of the estate will not bind the estate. Parker v. Day, 155 N. Y. 383, 387. See Austin v. Munroe, 47 N. Y. 360. See also Wetmore v. Porter, 92 N. Y. 76, 83 ; Seaman v. Whitehead 78 N. Y. 306, 309. And this rule has not been changed by the Code. Parker v. Day, supra, citing Thompson v. Whitemarsh, 100 N. Y. 35; Buckland v. Gallup, 105 N. Y. 453. 846 SURROGATES' COURTS If the subject-matter of the contract be, in fact, a contract liability of the testator, incurred during his life (as was the case in Pugsley v. Aiken, 1 Kern. 494, where the action was upon the contract and leases of the testa- tor, to which the defendant, as executor, had succeeded), then the liability of the estate, as laid down in Chouteau v. Suydam, is a clear one. Judge Allen observed in Austin v. Monroe, supra (at p. 366): "The rule must be regarded as well settled, that the contracts of executors, al- though made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold and delivered, or other consideration moving be- tween the promisee and the executors as promisors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the services rendered, or goods or property furnished, or other considera- tion moving from the promisee, are such that executors could properly have paid for the same from the assets, and been allowed for the expendi- ture in the settlement of their accounts. The principle is, that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. Barry V. Lambert, 98 N. Y. 309; Ferrin v. Myrick, 41 N. Y. 315; Reynolds v. Reynolds, 3 Wend. 244; Demott v. Field, 7 Cow. 58; Myer v. Cole, 12 Johns. 349. The rule is too well established in this State to be questioned or disregarded; and departure from it would be mischievous. Consequently, where the executors are sued as executors upon a contract of the nature just described, and it is clear that they are not sued individually and the words are mere words descriptio personce (in which case a judgment could be authorized against them individually, see Merritt v. Seaman, 2 Shedl. 168) a demurrer will he to the complaint. Austin v. Munroe, supra. Neither the executor not administrator whether acting separately or jointly, have authority to create an original liability on the part of the estate or enter into an executory contract binding upon or enforceable against it. Barry v. Lambert, 98 N. Y. 300, 309, citing McLaren v. Mc- Martin, 36 N. Y. 88, and other cases; Schmittler v. Simon, 101 N. Y. 554, 557. They take the personal property as owners and have no principal behind them for whom they can contract. The title vests in them for the purposes of administration, and they must account as owners to the persons ultimately entitled to distribution. So they cannot bind the estate by indorsing a note. Packard v. Dunfee, 119 App. Div. 599. In actions upon contracts made by them, however they may describe themselves therein, they are personally liable, and in actions thereon, the judgment must be de bonis propriis. Not so, however, upon contracts made by their testator or intestate; in such case the judgment is always de bonis testatoris. See Schmittler v. Simon, supra; Gillet v. Hutchinson's Adm., 24 Wend. 184. And so it must be borne clearly in mind that a Surrogate has no power to direct payment of claims arising out of contracts PAYMENT OF DEBTS 847 made by the executor or administrator as distinguished from claims against the deceased. Buckley v. Stoats, 4 Redf. 524. § 817. Leave to issue execution to a judgment creditor. — The Surrogate is given power to protect estates, when judgment has been entered against the representative, against the unrestricted issuance of execution by the creditor, to prevent undue or improper priorities. One who has a judg- ment for a sum of money against an executor or administrator in his rep- resentative capacity must obtain leave from the Surrogate from whose court the representative's letters were issued before he can issue execution under his judgment. Code Civ. Proc. § 1825. The application to the Surrogate should result in an order specifying the sum to be collected and the execution must be indorsed with a direction to collect that sum. It has already been noted under § 2552 (in discussing Decrees and Orders) that a decree or order directing payment by the personal representative to a creditor of or a person interested in the estate or fund or an order permitting a judgment creditor to issue an execution against an executor or administrator is, except upon appeal therefrom, conclusive evidence that there are sufficient assets in his hands to satisfy the sum, which he is directed to pay, or for which the order permits the execution to issue. See Matter of Warren, 105 App. Div. 582. It is imperative, therefore, in view of the effect to be given to such an order that the Surrogate do not grant the same unless he is satisfied that the representative has assets applicable to the payment of the claim. Executions authorized by § 1825 are such only as can be issued against personal assets in the possession or under the control of the representative. Matter of Hathaway, 24 N. Y. Supp. 468, 472. Therefore, when a judgment creditor applies to the Surrogate for leave to issue execution, he should allege the possession of assets applicable to the judgment. Hauselt v. Gano, 1 Dem. 36; Matter of Clark, 2 Abb. N. C. 208. It appears that this procedure under §§ 1825-26 is exclusive after judgment against the executor of an estate. So held in Jones v. Arken- burgh, 112 App. Div. 483, refusing the judgment creditor relief by way of receivership in supplementary proceedings. Section 1824 provides that an executor or administrator is not to plead want of assets in the action and that a judgment against an executor or administrator in his representative capacity is not evidence of assets in his hands. If the Surrogate, therefore, is applied to for an order direct- ing execution to issue, the practice must follow § 1826, which is as follows: At least six days' notice of the application for an order specified in the last section, must be personally served upon the executor or administrator, unless it appears that service cannot be so made with due diligence ; in which case, notice must be given to such persons, and in such manner, as the surrogate directs, by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff,, are not, or will not be, suflScient to pay all the debts, legacies, or other claims S48 surrogates' courts of the class to which the plaintiff's claim belongs, the sum, directed to be collected by the execution, shall not exceed the plaintiff's just proportion of the assets. In that case, one or more orders may be afterwards made in like manner, and one or more executions may be afterwards issued, whenever it appears that the sum, directed to be collected by the first execution, is less than the plaintiff's just proportion. § 1826, Code Civil Proc. It would seem to be incumbent upon the petitioner to show either that the representative has funds of the estate on hand applicable to the pay- ment of the judgment which he refuses to so apply, or that funds of the estate have been misapplied which ought to have been devoted to the payment of the judgment. Matter of Gall, 40 App. Div. 114, 116; Matter of Cong. Unit. Society, 34 App. Div. 387. In Matter of Warren, 105 App. Div. 582, the ease turned on the ques- tion whether the funds sought to be reached were really assets of the estate. If the Surrogate so desires in order to ascertain whether there are assets applicable, he may direct the representative to account. Matter of Cong. Unit. Society, swpra; Melcher v. Fisk, 4 Redf. 22'; Peters v. Carr, 2 Dem. 22. And in the Warren case above cited, the reference was ordered to take proofs from which the Surrogate might determine whether the assets Tvere estate assets. § 815. Same subject. — For the purposes of the inquiry by the Surrogate a judgment is deemed a conclusively liquidated claim. The Surrogate cannot adjudicate upon the validity thereof. Glacius v. Fogel, 88 N. Y. 434. So he cannot receive evidence on the part of the executor that the creditor obtained such judgment by fraud. Freeman v. Nelson, 4 Redf. 374. In the case of Glacius v. Fogel, supra, the executor was without funds to pay the judgment creditor because he had paid the legacies be- fore he knew the extent of the claims against the estate. This fact having developed, it was held that he had paid the legacies at his peril and that he must be charged with the sum so paid and pay the creditor his pro rata share upon his debt, for it is manifest from § 1826 that no preference is given the judgment creditor applying for leave to issue execution. Schmitz -v. Langhaar, 88 N. Y. 503. But where the assignee of a distributive share reduced his claim to judg- xtient and prayed leave to issue execution thereunder, it would be compe- tent for the respondent to show he was barred by a decree in accounting al- ready entered. See Matter of Weil, 110 App. Div. 67. It has been held that this leave to issue execution once obtained marks the extent of the credi- tor's rights. There is no provision of the Code for suppleriientary proceed- ings or for proceeding in the way of sequestering or appropriating the prop- erty of the estate to the payment of the judgment, nor for obtaining an order for the examination of a third party. Collins v. Beebe, 54 Hun, 318. The Court of Appeals has held, Mount v. Mitchell, 31 N. Y. 356, that no appeal will lie from an order granting leave to issue execution until the representative gives security for the amount for which execution issues under the Surrogate's permission. CHAPTER IV PROCEEDINGS TO COMPEL PAYMENT OP DEBTS § 816. How payment of debts may be compelled. — ^The Code provides a means by which the Surrogate at the instance of a creditor may compel the payment of a just debt by an executor or administrator. The remedy being a statutory one, must be pursued in compUance with the statutory requirements. Matter of Lyon, 1 Misc. 447. The proceeding is a special proceeding based on petition and citation, and cannot be begun by affidavit and order to show cause. Matter of Moran, 58 Misc. 488. The provision of the Code is as follows: In either of the following cases a petition may be presented to the surrogate's court, praying for a decree, directing an executor or administrator to pay the petitioner's claim, and that he be cited to show cause why such a decree should not be made : 1 . By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. § 2722, Code Civil Proc, in part. Subd. 2 relates to compulsory payment of legacies. The word "creditor" in the section aboVe quoted, includes the assignee of a claim equally with the original creditor. Matter of Moderno, 63 Hun, 261. In this case the apphcation was made by the widow of the decedent claiming to be a creditor of his estate, for a decree directing the temporary administrator to pay certain claims set forth in her petition which were made up partly of expfenditures made by her fof services rendered by third parties to the decedent in his lifetime, such as hotel charges, nursing, etc., which were paid by her and of which she became the assignee, and the balance relating to receiving-vault and funeral expenses expended by her, also disbursements made upon the probate proceedings. The General Term of the First Department held that she was a creditor within the meaning of the Code and could maintain a proceeding under this section. And it has also been held that an original creditor, or an assignee of an original cfeditor, had a right to invoke this remedy where the public ad- ministrator after accounting for his administration of the decedent's estate, paid in to the city treasury the balance of moneys in his hands belonging to such estate, by virtue of that provision of the Consolidation Act (§ 244) which gave any person entitled to receive such moneys as creditor, etc., the same remedies against the corporation for the same as 54 849 850 surrogates' courts they would have against any executor. Matter of Conway, 5 Dem. 290. But a Surrogate's Court has no jurisdiction of an independent proceeding by an executor, to compel payment of his claim against the estate, as the remedy of such executor is provided by a different section of the Code (§ 2731) which permits the executor to prove his claim on the judicial settlement of his account. Meyer v. Weil, 1 Dem. 71. This section does not contemplate as creditors persons to whom the deceased was not in- debted during his lifetime. So where a person recovered a judgment for costs in an action brought against him by executors, it was held that this remedy was not open to him to enforce the payment of his claim. Hall v. Dusenbury, 38 Hun, 125. And so if the claim is for funeral expenses the claimant is held unentitled to pursue this remedy. Matter of Flint, 15 Misc. 598. The proceeding to compel their payment is now regulated by § 2729, subd. 3, quoted and discussed above at p. 823. The claim must be a liquidated, undisputed claim. This is manifest from § 2722; see below. Matter of Walker, 70 App. Div. 263, 266. In Matter of De Forest, 119 App. Div. 782, petitioner based her petition on a written agreement by decedent to pay her an annuity. This was confirmed by the language of the will already probated. Payment was directed. But where a creditor, holding decedent's promissory note, presented it to the administratrix and slept on his rights, it was held, on his petition- ing under § 2722, more than seven years and six months after maturity of note, that he had not a valid claim enforceable in this way. Matter of Van Voorhees, 55 Misc. 185. § 817. The petition. — ^The proceeding is begun by petition, duly verified. In an application begun on affidavit and notice of motion, the court treated the affidavit as a petition and disregarded the notice of motion. Matter of Dunscombe, 10 N. Y. Supp. 247. But this case is a dangerous precedent. The proper rule is stated in Matter of Moran, 58 Misc. 488. What allegations should be incorporated in the petition will appear more fully from the further language of § 2722, which is as follows: On the presentation of such a petition, the surrogate must issue a citation accordingly; and on the return thereof, he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner : 1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely, or on information and belief. 2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without in- jiiriously affecting the rights of others, entitled to priority or equality of pay- ment or satisfaction. § 2722, Code Civil Proc, in part. Not only then must it be alleged and appear that the creditor has a PROCEEDINGS TO COMPEL PAYMENT OF DEBTS 851 claim, and that it is valid and legal, Matter of Van Voorhees, 55 Misc. 185, and that six months have expired since letters were granted, but the petition must contain allegations sufficient to admit of proof to the satis- faction of the Surrogate under subd. 2 of the second half of the section "that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner's claim, and which may be so appUed, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction." The form of petition used in Erie County is here suggested: Surrogate's Court, Erie County, State of New York. In the Matter of the Estate of Deceased. To the Surrogate's Court of the said County of Erie : The petition of of the of in the County of Erie, and State of New York, respectfully shows : That heretofore and on the day of 19 letters of the of late of the of were duly issued by this Court to Your petitioner, upon information and belief, alleges and says, that said has not rendered an account of proceeding as such to this Court. That your petitioner is interested in the estate of said deceased as a (Jiere state character of creditor's claim, err facts out of which it arose). Wherefore your petitioner prays [for a judicial settlement of the account of said executor, and that said be Note. The ac- cited to show cause why (note) should not render and counting is in Sur- settle h account, and] for a decree or order directing said rogates' discretion, ^g p^y the claim of your petitioner, and for such other and and is only ordered fu^iier relief in the premises as this Court may deem proper, if necessary to show ^^^3^ this day of 19 adequate assets. Petitioner to sign here. (Verification.) § 818. Effect of answer by executor or administrator. — The Surrogate is bound upon the presentation of a petition under this section to issue a citation according to its prayer (§ 2722), upon the return of which he will have to inquire into the petitioner's claim to satisfy himself, under subd. 2, supra, as to the facts which authorize him to grant the relief prayed for, unless the executor or administrator files a written answer under subd. 1, "setting forth facts which show that it is doubtful whether the petitioner's claim is valid or legal, and denying its validity or legality, absolutely, or on information and beUef." If the claim be thus disputed, the Surrogate has no jurisdiction to de- termine its validity and decree its payment; Matter of Callahan, 152 N. Y. 852 surrogates' courts 320; Holly v. Gibbons, 176 N. Y. 520, 528; except under other circum- stances upon the accounting {q. v.). This answer should be verified (see subd. 1). But if the creditor fails to object that the answer is not verified by timely objection, he will be held to have waived the defect. Matter of Corbett, 90 Hun, 182, 183. A judgment creditor may of course resort to this proceeding, although cus- tomarily he will resort to the proceedings provided by §§ 1380, 1381 of the Code, and obtain leave to levy execution against the estate. But where the creditor is not a judgment creditor the executor or administra- tor can in a proper case effectually block these proceedings and secure their dismissal by putting in issue the validity or legality of his claim. Matter of Lyman, 11 N. Y. Supp. 530. The good faith of the executor is secured by the provision that he must verify the written answer and set forth facts which show the invalidity or illegality asserted. If he simply asserts conclusions, but no facts on which to predicate them, the Surrogate may disregard the answer as "evasive and technical." Matter of De Forest, 119 App. Div. 782. Where a judgment creditor presented a petition alleging the recovery of certain judgments against the administratrix's decedent, his claim on which had been duly presented to the administra- trix and not disputed, that there had come into the hands of the adminis- tratrix moneys sufficient to pay his judgments; that there were no claims against the decedent's estate entitled to equality of payment with, or priority of payment over, petitioner's claims; and that there was sufficient money in her hands to pay his claim without injuriously affecting the rights of other persons entitled, it was held {Matter of Application of Miller, 70 Hun, 61, 63) that a verified answer by the administratrix alleging ir- regularities in the docketing of the judgments, was not a sufficient answer upon which to dismiss the proceedings; for conceding the judgments were irregular, their subsequent correction which was shown made them valid judgments; and (White v. Bogart, 73 N. Y. 256) they could not be attacked collaterally, and prima fade stated the claimant's claim against the estate. McNulty V. Hurd, 72 N. Y. 521. While the interposition of a verified answer ousts the Surrogate of jurisdiction to pass on the merits of the petitioner's claim, yet even where the answer is interposed he has the right, in considering that answer, to determine whether the claim has been already admitted and allowed by the representative. Matter of Miles, 170 N. Y. 75, 81. Where the petition alleged a judgment claimed to have been kept ahve by a payment, and the answer denied such payment and set up the Statute of Limitations, the proceeding was dismissed. Matter of Depuy, 8 N. Y. 229. And where an answer to a judgment claim showed that the judge who rendered the judgment was related to one of the parties and so disqualified to act, the Surrogate dismissed the petition. Matter of Depuy, 9 N. Y. Supp. 121. The Surrogate has no power to try and determine questions regarding the validity of judgment claims and ac- cordingly the General Term held (Matter of Miller, supra), that in order to have justified a dismissal of the petition the answer "should not only PROCEEDINGS TO COMPEL PAYMENT OF DEBTS 853 have denied the validity or legality of the plaintiff's claim, but it should have set forth facts which showed that it was doubtful whether the pe- titioner's claim was valid and legal. Hurlburt v. Durant, 88 N. Y. 121; Matter of Macaulay, 94 N. Y. 574, 578; Budlong v. Clemens, 3 Den. 145, 146. But if a proceeding is initiated under this section, and to the allega- tion in the petition that the claim has beep presented and admitted by the executor, the executor answers, denying that the claim was so admitted, this has been held to raise a dispute as to its validity and legality, and the petition must in such case be dismissed. Matter of Cowdrey, 5 Dem. 453, Rollins, Surr., citing Hurlburt v. Durant, supra. It was, however, in this case held that the fact that the petitioner's claim was in dispute justified a dismissal of the petition so far as it asked for payment of the claim but was no ground for denying that part of the appUcation which asked for an accounting by the executor, citing Schmidt v. Heusner, 4 Dem. 275. In this case it was held that a mere appearance of an interest on the part of an applicant was sufficient to authorize the order for the filing of the account in spite of a contest of the claim of interest by the executor or administrator, citing Code Civ. Proc. § 2514, see cases cited at p. 276. An oral dispute of the claim is not sufficient; the Code expressly requires a written answer. Estate of McKiernan, 4 Civ. Proc. Rep. 218. It seems that if the petition does not allege the petitioner's claim with sufficient particularity to enable the executor or administrator to put its legality or validity in dispute, as required by § 2722, the Surrogate has power to direct the petitioner to set forth the nature of his claim with greater particularity. Budlongv. Clemens, 3 Dem. 145, 146, Rollins, Surr. The requirements of the Code as to the character of the executor's answer are substantial rather than formal. Consequently where an execu- tor does not in so many words doubt whether the petitioner's claim is valid and legal, and deny its validity absolutely, but his answer con- tains allegations of fact which show that it is doubtful whether the petition- er's claim is valid and legal, the answer will be sustained and the petition dismissed. Cuthbert v. Jacobson, 2 Dem. 134, 136. So where an answer by an executor alleges that the claim presented is excessive the Surrogate must treat the claim as a disputed one, and dis- miss the proceedings. Koch v. Alker, 3 Dem. 148. So also where the executor sets up in his answer that the claim has been released and denies its validity. Matter of Hammond, 92 Hun, 478. So where the answer of the executor shows that the claim of the petitioner is for damages arising out of the alleged fraud of the decedent, and denies on information and belief the validity and legality of the claim, it will be deemed a sufficient answer to oust the Surrogate's jurisdiction. Matter of Fargo' s Estate, 18 N. Y. Supp. 670. Where the petitioner was a Young Men's Christian Association, and the executor's answer denied the incorporation of the petitioner alleging its nonincorporation and therefore denying the validity of the petitioner's 854 surrogates' courts claim, it was held that this was a sufficient dispute of the claim to require the dismissal of the proceedings. Matter of Young Men's Christian Asso- ciation, 22 App. Div. 325, 327, citing Matter of Callahan, 152 N. Y. 320; Fiester v. Shepard, 92 N. Y. 251, 255; Matter of 'Hammond, 92 Hun, 478. But where an answer merely denied the petitioner's incorporation and omitted to deny the validity of its claim the dismissal of the proceeding was held error. Matter of Alexander, 83 Hun, 147. § 819. Right to payment. — While it is within the power of the executor or administrator by the verified answer above discussed to secure a dis- missal of the proceeding contemplated by § 2722, and put the claimant to his proof in another court (Lambert v. Craft, 98 N. Y. 342), and while he is not deprived of his right to dispute the claim in this proceeding by reason of his having previously made an oral admission of its validity (Ruthven v. Patten, 1 Robert, 416), yet if the executor does not interpose this objection and divest the court of jurisdiction, the Surrogate must inquire into the merit of the claim with a view to his being satisfied of the necessary facts under § 2722. The creditor sustains the burden of proof as to all the circumstances, for, if it be not proved to the satisfaction of the Surrogate first, that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner's claim, and which may, in the second place, be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction he must by decree dismiss the petition although without prejudice to an action or an accounting in behalf of the petitioner. Code Civ. Proc. § 2722; Lynch v. Patchen, 3 Dem. 58, 60. Of course an inventory is in the nature of such proof as showing assets although the inventory unsupported by other proof will be held insufficient to prove sufficiency of property to pay all debts. Matter ofCorbett, 90 Hun, 182, 186. But if the amount of personal property returned upon the inventory is insufficient to pay the creditor's claim and he relies upon other property in the executor's hands, § 2722 requires affirmative proof of the existence of such assets. Moreover, the wording of the section above quoted contemplates that the power of the Surrogate is to be exercised in conformity with, and not in hostility to, the general principle of equality among creditors. This is a distinguishing feature of the New York system for the administration of the estates of decedents. Thompson v. Taylor, 71 N. Y. 217, 219, citing Fitzpatrick v. Brady, 6 Hill, 581. The object of the provision is to provide a way whereby creditors and others having claims against the estate of a decedent, or entitled to share therein may obtain payment thereof in whole or in part in advance of the final accounting and distribution, in cases where such contemplated payment may be made consistently with the rights of all parties interested in the estate. In the case last cited (71 N. Y. 219), Judge Andrews says: "When application is made by a creditor for the payment of his debt under this section, the Surrogate, before making a decree therefor, must necessarily inquire into the condition of the estate; the amount of the PROCEEDINGS TO COMPEL PAYMENT OF DEBTS 855 assets and of the debts. If it appears from the proof presented, that the relief asked may be granted without prejudice to other creditors, the Surrogate may make the decree, and the executor or administrator acting in good faith will be protected in paying the debt in full, pursuant to the decree, although it may finally turn out that by reason of losses, deprecia- tion of values, or other causes, the remaining assets are insufiicient to fully pay the other creditors. It is quite possible that this result may happen, and it often will happen, unless great care is taken by the Surrogate in exercising this jurisdiction. The application under § 18 may be made before the executor or administrator has been able to ascertain, by ad- vertisement, the amount of the debts owing by the decedent, and many contingencies may happen to impair the value of the estate between the decree and the final accounting and distribution." In Matter of Weil, 110 App. Div. 67, the Surrogate refused an order to pay a judgment against the administrator for a distributive share. He had previously granted leave to issue execution under the judgment, which, under § 2552, was conclusive evidence of assets. The administrator set up the decree in accoimting which fixed the share at less than the judgment. But it did not appear the petitioner was made a party to the accounting. The Surrogate was reversed. If the estate be insolvent, a creditor who desires to obtain payment must compel a judicial settlement of the account in order that all parties interested may be brought before the court. M'Keown v. Fagan, 4 Redf. 320. But in Matter of Miner, 39 Misc. 605, the notice to present claims had been duly published. The administrators had collected in over $60,000. Their inventory showed about $100,000 of assets. The claims presented were $239,000, all of which were allowed as just and proper. Sixty-eight creditors petitioned under § 2722 for a pro rata payment on account. No accounting could be made, as a year had not expired. The Surrogate held he had power to act, citing Thompson v. Taylor, 71 N. Y. 217, decided under the Revised Statutes for which § 2722 is a substitute. He dis- tinguished the case of M'Keown v. Fagan (see p. 614 of opinion). Where the executors set up that by the will they are bound to con- tinue the business of the testator, they cannot thus defeat the right of the creditor to payment of his claim. The creditors are not bound by any such direction in the will; they have a right to have the estate applied to the payment of their debts which have a preference over debts incurred by the executors in carrying on the business under the will. See Willis v. Sharp, 115 N. Y. 396. In view of what has been above stated, it will be manifest that the decree which the Surrogate makes under this section is made in con- templation of sufficiency of assets. Therefore, if it remains unexecuted when the general order for distribution of the estate among all creditors comes to be made, it seems that the decree will have to give way to the paramount authority of the statute providing for equality among creditors 856 surrogates' courts and a refusal of preference among debts of the same class except among judgpaents under subd. 3 of § 2719. It is a wise precaution, therefore, to include in the decree on behalf of the executor a provision, that he may apply for a modification of the decree in case it subsequently appear that the assets of the estate are insufHoient to pay the debts in full. See Thompson V. Taylor, 71 N. Y. 217, 221. In the case of Lambert v. Craft, 98 N. Y. 342, it was held upon a proceed- ing to compel payment where the executors appeared and did not put in issue the justice or validity of the claim, that their silence was a strong admission by conduct of the justice of the demand, and as conclusive as if it were proven by witnesses. The view of the court was that this failure to answer not only permitted the hearing to be had by the Surrogate as upon an undisputed claim, but was an admission of the justice of the claim. And from this case it might appear if no objection is interposed by the executoiT, the Surrogate need not inquire into the character or extent of the claim or require any proof thereon; but it must be borne in mind that the proceedings cannot progress at all if the executor puts in issue the validity of the claim, and it would seem, particularly under the decision of the Court of Appeals in the later case of Sehutz v. Morette, 146 N. Y. 137, that mere silence on the part of the executor as to the claim does not re- lieve the claimant from establishing it by evidence, that the executor is not to be deemed to have waived any rights of the estate by permitting this proceeding to go on, and that it is the duty of the Surrogate to re- quire of the claimant affirmative proof of his claim. See Matter of Clauss, 16 App. Div. 34. The last case cited was one involving the power of the Surrogate to direct payment of claims upon the judicial settlement of an executor's accounts, but the cases are therein discussed as to the effect of an executor's silence. The Surrogate would be warranted in giving to the debt the character of an undisputed claim, if it appeiared that it had been pre- viously presented and acknowledged by the executor. It was accordingly held by the Appellate Division in Matter of Clauss, supra, that the doctrine of an account stated, whether in proceedings under this section or under § 2727, cannot in justice to estates of deceased persons be effectual as. against their personal representatives. See also Matter of Doran, 73 N. Y. St. Rep. 593. The Surrogate may exercise his discretion to dismiss the proceeding whenever it appears that the validity of the petitioner's claim has not been conceded or established. Matter of Stevenson,, 77 Hun, 203, 207. § 820. The decree.— The decree may be substantially as follows; PROCEEDINGS TO COMPEL PAYMENT OP DEBTS 857 Present: Surrogate's Court Caption. Hon, Surrogate. Decree for pay- rp;+j ment of debts under section 2722. ^ petition, duly verified, having on the day of been presented by a creditor of late deceased, to the Surrogate of this county, whereby appears that he has a valid claim against said de- ceased, for dollars, with interest thereon from the day of and that six months have expired since letters testamentary of the last will and testament of said deceased, were issued to the executor therein named, and praying for a decree directing the said executor to pay the petitioner's said claim and that he be cited to show cause why such a decree should not be made," And the Surrogate having issued a citation accordingly on the presentation of said petition, and on the return thereof said executor not having filed any written answer duly verified under section 2722 of the Code of Civil Procedure. (Note.) ^ Note. If the peti- ^j^^j j^ appearing to the satisfaction of the Surrogate from tion prayea lor e ^j^^ facts from which it arose, that the petitioner has a valid , ?, . claim aeainst said decedent; and it being proved to the satis- by the executor, re- , . ° , , _, ' , . ^ '^ , , cite the Droduction faction of the Surrogate that there is money or other personal, and filing of the ac- property of the estate appUcable to the payment or satisfac- count in the decree, tion of the petitioner's claim which may be so applied without injuriously affecting the rights of others entitled to priority Note. The prao- ^^ equality of payment or satisfaction. (Note.) tice is preferred by Now on motion of attorney for said creditor, it is some, instead of us- Ordered, Adjudged and Decreed, that the said ing the language of the executor of the last will and testament of de- the Code, to specify ceased, pay to the said creditor of said deceased his that there are assets gg^jjj claim of dollars and cents, with interest in the hands of the ^^^^ ^^^ ^^^ ^f ^g . ^^^^ j^ jg executors o a spew- Further Ordered (here insert provision as to the payment of fied amount: and , v , .. • ., 1 ii, costs) ; and it is specify also the _, , „ , , ,, . . . ., , , amount of the debts -c urther Ordered {here insert provision, if deemed necessary, and outstanding lia- P^i'^Hting executor to apply for modification of the decree in the bilities; this is only event that the assets shall not prove to be sufficient to pay claims necessary where the in full). assets are insufficient to pay all claims in full, and it is necessary to make a pro rata payment, and where all creditors are before the court. Where the Surrogate is compelled to dismiss the proceeding, either because the validity of the claim is put in issue, or it does not appear that there are sufficient assets applicable to the payment of the claim, the decree is merely a decree dismissing the petition. But the decree, in that case. 858 surrogates' courts should provide, in the language of § 2722, that the petition is dismissed "without prejudice to an action or an accounting in behalf of the peti- tioner." If the original petition, as is not an unusual practice, prays not only for the payment of the claim, but that the executor account, the decree dismissing the petition as has already been seen above does not prejudice the Surrogate's proceeding with the account already prayed for. Matter of Cowdrey, 5 Dem. 453. The effect of a decree of this character directing payment is defined by § 2552 of the Code, which is as follows: A decree, directing payment by an executor, administrator, or testamentary trustee, to a creditor of, or a person interested in, the estate or fund, or an order, permitting a judgment creditor to issue an execution against an execu-. tor or administrator, is, except upon an appeal therefrom, conclusive evidence that there are sufficient assets in his hands, to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. § 2552, Code Civil Proc. But, where it appears from the decree itself, on its face, as well as from examination of the proceedings on which it is based, that the representa- tive had no assets in his hands with which to make the payment, § 2552 ■does not apply. Matter of Monell, 28 Misc. 308. Section 2606 provides that in the case of an executor or administrator of a deceased executor, etc., § 2552 has no application. A decree against such representative of a deceased representative is not, therefore, con- clusive evidence of the possession of assets. Matter of Seaman, 63 App. Div. 49, 52. If it is attempted to punish an executor for contempt for nonpayment of the money required to be paid by such a decree it is nevertheless com- petent if such be the fact, for the executor to show in the proceeding to punish for contempt, that he has no funds of the estate available. Matter of Battle, 5 Dem. 447, Rollins, Surr., and cases discussed. As to proceed- ings to enforce a decree by execution, see § 823 below. § 821. Docketing the decree. — All the effect of a judgment in the Supreme Court may be given to such a decree as this by docketing it in pursuance of the provisions of § 2553, which are as follows: Where a decree directs the payment of a sum of money into court, or to one or more persons therein designated, the surrogate, or the clerk of the surrogate's court, must, upon payment of his fees, furnish to any person applying therefor, one or more transcripts, duly attested, stating all the particulars, with re- spect to the decree, which are required by law to be entered in the clerk's docket-book, where a judgment for a sum of money is rendered in the supreme court, so far as the provisions of law, directing such entries, are applicable to such a decree. Each county clerk, to whom such a transcript is presented, must, upon payment of his fees, immediately file it, and docket the decree in the appropriate docket-book, kept in his office, as prescribed by law for docketing a judgment of the supreme court. The docketing of such a de- cree has the same force and effect, the lien thereof may be suspended or dis- charged, and the decree may be assigned or satisfied as if it was such a judg- ment. § 2653, Code Civil Proc. PROCEEDINGS TO COMPEL PAYMENT OF DEBTS 859 Such a decree will not be made by a Surrogate, on a judgment creditor's ■claim where it appears that an appeal is pending on the judgment under ■which he claims. Estate of Clark, 12 Civ. Proc. Rep. 383. But where a judgment creditor resorts to this proceeding to compel payment of his judg- ment claim, the Surrogate may, upon application for such a decree, inquire into and pass upon alleged payments made upon this judgment, for the purpose of determining the amount due thereon; and he may also deter- mine whether the applicant is the owner of the judgment and entitled to its payment; but he has no jurisdiction to determine whether there has been an accord or satisfaction, or whether the estate is entitled in equity to a release or discharge in whole or in part. See McNulty v. Hurd, 72 N. Y. 518; Hurlhurt v. Durant, 88 N. Y. 121; Matter of Miller, 70 Hun, 61, 65; Matter of Macaulay, 94 N. Y. 574. And the executor is not prejudiced by the possession of this power by the Surrogate, for if he deems it neces- sary to have a judicial determination of the claim he may always compel the creditor to resort to the proper judicial tribunal by putting the validity of the claim in issue. § 822. The accounting. — It has been held that upon an appUcation under this section the Surrogate before decreeing absolute payment of a debt not resting in judgment, should require the filing of an account in •order that it may be ascertained whether or not the executor or adminis- trator holds money or property applicable to the payment of the claim. See Matter of Macaulay, 94 N. Y. 574; Bainbridge v. McCullough, 1 Hun, 488. See Ruthven v. Patten, 1 Robert. 416. And it is perfectly competent for the petitioner to pray for the accounting in his petition to compel the payment of the debt. Matter of Macaulay, supra. See ch. VII, post. Payment of Legacies. § 823. Enforcing the decree. — When the decree requiring the payment of creditor's claim has been made and entered, it should be served per- sonally upon the executor in order to its being enforced by an execution against the property of the executor directed to make the payment. The proceedings to enforce the decree in this manner will be those provided under § 2554. See part II, ch. IV, on "Enforcement of Decrees." Should the decree be one docketed under § 2553, as above indicated, it is not thereby merged in the judgment, but the creditor by docketing it merely acquires an additional remedy to enforce payment of his money; he retains Jiis original remedy by attachment against the executor or administrator in a Surrogate's Court, and acquires a second remedy by execution based upon the docket. Tovmsend v. Whitney, 75 N. Y. 425, 428. These two remedies are not inconsistent, but concurrent or cumulative; and they may both be pursued until the decree has been complied with. Ibid. Section 2554, however, by its reference to §§ 1365 and 1369 of the Code impliedly requires that the decree shall have been docketed in the clerk's office of the county, because an execution against property can be issued only to a county in the clerk's office of which the decree is docketed. See Dissoway v. Hayward, 1 Dem. 175. It is unnecessary for the person, to 860 surrogates' courts whom money is directed to be paid by such a decree, to obtain leave of the Surrogate before asserting his right to issue execution. Section 1825 of the Code is inapplicable to such a case. Under § 2554 execution issues as of course. Joel v. Ritterman, 2 Dem. 242. The remedy by attachment is a remedy within the power of the Surro- gate, and is limited to the ordinary execution against the body in the nature of a capias ad satisfaciendum. Matter of Watson^ 5 Lansing, 466. See also discussion of § 2555 in part II, ch. IV. § 824. How payment should be made. — In the previous chapter the primary rule as to the order in which the assets should be applied to the payment of debts was referred to. Where the executor is served with a decree, with notice of its entry, requiring him to pay to the creditor a specified sum, he should satisfy the same out of money or other personal property of the estate applicable to the payment or satisfaction of the claim. See § 2722, Code Civ. Proc. The making of the decree presump- tively establishes that there is money or other personal property of the estate so applicable. For it is expressly provided by § 2722, that this fact must be proved to the satisfaction of the Surrogate, or in default thereof, the petition under that section will be dismissed. Where the assets are in the exclusive possession of one of several executors, it will be neces- sary to serve the executor having possession of the assets, personally, with the decree. So executors of a resident decedent who have sold lands in another State [under a direction in his will for sale to satisfy legacies] hold the proceeds subject to the debts, and though they sold under foreign letters taken out for the purpose of making the sale the New York creditors may compel an accounting. Matter of Newell, 38 Misc. 563. § 825. Effect of equitable conversion. — Although there may have been an equitable conversion of real estate, the proceeds thereof will not be deemed applicable to the payment of debts, so long as there is other personal property to which recourse can be had. See Matter of Mansfield,, 10 Misc. 296. If the power to sell is general, either for the general purposes of the estate, or for payment of legacies if personalty is inadequate, the proceeds of a sale actually made are assets for the payment of debts. Matter of Newell, supra, citing Matter of Bolton, 146 N. Y. 257; CahiU v. Russell, 140 N. Y. 402. As to equitable conversion, how worked, see Garvey v. U. S. Fid., etc., Co., 77 App. Div. 391. The rules as to equitable conversion effected by wills have been summarized by Mr. Justice Patterson in Phoenix v. Trustees of Columbia, 87 App. Div. 438, aff'd 179 N. Y. 592: (a) Intention must be plain, distinct, unequivocal. (6) Intention may appear: (1) From positive direction, (2) From necessity, in order to carry out testamentary scheme, (3) From necessity, in order to prevent failure of testamentary scheme. See Hayden v. Sudden, 48 Misc. 109. But a creditor is entitled as against the beneficiaries under the will to have his claim paid out of the proceeds PROCEEDINGS TO COMPEL PAYMENT OF DEBTS 861 of insurance on the real estate, when there is no other personalty. See Matter of O'Connell's Estate, 1 Misc. 50. Where executors have a discre- tionary power of sale under a will to be exercised for the benefit of devisees therein named, the Surrogate, where they have exercised this power, has no right to direct an appUcation of any of the proceeds to the payment of debts where there is other real estate which can be reached in the pro- ceedings contemplated by the Code for the payment of the decedent's debts. Such a fund is a trust fund to which the doctrine of equitable conversion is not applicable, and never becomes legal assets so as to be available for any purpose foreign to the will. Matter of McComh, 117 N. Y. 378, 383, distinguishing Glaidus v. Fogel, 88 N. Y. 444; Hood v. Hood, 85 N. Y. 561; Ervxin v. Loper, 43 N. Y. 521; Kinnier v. Rogers, 42 N. Y. 531, where the power of sale was general and not for the sole benefit of devisees. But where all the decedent's real estate has been sold and the personal property is not sufficient to meet the claims of creditors, the proceeds of the real estate may be treated as personalty to the extent of enabling the court to direct the payment of the debts therefrom. See Young v. Young, 2 Misc. 381. The provisions of the Code as to the sale and disposition of decedent's real estate for the payment of his debts must be strictly followed (see ch. VII, post), and the real estate cannot be resorted to for the purpose of paying debts or legacies except in the manner prescribed by the statute. Therefore, where a legatee brought an action to have her legacy declared a charge upon the testator's real estate, the Court of Appeals held that the judgment in such action providing for the sale of land for the payment, first of testator's debts, and then of the legacies, was irregular, and modified it by providing for a sale of the real estate for the payment of legacies subject to the rights of creditors of the deceased and of persons who equitably represented creditors, but stayed such sale and execution of the judgment, until such proceedings could be had in the Surrogate's Court as would authorize a disposition of such real estate for the payment of the debts of the testator. Hogan v. Kavanaugh, 138 N. Y. 417, 424. Where, however, the heirs and next of kin are the same persons, it is immaterial whether the debts are paid out of the proceeds of real estate or out of the personal property, so long as the persons interested have received their distributive shares of the estate. Matter of Braunsdorf, 13 Misc. 666, 674, Tompkins, Surr., modified in other respects, 2 App. Div. 73. CHAPTER V THE TEANSPEE TAX PEOCEDUHE § 826. Jurisdiction conferred on Surrogates. — By §§ 220-245 of the Tax Law, being eh. 60 of Consolidated Laws, art. 10, entitled Taxable Transfers, the subject of this tax on succession to property by reason of death of another is covered, and ample power is vested in the Surrogates' Courts (§ 228) "to hear and determine all questions arising under the provisions of this article." While the work of the Surrogates, in some counties particularly, has been very greatly added to in consequence, no increment of salary was provided; although additional assistants are provided for. The procedure, which it is the main object of this chapter to discuss, is simple and businesslike. But some treatment of the sub- stantive law is prehminarily essential, in order to guide the practitioner in the conduct of the proceeding, especially in defending an estate against the State's avowed purpose of "taxing everything in sight." § 827. Nature of the tax. — In view of this frank purpose it was early seen that if the tax be deemed a tax on property, some property might get away, since it was not taxable for any purpose as such. This was the case with Federal and State bonds. The act read, " property .... over which this State has any jurisdiction for purposes of taxation." But the law being promptly amended, the Court of Appeals, whose attitude was fore- shadowed in Matter of Swift, 137 N. Y. 77, came out clearly in Matter of Sherman, 153 N. Y. 1, to the effect that the tax was a succession tax on the "right of devolution of property of decedents." As this right is statutory, so it can be regulated, limited or even destroyed by law. This case involved United States bonds. See also Matter of Ho jf man, 143 N. Y. 327; Matter of Seaman, 147 N. Y. 69; Matter of Shane, 154 N. Y. 109; Matter of Pell, 171 N. Y. 48. The weakness of the theory appears when applied to property of a non- resident; but if that property is within the dominion and grasp of the State, it is taxed, irrespective of the theory in that regard. The Hoffman case, supra, summarizes it thus: The tax is imposed as a burden on each person or corporation claiming succession, measured by the value of the interest claimed, and collectible out of such interest only. A better summary can be taken from the Matter of Westum, 152 N. Y. 93, 99. The transfer tax is a tax imposed by the State of New York upon the right to succession to real and personal property, imposed upon and collectible out of each specific share or interest given by will, or de- rived under the statutes of descent or distribution, and limited as to each share or interest to its value. See also Matter of Wolfe, 89 App. Div. 349,. 862 THE TRANSFER TAX PROCEDURE 863 afE'd 179 N. Y. 599; Matter of Cook, 114 App. Div. 718, rev'd on another point, 187 N. Y. 253; Morgan v. Come, 49 App. Div. 612. See § 227 of Tax Law as to prohibition to safe deposit and other corpora- tions, under penalty, to deliver over decedent's assets to a representative without notice to or consent of the comptroller. The custom is to fix a time to examine the securities, etc.; the comptroller takes a list, and in the case of a foreign representative may exact a bond to pay the tax, in order to prevent getting the property out of the jurisdiction. The neces- sity of such examination is often due to the fact that such boxes are often the place where a will has been deposited. § 828. Conditions of taxation. — The act defines the transfers that are to be taxed as follows: § 220. A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom in trust, or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, in the following cases: 1. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed of the property while a resident of the State. 2. When the transfer is by will or intestate law, of property within the State, and the decedent was a non-resident of the State at the time of his death. 3. When the transfer is of property made by a resident or by a non-resident when such non-resident's property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death. 4. When any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof by any such transfer, whether made before or after the passage of this chapter. 5. Whenever any person or corporation shall exercise a power of appoint- ment derived from any disposition of property made either before or after the passage of this chapter, such appointment when made shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will; (6) And whenever any person or corporation possessing such a power of appointment so derived shall omit or fail to exercise the same within the time provided therefor, in whole or in part, a transfer taxable under the provisions of this chapter shall be deemed to take place to the extent of such omission or faitoe, in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure. [Declared from (6) on to be invalid in Matter of Lansing, 182 N. Y. 238, "no transfer, no tax."] 6. The tax imposed thereby shall be at the rate of five per centum upon 564 surrogates' courts the clear market value of such property, except as otherwise prescribed in the next section. § 829. The law in the courts. — The constitutionality of this tax generally considered has been settled. Detail provisions have been lopped off as invading constitutional rights. It hardly seems important in a work of this character to trace the develop- ment of the law or to indicate the character of the successive amendments. But it is proper to observe preliminarily that it has been distinctly held: (a) That neither the act nor its successive amendments have any re- troactive effect. See Matter of Van Kleeck, 121 N. Y. 701; Matter of Travis, 19 Misc. 393, citing Matter of Miller, 110 N. Y. 216; Matter ofCager, 111 N. Y. 343; Matter of Seaman, 147 N. Y. 69. (6) And consequently do not affect estates or interests vesting prior to the time when the act or any particular amendment thereof went into effect. See Matter of Coggswell, 4 Dem. 248; Matter of Travis, 19 Misc. 393; Matter of Pell, 171 N. Y. 48. (c) Nor can retroactive operation be given to the exemption provided for by any of these successive amendments. In re Wolff's Estate, 15 N. Y. Supp. 539, 546, citing Sherrill v. Christ Church, 121 N. Y. 70l'; Matter of Minturn, 15 N. Y. Supp. 547n. See Matter of Wolfe, supra, note, p. 547. Matter of Graves, 171 N. Y. 41. In Matter of Keeney, 194 N. Y. 251, it was held constitutional against the attack of arbitrary inequality in the rate of tax. § 830. Taxable transfers. — Recurring to the language of § 220, and passing over for the time all exceptions by the act or by law, attempt will be made to summarize, with brief discussion, the rule as to what will condition taxability. (a) Succession to a resident's property. If a resident of this State die, testate or intestate, here or elsewhere, the theory that the tax is on the succession enables the State to appraise his whole estate, except realty not in this State. The cases where any other description of a resident's property was not taxed turned on extraneous conditions; such as the time the act became operative, or the parting by decedent with owner- ship or title while living. Such cases are the following: When they vested before the act went into effect. Matter of Travis, 19 Misc. 393; Matter of Backhouse, 110 App. Div. 737. Or when the grantee causa mortis became beneficially entitled prior to the act's going into effect. Matter of Forsyth, 10 Misc. 477, 480. When the remainder was vested, although defeasible, before the act took effect. Matter of Seaman, 147 N. Y. 69, 77. Or where the decedent died before the passage of the act. Matter of Moore, 90 Hun, 162. In- surance policy assigned by decedent. Matter of Parsons, 117 App. Div. 321. It is important to note that as to realty situated without the State it is altogether out of the operation of the tax. Matter of Swift, 137 N. Y. 77, 88; Matter of Lorillard, 6 Dem. 268. This is so even though its form be THE TRANSFER TAX PROCEDURE 865 changed by operation of a will, so that the proceeds come into the State, after equitable conversion and sale. Matter of Sutton, 149 N. Y. 618, aff'g 3 App. Div. 208, and 15 Misc. 659. If it is within the State in its real form it is taxable. Matter ofSherwell, 125 N. Y. 376. The question of its equitable conversion may condition the question of the quantum of the realty and of the personalty, or of interests therein, under the $500 clause or the $10,000 clause. But it will not affect the present question. It is sufficient to state that the status of the property must be fixed as of the decedent's death. Matter of Mills, 86 App. Div. 555; Matter ofOfferman, 25 App. Div. 94. (6) Succession to a nonresident's property. But, whatever the theory as to the nature of the tax to be levied as to a nonresident's estate, the power to collect depends on the State's dominion over the property that passes. Is it here as a matter of fact, is not the only question. It must be here as a matter of law, as well. If it be real property, located here, there is no diflficulty. The tax must be paid. Matter of Romaine, 127 N. Y. 80; Matter of Vinot, 7 N. Y. Supp. 517. So if it be real property located without the State, which is not taxable as to a resident's estate, much less is it taxable against the non- resident's. Estate of Wolfe, 6 Dem. 268; Matter of Swift, 137 N. Y. 77, 88. But questions do arise as to the personal estate. Physically here, yet it may escape if here by accident or in transitu. To illustrate : When tangibly here, and kept here by decedent it is taxable. Matter of Phipps, 77 Hun, 325, aff'd 143 N. Y. 641. But if here transiently or by accident it is not. Id., and Matter of Romaine, supra. Invested here, e. g.,on bond and mortgage, or in a savings bank account, it may be reached. Matter of Romaine, supra; Matter of Burr, 16 Misc. 89; Matter of Clark, 9 N. Y. Supp. 444. But if the security representing the investment is not here it cannot. Matter of Preston, 75 App. Div. 250. Again, the character of the thing called property may determine its taxability on the " dominion " theory. Stock of a domestic corporation will be taxed. Matter of Branson, 150 N. Y. 1; but the bonds of the same corporation, not physically here, will not. Ibid. Stock of a United States bank doing business here will be taxed. Matter of Cv^hing, 40 Misc. 505; while stock of other foreign corporations escapes. Matter of Whiting, 150 N. Y. 27; Matter of James, 144 N. Y. 6, 12; Matter of Euston, 113 N. Y. 174. If the bonds are here in safe deposit, they will be taixed, Matter of Whiting, supra, whether "coupon," or "registered." Matter of Morgan, 150 N. Y. 35. But securities here, pledged to secure a debt of decedent, are, to the extent of the debt, not taxable. Matter of Pull- Tnan, 46 App. Div. 574; Matter of Havemeyer, 32 Misc. 416. Though the theory of distinction appear to be the law of the situs of a debt. Matter of Abbett, 29 Misc. 567; Matter of Phipps, 77 Hun, 325; 143 N. Y. 641; Matter of Branson, supra, yet it is held that money in a bank account here is taxable. Matter of Houdayer, 150 N. Y. 37; Matter of Blackstone, 171 N. Y. 682; 188 U. S. 187, unless the deposit is shown to be purely tempo- 55 866 surrogates' courts rary, see Matter of Phipps, supra, and Matter of Leopold, 35 Misc. 369; Matter of Euston, supra, or unless it be a loan to the nonresident by another nonresident. Matter of Bentley, 31 Misc. 656. Money here on open account, or in decedent's attorney's hands is taxable. Matter of Burr, 16 Misc. 89; and see Matter of Anthony, 40 Misc. 497. But see Matter of Horn, 39 Misc. 133, as to when such open account is treated as in the same category with debts and promissory notes. A partnership interest, in a firm here, is taxable. Matter of Probst, 40 Misc. 431. As to a legacy to decedent, the matter is very fully discussed in Matter of Clinch, 180 N. Y. 300. As to leasehold interest, see Matter of Althause, 63 App. Div. 252; Matter of Embury, 154 N. Y. 746. As to insurance policies, see Matter of Gibbs, 60 Misc. 645, opinion by Beckett, Surr. (foreign and domestic conpanies). § 831. Exceptions and limitations. — Section 221 of the Tax Law pro- vides for certain exceptions and limitations, and is as follows: . Psii^See: A correction should be made in the quotation of §221 of the Tax Law, which was sent to the printer on the basis of the report of the Board of Statutory Consolidation which reads as found in the text; but in adopting the re- port the Legislature amended the Act, so that the first paragraph of §221, on page 866, should be changed as follows: Line 3 omit "stepchild" and on line 10 after the words "Provided also that" insert "except in the case of a stepchild. acknowledged relation of a parent, provided, however, such relationship began at or before the child's fifteenth birthday and was continuous for said ten years thereafter, and provided also that the parents of such child shall have been deceased when such relationship commenced, or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of property shall not be taxable under this article; if real or personal property, or any beneficial interest therein, so transferred is of the value of ten thousand dollars or more, it shall be taxable under this article at the rate of one per centum upon the clear market value of such property. But any property devised or bequeathed to any person who is a bishop or to any religious, educational, charitable, missionary, benevolent, hospital, or infirmary corporation, including corporations organized exclusively for Bible or tract purposes, shall be exempted from and not subject to the provi- sions of this article. There shall also be exempted from and not subject to the provisions of this article personal property other than money or securities bequeathed to a corporation or association organized exclusively for the moral or mental improvement of men or women, or for scientific, Rterary, library, patriotic, cemetery or historical purposes, or for the enforcement of laws re- lating to children or animals, or for two or more of such purposes and used exclusively for carrying out one or more of such purposes. But no such corporation or association shall be entitled to such exemption if any officer, member, or employee thereof shall receive or may be lawfully entitled to receive, any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes, or as proper beneficiaries of its strictly charitable purposes; or if the organization THE TRANSFER TAX PROCEDURE 867 thereof for any such avowed purpose be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or associa- tion, or for any of its members or employees, or if it be not in good faith or- ganized or conducted exclusively for one or more of such purposes. § 832. Exemptions summarized. — Discussing § 221, as it now reads, the practitioner is concerned to know whether, in the proceedings which may be brought, the person or interest he represents comes within the exception of the article. The first element is the quantum. Does the pecuniary limitation apply to the property passing from the decedent? Or does it extend to the in- terest passing to the particular one who succeeds, by devolution or by the will? Mr. Carter, in his admirably concise book on the subject, traces the development of the law from its first scheme as a tax only on property nassing to collaterals which gave it its name. (See his chs. I and IV.) At the outset, and until the amendment provided for by eh. 399 of the Laws of 1892 took effect, it was held that no tax could be levied against an amount passing to either of the persons mentioned in § 221, unless such amount in each case was personal property and exceeded in value $10,000 {Matter of Hojfman, 143 N. Y. 327), but by that amendment it was the valuation" of the whole estate and not of the particular legacies which was contemplated, so that if the aggregate transfers to taxable persons exceeded $10,000, then the interest of each recipient of such transfer became taxable, no matter how small his proportion was. This interpretation of the effect of the amendment, the Hoffmxm case shows, turned on the definition in the amending act of the word "estate" and the word " property " as meaning that which passes from decedent, and not that which passes to one in a particular class entitled to exemption in whole or in part. Thus it was held, in Matter of Corbett, 171 N. Y. 516, where decedent died intestate,, leaving an estate of $11,880.69 in personal property, of which amount a brother and sister each took one-third and two nieces divided the remaining third, that each of these interests was subject to tax. To the same effect, see Matter of Curtis, 31 Misc. 83, and Matter of DeOraaf, 24 Misc. 147; Matter of Fisher, 96 App. Div. 133. See § 846 below. In the Corbett case is considered also the effect on taxability of reading into §221 the language of §243 (formerly §242) entitled "Definitions." This section begins: The words "estate" and "property" as used in this article, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor, or vendor, passing or transferred to those not herein specifically exempted. . . . The words "not herein specifically exempted" refer to absolute ex- emption, and not to taxability at a lower rate. Matter of Bliss, 6 App. Div. 192, is not authority, since the Corbett case. The latter illustrates 868 SURROGATES' COURTS the rule by supposing a $15,000 estate of which $6,000 goes to a "bishop" (and so exempt) and $9,000 to persons whose interests are not taxable unless the "property" exceeds $10,000. But if only $5,000 went to the "bishop" then the $10,000 passing to the others, justifies a tax, on each component share. The Matter of Bliss has been followed by the Surrogates of Suffolk County, Matter of Conklin, 39 Misc. 771, and of Monroe County, Matter of Garland, 40 Misc. 579, in cases where the total estate was less than $10,000. In such case a "sister's" share is not taxable. Deducting her share left less than $250 to collaterals. Under this combination of esti- mate and deduction it was held there was a "specific exemption." But Thomas, Surr., in Matter of Rosendahl, 40 Misc. 542 takes the view above stated, that the Corbett case overrules the Bliss case and fixes the interpretation of "exempt" to cases of absolute exemption as con- trasted to an exemption or reduced taxabihty conditioned by the quan- tum of the estate, or by kinship or other legal relation. See Matter of Costello, 117 App. Div. 807, modified 189 N. Y. 288. § 833. Figuring for an exemption. — The respondents have to show affirmatively that the "property" is less than $10,000 as a unit in value passing, under the act, from a decedent or a grantor, donor or vendor, in contemplation of his death, etc. First, we note then that the whole estate is first to be marshalled, real and personal property; Matter of Hallock, 42 Misc. 473; all the decedent owned or was entitled to at death. It must be what he owned. Hence if his ownership was joint, it becomes at his death that of the survivor, and of course does not become taxable as part of the decedent's estate. Matter of Graves, 52 Misc. 433, Matter of Stebbins, 52 Misc. 438, see "gifts inter vivos" below. But when marshalled and showing, e. g., a clear market value of over $10,000 there is still (for discussion, see below) a deduction possible, for the theory is. What is the net value of what passes, and to which the various persons succeed? Thus in Matter of Page, 39 Misc. 220, the gross estate was pver $10,000 but articles or their pecuniary equiva- lent being set apart under § 2713 for the widow and children, the net estate was less than $10,000, and was declared free of tax. The Libolt case, 102 App. Div. 29, is not to the contrary. It merely holds that to figure such a net result it is not permissible, where specific articles do not in fact exist, to deduct a pecuniary equivalent in order to effect an exemption. Again, to arrive at the net result, debts of the decedent are to be de- ducted on the principles and in the cases more fully discussed below. § 834. The exemption, as conditioned by the nature of the successor, or his relationship. — We pass, therefore, to the various classes of persons, etc., who may succeed to " property " and either pay no tax or a one per cent reduced tax. As to some of those specified in § 221 there is no room for doubt; but as to others there has been much and very interesting litigation. But, primarily, we note that it is the relationship of the person, on whom THE TRANSFER TAX PROCEDURE 869 the succession falls, to the decedent that controls. This cannot be created by transaction after his death. That seems an unnecessary proposition, but it has been tried, by assigning a legacy or share from one whose succes- sion is taxable at five per cent to one whose interest would only have to pay one per cent, to secure a reduction of the tax. This was held ineffectual in Matter of Cook, 187 N. Y. 253. But in Matter of Wolfe, 179 N. Y. 599, the five per cent legatees all renounced absolutely. This threw their legacies into the residuary estate which went to one per cent legatees. Held, the result was to reduce the tax collectible to one per cent. If the object of the Cook case is to prevent collusive adjustments as against the State, it would seem that renunciation can nevertheless accomplish what assigp- ment cannot. Yet a renunciation can be based on a valuable considera- tion, payable infuturo, as well as can an assignment! § 835. Mutually acknowledged relation of parent. — We pass now to the various specific classes of " exceptions." And first, in point of litigated interest, is that of this section heading. This relationship must, of course, be estabhshed by proof before the appraiser, and it has been held that the mere fact that in his will, testator describes the beneficiary as his "niece and adopted daughter," will not, of itself, be sufficient to warrant the exemption. Matter of Fisch, 34 Misc. 146. See discussion by Cullen, Ch. J., in Matter of Davis, 184 N. Y. 299. The exemption as it originally read was in favor of "any person" to whom the decedent for not less than ten years prior to the taxable transfer stood in the mutually acknowledged relation of a parent. This elicited different constructions by the various general terms. In the First Department (Matter of Hunt, 86 Hun, 232) Van Brunt, P. J., held that the provision covered only the case where an illegitimate child had been recognized by its parent and such recognition had been mutual and had continued for ten years or more, and conse- quently excluded from the benefits of the exemption the niece of the testa- tor on whose, behalf it was claimed that the testator stood to her in the mutually acknowledged relation of parent at the time of his death. In the Third Department (Matter of Nichols, 91 Hun, 140), and in the Second Department (Matter of Butler, 58 Hun, 400) , it was held that the words "any person" were words too general to be capable of such limitation. The Matter of Hunt was not appealed. The Matter of Butler was affirmed without opinion by the Court of Appeals, 136 N. Y. 649. But in Matter of Beach, 19 App. Div. 630, the same question as in Matter of Hunt came up and the same decision was made as had been made in that case. Upon appeal to the Court of Appeals (154 N. Y. 242), Judge Andrews discussed the question at length and held that it was not the in- tention of the legislature by the provision to cover the case of illegitimate children only. He says: "The language imports no such limitation. The words 'any person' seem inconsistent with so narrow a construction. There can be no doubt that illegitimate children may come within the description. . . . The clause was intended to have a broader scope; to include among others, 870 surrogates' courts those cases, not infrequent, where a person without offspring, needing the care and affection of some one willing to assume the position of a child, takes without formal adoption, a friend or relative into his household, standing to such person in loco parentis, or as a parent, and receives in return filial attention and service. The fixing of a period of ten years, during which the relation must continue in order to entitle such person to the benefit of the exemption, is a safeguard against imposition, and when for that period this relation has been mutually acknowledged" (which at p. 248 it is said is equivalent to "mutually recognized") "the case is fairly brought within the policy upon which children are exempted from the imposition of a tax upon property derived under the will of their parents." The learned justice further observed: "If it had been the intention of the legislature to benefit the innocent child of meretricious commerce, there would seem to be no reason why any period of time should be interposed, during which the relation should be acknowledged, as a condition of the child's enjoying the benefit conferred. The death of the parent before the child reached the age of ten years, or an acknowledgment of the relation deferred to a period within ten years of the death of the parent, would deprive the child of the benefit of the exemption, a result which would seem to be most unjust if the legislature enacted the statute in the interest of illegitimates. The legislature, at the time of the enactment in question, had in mind the question of legitimacy, for it excluded illegitimate descendants of a decedent from the benefit of the exemption by the words ' or any lineal descendant of such decedent, etc., horn in lawful wedlock.' In other words, illegitimate descendants are not entitled as such to the exemption in any case, or under any cir- cumstances. They only become so entitled under the alternative clause when the conditions of the statute are met, and then not because they are illegitimate, but because they are embraced within the words ' any person.' " The case involved the further point that, at the time of the inception of the relationship the claimant was an adult. It was held that this did not take the case out of the statute; but that the words "any person" included both minors and adults. Shortly after this decision was made the legislature amended the act (by ch. 88, of the Laws of 1898) by making the exception read: "Or to any child to whom any such decedent for not less than ten years prior to such transfer stood in the mutually acknowledged relation of parent;" and by adding the proviso, "that such relation began at or before the child's fifteenth birthday and was continuous for said ten years thereafter." In Matter of Davis, 184 N. Y. 299, the Beach case is said to be in full force except as modified by the amendment, which "was intended to exclude persons from the benefit of the section, unless the relationship was formed in the tender years of the legatee." The Appellate Division, 98 App. Div. 546, had held that the words "mu- tually acknowledged" meant reciprocal conduct, and as the girl had never THE TRANSFER TAX PROCEDURE 871 called her uncle "father," or her aunt "mother" there was no mutuality. Cullen, Ch. J., says: "This is but of slight importance," that mere appella- tions, being the result of habit or custom, could not override proof of conduct and acts. The relationship is to be established by ■prima fade evidence. Matter of Lane, 39 Misc. 522. The State can rebut. The appraisers must require proof. Matter of Sweetland, 47 N. Y. St. Rep. 285. The one claiming the relationship may testify. Matter of Brundage, 31 App. Div. 348. This amendment, like those which have preceded it, will not be held to be retroactive and therefore will not affect exemptions, the right to which accrued before it went into operation. See Matter ofCager, 111 N. Y. 343; Matter of Kemeys,56Jiu.n, 51H; Matter of Thomas, 3Misc. 388, 390. At first the exemption did not apply to the children of an adopted child. Matter of Moore, 90 Hun, 162; Matter of Fisch, 34 Misc. 146. See next section. § 836. Child — Stepchild — Adopted child. — A stepchild now comes -within Page 871: In §836 at end of first paragraph insert: The amendment by L. 1909, Chap. 62 to §221 omitting "stepchild," but inserting the words: [See page 866, ante] "provided that, except in the case of a stepchild, the parents of such child shall have been deceased when such relationship commenced," makes the Matter of Wheeler, 115 App. Div. 616, authority for including a stepchild, if the facts warrant, among those " to whom the decedent, etc., for not less than ten years prior to such transfer stood in the mutually acknowledged relationship of a parent." 187 N. Y. 253. A legal relationship arises from natural kinship or from operation of a statute. In the case of adoption it is from such latter origin. Since, therefore, the Domestic Relations Law (see chapter on Adoption, supra) gives rights of inheritance to the child adopted and to his heirs and next of kin, or, as stated in the Cook case, the artificial relation is given the same effect as thp actual relation, it follows that the child of an adopted child must enjoy the same exemptive rights under the transfer tax law as its parents, and can claim such exemption per stirpes as to succession from the grand-adopted-parent. Ihid. So, reason- ing back, the parents' succession to the adopted child's property must be equally exempt. And a legacy to an adopted son's widow is exempt as would be that of the "widow of a son. " Matter of Duryea, 128 App. Div. 205. § 837. Exemption of certain corporations. — Keeping in mind the dis- tinction in § 832 between liability to a reduced rate of tax and "property" "herein specifically exempted" we find that absolute exemption from all taxation is given by § 4 of the Tax Law, to certain corporations or as- sociations specified in subd. 7 of that section in language similar to that in § 221. But this subd. 7 of § 4 is Umited to real property. Section 221, it will be seen, differentiates (a) Any property, devised or bequeathed, to any person who is a bishop. Corporations specifically characterized. 872 surrogates' courts These are exempted, totally, regardless of amount of estate or of legacy. (6) Personal property, other than money or securities, to corporations or associations, additionally specified. The corporations in (a) and those under (b) together comprise all corpor- ations mentioned in § 4, subd. 7. But the absolute exemption is limited to Religious, including 'bishop"' ' Scientific Educational Moral or mental improvement Charitable Library Missionary In Patriotic Benevolent Historical Hospital - contrast - with Protection of children or ani- mals Infirmary Cemetery Bible ) Tract Literary We next note that § 244 reads that the exemptions enumerated in § 4 shall not be construed as being applicable in any manner to art. 10, which includes § 221. This provision added in 1900 (eh. 382) and re- enacted in 1905 (ch. 368), makes it unnecessary to quote the cases which naturally grew out of the application of § 220 in the words "to persons or corporations not exempt by law from taxation on real or personal property." For a while the only complete exemption was of religious corporations, including bishops. But now the scheme of §§ 220-221, settled since 1905, is simple and clear. (See Carter on Transfer Tax, for discussion of the development, pp. 63 et seq.) It is sufficient here to say that the questions now to be dealt with are merely whether a particular beneficiary comes within the meaning of the descriptive terms. § 838. What institutions exempt. (o) Bishop, includes any degree of bishop, as archbishop or cardinal. Matter of Kelly, 29 Misc. 169. The word "bishop" would probably be limited to the meaning it has in Catholic or Episcopal church law. The " bishop " of a Presbyterian church or parish, however correct his claim may be to the title as a matter of church history, is, when compared to the bishop of a diocese, a "parish priest," and a legacy to a Cathohc priest would not be exempt under the act. Thus a bequest to a priest " for masses to be said " is taxable. Matter of McAvoy, 112 App. Div. 377; approving Matter of Black, 1 Conn. 477. See latter case as to validity of such a bequest. It is not a bequest, the McAvoy case holds, for "funeral expenses." In the Matter of Didion, 54 Misc. 201, Hart, Surr., held that a bequest for masses, direct to a church, was not taxable. He distinguishes the McAvoy case, in that there the bequest was scheduled as an item of funeral expense, and not taxable as being deductible before the taxable assets could be determined. (6) Corporations. Mr. Fallows in his work on Taxable Transfers gives the text of the succession acts {q. v.). THE TRANSFER TAX PROCEDURE 873 As it now reads, the section needs little comment on its explicit wording, save as to its general terms. Thus, corporation is limited to mean domestic corporation. Matter of Prime, 136 N. Y. 347; Matter of Balleis, 144 N. Y. 132. But it may include one still to be formed, and if, when formed, it falls under the exempting category, its legacy is not taxable. Matter of Graves, 171 N. Y. 40. . "Religious" corporation means one "organized for religious purposes." Relig. Corp. Law. But it means more. It contemplates an organization ecclesiastically governed and having as its primary purpose the public worship of God. See Matter of Watson, 171 N. Y. 253. So a missionary society, which may fall under the head separately given {Matter of Saltus, N. Y., Law J., February 4, 1902), or a Y. M. C. A., Matter of Fay, 37 Misc. 532, which is benevolent, while they may have religious purposes are not in the category of the exemption. In Matter of Prall, 78 App. Div. 301, the name " missionary " in the title of a society whose purposes were solely religious was deemed not to derogate from its real nature as a religious corporation. But the law itself now includes with religious corporations those organized exclusively for Bible or tract purposes. (c) Institutions having missionary, charitable, philanthropic or ben- evolent aims, and organized under the Membership Corporations Law must find their exemption specifically in the law. They must be in- corporated. See Matter of Higgins, 55 Misc. 175, where the following were exempted: General city hospital; Public library; Society for the Protec- tion of Homeless and Dependent Children. And Matter of Moses, 60 Misc. 637, where the following were exempted: Young Men's Christian Association of Brooklyn, Brooklyn -Society Prevention of Cruelty to Children and Young Men's Christian Association of Brooklyn. See opinion of Ketcham, Surr. In Matter of Mergentime, 129 App. Div. 367, the Metropolitan Museum of Art is held exempt as an educational institution, though not exclusively such. § 839. Charter exemptions. — ^The principle which the legislature has ' always seemed to follow of making a clear distinction, where taxation is concerned, between a strictly reUgious corporation and a charitable cor- poration, or corporation organized for mission or other beneficent work, led that body in 1900 to pass an act which, by its express terms, removed the exemption contained in § 4 of the Tax Law so far as it applied to any transfer tax, and thus made gifts to charitable corporations subject to this tax. Laws of 1900, ch. 382, § 2. This law is now § 244 of the Tax ' Law and is as follows: "The exemption enumerated in § 4 of this chapter shall not be construed as being applicable in any manner to the provisions of this article." In the proceedings brought since the passage of this amendment it was strenuously contended that, at least, the amendment did not affect legacies going to charitable corporations expressly exempt by their charter, and 874 subrogates' courts it was so held in Matter of Howell, 34 Misc. 40, where gifts to the Young Men's Christian Association of Brooklyn and the Industrial School of the oity of Brooklyn (these corporations being exempt from tax by their charters), were held not subject to transfer tax; but the question has TBcently been settled by the Court of Appeals, adversely to this view. Mat- ter of Huntington, 168 N. Y. 399. In that case the testator, C. P. Hunt- ington, bequeathed four separate legacies to the Roosevelt Hospital, Children's Aid Society, the New York Society for the Relief of the Ruptured and Crippled and the American Female Guardian Society and Home for Friendless, respectively. The two societies first named were expressly exempt from taxation by virtue of special legislative acts; the two last named had no such exemption. The Appellate Division held that the special exemptions of the property of the Roosevelt Hospital and Children's Aid Society relieved them from transfer tax, but that, in the case of the other two societies, their legacies were taxable under the amendment of 1900. The Court of Appeals, however, while following the Appellate Division so far as the legacies to the two corporations not specially exempt were concerned, held that the legacies to the Roosevelt Hospital and Children's Aid Society were also taxable and that the General Tax Law of 1896 operated as a repeal by implication of all former statutes, general and special, upon the subject of exemption from taxation. § 840. Tax on every devolution. — A rather original application for exemption was made to Surrogate Fitzgerald of New York County in Matter of the Estate of Anna H. Preston, reported in the New York Law Journal of May 28, 1901. The decedent died intestate without descendants and her estate consisted wholly of personalty. The husband claimed that he took the assets by virtue of his marital rights, and that it was, therefore, not subject to tax. The Surrogate held, however, that the tax was not limited to transfers of property effected by the statute of distribution or descents, but operates upon any transfer of property effected by operation ■of law upon the death of a person omitting to make a valid disposition thereof, and that the estate was, therefore, taxable. § 841. Gifts inter vivos and causa mortis. — It will be noted that the language of the act makes taxable all transfers by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor or intended to take effect in possession or enjoyment at or after such death. Section 220, subd. 3. The essential elements to constitute such a gift are that it must have been made in contemplation of the donor's impending death, by a clearly expressed intention to give in prcesenti; the subject-matter of the gift must have been delivered and the donor must have died from the existing ailment or peril without revocation of the gift. O'Brien v. E. S. Bank, 99 App. Div. 77, 79, citing Champney v. Blanchard, 39 N. Y. Ill; Grymes v. Hone, 49 id. 17; Ridden v. Thrall, 125 id. 572. See also Matter of Palma, 117 App. Div. 366; Matter of Kidd, 188 N. Y. 274; Matter of Baker, 83 App. Div. 530. THE TRANSFER TAX PROCEDURE 875 The question of interest to the State, therefore, is the time at which the transfer is complete and effectual. See Schouler on Pers. Prop., vol. II, § 86, as to effect of postponement of delivery. See also Augsburg v. Shurt- liff, 180 N. Y. 138, as to effect of mutual order to savings bank to pay to "survivor" of two depositors. If securities are conveyed to a trustee by an irrevocable conveyance and the transfer is complete upon the execution and delivery of the deed, the transfer is in the nature of a gift inter vivos and would not be taxable; but where the conveyance is revocable by consent of the grantor and trustee, and the actual interest or right of enjoyment is postponed until the death of the grantor, it is clear that, within the intent of the act, the transfer is subject to the tax. Matter of Bostvnck, 160 N. Y. 489; Matter of Cruger, 54 App. Div. 405 (aff'd 166 N. Y. 602); Matter of Green, 153 N. Y. 217, 223, citing In re Seaman, 147 N. Y. 77. See also Matter of Skinner, 45 Misc. 559; Matter of Brandreth, 169 N. Y. 437; Matter of Cornell, 170 N. Y. 423. So, where a trust com- pany receives property to administer during the life of the grantor for his benefit, and to turn over the same, after his death, to persons indicated in his will, the transfer is peculiarly within the intent of the act and sub- ject to the tax. Matter ofOgsbury, 7 App. Div. 71 (see opinion of Williams, J.). In Matter of Edgerton, however (35 App. Div. 125), a transfer of the greater portion of his property was made by a man seventy-two years old, four years before his death. On the transfer he took back, from the dif- ferent transferees, bonds conditioned for the payment to him of a certain sum of money per annum until his death. The obligors further agreed to deposit with a trust company, as collateral security for the performance of the condition of the bonds, the securities so transferred to them, the same to remain so on deposit until the death of the transferor, the trust company being authorized to collect the dividends on the securities in ■case of failure of the obligors to make payment of the income to the Ufe beneficiary until a sufficient amount should have been collected by it to pay the amount due, or upon reasonable notice to both parties to sell so much of the securities on deposit with them as might be necessary to realize the sum due. It was here held that the transfers were intended to take effect in possession and enjoyment at the time that they were made, and were, therefore, not within the statute. To the same effect see Matter of Cary, 31 Misc. 72; Matter of Thome, 44 App. Div. 8, rev'g 27 Misc. 624; Matter of Spaulding, 49 App. Div. 541; Matter of Mahl- stedt, 67 App. Div. 176; Matter of Cornell, 66 App. Div. 162; Matter of Bullard, 37 Misc. 663, aff'd 76 App. Div. 207. And on the general question as to what is a gift inter vivos, see opinion in Matter ofSwade, 65 App. Div. 592. See, also, Matter of Reichert, 38 Misc. 228. Surrogate Marcus in Matter of Spaulding, 22 Misc. 420 (aff'd 49 App. Div. 541), discusses at length the difference between gifts causa mortis and gifts inter vivos. And he observes (at p. 424) : " Gifts apparently inter vivos may nevertheless have attached to them such conditions and cir- cumstances that clearly bring them within the statute," and, he intimates, 876 surrogates' courts "gifts inter vivos where the grantor is in extremis, would doubtless come within the purview of the statute." But in a very recent case (Matter of Mahlstedt, 67 App. Div. 176) the Appellate Division of the Second Department held that where the president of a corporation being ill, transferred to his wife all of his stock in the cor- poration with the exception of one share, which transfer was absolute upon its face, and at the same time made a will by which he made his wife the sole beneficiary, the fact that the testator died within three weeks after the transfer, and that he died of the same illness with which he was afflicted at the time of the transfer, had no bearing upon the question. The court says (p. 179) : "The only point to be determined is whether the transfer was made in the then belief that he was not going to get well; that it was made in contempla- tion of his impending death and for the purpose of defrauding the State of the transfer tax, for that is the essence of the matter, and there is no pre- sumption that a man intends to commit a fraud of any kind. The rule is also well settled that where two inferences may be drawn from a given state of facts, one of which is lawful and the other unlawful, the result which is consistent with innocence is to prevail. Looking at the facts in this case in the light of these rules, we are led irresistibly to the conclusion that they do not warrant holding that the transfer of the 559 shares of stock was made in contemplation of death, in the sense in which that phrase is used in the statute." But where a father transferred his stock in a corporation to his daughters without consideration and upon condition that he should receive the divi- dends and have a right to vote upon the stock until his death, it was held that such a transfer was subject to tax within the provision of the statute. Matter of Brandreth, 28 Misc. 468. To the same effect see Matter of Sharer, 36 Misc. 502. In this case, after the death of Sharer, there were found in a box of his at his bank, on the outside of which box there was pasted a paper bearing his name and also the name of Margaret Caldwell, some unrecorded deeds purporting to convey to Margaret Caldwell and to Julia Caldwell certain property of Sharer's, and also an executed assignment of some shares of stock, a mortgage to Julia Caldwell and two certificates of deposit with indorsements on the back thereof to pay to the order of Julia Caldwell. These instruments were in envelopes on which the doctor had written "the property of" the different transferees (naming them). The deeds were all executed before a notary. The court, in holding all this property subject to a transfer tax, says: "It is true that he signed certain papers which if delivered in good faith and followed by a change of possession and acts of ownership on the part of the transferee would be good and effectual to carry an absolute title away from him; but to all the world after the date of the alleged delivery he continued to be and remain the owner of the property as before; the property was not within the reach of either Margaret or Julia Caldwell when it went to Sharer's private box at the bank; he received the income from it and so far as can be determined THE TKANSFEE TAX PROCEDURE 877 treated it as his own; he still exercised dominion over it and did not per- mit the transfer to take effect so far as the use or control of the property was concerned during his hfe. "Whatever may be alleged as to the legality of the execution of the papers and the alleged subsequent delivery thereof, yet the property was so managed and such management acquiesced in by the parties that the transfer if any took effect after Sharer's death. " If a gift were claimed, then it can be surely asserted that the supposed donor retained the property under his control and it was within his power to such an extent as to invalidate the gift theory; if a grant or transfer, then the property was retained and controlled by the grantor during his life and never actually took potential effect until after his death." See also Matter of Miller, 37 Misc. 449. In Matter of Masury, 28 App. Div. 580, the Appellate Division in the Second Department held that the law relating to taxable transfers did not apply in the following case: John W. Masury "acting in good faith and with the single purpose of providing for his adopted sons," executed and delivered certain deeds of trust under which the adopted sons who were the beneficiaries were to receive the avails of the trusts thereafter and during the lifetime of the grantor; but a clause was inserted in each deed reserving the right of the grantor to revoke and annul the same dur- ing his lifetime. The point before the court was whether these transfers were in the nature of "gifts among the living or whether they were in some manner contingent upon the death" of the grantor. And the court held the test to be, whether first the beneficiaries were in the enjoyment of the property or the income from the property prior to the death of the grantor; and, second, whether their relations to the property were not changed by the fact of such death. It was held distinctly that these deeds were not intended to take effect in possession or enjoyment "at or after the grantor's death" within the meaning of § 220 of the Tax Law. Id., at p. 548. The court held that the reservation of the right to revoke and annul the deed was a mere prudent precaution, and the fact that the grantor had not made use of it up to the time of his death, precluded the presump- tion that he would have done so at any time. ■ And Matter of Ogsbury, supra, was distinguished. But in the same case the grantor made a separate trust deed transferring securities valued at over $100,000, by which it "was provided that the avails should go to the grantor or his order during his lifetime, and after his death the avails were to go to one of his grandsons during his life, and after to those who might be designated in his will or to his children. Subsequently to the execution of this last deed, a direction was given to the trustee by the grantor to pay to the grandson, the beneficiary, "all the net income arising from the trust fund transferred to said company under said deed by trust until this authority is revoked by me in writing." Under this deed it was clear that the rights of the grandson did not accrue until the death of the grantor, and this brought it within the rule laid down in Matter of Seaman, 147 N. Y. 69, 878 surrogates' courts and therefore the securities and property transferred by the last deed were held liable to the tax. Matter of Masury, supra, at p. 588. A transfer tax will also be laid on the amount of savings bank accounts in decedent's name "in trust for" others, where, while "an absolute trust was created, the death of the depositor was the culminating event in the creation of the trust." Matter of Pierce, 60 Misc. 25; Matter of Edwards, 32 N. Y. Supp. 901. As to the rule in regard to such deposits see Matter of Totten, 179 N. Y. 125, opinion of Vann, J. § 842. Effect of foreign law and of decedent's contracts. — Two ques- tions arising out of the community law of other States have come before an appraiser in New York County recently and are of sufficient interest to be spoken of here. In the first case (Matter of Van Benthuysen, report filed June, 1902) a resident of Louisiana died leaving, among other assets, bank deposits in New York State. It was contended by his executors that because of the fact that the laws of Louisiana provided for a com- munity interest on the part of the wife in one-half of the decedent's prop- erty, one-half of the amount of these deposits should be exempt from tax, as they passed to the wife under the community laws of Louisiana and not by will or intestacy. The other case was Matter of Steinbrugge, report filed July, 1902. Mr. Steinbrugge, at the time of his marriage, was a resident of Hawaii, where the Code Napoleon, which recognizes the community law, prevails. He entered into an antenuptial agreement by which his future wife was to take, upon his death, absolutely one-half of the interest in his estate. Some years after marriage Mr. and Mrs. Steinbrugge came to this State to live, and he died a resident of the State. It was contended that this antenuptial agreement operated to transfer one-half of the husband's property to the wife absolutely on the death of Mr. Steinbrugge, and that this half was not subject to tax. In both cases the appraiser found for the State. In the latter case it would appear to be clear that the parties to the antenuptial agreement, by becoming residents of New York State, had made themselves amenable to the New York law, and that no contract made between them, while residents of another State or country, could operate to defeat the right of this State to a tax on the estate. Some doubt, however, is thrown on this proposition because of a decision just made (May, 1902) in Matter of Baker, 38 Misc. 151. Here the Surrogate of Monroe County has declared that an interest passing to the wife of a resident decedent under an antenuptial agreement was not subject to tax. This case was affirmed, 83 App. Div. 530, on the ground that the contract created a debt of the decedent obligor, which while enforce- able only from and after his death, was no more taxable than any other debt. It is to be noted this agreement was in lieu of dower. (See next section.) In the Van Benthuysen case a different proposition enters, i. e., that as to whether comity of States would require the recognition of a law of THE TRANSFER TAX PROCEDURE 879 the State of the domicile, a recognition which would result in substantial money loss to the State whose comity is invoked. § 843. When antenuptial agreement may obviate tax. — But, it must be reiterated, as in § 841, the question for the State is, when did the trans- fer become complete? In the Matter of Miller, 77 App. Div. 473, the transfer by virtue of such a contract became complete inter vivos, and subsequent relations, acts and decease, were held not to alter the effect of such complete delivery. See for the opposite situation Matter of Bran- dreth, 169 N. Y. 437; Matter of Green, 153 N. Y. 223. So where the ante- nuptial agreement is to make a will — and the contractors do so, the transfer is by the will and is subject to the tax. Matter of Kidd, 188 N. Y. 274. If the contractor does not perform the contract, but his devisee, or heir, or executor-trustee is compelled to do so by judgment of a com- petent court, the effect, as to taxability, is the same. Ihid., citing Phalen. V. U. S. Trust Co., 186 N. Y. 178. § 844. Powers. — Subdivision 5 of § 220 as to powers and their exercise gave rise at first to considerable discussion and a variety of decisions, but. that law has now been pretty thoroughly construed by the highest courts. See Matter of Delano, 176 N. Y. 486, rev'g 82 App. Div. 147. In this case the power, exercised by will, was derived from a deed executed before the: act was passed. This subdivision is an amendment passed by the legis- lature of 1897 (ch. 284 of the Laws of that year), and was designed to meet the ruling of the Court of Appeals in Matter of Harbeck, 161 N. Y. 211, that the appointees of a power take under the will creating the power and not under the instrument by which the power is exercised. The con- stitutionality of that amendment was vigorously assailed. The questions- involved, however, were largely disposed of in Matter of Vanderbilt, 50 App. Div. 246, affirmed without opinion, 163 N. Y. 597. (A later decision, in the matter of the same estate was affirmed by the same court on the decision in this case in 58 App. Div. 619, and this last decision was affirmed without opinion by the Court of Appeals in 166 N. Y. 640.) By the will of William H. Vanderbilt, who died in 1885, a trust fund was established in favor of his son, Cornelius Vanderbilt, for life, the testator directing, that upon the death of Cornelius, the fund should be paid to his lawful issue in such shares or proportions as Cornelius might, by his will, direct- or appoint, and in default of such appointment the gift was made directly to the issue of Cornelius with an alternative disposition upon failure of such issue. Cornelius Vanderbilt died in 1899, leaving a will by the terms- of which he exercised the power in question in favor of his issue. At the time of the death of William H. Vanderbilt there was no tax to lineal descendants, and it was contended that, as the rights under the will were fixed at the time of his death, no later law could affect those rights; that, a law which attempted to tax the beneficiaries of the power exercised by CorneUus Vanderbilt was unconstitutional; that the execution by Cornelius- of the power of appointment related back to the will of the father, and. that the interests affected by the exercise of the power were to be re- 880 surrogates' courts garded as coming under the administration of William H. Vanderbilt's estate and should be controlled by the law existing at the time of his dea,th. It was held, however, that, although the execution of a power made for certain purposes relates back to the instrument conferring the power, there was no complete vesting of the estate in the donees of the power until that power was exercised, citing Matter of Stewart, 131 N. Y. 274, and that the law in force at the time of the exercise of the power, and not of the creation of the power, controlled. To the same effect see Matter of Potter, 51 App. Div. 212; Matter of Tucker, 27 Misc. 616, and Matter of Dows, 167 N. Y. 227, aff'd as Orr v. Gilman, 183 U. S. 278. This last case also held that although the property devised by the testator who created the power was at that time real estate, as it consisted of per- sonal property when the power was exercised, it was subject to tax. But where an original testatrix by her will gave her property to her husband for life with power of disposition during his life, and by will, and directed that the residue or so much thereof as should remain at the death of the life tenant undisposed of should then pass to two certain legatees or the survivor, and the first testator died before the Collateral Inheritance Tax ■of 1885 was passed, but the life tenant died in 1894 having exercised his power of disposition, or attempted to do so by directing the transfer of the property coming to him from his wife, the original testator, to the executors of her will to be distributed according to the provisions of her will, the Court of Appeals held {Matter of Langdon, 153 N. Y. 6) that his direction was not an exercise of the power of disposition but the relinquishment of his right of disposition and that the transfer or succession referred back to the time of the death of the original testator and that such remainder was not therefore taxable, citing In re Seaman, 147 N. Y. 69; In re Stewart, 131 N. Y. 274; In re Curtiss, 142 N. Y. 219. The donee of a power, in contem- plation of law, has a disposing power as broad as could attach to com- plete ownership. -^ It is his disposition. Isham v. N. Y. Assn., 177 N. Y. 218, 223. See also Matter of Cooksey, 182 N. Y. 92. And see Matter of Lord, 111 App. Div. 152. This case deals with the effect of situs of prop- erty as to which power is exercised, and also the effect, on the exercise of power, of the state of the property disposed of, when the power is exercised. But see Matter of Hull, 111 App. Div. 322. And in Matter of Thomas, 39 Misc. 137, it was held that the exercise of a power by domestic will was not taxable when it was created by foreign will, disposed of foreign property, and was governed by foreign law. See Matter of Lowndes, 60 Misc. 506. In de- termining whether the tax should be a five per cent or a one per cent tax, the degree of relationship to the appointee and not to the appointor of the power controls. Matter of Walworth, 66 App. Div. 171 ; Matter of Rogers, 71 App. Div. 461. In Matter of Rogers, supra, it was also held, where testator gave property to his wife with power of appointment and in exercising the power she directed that a loan obtained by her during her lifetime and secured by her bond be repaid out of the property covered by the power, that such a payment constituted a transfer upon which the creditor would have to pay tax. THE TRANSFER TAX PROCEDURE 881 § 845. Failtxre to exercise power. — In Matter of Warren, 62 Misc. 446, Heaton, Surr., says: "The surrogate has no jurisdiction to assess a tax upon property which does not pass by the will of the deceased. If the power of appointment has not, in fact, been exercised, or if, in fact, no property has been transferred by it, the surrogate was without jurisdiction > to assess a tax by reason of any succession; and he may modify his order which has held that a transfer or succession did take place which did not in fact take place. Matter of Backhouse, 110 App. Div. 737, afi'd 185 N. Y. 544." Section 220, subd. 5, last half, provides that if the one having the power shall fail or omit to exercise it, yet the tax is to be laid as if he had acted. This was held invalid in Matter of Lansing, 182 N. Y. 238, on the principle, "no transfer, no tax." The revisers or "consolidators," never- theless, in reporting the consolidated laws, report this provision un- changed, and it has been re-enacted. It should be eliminated by amend- ment. Since the Lansing case it is inoperative as being void. § 846. The pectiniary boundaries of taxability. — In § 832 is discussed the effect of "is of the value of $10,000, or more." The rule there reached is that if the aggregate transfers to taxable persons exceed $10,000 then each share, however small, is taxable. What is the rule under the $500 limitation in § 220? Suppose an estate of less than $10,000, of which all but $400 goes to persons whose relationship to decedent exempts their succession shares by virtue of § 221, but the $400 passes to taxable persons. Is the $500 limit exceeded because the aggregate amount pass- ing exceeds $500? Or is the limit dependent on the aggregate amount passing to taxable persons? The latter is the rule asserted in Matter of Mock, 49 Misc. 283, following Matter of Bliss, 6 App. Div. 192. The rea- soning in the latter case is that if the estate passed, except as to the $400, to a bishop, it is reasoned, then it is specifically exempt by law from tax. Equally is the same amount so exempt when passing to a son or wife also specifically exempt if the estate is less than $10,000. This leaves the total passing from testator, less than $500 for purposes of this tax. Hence the shares are not taxable. But in Matter of Costello, 189 N. Y. 286, the con- trary is held. There the distributable estate is $654.90 (i. e., over $500). One-half went to a sister, and was not taxable. The balance, $327.45 (i. e., less than $500), went to nieces, who are not exempted by § 221. Held, whether or not the shares of nieces are subject to the tax is deter- mined by the aggregate amount of the decedent's personal property. If the aggregate is more than $500 the shares are taxable. § 847. From what fund tax is paid. — The tax is a lien on the " prop- erty transferred," § 224. The executor may deduct it from the legacy, or from the appraised value of the property. Ibid. It remains a lien on real property until paid. The executor is personally hable for it. Ibid. So it may be said the law now directs the payment of the tax out of the property transferred. Under the act of 1896, ch. 908, it was held the tax on hfe estates was payable out of income and that no tax could be imposed on contingent remainders. Matter of Johnson, 6 Dem. 146; Matter 56 882 surrogates' courts of Roosevelt, 143 N. Y. 120. But since then it has been amended by ch. 76, Laws of 1894, and ch. 658, Laws of 1900. Hence "whenever a transfer of property is made, upon which there is, or by any contingency there may be, a tax imposed, the property is to be properly appraised at its clear market value, and the transfer tax is due and payable forthwith out of the property transferred." Matter of Tracy, 179 N. Y. 501, 509, rev'g 87 App. Div. 215. See also Matter of Hoyt, 44 Misc. 76. Hence the tax upon a trust, whether on the life estates or on the remainders, is payable out of principal. Ibid. Of course, the will may specifically control this subject. Clarke v. Clarke, 145 N. Y. 476. So where A disposed by will of $500,000 under appointment in her father's will and of $1,000,000 of her own, all in bequests, and directed her executors to pay transfer tax from residuary estate, held, in Isham v. N. Y. Asso. for the Poor, 78 App. Div. 396, that this direction applied to all bequests (aff'd 177 N. Y. 218) including those made under power. Where an annuity is charged on a fund, the fund not the income pays the tax. Matter of Tracy, supra. See opinion as to how tax must be com- puted. But an annuity is not charged on a fund by merely hortatory words. Post V. Moore, 181 N. Y. 15. If the transfer tax on realty is paid out of personalty which afterwards proves insufiicient to pay the creditors they are entitled to reach the personalty, and in a proper case the administrator may be subrogated to their claim for their benefit and directed to pay them out of funds paid him on partition. Hughes v. Golden, 44 Misc. 128. But when the property in question was New Jersey realty left by will of nonresident of New York to her son for life and a power of appointment to him as to the remainder, it was held no tax could be imposed though he resided here and left a will proved here. Matter of Hurd, 47 Misc. 567. § 848. The procedure ; jurisdiction of the Surrogate. — We pass now to the practice. § 228. Jurisdiction of the Surrogate. — ^The Surrogate's Court of every county of the state having jurisdiction to Jurisdiction of the grant letters testamentary or of administration upon the court estate of a decedent whose property is chargeable with any tax under this article, or to appoint a trustee of such estate or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and determine all questions arising under the provisions of this article, and to do any act in rela- tion thereto authorized by law to be done by a Surrogate in ■^^ other matters or proceedings coming within his jurisdiction; Surrogates. ^^^ y ^^^ g^. ^j^^g Surrogates' Courts shall be entitled to exercise any such jurisdiction, the Surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other Surrogate. Every petition for ancillary letters testamentary or an- cillary letters of administration made in pursuance of the of one or THE TRANSFER TAX PROCEDURE 883 provisions of article seven, title three, chapter eighteen, of the Code of Civil Procedure shall set forth the name of the state comptroller as a person to be cited as therein pre- scribed, and a true and correct statement of all the dece- dent's property in this state and the value thereof; and upon the presentation thereof the Surrogate shall issue a citation Notice of pro- directed to the state comptroller; and upon the return of the ceedings for an- citation the Surrogate shall determine the amount of the ciliary letters must ^ax which may be or become due under the provisions of e S'je^ o a e ^j^j^ article and his decree awarding the letters may contain any provision for the payment of such tax or the giving of security therefor which might be made by such Surrogate if the state comptroller were a creditor of the decedent. Considerable question at first arose as to the jurisdiction of the Surro- gate's Court in the case of an estate of a nonresident decedent dying leaving stock in New York corporations where certificates were not within the State. Such stock was declared to be subject to a transfer tax by the Court of Appeals in Matter of Brorison, 150 N. .Y. 1, but in that case the jurisdiction of the Surrogate's Court was not expressly challenged. The question, however, was clearly settled by the same court in Matter of Fitch, 160 N. Y. 87. It was contended in that case that while the decedent's interest in the stock of a New York corporation was property within the State within the meaning of the Taxable Transfer Act, it was still not property within the contemplation of § 2476 of the Code which regulates the jurisdiction of the Surrogate's Court over decedents' estates. Chief Justice Parker, in giving his opinion (p. 93), says: "While much may be said in support of that contention, and, indeed, has been said by the learned counsel for the appellant, it is our view, after an examination of the provisions of § 10 of the act of 1892 (supra), that the Taxable Transfer Act and the sections of the Code providing for the granting of letters testamentary and administration, or of ancillary letters, should be read together as if constituting one enactment. Thus reading them, the taxing provisions of the act and the provisions providing the machinery for col- lection of the tax are in perfect harmony, and that which is held to be property within the meaning of that portion of the statute which provides that a tax shall be imposed upon its transfer is also property for the pur- pose of conferring upon the Surrogate's Court jurisdiction to impose the tax." Where a nonresident leaves property in two counties the Surrogate, who first issues ancillary letters, acquires exclusive jurisdiction to appoint an appraiser. Matter of HatJmway, 27 Misc. 474. See Matter of Arnold, 114 App. Div. 244, construing § 228 (then § 229) carefully as to this ex- clusive jurisdiction. This was a case of a nonresident leaving personal property in one county only. The fact that property of a nonresident who died prior to the Transfer Tax Act was left in New York State until after the passage of that act will not give jurisdiction to the Surrogate's Court, and such property was held not taxable in Matter of Pettit, 65 App. 884 SURKOGATES' COURTS Div. 30. It was held in Weston v. Goodrich, 86 Hun, 194, that the Surro- gate's Court alone had original jurisdiction to determine the tax, and that a proceeding brought in the Supreme Court for that purpose was im- properly brought, the jurisdiction of that court, so far as the transfer act is concerned, being Umited to review on appeal. The jurisdiction of the Surrogate is not divested by the fact that execu- tors of a non-resident decedent, some of whose property was within the State at the time of his death and subjected to this tax, have accounted, made distribution, and been discharged in the State of the decedent's domicile. So far as the State of New York is concerned, and the collection of its tax, the duty of foreign executors has been stated to be to cause the tax to be ascertained and to pay the same before removing the property from this State. Matter of Embury, 19 App. Div. 214, 217, affirmed 154 N. Y. 746; Matter of Crerar, 31 Misc. 481. They cannot, by evading this duty, divest the jurisdiction of the Surrogate's Court on behalf of the State to collect the tax. But where foreign executors have actually re- moved the property, the, order which will be entered need not in terms run against the executors; but, as was held in Matter of Hubbard, 21 Misc. 556, "It will specify the names of the legatees taking taxable interests, the value of such interests respectively, and the tax due upon the transfer thereof. Consequently proceedings may then be taken against the bene- ficiaries or against the corporations in which the decedent held the stock, as well as against the personal representatives." § 849. The Surrogate's jurisdiction conditioned by the remedial pro- visions of the statute — Notice to persons interested. — The jurisdiction of the Surrogate depends upon the provisions of the statute providing a mode for ascertaining and collecting the tax. The original statute of 1885, even as amended by the act of 1887, declared certain property belonging to nonresident intestates at the time of their death to be liable for taxa- tion within the State but provided no means of assessing and collecting the tax. The Court of Appeals {Matter of Stewart, 131 N. Y. 284) held that it was not sufficient for the legislature merely to declare that such interests were taxable; and in the absence of provisions as to collection of the tax the law was imperfect and incapable of execution. See Matter of Embury, 19 App. Div. 214, 217, aff'd 154 N. Y. 746. A tax cannot be legally imposed unless the statute in addition to creating the tax, provide for an officer or tribunal who shall appraise and assess the property on notice to the persons in- terested. Matter of Embury, supra, citing Stuart v. Palmer, 74 N. Y. 188; Matter of McPherson, 104 N. Y. 321; Eemsen v. Wheeler, 105 N. Y. 575. The procedure in transfer tax proceedings includes the giving of a notice to persons interested as to the imposition of the tax, a hearing or an opportunity to be heard in reference to the value of the property and the amount of the tax, and a judicial determination of the value of the property and the amount of the tax preliminary to the liability of the taxpayer becoming finally fixed. Such are the proceedings, the ab- THE TRANSFER TAX PROCEDURE 885 sence of any of which the Court of Appeals said, in Matter of McPherson, invaded the constitutional right to due process of law. It will be seen from the following discussion of the procedure in transfer tax proceed- ings, that the legislature has safeguarded the rights and remedies of the State in almost every conceivable way as to property of residents and nonresidents intended to be subjected to the tax. It must be borne in mind that the procedure is controlled by the statute existing in force at the time the proceeding is instituted. See Matter of Davis, 149 N. Y. 539. This is so, although the rights of the parties depend upon the law in opera- tion at the time of the decedent's death. Ibid., and cases heretofore cited. The jurisdiction of the Surrogate to hear and determine all questions in relation to the tax arising under the provisions of this act, is a special grant of power, but in broad and comprehensive language; and under this grant it has been held that the Surrogate's Court has power to decide every question that may arise in the proceeding before him which may be neces- sary in order to fully discharge the duties imposed upon him by the act. See Matter of Ullman, 137 N. Y. 403, 407. In that case it was held, in con- sequence of this view of his power, that he had jurisdiction to hold that the property sought to be subject to the tax did not as a matter of law pass to the legatees or devisees under the will in question but to the heirs- at-law or next of kin. See cases cited in Judge Russell's brief for appel- lants, id., p. 404. § 850. Double nature of Surrogate's function. — The jurisdiction given to the Surrogate, moreover, is a double one. He is in the first instance made a taxing officer fixing the amount of the tax upon the report of the appraiser. From this formal determination, which is made " as of course," appeal may be had to the Surrogate as a judicial officer for his judicial examination into the questions of law arising upon such appeal. See Matter of Costello, 189 N. Y. 288. If the Surrogate is appealed to to hold that no proceeding is necessary by reason of complete exemption he must act on notice to all parties interested. This means, primarily, the State. If he acts without such notice his order may be set aside. Matter of Collins, 104 App. Div. 184. It is not improper to secure an order, on due notice, that the estate is below the statutory limit. Matter of Schmidt, 39 Misc. 77. § 851. Appointment of appraisers. — Section 229 of the Tax Law in so far as it treats of the appointments of appraisers provides as follows: "The state comptroller shall appoint and may at pleasure remove, not to exceed six persons in the county of New York; two persons in the county of Kings, and one person in the counties of Albany, Dutchess, Erie, Monroe, Oneida, Onondaga, Orange, Queens, Rensselaer, Richmond, Suf- folk and Westchester, to act as appraisers therein. ..." The rest of this provision is administrative. The question of the Surrogate's independent power to appoint appraisers not nominated by the Comptroller is no longer an open one. He has no such power. See Matter of Sondheim, 32 Misc. 296, aff'd 69 App. Div. 5; Matter of Fuller, 62 App. Div. 428; Matter of Wallace, 71 App. Div. 284; Matter ofDuell v. Glynn, 56 Misc. 41. SURROGATES COURTS § 852. The petition. — The petition under this section may be made either by the executor on behalf of the estate or by the state comptroller on behalf of the State. Matter of O'Donohue, 28 Misc. 607, aff'd, 44 App. Div. 186. The proceedings, if begun by the executor, should be be- gun as soon as conveniently may be, because of the right of the estate to a discount of five per cent, if the tax is paid within six months from the accruing thereof. See § 223. The following form for the petition for the appointment of appraiser is suggested: Surrogate's Court, County of Petition for the In the Matter of the Appraisal^ appointment of an under the Act in Relation to appraiser under sec- Taxable Transfers of Prop- > tion 229. gj.^y pf ^l^g property which was of Deceased. J To the Surrogate's Court of the County of The petition of respectfully shows to this court and alleges: I. That your petitioner is (one of) the executors named in the last will and testament of the decedent above named, and as such is a person interested in his estate. II. That on or about the day of 19 the said then residing within the county of (or, if decedent be a nonresident, without the State of New York) was seized and possessed of property within the State of New York, all or some part of which your petitioner is in- formed and believes is claimed to be subject to the payment of the tax imposed by the act in relation to taxable transfers of property; and that on the said day of 19 the said deceased departed this Ufe. III. That the said decedent made a last will and testament which was duly admitted to probate by the Surrogate's Court of the county of and letters testamentary thereon were duly issued on that day to your petitioner. Note. See para- (Note.) graph IV below. [/^ (.^^g ff^g decedent die intestate, paragraphs I and III should be modified in the following manner: I. That your petitioner is the administrator of the goods, chattels and credits of the decedent, and as such is a person interested in the estate of the above named decedent. III. That the decedent died intestate, on the day of 19 and on the day of letters of ad- ministration on his estate were duly issued to your petitioner by the Surrogate's Court of the county of and that under the Laws of Intestacy of the State of the THE TRANSFER TAX PROCEDURE 887 decedent's property passed at his death to the following named persons: (Here insert names of heirs and distributees.)] IV. That the names and post-ofEce addresses, and the nature of their respective interests, of all the persons in- terested in the estate of the said decedent, and who are en- titled to notice of all proceedings herein, including the Comp- troller of the State of New York are as follows, e. g.: Name. John Smith. Address. I Nature op Interest. London, England Sole Residuary Legatee. Wherefore, your petitioner prays for an order appointing some competent person as appraiser according to the law in such case made and provided, and directing him to give to all persons entitled to notice of the time and place of such appraisal such notice thereof as to the court may seem suf- ficient. Petitioner. (Verification.) § 853. Designation of appraisers. — Upon the filing of this petition the Surrogate will make the order appointing the appraiser. In the counties where the office is salaried he must select the Comptroller's appointee or one of them. In other counties he designates the county treasurer. But he must designate. The direction is mandatory. Matter of Kelsey v. Church, 112 App. Div. 408. The appraiser should then serve notice by mail on all parties who are, by law, i&terested in the whole estate and by law entitled to notice of all proceedings affecting the same, § 230. See Matter of Astor, 6 Dem. 402, 410. The length of the notice is fixed by the Surrogate in each case, there being no provision in the statute as to the length of notice to be given. The order is on a form provided now by all Surrogate's offices: It is not essential under the law as it now exists that the order should recite the names and addresses of the parties to be served with the notice, and it is quite customary to omit such recital from the order appointing the appraiser. It is enough that the appraiser actually mail the notice to all parties entitled thereto. (See below.) It should be noted that § 230 formerly read that the duty of the ap- praiser was "to fix the fair market value at the time of the transfer thereof of property of persons whose estates shall be subject to the payment of any tax imposed by the articles." These words in italics were misleading when taken in connection with the other sections of the law, which ac- counts for their omission from the section as it now exists. § 854. When to appoint the appraiser. — The appointment of an appraiser by the Surrogate is not limited by the language of the act to any partic- ular time. For some years after the passage of the act it was not cus- tomary to bring a proceeding for such appointment until after the ad- surrogates' courts vertising for claims had been completed and the inventory made by the two appraisers appointed by the Surrogate. Indeed it was intimated in Matter of Westurn, heretofore cited, that "it would seem to be pru- dent and reasonable for the Surrogate to take notice of the statutory system for the settlement of estates and to defer the appointment of ■ an appraiser for the period necessary to enable the executor or admin- istrator to advertise for claims and ascertain whether there are any cred- itors." But it was held in Matter of Vassar, 127 N. Y. 1, that the Sur- rogate was not bound to await a final accounting before proceeding under the statute, and the general practice now is to bring the pro- ceeding at as early a date as possible after the qualification of the executors, so that the estate may take advantage of the five per cent rebate provided for in case of payment within six months after the date of death. § 855. The appraiser, his duty and power. — Prior to the act of 1892, oh. 399, the appraiser had no power to administer oaths or take testi- mony or to compel the attendance of witnesses. Attention having been called to this omission (see Matter of Aster, 6 Dem. 413), the act was amended and the present law in regard to the duty and power of the ap- praiser reads as follows: § 230 (in part). Proceedings by appraisers. — Every such ap- praiser shall forthwith give notice by mail to all persons Duty of appraiser, known to have a claim or interest in the property to be appraised, including the state comptroller, and to such per- sons as the surrogate may by order direct, of the time and place when he will appraise such property. He shall, at such time and place, appraise the same at its fair market value, as herein prescribed, and for that purpose the said appraiser is authorized to issue subpoenas and to compel the attendance of witnesses before him and to take the evidence of such witnesses under oath concerning such property and the value thereof; and he shall make report thereof and of such value in writing, to the said Surrogate, together with the depositions of the witnesses examined, and such other facts in relation thereto and to the said matter as said Surrogate may order or require. The power now given includes taking testimony by commission. Of course the commission must be directed by the Surrogate. Matter of Wallace, 71 App. Div. 284. The Surrogate first acquiring jurisdiction controls the proceeding exclusively. Matter of Hathaway, 27 Misc. 474. The powers of an appraiser in conducting the inquiry are threshed out in the Matter of Bishop, 82 App. Div. 112. See opinion by Patterson, P. J. The Webb case, N. Y. Law Journal, May 18, 1901, holds the appraiser can compel by subpcena duces tecum the production of material papers. Upon his appointment the appraiser, under the law as it formerly existed, first took an oath that he would truly, honestly and impartially appraise and fix the value of the decedent's property ^subject to the tax, under the THE TRANSFER TAX PROCEDURE act relating to taxable transfers; and that he would make a true report- thereon to the best of his understanding. Under the law, as it now exists (§ 229), each of the official appraisers, upon taking office, files with the state comptroller his oath of office and his official bond of not less than one thousand dollars in the discretion of the state comptroller, conditioned for the faithful performance of his duties as such appraiser, which bond must be approved by the attorney general and the state comptroller. The form of the notice to be given to the persons indicated in the order must be substantially as follows (the form in use in the New York County- Surrogate's Court being indicated) : Surrogate's Court, County of In the matter of the Appraisal under the Act in relation to Taxable Transfers of Prop- erty of the property of Deceased. You will please take notice that, by virtue of an order of Hon. one of the Surrogates of the County of New York, made and dated the day of 19 and pursuant to provisions of chapter 908 of the Laws of 1896, entitled "An Act in Relation to Taxable Transfers of Property,'' and the acts amendatory thereof, I shall, on the day of 19 at o'clock in the noon of that day, at Room No, Building, No. in this City of New York, proceed to appraise at its fair market value, all the property of said deceased, passing by h last Will and Testament, or by the Intestate Laws of the State of New York, which is subject to the payment of the tax imposed by the said act and the acts amendatory thereof. Note. This no- And such of you {note) as are hereby notified as are under tice to infants is re- the age of twenty-one years, are required to appear by your quired m New York guardian, if you have one, or if you have none, to appear County and might ^^^ ^^^-^^ ^^^ ^^^ ^^ ^^^ appointed, or in the event of your ^ , ^ neglect or failure to do so, a guardian will be appointed by the Surrogate to represent and act for you in the proceeding. New York, 190 To Appraiser. This notice was, by the original act, required to be given to such per- sons as the Surrogate might by order designate. The Court of Appeals held {Matter of McPherson, 104 N. Y. 306, 422), that the statute contemplated that the Surrogate should designate in his order all the persons entitled to notice, in spite of the indefiniteness of the language. And it held also, that if he should omit to do so, it would be an error upon which any tax imposed upon the persons not notified would be invalid, as having been imposed without jurisdiction. See opinion of 890 surrogates' courts Earl, J. The provisions as to notice, in the law as it then existed, were that the appraiser should give notice of the appraisal "to such persons as the Surrogate may by order direct." The present law provides that the appraiser shall give notice "to all persons known to have a claim or in- terest in the property to be appraised, including the state comptroller and to such persons as the Surrogate may by order direct." The better practice would appear to be to set out in the order appointing the appraiser the names and addresses of the parties to be served, although this is not essential so long as notice is given by the appraiser to the parties inter- ested. In Matter of Winter, 21 Misc. 525, Surrogate Marcus held that a pro- ceeding to assess the tax, in which notice is not given to a person interested, in that case the sole heir-at-law, was fatally defective and should be set aside, citing Matter of McPherson, supra. § 856. Special guardian. — The notification in the appraiser's notice to persons under the age of 21 years, with reference to their appearance by guardian, should be carefully noted. Where the application is made for the appointment of the special guardian in such proceedings, the provisions of the Code with regard to the appointment must be carefully followed. See Part II, ch. II, under "Parties." And where a person other than the infant applies for the appointment under §§ 2530 and 2531, care must be taken to comply with the provisions of the Code (id.), in regard to giving eight days' notice of the application (see Pinckney v. Smith, 26 Hun, 524), and in regard to personal service of the notice upon the infant. The actual appointment of the guardian does not vaUdate the proceedings where the infant was not properly served with notice of the application (see Hogle v. Hogle, 49 Hun, 313; Davis v. Crandall, 101 N. Y. 311), unless the infant personally appears in court so as to give the Surrogate jurisdic- tion of his person. See Buck's Estate, 15 Abb. 12; Matter of Seabra, 38 Hun. 218. Where the application is made by the parent of the infant in these proceedings, and the infant is of tender years, observance of this re- quirement of the Code would seem to serve no useful end, but the statute is explicit and must be observed. The writer was informed by one of the Surrogates of New York that in a case of this sort, the affidavit of service of citation recited the personal delivery of the notice to the infant "who was about the age of fourteen months, and who then and there swallowed the same." The service was held to be complete. The requirement that the infant should be represented in the proceed- ings in the Surrogate's Court by special guardian, is a general one, and it is customary that they be appointed where there are infants. But it has been held where there is no necessity for the appointment of a guardian, by reason of the fact that the infant's interest is not presently involved, and there is no provision in the will under which the infant's interest in remainder or otherwise could be affected, the appointment of a special' guardian and the burdening of the estate with charges for his services, should not be authorized by the court. Matter of Post, 5 App. Div. 113. THE TRANSFEK TAX PROCEDURE 891 And it is not the custom now, in transfer tax proceedings, to appoint a special guardian for an infant whose taxable interests are very small. And see Matter of Jones, 54 Misc. 202. But it is now, and since ch. 368, L. 1905, provided: "If, however, it appear at any stage of the proceedings that any of such persons known to be interested in the estate is an infant or incom- petent, the Surrogate may, if the interest of such infant or incompetent is presently involved and is adverse to that of any of the other persons in- terested therein, appoint a special guardian of such infant; but nothing in this provision shall affect the right of an infant over fourteen years of age, or of any one on behalf of an infant under fourteen years of age, to nominate and apply for the appointment of a special guardian for such infant at any stage of the jyroceedings." This provision originally read shall for may, and related to the time when appeal was taken from the taxing Surrogate to the judicial Surrogate (see ch. 672, L. 1899, amending I 232, now, in part, §231). § 857. Fair market value of property; how and when ascertained. — It is the duty of the appraiser to fix "the fair market value of property" subjected to the payment of the tax. In this connection therefore § 242 is of importance defining as it does what is meant by "estate" and "prop- erty" as used in the act. This section is as follows: The words "estate'' and ''property" as used in this article, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the provisions of this article, and not as the property or in- terest therein passing or transfered to individual legatees, devisees, heirs, next of kin, grantees, donees, or vendees, and shall include all property or interest therein, whether situated within or without this state. The word "transfer" as used in this article, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein prescribed. Section 120 of Decedent Estate Law provides for the method to be pursued by appraisers generally in ascertaining the value of taxable securities. "Whenever by reason of the provisions of any law of this State it shall become necessary to appraise in whole or in part the estate of any deceased person, . . . the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time." See People v. Coleman, 107 N. Y. 541. 892 surrogates' courts Under this provision it was held in Matter of Crary, 31 Misc. 72, that, in the absence of any facts tending to show that the appraiser did not reach a fair conclusion, a valuation of stocks based on the average of quoted prices on the day on which the will took effect and for three months preceding, should be sustained. It is customary, however, in reaching the valuation of listed stocks or bonds in transfer tax proceedings, to take the average quotations on the date of the death of the decedent. Matter ofRamsdill, 190 N. Y. 492; Matter ofWesturn, 152 N. Y. 93, 102. In valuing shares in a foreign corporation, held by a nonresident, he must apportion its assets within and without the State. That is, assum- ing a railway company to have its property half in New York and half in Pennsylvania, and its stock to be selling at par, the nonresident's stock on succession to which the New York tax is laid must be appraised at 50. See Matter of Cooley, 186 N. Y. 220. And see opinion of Beckett, Surr., in Matter of Thayer, 58 Misc. 117, as to appraisal of stock in an interstate railroad corporation. Aff'd 126 App. Div. 951, 193 N. Y. 430. In the court of appeals decision it is pointed out that the method "suggested" in the Cooley case is not controlling or exclusive, merely a "convenient" way of determining a "question of fact." In Matter of Gould, 19 App. Div. 352, aff'd 156 N. Y. 423, the rather novel proposition was advanced by the estate that, in determining the value of large blocks of stock, only the purchase and sale in markets of correspondingly large blocks should be considered, on the theory that throwing large blocks upon the market would result in a break in values. The court did not adopt that construction of the act of 1891. A more difficult question arises where the securities are not listed and in such case the practice is to take testimony as to the full market value from parties who would be in position to testify with knowledge of that fact. See Matter of Curtice, 111 App. Div. 230, the stock was in a "close corporation," not listed, no record sales. Held, the statutory direction did not control, citing Matter ofJudson, 73 App. Div. 620. See also Mat- ter of Proctor, 41 Misc. 79, experts testifying to value from infrequent quotations and private sales. As to the nature of this testimony see opin- ion of Surrogate Silkman, in Matter of Brandreth, 28 Misc. 468, 473. In Matter of Smith, 71 App. Div. 602, the appraiser valued the stock of a corporation at par basing the valuation on the fact that a dividend of eight per cent had been declared on that stock for some time prior to the death of decedent, and this, despite the fact that an officer of the com- pany in which the stock was held testified that he sold such stock at the rate of $50 a share at about the time of the death of the decedent. The Appellate Court held that in the absence of any evidence going to show that the sales testified to by this officer were not made at the fair market value, and in the absence of evidence tending to show that a stock earning eight per cent dividend was worth more than the price at which it had been sold, or of any special fact showing any greater value of the stock than that at which it had been sold, the appraiser should fix the value at the THE TRANSFER TAX PROCEDURE 893 selling price. Dividends paid are not conclusive proof of value. People, etc., V. Barker, 81 Hun, 22. So, in Matter of Morgan v. Warner, 45 App. Div. 424, affirmed without opinion, 162 N. Y. 612, it was held that notes belonging to the estate which the executors were directed to cancel, should be valued at their actual and not their face value. See also Matter of Bartlett, 4 Misc. 380; Matter of Wood, 40 Misc. 155. As to valuation of good will of decedent's business see Matter of Keahon, 60 Misc. 508. § 858. Same subject. — The power of the appraiser to subpoena witnesses and examine them upon oath, makes it immaterial where the property is situated that he has to appraise. He, in the ordinary course, accepts aflidavits as to the facts. But in contested cases, e. g., as to residence, or locus of property, or as to value, witnesses are called, sworn and exam- ined. The appraiser appointed is to appraise the whole estate of the de- cedent. If the property is situated in several counties and the appraiser deems it necessary to inspect the same for its appraisal, § 230 contains ample provision for the payment of his expenses, and so far as the prop- erty in various counties is concerned, the receipts of the county treasurer to whom the tax is paid may, under § 236 of the Tax Law, be recorded in the clerk's office of any county in which taxable property is situated. Such clerks are required to keep a book for the purpose, known as the Transfer Tax Book. Section 36 of the Tax Law (now § 37) is inapplicable to this appraisal. Matter of Kennedy, 113 App. Div. 4. Hence the appraiser cannot make a tentative assessment and put the executor to the burden of swearing it off or down. § 859. The appraiser's report. — Sections 230 and 231 proceed further to define the practice as follows: § 230. The report of the appraiser shall be made in duplicate, one of which duplicates shall be filed in the office of the surrogate and the other in the office of the state comptroller. § 231. From such report of appraisal and other proof relating to any such estate before the surrogate, the surrogate shall forthwith, as of course, de- termine the cash value of all estates and the amount of tax to which the same are liable; or the surrogate may so determine the cash value of all such es- tates and the amount of tax to which the same are liable, without appoint- ing an appraiser. The superintendent of insurance shall, on the application of any surrogate, determine the value of any such future or contingent estates, income or interest therein limited, contingent, dependent or determinable upon the life or lives of persons in being, upon the facts contained in any such appraiser's report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct. The surrogate shall immediately give notice, upon the determination by him as to the value of any estate which is taxable under this article, and of the tax to which it is liable to all persons known to be interested therein, and shall immediately forward a copy of such taxing order to the state comptroller. 894 surrogates' courts The surrogate shall also forward to the state comptroller copies of all orders entered by him in relation to or affecting in any way the transfer tax on any estate, including orders of exemption. It is the appraiser's duty to report the taxable property and the value at which he appraises it. It is customary for the appraiser to submit with his report a schedule containing facts relative to the property trans- ferred, reported "for the information of the Surrogate." §860. Deducting the debts, taxes, etc. — Since the "property" is to be taxed as coming from the decedent, the quantum to be reported must logically be the net amount. Hence it is proper for the appraisers to take evidence as to decedent's debts and to report them, as well as the taxable property, to the Surrogate. The rule is well stated in Matter of Thomas, 39 Misc. 222, 226. This practice has been sanctioned in New York County {Matter of Wormser, 36 Misc. 434), and has been tacitly approved by the courts, numerous decisions reciting the practice and not disapproving thereof. In Westchester County, however, in Estate of Ludlow, 4 Misc. 594, and Estate of Millard, 6 Misc. 425, the practice was declared to be improper. A later decision in that county, however. Matter of Purdy, 24 Misc. 301, would seem to indicate that there, too, this practice is now approved. The question of these deductions has become a very practical and impor- tant one in reaching the amount of the taxable property. We have noted one phase of this in connection with fixing the value of stock in interstate companies. On the other hand, suppose a nonresident dies, and there is property, taxable, in this State, but the claims of domestic creditors ex- ceed its value. There is nothing, manifestly, left on which to lay the tax. Matter ofGrosvenor, 124 App. Div. 331. See Matter of Burden, 47 Misc. 329, as to representative's right to apply taxable and nontaxable securities to discharge of nonresident's debt to New York creditor. There was considerable difference of opinion in the lower courts on this whole question of what is and what is not to be deducted in ascertaining the amount of taxable property. Thus, for example, in Orange County, Matter of Curtis, 31 Misc. 83, it was held that the United States war rev- enue tax could not properly be deducted while, at the same time, in Catta- raugus County, Matter of Irish, 28 Misc. 648, and Erie County, Matter of Becker, 26 Misc. 633, it was held that this tax should be deducted. The Appellate Division, First Department, sustained this last contention in Matter of Gihon, 64 App. Div. 504, and Matter of Vanderbilt, 68 App. Div. 27, but the Court of Appeals finally disposed of the question in Matter of Gihon, 169 N. Y. 443, holding that the Federal tax is not to be deducted because it is not a tax upon the property transferred but upon the legatee, for the privilege of succeeding to the property, and is therefore payable out of his particular legacy and not out of the estate. See Matter of Daly, 100 App. Div. 373. The Gihon case held that the commissions and disbursements of a tem- porary administrator appointed pending the result of a will contest, as THE TRANSFER TAX PROCEDURE 895 well as the commissions of trustees paying over the income of a trust to a life beneficiary, are proper subjects of deduction. But § 226 provides, that commissions are to be excluded and nontaxable, only to the extent of the amount allowed by law to executors or trustees, in that it makes taxable legacies or devises in lieu of commissions as to any excess in value in such bequests or devise over that of the legal commissions. A sum paid by proponents to contestants in settlement is not deducti- ble. Matter of Marks, 40 Misc. 507. And, if commissions were not de- ducted, the proceeding, in a proper case, may be reopened for the pur- poses. Matter of Silliman, 79 App. Div. 98. A legacy tax paid to another State cannot be deducted (Matter of Ken- nedy, 20 Misc. 531), and the fact that property of a nonresident decedent is taxed in the State of his domicile does not affect the question of its tax- ation here. Matter of Burr, 16 Misc. 89. A gift to a foreign cemetery association for keeping the burial lot in. order forever is not "funeral expenses," and is taxable as a gift by will. Matter of Beaver, 62 Misc. 155. Another question which has involved considerable discussion is whether the expenses entailed by a will contest may properly be deducted from the assets of the estate before the tax is fixed. As to this point Chief Jus- tice Andrews says in Matter of Westurn, 152 N. Y. 93 (p. 102) : "The appellants further insist that the Surrogate erred in refusing to deduct from the valuation of the estate the sum expended by them in the litigation over the will. We think the Surrogate properly disallowed this item. It was not a claim existing against the decedent or his property. The tax imposed by the statute is upon the interests trans- ferred by will or under the intestate law of the State. The devolution of the property and the right of the State have their origin at the same moment of time. The ascertainment of the value of the taxable inter- est and the fixing of the tax necessarily takes place subsequent to the death. But the guide is the value at the time of the death, when the interests were acquired. The fact that the appellants were put to ex- pense in asserting their rights and were embroiled in expensive litigation, to obtain them, was their misfortune. "It did not diminish the value of the interests which devolved upon them on Westurn's death. It was a loss, but a loss to their general es- tate. It did not prevent them receiving the whole interest transmitted to them. The fact that the court charged certain costs and allowances in their favor upon the estate did not change the situation. It was prac- tically a charge upon their own property for the benefit of their attor- neys." The only way in which this decision and the decision in the Gihon case^ swpra, can be reconciled is by the statement last quoted, that the expenses of a will litigation are practically a charge upon the separate properties of the beneficiaries. That this is the view taken by the Surrogates of New York County, see decision of Surrogate Thomas in Estate of Mary 896 surrogates' courts Francis Baker, in the New York Law Journal of May 28, 1902. He there says: "The practical effect of the decision of the Court of Appeals in Matter of Westurn is to determine that litigation between rival claimants to an estate cannot be prosecuted at the expense of the State of New York. This decision has not been modified or distinguished by Matter of Gihon, but' on the contrary the existence of an analogy between the two is ex- pressly affirmed, not only in the latter opinion but also in the opinion of the learned Surrogate." Attention should be called, however, to the fact that, in Matter of Westurn, supra, the deductions asked for were for the expenses directed to be paid out of the estate incurred by the next of kin in a successful will contest. The courts have not applied the same rule where the expenses either in a will contest or in a proceeding for the con- struction of a will have been made by the legal representatives of the estate, and the disposition of the courts now appears to be to hold that, where such expenses were necessary and reasonable, they are the proper sub- jects of deduction. Matter of Maresi, 74 App. Div. 76; Estate of Peter Thomas, N. Y. Law Journal, November 8, 1902. The mere fact that a claim against an estate is outstanding is not suffi- cient to warrant a deduction of the amount of the claim in computing the tax in the absence of any proof as to its legality. Matter of Wormser, 51 App. Div. 441. It has been the custom in making deductions in the matter of the taxation of nonresident estates to allow only such pro- portion of the debts as is represented by the ratio of New York assets to the entire assets of the estate. The Appellate Division in a very recent decision, Matter of King, 71 App. Div. 581, has, however, held that, where a nonresident decedent had an undivided interest in a firm, having a branch in New York State, and where the claims of New York creditors of the concern exhausted the value of the property here, no tax could be imposed, basing such decision on the broad ground that a tax on personal property of a; nonresident is founded upon the State's dominion over the property situated within its territory, and as the debts exhausted the assets, there was no property here to form a basis of taxation. On the other hand, it was held in Matter of Pullman, 46 App. Div. 574, where domestic creditors of a nonresident decedent have in their hand, as pledgees, securities not taxable under our transfer tax law, that the in- debtedness due such creditors is not to be offset against taxable assets. A different question arises where the testator provides in his will for the payment of moneys out of his estate in return for services rendered him in his lifetime. Matter of Gould, 156 N. Y. 423. The case involved pe- culiar circumstances. Jay Gould, by a codicil to his will, acknowledged an indebtedness to his son George J. Gould for services rendered amount- ing to $5,000,000, and provided in what way and with what property or securities the debt should be discharged. The Appellate Division in the Pirst Department held the legacy to be not a gift but the payment of a le- gal obligation of the estate, and, therefore, not taxable. But the Court of THE TRANSFER TAX PROCEDURE 897 Appeals held, that, granting the testator did owe the sum bequeathed, and did intend by the codicil to provide for its payment, nevertheless the method of payment selected by him and its acceptance by his son was one which brought the transaction within the taxing provisions of the statute. The court (Parker, Ch. J.), says (p. 428): "It matters not what the motive of a transfer by will may be, whether to pay a debt, discharge some moral obligation, or to benefit a relative for whom the testator entertains a strong affection, if the devise or bequest be accepted by the beneficiary, the transfer is made by will and the State by the statute in question makes a tax to impinge upon that performance." The court also says, obiter, " It can easily be imagined that the legislature aimed to prevent parties from avoiding payment of the tax by changing intended beneficiaries into testamentary creditors." But it can hardly be imagined that the legisla- ture intended to tax the payment of just debts in full, as might be the re- sult if the debt provided for in a will was equal to or greater than the es- tate. Creditors are entitled to the payment of their just claims, irrespective of the accident of death to their debtors, and the remedy would appear to be in a case like the one mentioned for the claimant or creditor to renounce the provision under the will and rely on recovering the amount of his claim against the estate in the usual way. See also Matter of Rogers, 71 App. Div. 461. See Matter of Huher, 86 App. Div. 458, where tax was laid on legacy to executor over and above his legal commissions for serv- ices to he rendered. § 861. Same — Taxes. — Taxes assessed against decedent in his lifetime, though not levied until after his death, may be deducted. Matter of Brun- dage, 31 App. Div. 348. Matter of Liss, 39 Misc. 123. This case also deducted cost of a burial plot and expense of fencing and sodding same. See, also, opinion by Thomas, Surr., in Matter of Hoffman, 42 Misc. 90, where executors had actually paid real and personal taxes which had become debts of decedent. The amount was deducted. But taxes ac- cruing after his death cannot be deducted. Matter of Maresi, 74 App. Div. 76. § 862. Appraiser's duty when in doubt. — Doubtful questions may be reserved. This is often necessary as to future or contingent interests. But it may be proper in this very matter of deductions demanded. In Matter of Dimon, 82 App. Div. 107, an equitable method is outlined. When the appraiser is in doubt as to allowing deduction of payments made or estimated by the representative, he should not disallow them. He taxes the residue, and in the report (and of course in the subsequent order) reserves the taxation on this doubtful amount until it has been adjudi- cated upon on the accounting. The court cites the Gihon case, 169 N. Y. 443; Matter of Rice, 56 App. Div. 253; Matter of Gould, 19 App. Div. 352. § 863. Are mortgage incumbrances to be deducted. — Two cases can be supposed with regard to real estate so far as mortgages thereon are con- cerned. The one where the real estate passes directly under the will or by the law of descent, the other where the will works an equitable con- 57 898 SUBROGATES' COURTS version. In such a case as the latter, Matter of Sutton, 3 App. Div. 208 (aff'd 149 N. Y. 618), it was held (Brown, P. J., writing the opinion) by the Appellate Division, reviewing the cases, that the fiction of equitable conversion could not be applied for the purpose of subjecting domestic real estate to taxation which would otherwise be exempt. In Matter of Livingston, 1 App. Div. 568, First Department, the court held that where the real property and personal property descended into the same hands and mortgages on the real estate are satisfied by the ex- ecutors bj' virtue of a power in the will, the payment of the mortgages out of the personalty could have no effect in reducing the amount of the tax on the personal estate. Matter of Offerman, 25 App. Div. 94, is au- thority for the general principle that mortgages upon decedent's real property are not to be deducted from the personal property in reaching the amount of the tax. To that effect see Matter of Sutton, 3 App. Div. 208; Matter of DeGraaf, 24 Misc. 147; Matter of Beiry, 23 Misc. 330. Where a mortgage is, however, secured by the testator's personal bond, and there is a judgment against him for a deficiency, the judgment is a deductible debt. In Matter of Swift, 137 N. Y. 77, the Court of Appeals has held that the doctrine of etjuitable conversion was not applicable to subject foreign real estate, the proceeds of which had been brought within the State, to tax- ation. See Dos Passos on Inheritance Tax Law (2d ed.), pp. 152, 155, and notes. Where real property passes to a devisee or descends to an heir, such heir or devisee must satisfy and discharge all mortgages out of the property so passing or descending without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of the testator that such mortgages should be otherwise paid. 2 R. S., ch. 1, title 5, § 4. § 864. Debts of nonresident. — The Matter of Grosvenor, and the Matter of Burden, cited in § 860, show the extent and the limit of offsetting local debts against taxable property of a nonresident reachable by the State. There are several theories. Assume A dies in New Jersey. His estate is in all $100,000, of which $10,000 is in New York City. His total debts are $20,000 and $10,000 of that is due to New York creditors. Shall the property here be exempt because the local debts equal it? Or shall it be proportionately offset in the ratio that the assets here bear to the total assets? In the latter case, as the assets here are one-tenth, then the debts can only be offset to the extent of one-tenth. Or again, suppose the debts here are not general debts, but debts to a banker or broker secured by collateral — and part of that is nontaxable? The correct answer to all these questions is reached by keeping in mind the theory on which the State taxes the nonresident estate, to wit, its do- minion over the property. Hence the local debts may be paid out of the local taxable assets. Mat- ter of Doane, N. Y. Law Journal, March 12, 1903; Matter of King, 172 N. Y. 616, 71 App. Div. 581, 30 Misc. 575. Then the taxable value of those THE TRANSFER TAX PROCEDURE 899 assets is reckoned, after such deduction. Matter of Westum, 152 N. Y. 93; Matter of Burden, 47 Misc. 329. But, if nontaxable assets have been specially pledged for the local debt, the debt is deemed paid thereby, and the taxable assets are not to be diminished thereby. Ibid. In the Pullman case, 46 App. Div. 574, the rule is clearly stated: "Where domestic creditors have in their hands the legal title and the right to resort for the payment of their debts to securities (of a nonresi- dent) .... not taxable .... the indebtedness due to sux;h creditors is not to be offset against the value of property .... otherwise taxable." It is further clarified in the Grosvenor case, 124 App. Div. 331, where Ingraham, J., points out "what is taxable is the property of the (decedent) within this State, which was in excess of the amount of the debts ... to residents .... with the payment of which this property was primarily chargeable." He continues: "The principle applicable to this taxation is different from that applicable to the taxation of personal property of residents of the State, for here the tax is not against the individual or against the par- ticular property, but is a tax upon the transfer of that property, and it is only by reason of the transfer of the specific personal property in this State from the testator to his legatees that the State undertakes to tax, and when nothing axAually passes by virtue of that transfer no tax is imposed. The Code having made this property within the State applicable to the payments of the debts of the decedent to resident creditors, the fact that, to release them, the executor brought money of the decedent from out of the State and paid the debts so that the securities in this State could be transmitted to be administered at the residence of the decedent cannot make any difference as to what actually was transferred upon which a tax was imposed. If the securities had been sold and the proceeds used to pay the debts to resident creditors there could be no question. The executors have procured the money, paid the debts, and released these securities from the liability for his indebtedness, in substance purchased the securities for the estate. This result is within Matter of King, 71 App. Div. 581, aff'd on opinion below, 172 N. Y. 616, and Matter of Westum, 152 id. 93. There it was held that what was transferred and what was, therefore, taxable was the amount of the property of the testator less his debts." § 865. Appraisal by Surrogate. — Section 231 provides that the Surro- gate may determine the cash value of all the estates and amount of tax to which the same are liable without appointing an appraiser. And where the legacies are mere cash legacies the appointment of an appraiser is wholly unnecessary. See Matter of Astor, 20 Abb. N. C. 405; Matter of Jones, 10 N. Y. St. Rep. 163. This method of establishing the value of the inheritance and fixing the tax, is a distinct proceeding complete in itself and, if adopted, precludes any resort to the other. Matter of Davis, 91 Hun, 53, 60. The words at the end of § 231, paragraph third, "includ- ing orders of exemption" recognize the practice of application, in proper 900 surrogates' courts cases, to the Surrogate, for an order that the estate is not liable to the tax. Where real property is involved, the entry of such an order may be requisite to avoid the question of a "lien" in later transactions. § 866. Report of the appraiser. —To summarize, the appraiser, having ascertained the estate by means of the power of inquiry given him as above noted, must proceed to ascertain the quantum of the estate and its fair market value. He must report every estate passing, define its character and estimate its value. It has been held that the appraiser in case of doubt, should report the property as liable to a tax, leaving the doubt to be resolved by the Surrogate who is the assessing officer. Matter of Astor, 17 N. Y. St. Rep. 737. § 867. Proceedings on the coming in of the report.— When the ap- praisers' report has been made and one of the dupUcates filed in the office of the Surrogate, the Surrogate proceeds to exercise his assessing power and fixes the tax. See § 232. In so acting he represents the State; and, therefore, it was at first held (see Matter of Wolfe, 137 N. Y. 205, 213), that a failure to notify the comptroller or the county treasurer of his act was not error or an irregularity, although it was held proper that he should cause the comptroller or county treasurer to be noti- fied of the proceedings. But there was nothing in the law which made no- tice to him a prerequisite to a complete determination by the Surrogate of the questions presented in the proceedings. And the court held that the doctrine of notice was one which finds application when it is sought to take the property of the citizen, and that a failure to give notice to the person whose interest was being taxed deprived such person of an inherent right. But the law as it now stands, by § 231, provides that the Surro- gate shall immediately give notice upon the determination by him as to the value of any estate which is taxable and of the tax to which it is Ha- ble, to all persons known to be interested therein, and the state comptroller. This direction is explicit and must be followed. Matter of BoUon, 35 Misc. 688. Service of such notice upon the attorney who has represented the comptroller upon the hearing before the appraiser will, of course, be suffi- cient. The Surrogate's notice is furnished in that office. § 868. Computations by State Superintendent. — Where there are fu- ture or later estates, income or annuities dependent upon any life or lives in being, it is provided by § 231, that their value "shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of policies of life insurance and annuities for the determination of liabilities of life insur- ance companies, except that the rate of interest for making such compu- tation shall be five per centum per annum." Consequently, the Surrogate is given power by § 231 to apply to the superintendent of insurance by a requisition or notice, and the superintendent of insurance is required upon such application to determine the value "of any such future, or contingent estate, income, or interest therein limited, contingent, dependent, or de- terminable upon the life or lives of persons in being, upon the facts con- THE TRANSFER TAX PROCEDURE 9Q1 tained in the appraiser's report." This computation the superintendent of insurance must certify to the Surrogate, and it is provided that his "certificate shall be conclusive evidence that the method of computation adopted therein is correct." This determination of value is binding on the Surrogate as well as on the parties, and the Surrogate therefore cannot without reversing the whole proceeding make an appraisal himself, nor can he reverse the whole proceeding except in the manner provided by law. See MaUer of Davis, 91 Hun, 53, aff' d 149 N. Y. 539. The prac- titioner is not required to prepare the notice to the superintendent, and it is now the custom in many counties for the appraiser to make the appli- cation on behalf of the Surrogate, and to include the superintendent's certificate in his report, upon which the Surrogate acts in fixing the tax. The superintendent of insurance is given a summary of the facts upon which his computation is to be based, to wit: The amount of the princi- pal estate on which the future or contingent estate or an income or in- terest therein is limited, the name of the remainderman, the name and age of the person or persons upon whose life or lives such estates or in- terests are contingent, dependent, or determinable and the date of death of decedent, the value being fixed as of that day. The superintendent's certificate returns the money value of life estate and remainder, and the Surrogate then on the filing of the appraiser's report determines the cash value of all estates passing and the amount of tax to which they are sev- erally liable. An order is thereupon entered assessing the tax, which should be substantially in the following form: Surrogate's Court Caption. Present : Hon. Surrogate. Order fixing tax tinder section 232. Title. On reading and filing the report of Esq., the ap- praiser heretofore appointed herein, and on all the papers and proceedings herein; and on motion of Esq., attorney for it is Ordered that the cash values of the interests of the bene- ficiaries in the estate of the above named decedent, the trans- fer of which is subject to the payment of the tax imposed by the act relating to taxable transfers of property is as follows: Benbfioiabies. I Relationship. Cash Value. and it is Further ordered that the tax to which the transfer of said property is liable is as follows : 902 surrogates' courts On the interest of widow $ " " " " sister $ " " " " orphan $ " " " " no relation $ Notice of such taxation is thereupon sent by the Surrogate to every person known to be interested therein, that is, the persons to whom no- tice of the appraisal has already been given, as well as to the comptroller as above noted. § 869. Appeal from Surrogate's decision. — The Surrogate having acted as assessor and fixed the tax on the facts reported to him by the appraiser, and upon such other proof relating to the estate which may be before him (see § 232), and the notice having been given to all parties known to have an interest in the property to be taxed, provision is made for a determina- tion by the Surrogate in his judicial capacity upon an appeal from the order made by him as assessor. (See also § 874, below.) Upon this appeal a review of the whole proceeding may be had upon any ground of error specified in the notice of appeal, but the Surrogate is not limited on siieh appeal, to a review of his former determination in assessing the tax. He may admit new testimony (Matter of Thompson, 57 App. Div. 317), and the executor is a party in interest and so can appeal. Matter of Cornell, 66 App. Div. 162. The appeal to the Surrogate given by § 232 must be taken within sixty days from the fixing, assessing and determination of the tax by the Surrogate. Although in Matter of Daly, 34 Misc. 148, where a corporation exempt from taxation, having notice of the bringing of the proceeding, but no notice of the fixing of the tax as provided for by § 232, neglected to appear within sixty days, the Surrogate of Suffolk County, on application of the corporation, made after the sixty days, and as soon as it ascertained that a tax had been fixed on its legacy, modified the de- cree so as to exempt the corporation from the tax. § 870. Reopening or vacating. — Contrasted with this right of appeal, which contemplates a judicial act, embodied in a final order, from which appeal may further be had, there are other methods of review, or recon- sideration, or reappraisal. (a) Reappraisal under § 232. This is limited to two years from the en- try of the order or decree. The party entitled thereto is the State Comp- troller. The grounds are fraud, collusion, or error. The application is to a justice of the Supreme Court. The appraiser is "some competent person," appointed by him. When he reports to such justice, the practice follows the original method, except that for "Surrogate" you read "Justice," and the determination thus made supersedes that formerly made by the Surrogate. § 871. Same subject. — But (6) vacating or (c) reopening, are remedies the Surrogate may grant because of his general powers, Matt^ of Henderson, 157 N. Y. 423, and not lessened by the Tax Law. Thus, in Matter ofEarle, 71 N. Y. Supp. 1038, aff'd 74 App. Div. 458, after the time to appeal had expired, the Surrogate granted an application made by the estate to va- THE TRANSFER TAX PROCEDURE 903 cate the order fixing tax and remit the report to the appraiser on the ground that the appraiser had omitted a material fact in his report. The same Surrogate in a later decision in speaking of his earlier decision and the decision in Matter of Crerar, 56 App. Div. 479, hereafter cited, says in the Estate of Jane S. Van Post, reported in Law Journal of June 20, 1901 : " I expressed the opinion that under this provision of law and under the general power inherent in every court, I could correct an error in an order fixing a tax caused by my own inadvertent error and oversight of a juris- dictional defect on mere motion and without an appeal. The subse- quently reported opinion of the Appellate Division in Matter of Crerar would limit this power, and I must hold myself bound by the views of that court." A rather different question arose in Morgan v. Cowie, 49 App. Div. 612. Here an appraisal was made in 1896. In 1898, when the judicial settle- ment of the accounts of the executors was had, it appeared that several legacies in the will of the testator had lapsed by reason of the death of the legatees prior to that of the testator. There being no residuary clause in the will, the Surrogate's Court directed that the lapsed portion of the estate pass under the Statute of Distributions to the widow. The tax had been imposed on these legacies at the rate of five per cent, as the legacies were given to collaterals, but under this ruling the transfers, so far as these legacies were concerned, proved to be subject to a one per cent tax only as they went to the widow. In 1899, the executors applied to the Surrogate's Court for a modification of the order of 1896, fixing the tax. The application was resisted by the comptroller on the ground that the power of the Surrogate's Court to modify the order had expired with the time to appeal. The court held, however, that, under § 2481, subd. 6 of the Code, which provides that the Surrogate has the power "to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court, or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause," the order should be modified and the tax reduced accordingly. For a gen- eral discussion of the whole subject, see Matter of Lansing, 31 Misc. 148. § 872. Same subject. — ^The cases warrant the following summary state- ment: The Surrogate's power under § 2481 is governed by the general provisions of §§ 1282-1292, as to errors of substance, not arising on the trial. Matter of Tilden, 98 N. Y. 434; Matter of Barnum, 129 App. Div. 418. Cases of fraud or collusion, newly discovered evidence, or total lack of jurisdiction to make the original order, are not limited by the two-year restriction. Ibid. Matter of Hawley, 100 N. Y. 206. Errors of law are reviewable only by appeal. Same, and Matter of Douglas, 52 App. Div. 303; Matter of Walrath, 37 Misc. 696; Matter of Niven, 29 Misc. 550. And the appeal is limited as to time. The contrast is between a remedy to make a record conform to the facts, and a remedy to review what, on litigated questions, was erro- 904 surrogates' courts neously decided. To correct the latter appeal is the only remedy. Lack of jurisdiction warrants vacation. Matter of Scrimgeour, 175 N. Y. 507. Fraud or collusion or newly discovered evidence may warrant a new trial. These cases will illustrate the contrast: Matter of Lowry, 89 App. Div. 226 (1903). Reopening of transfer tax decree refused, to revalue realty, sold for less than appraised value. Matter of Wallace, 28 Misc. 603. Application to vacate denied. Matter of Rice, 29 Misc. 404; 56 App. Div. 253. State's application to reopen and rectify improper deductions denied. Matter of Niven, 29 Misc. 550. Appraiser exempted a legacy. Law as fixed by a later decision would have taxed it. Application to Supreme Court under § 232 denied. Remedy by appeal exclusive. Matter of Connelly, 38 Misc. 466. Application to reopen denied, as error was in a determination in respect to matters of fact upon evidence as to which the court had exercised judgment. For cases when Surrogate has vacated transfer tax orders see Matter of Scrimgeour, 80 App. Div. 388, aff'd 175 N. Y. 507. Vacated on its being later {Matter of Pell, 171 N. Y. 48) found that the act was unconstitu- tional under which the tax was laid. Matter of Coogan, 27 Misc. 563, aff'd 45 App. Div. 628, 162 N. Y. 613. Here mandamus was granted to compel refund of tax collected under order set aside as void as made without jurisdiction. Matter of Silliman, 79 App. Div. 98, aff'd 175 N. Y. 513. Order reop- ened and modified. Matter of Mather, 90 App. Div. 382, aff'd 179 N. Y. 526. See Surrogate's opinion, 41 Misc. 414. Matter of Cameron, 97 App. Div. 434, aff'd 181 N. Y. 560, where an order made in 1898 was opened in 1904 on newly discovered evidence, and modified by reducing the tax. Matter of Willets, 119 App. Div. 119, aff'd 190 N. Y. 527. Order opened and modified on proof property taxed did not belong to decedent. See Matter of O'Berry, 179 N. Y. 285, and opinion below in 91 App. Div. 6. Matter of Eaton, 55 Misc. 472. Order set aside, although moving party had also appealed. § 873. Same subject. — But there is another differentiation. This de- pends on who the moving party is. If it be the estate, or a person in- terested, the foregoing discussion applies. But if it be the State Comp- troller it would seem he is limited: (o) To the reappraisal under § 232. Matter of Crerar, 56 App. Div. 479. (6) To an appeal. Zbt'd., and ilfatter-o/.Barfe, 74 App. Div. 458. , (c) To open to rectify a clerical error. Ibid. § 874. The first appeal. — ^The appeal to the judicial Surrogate is taken by filing in the office of the Surrogate a written notice of appeal stating the grounds upon which the appeal is taken. Rule 25 of the Surrogate's Court in New York County provides: THE TRANSFER TAX PROCEDURE 90& 1. Upon the filing of the appraiser's report in a transfer tax proceeding, the surrogate will immediately enter the order determining the value of the prop- erty and the amount of the tax. The matter will not appear on the calendar at this stage, nor will the court then consider objections to the report. 2. A party having objections to the report, or the order entered thereupon, may, within sixty days, file a notice of appeal. This notice to be served upon all parties appearing before the appraiser, and proof of service to be filed with the clerk, with the notice of appeal. Thereupon the proceeding will be placed upon the calendar for the next regular motion day. This notice must specify the grounds of objection. If it fail to specify such grounds, it may be dismissed. Matter of Stone, 56 Misc. 247, citing Matter of Davis, 149 N. Y. 539. Moreover, the grounds specified in this appeal limit the area of judicial re-examination in the Appellate Courts. Matter of Manning, 169 N. Y. 449. Surrogate's Court, County of Notice of appeal Title I to the Surrogate ' ( from the order fixing gj^g ■ *® '*^" Please take notice that A. B., executor of the last Will and Testament (or administrator of the goods, chattels and credits) of C. D., deceased, (note) hereby appeals to the Surro- Note. Or any per- gate of the county of from the order and determina- s o n aggrieved, or tion by said Surrogate heretofore entered herein on the having objections. day of 19 upon the report of the appraiser in the above entitled matter, fixing the tax upon the estate of said decedent, and that grounds of such appeal are as follows: (Here state specific grounds.) Dated the day of 19 Yours, etc., Attorney for A. B. (As executor of the last Will and Testament, or administrator of the goods, etc.) To Esq., The Clerk of the Surrogate's Court. Hon. Comptroller of the State of New York (or Hon. County Treasurer of the County of ). Any questions raised and decided, upon which error could be assigned or any irregularity in the proceedings entitling the parties interested to an appeal, may be raised before the Surrogate upon this appeal, and the appeal is in the nature of an application for a rehearing, upon which new evidence may be taken bearing upon the questions involved. Matter of Thompson, 57 App. Div. 317. He can direct a reference and stay the proceedings pending the report. Matter of Bishop, 111 App. Div. 545. The Surrogate has jurisdiction of the appeal by the notice actually given, if given within the sixty days. 906 surrogates' courts And the Court of Appeals has held that it would be an unwise construc- tion of the act to limit the hearing so as to exclude the consideration of a new question subsequently arising on the ground that it was not specified in the notice of appeal. Matter of Westurn, 152 N. Y. 93, 104. But as to other questions the Surrogate is limited, as just shown upon this appeal to the grounds specified in the notice of appeal. Matter of Worm- ser, 51 App. Div. 441. And so is the Appellate Court. Matter of Man- ning, 169 N. Y. 449; Matter of Kennedy, 93 App. Div. 27. Thus, where a party interested appeals to the Surrogate from that portion of the de- cree which directs the treasurer to collect the penalty, but not from the appraisal or valuation of the estate or from the assessment of the tax, the Surrogate may only review that part of the decree relating to the penalty (see Matter of Davis, 149 N. Y. 539, 548), for as to all other matters the decree is conclusive, and the Surrogate will not order a rehearing before the appraiser on the ground that the valuations of the appraiser are in- correct unless some proof is adduced before him going to show such in- correctness. Matter of Johnson, 37 Misc. 542. The jurisdiction of the Surrogate sitting as a judicial officer, and the inquiry into the questions resting upon the appeal, extends to all matters necessary to enable him to perform the duties imposed upon him. Thus in Matter of Ullman, 137 N. Y. 403, 407, it was held that he had necessarily the power to deter- mine in such a proceeding whether any property of a deceased person did or did not pass to another under a will or under the laws of intestacy, and that consequently he could hold a provision of the will invalid. This de- cision would operate both where the property purported to pass by the invalid provision to a person who would take it exempt from the tax, or where the result of his determination is to exempt an otherwise taxable transfer. His determination of the validity or invalidity of the will for the purposes of this proceeding can always be reviewed upon appeal; but the right to exercise this power is undeniable. But the jurisdiction of the Surrogate must be limited with reference to the object of the pro- ceeding, which is to subject certain property to taxation. The jurisdic- tion, therefore, in construing the will is merely that, for the purpose of tax- ation under the law of taxable transfers, a certain amount of property passes to certain specific persons. The jurisdiction of the Surrogate, there- fore, is binding only upon the question of taxation and a failure to appeal from his decree fixing the tax will not bind parties interested, and is not res adjudicata and conclusive upon the rights of parties arising from matters outside of the will. See Amherst College v. Ritch, 151 N. Y. 282, 343. When the Surrogate makes his decree after this appeal has been heard, an appeal may be taken as from any other decree to the Appellate Di- vision. But from his order as taxing officer no such appeal lies. Matter of Costello, 189 N. Y. 288. See Matter of Davis, 91 Hun, 53, opinion of Judge, and 149 N. Y. 539, statement of facts, for instructive record of practice. But the appeal to the Appellate Courts is not to be taken piece- THE TEANSFER TAX PROCEDURE 907 meal. Every ground relied on should have been raised in the first appeal to the Surrogate. Otherwise the final determination of the Appellate Court is conclusive as to all matters raised or which might have been raised. Matter of Cook, 194 N. Y. 400. In Matter of Hull, 109 App. Div. 248, motion was made to dismiss the Comptroller's appeal, on the ground that the fixing of the tax was a min- isterial duty. Held, the Surrogate acts judicially in determining the quantum of the estate, the exemptions claimed and the amount of the tax, citing Morgan v. Warner, 162 N. Y. 612, aff 'g 45 App. Div. 424. § 875. Reappraisal at the instance of the state comptroller. — Sec- tion 232 contains provisions for a reappraisal at the instance of the comp- troller of the State, if he believes that the appraisal, assessment or deter- mination already had was fraudulently, collusively or erroneously made. These provisions give the right only to the state comptroller, who is not required to give notice of the application {Matter of Smith, 40 App. Div. 480) and are as follows: Within two years after the entry of an order or decree of a surrogate de- termining the value of an estate and assessing the tax thereon, the state comp- troller may, if he believes that such appraisal, assessment or determination has been fraudulently, collusively or erroneously made, make application to a justice of the Supreme Court of the judicial district in which the former owner of such estate resided, for a reappraisal thereof. The justice to whom such application is made may thereupon appoint a competent person to reappraise such estate. . . . The report of such appraiser shall be filed with the justice by whom he was appointed, and thereafter the same proceedings shall be taken and had by and before such justice as are herein provided to be taken and had by and before the surrogate. The de- termination and assessment of such justice shall supersede the determination and assessment of the surrogate, and shall be filed by such justice in the office of the state comptroller and a certified copy thereof transmitted to the surro- gate's court of the proper county. It is said, in Matter of Crerar, 56 App. Div. 479, that in transfer tax proceedings the courts have no general power or jurisdiction. That what they do they must find authority for in the act itself, citing Matter of Smith, supra. At any rate, § 232 gives the state comptroller in paragraph one the right to appeal in 60 days from the taxing Surrogate to the ju- dicial Surrogate, and in paragraph two this special right to a reappraisal. This does not mean that, once the judicial Surrogate has made his final order, the comptroller cannot appeal therefrom. The right is not exclu- sive so as to prevent an appeal from the decree by the state comptroller under § 2570 of the Code. Morgan v. Warner, 45 App. Div. 424. But a reappraisal will not be ordered at the instance of the state comptroller on the ground that the property was afterwards sold for a larger sum than that at which it was appraised (Matter of Bruce, 59 N. Y. Supp. 1083; Matter of Rice, 56 App. Div. 253), nor to show that deductions for debts were excessive. Ibid. And the errors for which a reappraisal may be surrogates' courts ordered are errors of fact only, not errors of law. Matter of Niven, 29 Misc. 550; Matter of Silliman, 38 Misc. 226. If, in the meantime, the executors, acting upon the appraisal already- had, have parted with the control of the property, they cannot be held liable for the tax, provided they have acted in good faith, that is to say, provided the collusion or fraud alleged by the comptroller is not shown to have been participated in by them. If they have acted in good faith the State's remedy is against the property in the hands of the transferees who are by the act made liable, by § 222, which provides that every such tax shall be and remain a lien on the property transferred until paid, and the person to whom the property is so transferred and the executor, ad- ministrator and trustees of every estate so transferred should be person- ally liable for such taxation until its payment. § 876. Appraisals " whenever occasion may require." — In the former act, § 230 contained the vague phrase of this section heading, under which second appraisals were repeatedly sought, and no estate could deem itself secure from further expense and trouble. Matter of Lansing, 31 Misc. 148, explains the reason of the rule as being to cover all cases in which, for any reason, all the property could not be appraised and the tax fixe'd in one proceeding. But very properly this was held in Matter of Crerar, 56 App. Div. 479, not to cover cases where there was erroneous omission from appraisal of known assets. It was held to cover cases of property not known on first appraisal, or not then readily appraisable. These words are omitted from § 230 now, and the review or reappraisals above dis- cussed are now exclusive. § 877. Correction of tax erroneously assessed — Time limit. — Full remedy is afforded, by way of appeal, where a Surrogate has, in such proceedings, decided certain questions of fact or law erroneously. Any attempt to review such a decision upon the merits must be made within the periods limited by the provisions of the Code or statutes governing appeals. But, under the guise of "modifying," or "correcting clerical errors" proceedings are sought to be revived. It was held in Matter of Crerar, 56 App. Div. 479, that the Surrogate has no power to amend an order, six years after its entry, so as to change the recital, "the only property belonging to John Crerar within the State of New York is the premises known as 91 John Street" to make the order conform to the report of the appraiser as follows: "being all the property of decedent known to be in the State of New York and which is subject to tax," nor has he the power to grant an order directing a second ap- praisal of personal property which was in the hands of the executors at the time the first appraisal was made, where it was held on the previous appraisal that this precise property was not subject to tax. In the Estate of Thomas S. Van Post, reported in N. Y. Law Journal of June 20, 1901, an application was made for an order amending an order theretofore made fixing tax, by deducting from the taxable interest of the life tenant the interest in certain United States bonds, on the ground THE TRANSFER TAX PROCEDURE 909 that as the law then stood (1896) transfers of such bonds were exempt. Surrogate Thomas, however, on the application, said, "Assuming that I have precisely the same power to correct the order in question that the Supreme Court has over one of its orders. Such power should not be ex- ercised after the lapse of more than five years and after a voluntary pay- ment has been made under it, and on the mere ground that with full knowledge of the facts without inadvertence and deliberately, but on a mistake of law, an order was made, which mistake was only discovered by a subsequent decision of the Court of Appeals." See Matter of Lowrie, 89 App. Div. 226, application to modify appraisal of land at $200,000, on proof that it actually brought about half that amount. Held, "error of fact arising upon a trial," denied. Also Matter of Hamilton, 41 Misc. 268. But, if original order void for lack of jurisdiction, it is a different case. See Matter of Sillimxin, 79 App. Div. 98, rev'g 38 Misc. 226, granted. Matter of Scrimgeour, 80 App. Div. 388; Matter of Coogan, 27 Misc. 563; 162 N. Y. 613; Matter of Connelly, 38 Misc. 466, denied. Where debts have neither been urged before the appraiser in the first instance nor reserved for future action and the time to appeal has ex- pired, the Surrogate cannot grant relief (Matter of Annie Taylor Morgan, 36 Misc. 753), but an omission to tax the life interest of an infant, on the ground that the value of that interest could not at the time be ascertained and that the ultimate legatees were indefinite and could not then be known, is an adjudication that the interests of the infant are not then taxable and an express reservation of the matter. Matter of Irwin, 36 Misc. 177. The Surrogate has no power to make an order declaring that an appraisal theretofore made was erroneous as to certain securities, a former order having remained unreversed and in full effect (Matter of Schermerhorn, 38 App. Div. 350; Matter of Connelly, 38 Misc. 466), but, at any time be- fore an appraiser's report is acted upon by the Surrogate, he may remit the same to the appi'aiser for the purpose of taking additional testimony. Matter of Kelly, 29 Misc. 169. § 878. The liability of the executor, administrator or trustee. — ^The liability for payment of the transfer tax is twofold. The tax is declared to be a lien upon the property transferred in the first place, § 224, and the executor, administrator or trustee of the estate transferred is held to be liable personally for the tax until its payment. Ibid. Hence, the executor must see to it that the tax is fixed and paid, and ithat the proper duplicate receipts in the form specified in § 236 are issued to him: "No executor, administrator, or trustee shall be entitled to a final accounting of an estate in settlement of which a tax is due under the provisions of this act, unless he shall produce a receipt so sealed and countersigned or a certified copy thereof." §879. When tax due and payable. — Section 222 provides: "All taxes imposed by this article shall be due and payable at the time of the transfer, ■except as hereinafter provided. Taxes upon the transfer of any estate, 910 surrogates' courts property or interest therein limited, conditioned, dependent or deter- minable upon the happening of any contingency or future event by reason of which the fair market value thereof cannot be ascertained at the time of the transfer as herein provided, shall accrue and become due and pay- able when the persons or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof." The law thus makes it the duty of the representative to have the tax assessed and paid. The only way that the representative can avoid lia- bility, is by proceeding to have timely disposition of the matter made in the Surrogate's Court. Where an administratrix never took such pro- ceedings, and the district attorney made no motion to compel the assess- ment and payment of the tax until after the accounting and distribution of the estate, it was held nevertheless, that the liability of the adminis- trator and the lien of the tax continued, and that the administratrix should pay. Matter of Hacket, 14 Misc. 282. The statute, as it now reads, for- bids the judicial settlement of the accounts of an estate, unless the rep- resentative shall produce his duplicate of the receipt of the state comp- troller. No statute of limitation runs against the State. Matter of Strang, 117 App. Div. 796. § 880. Discount for prompt payment; penalty for delay. — Where it is possible to do so it is the duty of the executor to avail himself of the discount granted by § 223 of the law, which is as follows: § 223. Discount, interest and penalty. — If such tax is paid within six months from the accrual thereof, a discount of five per centum shall be allowed and deducted therefrom. Five per cent dis- If such tax is not paid within eighteen months from the count. accrual thereof, interest shall be charged and collected thereon at the rate of ten per centum per anmmi from the time the tax accrued; unless by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, such Ten per cent ^^x cannot be determined and paid as herein provided, in penalty. which case interest at the rate of six per centum per annum shall be charged upon such tax from the accrual thereof until the cause of such delay is removed, after which ten per centum shall be charged. The law as it first existed (ch. 713 of the Laws of 1887) provided for the payment of the six per cent penalty, only from the time of the ex- piration of the eighteen months, but by the present law, which has been in effect since 1892, the additional interest is charged from the date of decedent's death. See Matter of Fayerweather, 143 N. Y. 114. The distribution of the estate, by executors, without any proceedings having been had to assess the tax, affords no legal excuse for its nonpay- ment {Matter of Hacket, 14 Misc. 282), even though they are executors of a nonresident who had property in the State of New York subject to the tax. See Matter of Hvhbard, 21 Misc. 566, 567. See also Matter of Em- bury, 154 N. Y. 746, aff'g 19 App. Div. 24. If the penalty, however. Title. THE TRANSFEE TAX PROCEDURE 911 has been incurred, an application may be made to the court upon motion to remit it (Matter of DeGraaf, 24 Misc. 147, 150), but the basis of such application must be some sufficient cause arising out of claims made against the estate, necessary litigation, or other unavoidable cause of de- lay. Matter of Wormser, 51 App. Div. 441; Matter of Prout, 53 Hun, 541; Matter of Bolton, 35 Misc. 688. The appraiser has no power to remit the tax. He may report the request, but the application must be to the Sur- rogate, in the exercise of the judicial power given him by § 228 to "hear and determine all questions arising." When "by reason of claims made upon the estate, necessary litigation, or other unavoidable cause of delay" the payment of the tax has been delayed so that the penalty of ten per cent under § 223 has been incurred, it is the duty of the executor to apply for an order remitting the penalty and reducing the interest to six per cent. Surrogate's Court, County of Petition for re- mission of ten per cent penalty. To the Surrogate's Court of The petition of A. B. respectfully shows to this court: I. That he is the executor of the last Will and Testament {or the administrator of the goods, chattels and credits) of the above named decedent, who died on the day of in the year domiciled at in the State of II. That by reason of litigation involving the entire estate of the said decedent it was impossible until the day of 19 to fix and determine the shares in the estate of the said decedent to which the parties interested were entitled (or that it has been impossible until the day of in the year of 19 to definitely ascertain, liquidate and adjust the claims made against the estate of the decedent and the values of his property; or set forth any other just cause for delay in settling the affairs of the decedent, which may have prevented the fixing of the tax). III. That such proceedings have been had herein that an appraiser has heretofore been appointed, who has made his report and filed the same in the office of the Surrogate of said county, on the day of' in the year 19 and an order duly made thereon, whereby the said Surrogate fixed and determined the value of the shares of persons in- terested in the estate of said decedent and the tax due upon the same under the act relating to Taxable Transfers. IV. That your petitioner is desirous of paying such tax; that in order to obtain the proper receipt therefor and to settle his accounts it is necessary to present with such accounts proper vouchers for the payment of the tax due the State of New York upon the estate of said decedent, and to obtain 912 subrogates' courts the same your petitioner makes this application pursuant to the provisions of said act for a remission of the penalty in- curred by reason of the non-payment of such tax within eighteen months from death of said decedent from ten per cent to six per cent. Wherefore your petitioner prays that an order be made remitting the penalty upon the tax heretofore fixed herein from ten per cent to six per cent to be charged upon such tax from the accrual thereof, to wit: from the date of the death of said decedent, provided such payment be made within five days from the date of the entry of the order of the Surrogate on this application; and that your petitioner have such other or further rehef as to the Court may seem just. Petitioner. (Verification.) Notice of motion to remit penalty of ten per cent. Note. The peti- tion serves for an affidavit. Surrogate's Court, County of Title. Please take notice that on all the papers and proceedings herein and on the affidavit herewith served of A. B. (executor or administrator of deceased) verified on the day of {note) I will apply to the Surrogate of the county of at a Surrogate's Court {or at Cham- bers of the Surrogate) to be held in said county in on the day of at 10.30 o'clock in the fore- noon, or as soon thereafter as counsel can be heard, for an order remitting the penalty of ten per cent upon the tax heretofore fixed upon the estate of the above named decedent, by order of the Surrogate of said county made and entered on the day of to interest at the rate of six per cent per annum from the date of the accrual of the said tax, to wit : the date of the death of the said decedent, which oc- curred on the day of until the date of the pay- ment of said tax, provided said payment be made within da}^ after the entry of the order of the said Surrogate to be made upon this application. Dated the day of 19 To Hon. Comptroller of the State of N. Y. THE TRANSFER TAX PROCEDURE 913 Surrogate's Court Caption. Present: Hon. Surrogate. Order for remis- Titlp I sion of ten per cent ' ( penalty. Qn reading and filing the petition of A. B., executor of the last Will and Testament [or administrator of the goods, chattels and credits) of C. D., the decedent above named, and on all the papers and proceedings herein; and after hear- ^°*^- ^"^ "^^'Mng Esq., attorney for said petitioner, and !n T- ^^4.v Esq., attorney for the Comptroller of the State of New York 19 when the cause ^ ,.■ c k ~d -n^ j.j. /? -i of the delay in fixing ^^^ °^ motion of A. B., Esq., attorney for said petitioner, said tax was re- '® moved and from said Ordered that the penalty upon the tax heretofore fixed last date to the date herein be remitted from ten per cent to six per cent per of payment to be annum to be charged from the date of the accrual of said charged at the rate tax, to wit: the date of the death of said decedent, which of ten per cent per occurred on the , day of 19 until the date of annum. See section ^jjg payment of such tax, provided the said tax be paid within days from the date of this order. Note. § 881. Reducing tax on nonresidents' estates. — The representative and the Surrogate are charged with the duty of protecting decedents' estates. As against the State, it is notable that the Surrogate is paid nothing for the increasing labor this law imposes on him. The pourts up- hold representatives, in cases of nonresidents, in any legitimate applica- tion of local assets calculated to lessen the tax burden. Suppose A, of New Jersey, leaves an estate of which less than $10,000 in value is in this State. The legacies run partly to persons in the exempt class, and partly to those who are liable to five per cent tax. The executor may pay ex- empt legacies out of the New York assets. Matter of J amis, 144 N. Y. 6; Matter of McEwan, 51 Misc. 455. The James case authorized the payment of taxable legacies out of foreign assets, and the application of local assets to a trust for exempt beneficiaries. But in Matter of Ramsdill, 190 N. Y. 492, reviewing both courts below, the Court of Appeals somewhat limited this theory. Here there was intestacy. Held, that mere methods of bookkeeping could not avoid the operation of the law eo eodemque instante of the time of death and consequent devolution of the interests. That is, the interest of a distributee vests by law. He has, in this State, an undivided interest in the New York property by virtue of our law. A legatee can require payment in the foreign jurisdiction of his specific legacy. § 882. Compounding payment on future estates. — When the tax has been fixed, provision is made whereby the tax on certain remainders or expectant estates may be compounded by an immediate payment. This is by virtue of the provision of § 233. 58 914 surrogates' courts § 233. Composition of transfer tax upon certain estates. The state comptroller, by and with the consent of the attorney general expresseid in writing, is hereby empowered and authorized in a county in which they receive payments on account of transfer tax, to enter into an agreement with the trustees of any estate in which remainders or expectant estates have been of such a nature, or so disposed and circumstanced that the taxes thereon were held not presently payable, or where the interests of the legatees or devisees were not ascer- tainable under the provisions of chapter four hundred and eighty-three of the laws of eighteen hundred and eighty-five; chapter three hundred and ninety- nine of the laws of eighteen hundred and ninety-two, or chapter nine hundred and eight of the laws of eighteen hundred and ninety-six, and the several acts amendatory thereof and supplemental thereto; and to compound such taxes upon such terms as may he deemed equitable and expedient; and to grant discharge to said trustees upon the payment of the taxes provided for in such composition. Provided, however, that no such composition shall be conclusive in favor of said trustees as against the interests of such cestuis que trust, as may possess either present rights of enjoyment, or fixed, absolute or indefeasible rights of future enjoyment, or of such as would possess such rights in the event of the immediate termination of particular estates, unless they consent thereto, either personally, when competent, or by guardian or committee. Composi- tion or settlement made or effected under the provisions of this section shall be executed in triphcate, and one copy shall be filed in the ofiice of the state comptroller, one copy in the office of the surrogate of the county in which the tax was paid, and one copy to be delivered to the executors, administrators or trustees who shall be parties thereto. This is a special power; not extending generally as authority to the comptroller to settle all disputed transfer tax cases, it relates to clearing up the tax on future interests, as against the State. As to the ultimate beneficiaries, their right to question the propriety of it remains unless foreclosed by proper consent. As a matter of practical interest the compromise consists in the State getting all it wants, subject to discount for cash. The State can afford to be patient. The lien is there. On the other hand, the estate may want to give title to realty, and the lien must be first cleared off. The composition binds the estate. Matter of Kidd, 115 App. Div. 205. Reversal, 188 N. Y. 274, involved construction of effect of antenuptial agreement. § 883. Collection of the tax. — The tax law provides two methods of paying this tax: The first through the voluntary medium of the executor, administrator or trustee, and the second by compulsory proceedings.. See § 235. The first provisions are contained in § 224, which is as follows, in part: § 224. Collection of tax by executors, administrators and trustees. — Every executor, administrator or trustee, shall have full power to sell so much of the property of the decedent as will enable him to pay such tax in the same manner as he might be entitled by law to do for the payment of the debts of the testator or intestate. Any such administrator, executor or trustee, having in charge THE TRANSFER TAX PROCEDURE 915 or in trust any legacy or property for distribution subject to such tax shall deduct the tax therefrom ; and within thirty days therefrom shall pay over the same to the county treasury -or state comptroller, as herein provided. If such legacy or property be not in money, he shall collect the tax thereon upon the appraised value thereof from the person entitled thereto. He shall not deUver or be compelled to dehver any specific legacy or property subject to tax under this article to any person until he shall have collected the tax thereon. If any such legacy shall be charged upon or payable out of real property, the heir or devisee shall deduct such tax therefrom and pay it to the administrator, executor or trustee, and the tax shall remain a lien or charge on such real property until paid, and the payment thereof shall be enforced by the execu- tor, administrator or trustee in the same manner that payment of the legacy might be enforced, or by the district attorney under section two hundred and thirty-five of this chapter. If any such legacy shall be given in money to any such person for a limited period, the administrator, executor or trustee shall retain the tax upon the whole amount, but if it be not in money, he shall make application to the court having jurisdiction of an accounting by him, to make an apportionment, if the case require it, of the sum to be paid into his hands by such legatees, and for such further order relative thereto as the case may require. Questions under this section regarding the duty of executors of the wills of nonresidents in regard to this tax, are discussed in Matter of Em- bury, 19 App. Div. 214, aff'd 154 N. Y. 746, where it was held that where executors took personal property of a nonresident out of the State for distribution in the jurisdiction of domicile at a time prior to the imposi- tion of a tax upon such property of a nonresident, or, more strictly speak- ing, at a time when the mode for assessing and collecting the tax was so imperfect as not to be capable of execution as to the interest of non- residents, the executors could not be held liable, but that it was in fact their duty to remove such property, citing Matter of Branson, 150 N. Y. 1. The court, in this case, were inclined to the view that had the property still remained in the State, it would be taxable under an act afterwards passed. In Matter of Pettit, 65 App. Div. 30, however, where, before the passage of the act of 1892 taxing interests going to lineals, a nonresident died leaving assets in New York County which were not removed from the county until after the passage of the act, the court refused to follow the dictum in Matter of Embury, saying (p. 32): "It is difficult to conceive how the fact of nonremoval by the executors of a nonresident decedent of property belonging to the decedent from this State, could make such property the subject of an inheritance tax which was imposed long after the transfer of the property had occurred." Another interesting question arose in regard to the estates of nonresi- dents in Matter of James, 144 N. Y. 6. In that case ajcitizen of the King- dom of Great Britain died in Africa, and by his last will disposed of a large estate. He left property in Great Britain and an estate of over two mil- lions in this country. By his will legacies were given to collateral rela- tives and charity, which in the aggregate amounted to about one-half of 916 surrogates' courts the property left by him in Great Britain. The residuary estate was given to his executors in trust for the benefit of his brothers. The General Term and the Court of Appeals (reversing the Surrogate of New York County who had imposed a tax upon the collateral legacies and directed the payment thereof out of the assets here) held that the foreign executors had a right to apply the property in England to the pay- ment of the collateral legacies, thereby constituting the American assets a part of the residuary estate disposed of in the will in favor of the testa- tor's brothers, thus saving the estate from the payment of the succession tax imposed by our laws. The Court of Appeals held {id., p. 11): "If the executor determines to pay the legacies from the English estate, the Amer- ican estate is, thereby, freed from the burden of the special tax, the im- position of which depends upon the fact of a succession by the legatee to some property which is within the State. If the American estate is ap- propriated to persons, who are within the excepted degrees of relationship to the testator, the right to claim the tax from the executor is gone. It does not lie with the officers of the State to say, in such a case, which part of the testator's property shall be appropriated to the payment of the legacies." And it was distinctly intimated that the court would incline always to avoid the result of double taxation of decedents' estates. And see Matter of Ramsdill, discussed above. But with these equitable limitations the executors of nonresidents will be held strictly to the liability imposed by the act, nor will they be held excusable either by reason of the distribution of the estate {Matter of Racket, 14 Misc. 282), nor on the ground of ignorance of the law {Matter of Piatt, 8 Misc.' 144), nor of hardship to the legatee. Ihid. § 884. Collection by district attorney. — This is covered by § 235, g. v., which it is unnecessary to quote. He may not act (a) Until the expiry of eighteen months of the accrual of the tax. (6) The neglect or refusal of the persons liable therefor to pay. (c) After notification of that fact from the comptroller. {d) Upon application to Surrogate for a citation. § 885. Refunding tax. — It quite frequently happens that after the payment of the tax has been made, through a reversal of the order fixing tax, or otherwise, the parties making payment become entitled to some rebate. See Matter of Campbell, 50 Misc. 485; Matter of Willets, 51 Misc. 176; 119 App. Div. 119. But Surrogate may refuse to order the refund of a tax voluntarily paid, i. e., not under mistake, etc. Matter of Mather, 41 Misc. 414. It often occurs, too, that through a desire on the part of the representatives of the estate to take advantage of the five per cent rebate clause a payment is made to the comptroller before a proceeding is brought, which payment is afterward found to have been too large. For such cases as these § 225 provides as follows: If any debts shall be proven against the estate of a decedent after the pay- ment of any legacy or distributive share thereof, from which any such tax THE TRANSFER TAX PROCEDURE 917 has been deducted or upon which it has been paid by the person entitled to such legacy or distributive share, and such person is required by order of the surrogate having jurisdiction, on notice to the state comptroller, to refund the amount of such debts or any part thereof, an equitable proportion of the tax shall be repaid to him by the executor, administrator or trustee, if the tax has not been paid to the state comptroller or county treasurer, or if such tax has been paid to such state comptroller or county treasurer such officer shall refund out of the funds in his hands or custody to the credit of such taxes such equitable proportion of the tax, and credit himself with the same in the account required to be rendered by him under this article. If after the payment of any tax in pursuance of an order fixing such tax, made by the surrogate having jurisdiction, such order be modified or reversed within two years from and after the date of entry of the order fixing the tax, on due notice to the state comptroller, the state comptroller shall refund or direct the refund of the excess tax, but without interest. However, in Matter of O'Berry, 179 N. Y. 285, the Court of Appeals (see opinion) held that if the order was reversed because the law was unconsti- tutional, and this would extend to any order made without jurisdiction, the estate is entitled to recover the tax paid, with interest. See Matter of Hoople, 179 N. Y. 308, where Werner reviews this statute and holds the right to a refund to be a privilege and not a vested right. Hence the lim- itation of time will be strictly applied. It is further provided, "no appli- cation for such refund shall be made after one year from such reversal or modification." The act is self-operative. The comptroller is directed by the section to refund. He need not await an order from Surrogate. Matter of Cameron, 97 App. Div. 436. It was held in Matter of Sherar, 25 Misc. 138, that, under the section in question, the Surrogate had the right to direct that a portion of the tax, which, in that case, had been paid, be refunded because of the fact that certain notes held by the decedent at the time of his death and valued at par for the purpose of fixing the tax, proved to be worthless, and this, even though the application were not made within two years after the entry of the order fixing the tax, the Surrogate holding that the two years' provision did not cover the precise case in question. In Matter of Coogan, 27 Misc. 563; 162 N. Y. 613, certain United States bonds had been taxed in a transfer tax proceeding and the tax thereon paid. Four years thereafter, the courts having, in the meanwhile, de- clared that under the law as it then existed, United States bonds were not properly taxable, an application was made to the comptroller under the section in question for a refund of the tax on these bonds. No appeal had been taken from the original order fixing tax and it was contended by the comptroller that, the time to appeal having expired, there was no remedy for the parties who had paid the tax. The court held, however, that the order fixing the tax in question was absolutely void for lack of jurisdic- tion and granted a mandamus against the comptroller directing him to refund the tax. Where the tax still remains in the hands of the county 918 surrogates' courts treasurer, the Surrogate has the power to direct him to refund it and it is only in a case of payment into the state treasury that the state comp- troller is given that authority. Matter of Park, 8 Misc. 550. See also discussion in previous section as to modifying or vacating appraisal, and see Matter of Backhouse, 110 App. Div. 737; Matter of Scrimgeour, 175 N. Y. 507. § 886. Surrogate's power to tax amount of debts erroneously deducted. — ^There is, at the end of § 225 an additional reserved right of review or reappraisal, which reads as follows: Where it shall be proved to the satisfaction of the surrogate who has assessed the tax upon the transfer of property under this article, that deductions for debts were allowed upon the appraisal, since proved to have been erroneously allowed, it shall be lawful for such surrogate to enter an order assessing the tax upon the amount wrongfully or erroneously deducted. The proof of this state of facts will probably only be available after the accounting. § 887. Postponement of pa3rment. — The liability to pay the tax is a liability that continues until the tax has been paid; and the tax remains a lien upon the property transferred until payment. See § 222 and Mat- ter of Winters, 21 Misc. 552. But no person can be compelled to pay the tax until notice has been given him as provided for by the law and he has had the opportunity contemplated by the statute to be heard, upon which hearing he may allege any reason whatever which shows that he ought not to pay it. Matter of McPherson, 104 N. Y. 306. § 888. Reaching the property.— In the early history of the Transfer Tax Law it was not foreseen how far-reaching the decisions would be, nor that the estates of nonresidents would be so largely concerned in the law. A goodly portion of the transfer taxes, by reason of the decisions of our courts, are now being collected from estates of nonresident decedents. While the law creates a lien of the tax on the property itself, it also, as has been seen, makes both the beneficiary and the executor or adminis- trator liable for its payment. In cases, however, where the only assets of a nonresident decedent, which are subject to tax, are stocks in New York corporations, and where the executors and beneficiaries of the es- tate are not within the jurisdiction of the State, it can be seen that in the absence of any further provision, the payment of the tax could readily be evaded. To meet this situation § 227 now provides with much detail: If a foreign executor, administrator or trustee shall assign or transfer any stock or obligations in this State standing in the name of a decedent, or in trust for a decedent, liable to any such tax, the tax shall be paid to the state comp- troller or the treasurer of the proper county on the transfer thereof. No safe deposit company, trust company, corporation, bank or other in- stitution, person or persons having in possession or under control securities, deposits or other assets belonging to or standing in the name of a decedent THE TRANSFER TAX PROCEDURE 919 who was a resident or non-resident, or belonging to, or standing in the joint names of such a decedent and one or more persons, including the shares of the capital stock of, or other interests in, the safe deposit company, trust com- pany, corporation, bank or other institution making the delivery or transfer herein provided, shall deliver or transfer the same to the executors, adminis- trators or legal representatives of said decedent, or to the survivor or survivors when held in the joint names of a decedent and one or more persons or upon their order or request, unless notice of the time and place of such intended deUvery or transfer be served upon the state comptroller at least ten days prior to said delivery or transfer; nor shall any such safe deposit company, trust company, corporation, bank or other institution, person or persons deliver or transfer any securities, deposits or other assets belonging to or standing in the name of a decedent, or belonging to, or standing in the joint names of a decedent and one or more persons, including the shares of the capital stock of, or other interests in, the safe deposit company, trust company, corporation, bank or other institution, making the delivery or transfer, with- out retaining a sufficient portion or amount thereof to pay any tax and in- terest which may thereafter be assessed on account of the delivery or transfer of such securities, deposits, or other assets including the shares of the capital stock of, or other interests in, the safe deposit company, trust company, cor- poration, bank or other institution making the delivery or transfer, under the provisions of this article, unless the state comptroller consents thereto in writing. And it shall be lawful for the said state comptroller, personally, or by repre- sentative, to examine said securities, deposits or assets at the time of such de- livery or transfer. Failure to serve such notice or failure to allow such examination, or failure to retain a sufficient portion or amount to pay such tax and interest as herein provided, shall render said safe deposit company, trust company, corporation, bank or other institution, person or persons Uable to the payment of the amount of the tax and interest due or thereafter to become due upon said securities, deposits or other assets, including the shares of the capital stock of, or other interests in, the safe deposit company, trust company, corporation, bank or other institution, making the delivery or transfer, and in addition thereto, a penalty of one thousand dollars; and the payment of such tax and interest thereon, or of the penalty above prescribed or both, may be enforced in an action brought by the state comptroller in any court of competent jurisdiction. § 889. Form of affidavit by executor as to amount of decedent's es- tate. — It will be recalled that upon offering a will for probate an affidavit as to the decedent's property is required to be filed. That which must be submitted to the appraiser must be more in detail. It may be sub- stantially as follows: 920 surrogates' courts Affidavit of ex- ecutor or admin- istrator of dece- dent or their agent as to assets, and liabilities of the de- ceased to persons entitled to his es- tate. Surrogate's Court, County of Title. State of New York, 1 Borough of Manhattan, > ss. : City and County of New York. ) being duly sworn says: I. That he is one of the executors of the last will and testa- ment (or administrator of the goods, chattels and credits) of deceased. II. That the said decedent died at State of on the day of 19 and was at the time of his death a resident of the State of New York. III. That the will of said decedent was thereafter and on the day of 19 duly proved before the Surrogate of County and letters testamentary were thereupon duly issued to deponent and IV. That the decedent died seized and possessed of the following property, real and personal. (Then follows item- ized list of assets as follows :) Real Property. Locality. Street No. Assessed Value. Actual Value. Personal Property. Nature. I Pah Value. | Actual Value. V. Said decedent at the time of his death, to the best of deponent's knowledge, died seized and possessed of no other property, real or personal, nor did he, prior to his death, make any transfer of property by deed, grant, bargain, sale or gift, in contemplation of death or intended to take effect at or after such death. [If known to have done so, recite it;; for if afterwards discovered, the executor is Uable.] VI. The following is a list of all debts and estimated ex- penses of administration : Sworn to before me this ) day of 19 \ (But if the decedent be a non-resident of the State of New York, after paragraph II which should, of course, give the place of residence of the decedent at the time of his death, use the following paragraphs:) III. That the only property within the State of New York owned by decedent at the time of his death and the only stock in New York corporations were as follows : THE TRANSFER TAX PROCEDURE 921 IV. That at the time of his death the decedent was not engaged in any business in the State of New York, had no capital invested therein, had no bonds of the United States, or of any corporations or individuals on deposit in the State of New York, nor bank or trust company deposit within said State, nor was he at that time possessed of any other personal property in said State, nor of any stock in New York corpora- tions, than as above set forth, nor did decedent die seized of any real estate other than that above mentioned. V. To the best of deponent's knowledge, said decedent made no transfer of property in this State by deed, grant, bargain, sale or gift, in contemplation of his death, or in- tended to take effect in possession or enjoyment at or after such death. VI. That a copy of the last will and testament of said decedent (together with the copy of the inventory of his estate, if any made) is hereto annexed and marked and made a part hereof. VII. That the ages of the beneficiaries under the last will and testament of said decedent who are entitled to estates for life in all or in a part of the estate of said decedent, are as follows: (Here insert details.) Note. Use if con- {Note.) VIII. That the executor of said decedent avaiUng ditions admit. See himself of the privilege allowed by law has appropriated the Matter of James, 144 property of said decedent within the State of New York N. Y. 6. to form a part of the residuary estate of said decedent which passed under the will to the following names persons : (Here insert Ust of residuary legatees with their post-office ad- dresses.) (Jurat.) {This should be made before an officer duly authorized, whose signature is to be certified in such manner as to entitle the af- fidavit to he read in evidence in the courts of the State of New York.) IX. That the entire estate of said decedent amounted, at the time of his death, to f and that the following is a list of all debts and expenses of administration: § 890. The receipt. — Section 236 of the Tax Law provides for the procuring from the state comptroller, by any person of a copy of the re- ceipt given to the executor for the payment of the tax. And of course the one paying the tax is entitled to duplicate receipts. It also provides that: "any person shall upon the payment of fifty cents be entitled to a certificate of the State Comptroller that the tax upon the transfer of any real estate of which any decedent died seized has been paid." The sec- tion also provides that such certificate shall designate the real property upon which such tax is paid, the name of the person so paying the same and whether the payment is "in full of such tax." Then it is provided that the certificate may be recorded in the office of the county clerk or 922 surrogates' courts register of the county where such real property is situate, in a book to be kept by him for that purpose, which shall be labeled "Transfer Tax." According, if the title to property of a decedent is being searched on a proposed sale thereof the lien of the tax, imposed upon the property Tinder § 224 of the Tax Law, which would be revealed by the fact of the owner's death and by title being tendered by his heirs or executors, is met and obviated by the record of the certificate identifying the property and showing the amount of the tax paid, and which certificate can be searched for in a book exclusively devoted to Transfer Tax matters. § 891. Expectant interests. — Section 230 is discussed in the text-books on the Transfer Tax Law. We do not quote it in full. The general scheme of the article is to facilitate the immediate clearing up of the tax, while safeguarding the rights of remainder interests when, by reason of condi- tions or contingencies, the fair market value is not presently ascertainable, or where the rate of tax may vary. The rule is the tax accrues "at the time of the transfer." The excep- tion is as to transfers limited, conditional, dependent or determinable upon the happening of any contingency or future events" by reason of which the fair market value is not determinable as of such "time of the transfer." In such eases it accrues when the beneficiary gets possession or enjoyment (§ 222.) But both State and estate may be equally interested in having the tax fixed and paid. If they are, there is no difficulty as to immediate interests being appraised. That is, a life estate will be computed by the Superin- tendent of Insurance (§ 230). The future estate may be compounded un- der § 233. If the life estate, at the time of appraisal, has actually ended, as where a widow having an expectancy of x years has already deceased, that es- tate may properly be appraised and computed on the actual duration and not the theoretical expectancy. See Matter of Hall, 36 Misc. 618, Thomas, Surr., disapproving Matter of Jones, 28 Misc. 356, when the mortality tables were held to govern. The rule cuts both ways: the shorter the in- termediate estate, the less is the diminution of the remainder. If the life tenant is exempt and the remainder taxable at five per cent the comp- troller's representative may have views not suggested to his mind where the life estate would have to pay five per cent and the remainder be exempt. § 892. Same— Full value taxed.— Section 230 further, in effect, pro- vides that the possible abridgment, defeasance or diminution of any estate or interest, when there are persons .... presently entitled to the beneficial enjoyment of possession, shall not work any diminution of the "fair market value." But, if the incumbrance or other contingent diminution in value actually occurs then a return of the tax, pro tanto, can be had under § 225. Section 230 also provides: When property is transferred in trust or otherwise, and the rights, interest THE TRANSFER TAX PROCEDURE 923 or estates of the transferees are dependent upon contingencies or conditions •whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith by the executors or trustees out of the property transferred ; provided, however, that on the happening of any contingency whereby the said property, or any part thereof, is transferred to a person or corporation exempt from taxation under the provisions of this article, or to any person taxable at a rate less than the rate imposed and paid, such person or corpora- tion shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount which said person or corporation should pay under the provisions of this article, with legal interest thereon from the time of payment. Such return of overpayment shall be made in the manner provided by section two hundred and twenty-five of this arti- cle. This is clear and explicit. Then follows a provision, which was enacted substantially in 1897, ch. 284, omitted in ch. 76, Laws of 1899, and restored in 1901, ch. 493. As now amended, ch. 368, Laws of 1905, and re-enacted in the Consolidated Laws, it reads as follows: Estates in expectancy which are contingent or defeasible and in which pro- ceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abeyance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the ben- eficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for purposes of taxation upon which said estates in expectancy may have been limited. Where an estate for life or for years can be divested by the act or omission of the leg- atee or devisee it shall be taxed as if there were no possibility of such divesting. Prior to the amendment of 1899, therefore, contingent future estates were not taxable until they vested in possession. Matter of Hoffman, 143 N. Y. 327; Matter of Curtis, 142 N. Y. 219. The object of the amend- ment stated was clearly to secure a payment of tax in the cases of such contingent estates, immediately upon the death of the decedent, by whose will these estates were created. The courts, at first, did not give this construction to the law as amended. Thus, where property was given to a brother for life with privilege to use as much of the principal as might be necessary, then over, the court held that, as it could not be determined how much of the principal the life tenant would use until his death, the clear market value of the property to be transferred to the remaindermen could not be ascertained until then, and such remainder was not presently taxable. The same interpretation of the amended law was given in Matter of Plum, 37 Misc. 466, and Matter of Howell, 34 Misc. 432; and in Matter of Vanderbilt, 68 App. Div. 27. The case last cited was reversed by a divided court, see 172 N. Y. 69, but in the Matter of Brez, 172 N. Y. 15, the court discusses the Vanderbilt case, and the provision for payment of 924 surrogates' courts the tax at the highest rate, subject to a refund later for cause shown, and suggests further legislation looking at a first assessment at the lowest rate subject to increase later for cause shown. In Estate of Ogden Goelet, reported in the New York Law Journal of July 19, 1901, the question of the construction of this clause was in- volved. In this case testator died in August, 1897, leaving a will by which he gave one-half of his residuary estate to a trustee for his son, directing such trustee to pay to the son upon his reaching twenty-one years of age, the sum of $500,000 on account of his share in the residuary estate. A proceeding was brought soon after decedent's death to fix the tax on the estate and the appraiser in that proceeding fixed and taxed the value of the $500,000 legacy for the period intervening between the death of the testator and the son's majority, but reported that the remainder was not then taxable. Upon the son's reaching twenty-one years of age the executors asked the court to make an order fixing the tax upon the re- mainder interest in the sum in question at the value theretofore fixed by the appraiser, the executor contending that the Laws of 1899 and not the Laws of 1897 prevailed. The court, however, fixed the tax as pro- vided for by the Laws of 1897, holding that the estate transferred to the son must be assessed at the full value of the trust fund undiminished by the value of the estate during the minority of the legatee. A slightly different question involving the construction of this act arose in Estate of James Connolly, New York Law Journal, July 26, 1902. Here the decedent died in 1892, before the existence of any act taxing remainders at their full undiminished value. The estate went to the wife for life and upon her death to the testator's children then surviving. A proceeding was brought in 1895 to determine the tax, and the interests of the remaindermen were declared to be not then ascertainable. The widow died in 1901, and an application was then made to fix the tax on the remainders. While con-ceding that if the tax on the remainders had been fixed in 1895, the value of the life estate would first have to be de- ducted, and while expressing some doubt as to the constitutionality of the amended law so far as it attempted to affect an estate created prior to the passage of such amendments (see Matter of Pell, 171 N. Y. 48), the Surrogate asserted the rule to be a wholesome one that a law should not be declared unconstitutional by a court of first instance and taxed the remainders at their full undiminished value. See also Matter of Hosack, N. Y. Law Journal, October 30, 1902. § 893. Inequality of the law — The burden of the tax. — It is com- petent for a testator to direct his executors to pay all succession taxes out of his estate. Jackson v. Tailer, 41 Misc. 36, is not to the contrary. There the will provided that legacies be paid "without any rebate or re- duction whatever." It "was held that as there was no such tax law then, testator did not contemplate this tax on the several shares; implying if the law had been in force the direction was valid. Matter of Gihon, 169 THE TRANSFER TAX PROCEDURE 925 N. Y. 443, points out that the only effect is to increase each legacy by the amount of the tax. But when the will is silent, the question, so far as these intermediate and future estates is concerned, is whether the tax, which is payable forthwith by the trustees or executors, is to be charged to principal or income. Section 230 says ". . . . 'payable forthwith' .... out of the property transferred." See Matter of VanderUlt, 172 N. Y. 69; Matter of Tracy, 179 N. Y. 501; Matter of Bass, 57 Misc. 531. Legacy of income of a trust fund. Tax paid out of principal. But so is the tax on the remainder, -Ufhich has to be paid "at the highest rate." The life tenant, say an annuitant, has his income docked each year by a proportionate share of the tax, as per his expectation of life. Matter of Tracy, supra, and his income is also dimin- ished by the principal being diminished by the five per cent tax. The re- fund is made after the life tenant is dead, and the injustice of the scheme is pointed out in Matter of VanderUlt, supra. CHAPTER VI PAYMENT OP LEGACIES § 894. Carrying out the will. — The Statute of Distribution divides an intestate's estate. But, in cases of testacy, the executor has an instru- ment which governs distribution. Having ascertained the quantum of the estate, and liquidated all claims against it, the provisions of the will as to legacies being operative, both the executor and the beneficiaries be- come interested in the questions that arise as to payment, in full or in part, of these bequests. § 895. Payment of legacies. — ^The general provisions of the Code as tO' payment of legacies are contained in § 2721, which is as follows: No legacy shall be paid by any executor or administrator until after the ex- piration of one year from the time of granting letters testamentary or of admin- istration, unless directed by the will to be sooner paid. If directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned, that if debts against the de- ceased duly appear, and there are not other assets to pay the same, and no other assets sufficient to pay other legacies, then the legatees will refund the legacy so paid, or such ratable portion thereof with the other legatees, as may be necessary for the payment of such debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee, and that if the probate of the will, under which such legacy is paid, be revoked, or the will declared void, that such legatee will refund the whole of such legacy, with interest, to the executor or administrator entitled thereto. After the expiration of one year, the executors or administrators must dis- charge the specific legacies bequeathed by the will and pay the general lega- cies, if there be assets. If there are not sufficient assets, then an abatement of the general legacies must be made in equal proportions. Such payment shall be enforced by the surrogate in the same manner as the return of an inventory, and by a suit on the bond of such executor or administrator whenever directed by the surrogate. § 2721, Code Civil Proc. [Italics for purposes of emphasis merely] § 896. What is a legacy? — A legacy is a disposition of personal property by will. The property may be testator's or he may have a right to dis- pose of it. In either case his testamentary disposition of it, directly or under a power, creates a legacy. See Isham v. N. Y. Assn., etc., 177 N. Y. 218. § 897. The legatee. — The legatee is the person whom the testator specifies as the recipient of his testamentary bounty. It is not "the per- 926 PAYMENT OF LEGACIES 927 son entitled to the legacy." An assignee might be that. Or a receiver, or trustee in bankruptcy. The distinction is not always material under this chapter. Of course the representative must, at his peril, pay the per- son entitled to receive it. He must therefore recognize a proper power of attorney. Anderson v. Fry, 116 App. Div. 740; see cases on p. 742; Lahn v. Sullivan, 116 App. Div. 609. The question of identity is the one of practical moment. It arises where there is a misnomer, as frequently happens, of some charitable institution. § 898. Specific and general legacies. — Section 2721 gives a prefer- ence to specific legacies bequeathed by the will over general legacies. Specific legacies must first be paid. That means that, if there be a de- ficiency of assets, the general legacies will first be subject to abatement. Matter of Matthews, 122 App. Div. 605. Specific legacies were originally of two kinds, the first being where a certain chattel was particularly de- scribed and distinguished from all others of the same species, as, " I give the diamond ring presented to me by A." Such a legacy can be satisfied only by the delivery of the identical ring. The second was where a chattel of a certain kind was bequeathed without any distinction of it as an in- dividual chattel, as, "I give a diamond ring." Such a legacy could be fulfilled by the delivery of anything of the same kind. The only specific legacy now recognized is that first above mentioned. A bequest of a sum of money or of a sum in government securities, must be taken as a legacy of quantity and is therefore a general legacy notwithstanding the testator may have a greater or an exact quantity of the specific security at the date of his will. See Matter of Hadden, 1 Connoly, 306; Spencer v. Hay Library Assn., 36 Misc. 393, 395, citing Tifft v. Porter, below; Holt v. Jex, 48 Hun, 528; Newton v. Stanley, 28 N. Y. 61; Brundage v. Brundage, 60 N. Y. 544; Matt^ of Van Vliet, 5 Misc. 169. A general legacy is a gift of personal property, by a last will and testa- ment, not amounting to a bequest of a particular thing or money, or of a particular fund designated from all others of the same kind. Crawford V. McCarthy, 159 N. Y. 514, 519. A specific legacy is a bequest of a speci- fied part of a testator's personal estate, distinguished from all others of the same kind. Ibid. Thus a legacy of $1,500 is general, while a legacy of the proceeds of a bond and mortgage for $1,500, identified by descrip- tion, is specific. Matter of Robinson, 37 Misc. 336; Walton v. Walton, 7 Johns. Ch. 258; Fenton v. Fenton, 35 Misc. 479; Matter of Reynolds, 124 N. Y. 388; Ball v. Dixon, 83 Hun, 344. Whether a legacy shall be con- sidered specific depends upon testator's intent as expressed in the will, construed in the light thrown upon it in the rest of the will. Cramer v. Cramer, 35 Misc. 17, 19; Davis v. Crandall, 101 N. Y. 319; Matter of Mitch- ell, 61 Hun, 372; Matter of Hastings, 6 Dem. 307. The word "my" preceding the words "government security, stock or annuity," has been held, however, to render the legacy a specific legacy. See Walton v. Walton, 7 Johns. Ch. 258. See opinion of Kent, Chan. On the other hand, a legacy is general when it is so given as not to amount 928 SUKBOGATES' COURTS to a bequest of a particular thing or money of the testator distinguished from all others of the same kind. See Tifft v. Porter, 8 N. Y. 516, citing Wms. on Ex. 838. To make a legacy specific, therefore, its terms must clearly require such a construction. The reason for this is that the pre- sumption is stronger, that a testator intends some benefit to a legatee, than, that he intends to benefit only upon the collateral condition, that he shoald remain till death the owner of the property bequeathed. New- ■ton V. Stanley, 28 N. Y. 61, 66. § 899. Importance of distinction. — This appears from the different status as to rights and remedies of the two kinds of legatee. A is legatee of "my diamond stud." That gives him no general or undivided interest in the estate. Thus he cannot compel an accounting, if his legacy is with- held. His remedy is replevin. Matter of Egan, 89 App. Div. 565. The importance of the distinction between specific and general legacies lies in the further fact, that an executor as such takes the unqualified legal title of all personalty not specifically bequeathed, and he holds such personalty not in his own right but as a trustee for the benefit, first, of the creditors of the testator, second, of those entitled to distribution under the will, or third, if all the property is not bequeathed of those entitled to distribution under the statute of distributions. See Blood v. Kane, 130 N. Y. 514, 517. On the other hand, as to chattels and choses in action specifically bequeathed, an executor has but a qualified title, to wit: the right to apply them in discharge of debts after and only after first exhausting all other property applicable to that purpose. Ibid. When certain things are mentioned or enumerated in a bequest, followed in the same clause by a more general description, that description is taken to cover only things of a like kind with those mentioned or enumerated. Ludwig v. Bungart, 33 Misc. 177 (rev'l 48 App. Div. not affecting point), citing Jarm. on Wills, 709, note. When articles of personal property are specifically bequeathed they are not to be resorted to for the payment of debts, unless the property not specifically devised or bequeathed is in- sufficient for that purpose. If the testator bequeaths a picture, a particu- lar bond, and a sum of money deposited in a bank, to three legatees, these items are not to be taken for the payment of debts unless the remainder of the estate be found insufficient. Toch v. Toch, 81 Hun, 410, 414. If the specific article is in esse when the will takes effect it is immaterial that testator did not own it when the will was made. Waldov. Hayes, 96 App. Div. 454. Annuities to be paid out of a trust fund created out of testator's personal estate are general and not specific legacies. Turner V. Mather, 86 App. Div. 172. § 900. Specific and demonstrative legacies. — A demonstrative legacy is a bequest of a certain sum of money, stock, or the like, payable out of a particular fund or security. Crawford v. McCarthy, 159 N. Y. 514, 518. The fund on which they are charged must first be applied to their extin- guishment, and the balanee, if any, of such a legacy, not satisfied by such fund, goes in with general legacies. As to such balance, if the residuary PAYMENT OF LEGACIES 929 estate be insufficient, the abatement is pro rata with that of the general legacies. Florence v. Sands, 4 Redf. 210, followed in Matter of Warner, 39 Misc. 432. The advantage which a specific legacy has over a general legacy in regard to the feature above indicated, is in some cases more than outweighed by the fact that a specific legacy is lost in case the subject of it is disposed of by the testator or is extinguished by payment or other- wise in his lifetime. And the courts, therefore, will incline to consider legacies as general rather than specific in order to effect the general inten- tion of the testator that a real benefit should pass to the legatee by his will. Thus where a testator gave and bequeathed "the sum of $1,200 and interest on the same contained in a bond and mortgage," it was held to be the bequest of a certain sum of money and not of the bond and mortgage itself. See Giddings v. Seward, 16 N. Y. 365, 367. Judge Selden observed, that such a legacy was general in the sense that it would not have been regarded as adeemed by the assignment of the bond and mort- gage, or its extinction in the lifetime of the testatrix. And he observed: "It belongs to a peculiar class of legacies, usually termed demonstrative, which partake so far of the nature of specific legacies, that the security referred to in the bequest, if in existence, and belonging to the testator at the time of his death, is set apart as a primary fund for the payment of the legacy." So also a legacy "I give to my wife the sum of $50,000 which may be invested in bank stock, Fort Edward and Wyoming, Iowa, and in bonds." The Court of Appeals held that this legacy was of a sum of money but not specific. Matter of Hodgman, 140 N. Y. 421, 428. See also Booth V. Bapt. Church, 126 N. Y. 215. Judge Finch observed: "It is merely demonstrative. ... It points out the source from which pay- ment was expected to be made, but is to be regarded as a general and not a specific legacy. Citing Giddings v. Seward, and Newton v. Stanley, supra." So, where a will directed executors to set apart sufficient real estate to produce $25,000 a year and to pay yearly to his widow in lieu of dower, the net income up to $25,000 for her life it was held to be a demon- strative legacy. It was also held the trustee could not retain the surplus of any one year to safeguard there being full income in some future year. Spencer v. Spencer, 38 App. Div. 403, 409, 411. A bequest of half a certain promissory note owned by testator is specific. Dams V. Crandall, 101 N. Y. 311. A bequest of $1,000 is general. Matter of Matthews, 122 App. Div. 605. But a direction to sell the note or any other specifically identified property and pay A $1,000 of the proceeds is specific. IMd. If the balance of such proceeds is insufficient, the general legacies abate pro tanto if charged on the land. If not charged and there be no other assets, the general legacies fail. Ibid. The interest in any specific thing bequeathed vests in the legatee upon the assent of the executor. And the assent of the executor once given to a specific legacy vests the interest irrevocably. See Onondaga Trust, etc., Co. V. Price, 87 N. Y. 542, 548; Linthicum v. Caswell, 19 App. Div. 541, 543. This assent may be expressed or implied, and the rule applies al- 59 930 surrogates' courts though the legatee is himself executor. Blood v. Kane, 130 N. Y. 514. When the executor assents to a specific legacy, the legacy ceases to be part of the testator's assets. Matter of Pye, No. 1, 18 App. Div. 306, 308, citing 2 Wms. Exs. (5th km. ed.), m. p. 1242; Hudson v. Reeve, 1 Barb. 89. In case of deficiency of assets to pay the debts the executor cannot prudently or properly give such assent, for the specific legacy is subject to application thereon in behalf of creditors after all other available prop- erty has been applied, but as a general rule a specific legacy vests on the death of the testator so that the legatee is entitled to the income and profits that proceed from it. Matter of Pye, supra, citing 3 Pom. Eq. Juris. § 1130. Where a testator bequeathed a specific amount of bonds and mort- gages, made to him by his daughter who was one of his devisees, to his wife, and charged the payment of such bonds and mortgages upon the devises and bequests made to his daughter in the will, it was held that the legacy was not a specific tegacy but a pecuniary one charged upon land. Dunning v. Dunning, 82 Hun, 462, 466. The mere fact, however, that a legacy is given for a specific purpose does not necessarily give it a prefer- ence as a specific legacy over all others. The mere statement of the pur- pose for which a legacy is given in no manner alters its character. Wet- more V. St. Luke's Hospital, 56 Hun, 313, 322. See Matter of Whiting, 33 Misc. 274. § 901. Legacy based on consideration. — On proof of such a character- istic, a legacy so given has priority over general legacies. The latter are "mere bounty" of the testator. The former are based on an existing, enforceable right. Examples of this kind are legacies in lieu of dower, or to a creditor in payment of a debt. Such legatees are "purchasers." Matter of Woodbury, 40 Misc. 143, and cases at p. 148; Wilmot v. Robinson, 42 Misc. 244. The ratio of value between the right and the legacy is immaterial. Hence, except as against debts, a legacy in lieu of dower, e. g., will be scrupulously guarded. Its existence in a will may be a con- sideration turning the scale in a doubtful case of "equitable conversion." lUd. § 902. Legacy by implication. — To uphold a legacy by implication the inference from the will must be such as to leave no hesitation in the mind of the court, and permit of no other reasonable inference. Brown v. Quintard, 177 N. Y. 75, 84. Bradhurst v. Field, 135 N. Y. 564, applies this to devises: "To devise an estate by implication there must be so strong a probability of such an intention that the contrary cannot be sup- posed." Post V. Hover, 33 N. Y. 594. Since an heir is not to be disin- herited lightly, no implication so operating will be drawn unless by such plain and cogent inference as to be irresistible. Scott v. Guernsey, 48 N. Y. 106; Quinn v. Hardenbrook, 54 N. Y. 83; Lynes v. Townsmd, 33 N. Y. 558; Matter of L. I. L. & T. Co., 92 App. Div. 5, 14. § 903. Legacy to a class. — A gift to a class is a gift of an aggregate sum to a body of persons, uncertain in number, at the time of the gift, to be PAYMENT OF LEGACIES 931 ascertained at a future time, who are all to take in equal, or in some other definite, proportions, the share of each being dependent for its amount upon the ultimate number. Herzog v. Title Co., 177 N. Y. 86, 97, citing Matter of Kimberley, 150 N. Y. 90, 93; Matter of Russell, 168 N. Y. 169. If the number of donees is certain and their several shares certain the legacy is not to a class. Ibid. The importance of determining this question is due to (2 R. S. 66) § 52 as to lapsed legacies in case of gifts to a child or descendant dying before testator leaving issue who survives testator. If the bequest is to a class issue of one of the class who predecease testator will not take under the statute, but only where will clearly so provides. Pimel v. Betje- mann, 183 N. Y. 194. Who belongs to the class is reckoned as of the time of distribution. Gilliam v. Guaranty Trust Co., 186 N. Y. 127, and cases cited at p. 133. § 904. Legacies — How paid. — The primary fund for the payment of debts and legacies is the personal estate; and the land of the testator cannot be resorted to for that purpose, until the personal estate is ex- hausted in the ordinary course of administration and under the authority of the statute. Kingsland v. Murray, 133 N. Y. 170; Smith v. Atherton, 54 Hun, 172. A testator may by his will charge a legacy upon his real estate. See for cases where a legacy is held to be charged upon land, Wellbrook v. Otten, 35 Misc. 459, 463, reviewing Kalbfleisch v. Kalbfleisch, 67 N. Y. 354; Bevan v. Cooper, 72 N. Y. 317; Hoyt v. Hoyt, 85 N. Y. 142; Scott V. Stebbins, 91 N. Y. 605; McCorri v. McCorn, 100 N. Y. 511; Briggs V. Carroll, 117 N. Y. 288; Morris v. Sickly, 133 N. Y. 456; Dunham v. Deraismes, 165 N. Y. 65. Whether this is the effect of the will or not is always a question of the testator's intention as manifested in its terms. Hogan v. Kavanaugh, 138 N. Y. 417, 421; Matter of McKay, 33 Misc. 520; McCorn v. McCorn, supra; Matter of Grotrian, 30 Misc. 23. The very use of the legacy may negative an intent to charge it. Matter of Paddock, 81 App. Div. 267. Or, it may be made to appear by satisfactory proof of extrinsic facts, such as the condition of the estate at time will was made. McManus v. McManus, 179 N. Y. 338; Dunham v. Deraismes, supra. And see opinion and cases cited in Lediger v. Canfield, 78 App. Div. 596. Or from there being a power of sale, for which there appears no other cause or occasion in the will. Taylor v. Dodd, 58 N. Y. 335; Kalbfleisch v. Kalb- fleisch, supra; Matter ofPlummer, 38 Misc. 536. But if whe;i will was made the personalty was adequate, a mere power of sale alone will not charge the realty. Schmidt v. Dimmer, 91 App. Div. 359. But it must always be borne in mind that the claims of creditors of a deceased person are pre- ferred to those of his legatees or devisees, for the only interest in the testator's property which he can transmit to them, is that which remains after the payment of his just debts. Piatt v. Piatt, 105 N. Y. 488; Rosseau V. Bleau, 131 N. Y. 182; Matter of Swart, 2 Silv. 585. See Conkling v. Weatherwax, 173 N. Y. 43. Here A gave farm or its proceeds to B, after payment of $1,000 therefrom to C. B mortgaged the farm, thus accepting 932 surrogates' courts the devise, and becoming liable to C. Held that the lien of the legacy was prior to that of the mortgage. Residuary legatees are entitled to nothing until the debts and legacies have been paid (Wetmore v. St. Luke's Hospital, 56 Hun, 313), and if legacies have not been charged, and real estate of the testator and the personal estate is insufficient, the legacies must be abated jyro rata. If testator, after making a will, invests his whole estate in real property, that alone will not charge the legacies on such realty. Harvey v. Kennedy, 81 App. Div. 261 ; Schmidt v. Limmer, supra; Morris v. Sickley, 133 N. Y. 456. A bequest of personal property constitutes a legacy re- gardless of the fact whether the bequest is made to a wife in lieu of dower or to a debtor in satisfaction of an indebtedness. Orton v. Orton, 3 Keyes, 486. One claiming his legacy is charged on realty must not only prove intent to charge realty but also an intent so to charge it as to exonerate the per- sonalty. Turner v. Mather, 86 App. Div. 172. Once charged on realty it applies to it all, imless charged specifically. Hence it may be paid out of proceeds of a suit against elevated railroads for damages to easements appurtenant to such realty. Matter of Levy, 41 Misc. 68. So, recurring to legacies in lieu of dower, the legatee is really a creditor, and if the per- sonalty be insuflBcient may require satisfaction out of realty or its proceeds, as, e. g., upon its sale in partition. Wilmot v. Robinson, 42 Misc. 244. See Orth V. Haggerty, 126 App. Div. 118, for typical case of widow being "put to her election." It is to be remembered that the land to be charged is that testator owns at death, not when will was made. Irwin v. Teller, 188 N. Y. 25. § 905. Petition for pajrment. — Section 2722 of the Code, provides, that a petition may be presented to the Surrogate's Court, praying for a decree directing an executor or administrator to pay petitioner's claim, and that he be cited to show cause why such a decree should not be made: 2. By a person entitled to a legacy, or any other pecuniary provision under the will, or a distributive share, for the payment or satisfaction thereof, or of its just proportional part, at any time after one year has expired since letters were granted. There seems to be no valid reason why an afterborn child, not named in the will, might not have recourse, in a proper case, to this summary remedy and not be remitted to an action. § 906. Legatee's remedies. — A legatee may, if he so desire, sue for his legacy in an action against the executor in his representative capacity. If he is a residuary legatee he must join as defendants all persons inter- ested in the residue {Tonnelle v. Hall, 2 Abb. 205) ; if not, he need not join the other legatees. Cromer v. Pinkney, 3 Barb. Ch. 466. A specific legatee may sue in replevin. Matter of Egan, 89 App. Div. 565. The Supreme Court has concurrent jurisdiction with the Surrogate's Court to enforce the payment of legacies, and if an action is pending under § 1819 of the Code, it will be a bar to proceedings before the Surrogate PAYMENT OF LEGACIES 933 by the same plaintiff to require the defendants to render their account and pay the legacy. Levns v. Moloney, 12 Hun, 207; Pittman v. Johnson, 35 Hun, 41, aff'd 102 N. Y. 742, and cases cited. If, when a suit is begun under § 1819, proceedings have already been instituted in the Surrogate's Court for an account, and to compel the defendant to pay the legacy to the plaintiff, and payment of the amount of the legacy has been made into the Surrogate's Court, such facts would constitute a bar to the action, but it would be in the nature of an affirmative defense and would have to be pleaded as such. Wall v. Bulger, 46 Hun, 346, 348, citing Hendricks v. Decker, 35 Barb. 298; Henderson v. Scott, 32 Hun, 413. The provisions of § 1819 are as follows: If, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor refuses, upon demand, to pay a leg- acy, or distributive share, the person entitled thereto may maintain such an action against him, as the case requires. As to the nature of the action to be brought, and various principles regulating the proceedings and recovery, see Lewis v. Maloney, 12 Hun, 207; Nichols v. Nichols, 12 Hun, 428; Porter v. Kingsbury, 77 N. Y. 164; Brown v. Knapp, 17 Hun, 160; Hoyt v. Hoyt, 17 Hun, 192; Kerr v. Dough- erty, 17 Hun, 341; Eberhardt v. Schuster, 6 Abb. N. C. 141, and Roundle v. Allison, 34 N. Y. 180. When such an action is brought the executor or administrator cannot set up want of assets (see § 1824, Code Civ. Proc); nor is the plaintiff's right to recovery affected by want of assets except with respect to the costs to be awarded as prescribed by law. Ibid. And it is expressly provided that a judgment in such action is not evidence of assets in the defendant's hands. Ibid. The control of the Surrogate over the estate affected by proceedings of this character, although he has no jurisdiction over the action itself, is safeguarded by requiring leave to issue execution upon the judgment obtained against the executor or administrator in his representative ca- pacity to be obtained by order from the Surrogate from whose court the letters issued. See §§ 1825 and 1826, Code Civ. Proc. (already discussed in detail). Where a judgment has been rendered against an executor or administrator, for a legacy or distributive share, the surrogate, before granting an order, per- mitting an execution to be issued thereupon, may, and, in a proper case, must, require the applicant to file in his office, an undertaking to the defendant, in such a sum, and with such sureties, as the surrogate directs, to the effect, that if, after collection of any sum of money by virtue of the execution, the remain- ing assets are not sufficient to pay all the sums, for which the defendant is> chargeable, for expenses, claims entitled to priority as against the apphcant, and the other legacies or distributive shares, of the class to which the appli- cant's claim belongs, the plaintiff will refund to the defendant, the sum so collected, or such ratable part thereof, with the other legatees or representa^ tives of the same class, as is necessary to make up the deficiency. § 1827, Code Civil Proc. 934 SUKKOGATES' COURTS § 907. Same — Proceedings under § 2722. — This is a special proceed- ing, and cannot be brought on by motion, or by order to show cause. Matter of Moran, 58 Misc. 488; Matter of Lyon, 1 Misc. 447; Matter of Hitchler, 21 Misc. 417. Where a person entitled to a legacy or any other pecuniary provision under a will or a distributive share of the estate, presents a petition under § 2722, the Surrogate must issue a citation to the executor or administrator to show cause why a decree should not be made directing him to pay the petitioner's claim. On the return of the citation he must make "such a decree in the prem- ises as justice requires." But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner: 1. When an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely, or on information and belief. 2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction. § 908. Form of the petition. Surrogate's Court, County of Title. \ Petition under | § 2722. To the Surrogate's Court of the county of The petition of respectfully shows to this court and alleges : I. That your petitioner resides at in II. That late of deceased, departed this life leaving his last wiU and testament duly admitted to probate by the Surrogate's Court of the county of by decree duly made and entered on the day of 19 that letters testamentary were issued thereupon on the day of to the executor therein named. III. That by said will a legacy of dollars was be- queathed to your petitioner and that more than one year Note. The legatee, has elapsed since letters were granted, but that payment of if not a specific leg- gaid legacy has not been made to your petitioner by said atee, may combine executor although payment of the same has been duly de- his^'l ^!itSo/'to '"^'^'l^'i- IS app ica ion o ^^ Your petitioner is informed and verily believes from obtam the payment . , ,, , „ . , , ^, i of his legacy an ap- ™® mventory of the personal property of said decedent filed pUcation to ' compel ^y said executor on the day of {or state other the settlement of the source of information, e. g., testimony before transfer tax ap- account of an execu- praiser) ; that said executor has money or other personal prop- PAYMENT OF LEGACIES 935 tor. In such case erty of the estate applicable to the payment or satisfaction an additional allega- of the petitioner's claim suflScient to pay the same and which tion should be in- jjjg^y j^g gg applied without injuriously affecting the rights of serted stating that ^y^g^g entitled to priority or equality of payment or satis- he has not accounted. » ,. ■,! .•,. 4 ri tVi f faction with your petitioner. r f should be en- Wherefore your petitioner prays for a decree of this court lareed by asking directing said executor to pay the petitioner's claim and that that he be directed he be citeS to show cause why such a decree should not be to account. Matter made. (Note.) of Macaulay, 94 N. (Signature.) Y. 574, aff'g 27 Hun, (Verification.) 577. This proceeding is a special proceeding and must begin by petition and citation, not by affidavit and order to show cause. Matter of Moran, 58 Misc. 488. In Matter of Tisdale, 110 App. Div. 857, is presented a case where a legatee (widow — in lieu of dower) was held entitled to an accounting under §§ 2722 and 2725, subd. 3. §909. Who may petition.— The language of §2722 in subd. 2, "A person entitled .... under the will," has been held to confine the benefit of the section to the legatees themselves, and that it cannot be extended to assignees of legatees. Peyser v. Wendt, 2 Dem. 221, 223, 224; Matter of Wood, 38 Misc. 64, and cases cited. But if a legatee who has temporarily divested himself of his right under § 2722 by assigning his legacy, secures a reassignment of the legacy to himself, he will be deemed entitled to make the petition to compel payment of his legacy under this section. Id., p. 226. See also Matter of Brewster, 1 Connoly, 172, 173. Where A assigned to B "all my legacy or legacies of every name and nature," it was held not to include an estate in expectancy vested in A on the death of another remainderman. People's Trust Co. v. Harman, 43 App. Div. 348. The petition must show that there is money or other personal property applicable to the satisfaction of the petitioner's claim, and which may be so applied without injuriously affecting the rights of others entitled to priority of payment or satisfaction. In the absence of such an allegation the facts required under the section could not be said to be proved to the satisfaction of the Surrogate, even in the absence of any answer by the executor or administrator. See Baylis v. Swartwout, 5 Redf. 395. If there are several claimants to the legacy, one claiming under an attachment against the legatee, and another by assignment from such legatee, the Surrogate cannot try their dispute. Matter of Arkenburgh, 38 App. Div. 473; Matter of Grant, 37 Misc. 151. He may, however, determine whether the legacy was in fact assigned. In re Geis, 27 Misc. 490. The Surrogate may in declining to pass on the dispute, and having found that the assignment was made, make a decree directing payment to the assignee, unless the legatee commence an action against him within a reasonable time. Matter of Grant, supra. § 910. The executor's answer. — If the executor or administrator file 936 surrogates' courts a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely or on information and belief, the Surrogate must dismiss the proceedings without prejudice to an action or an ac- counting. § 2722, Code Civ. Proc; Matter of McClouth, 9 Misc. 385, 386, citing Fiester v. Shepard, 92 N. Y. 251; Matter of Stevens, 20 Misc. 159, 160. The answer of the executor must set forth -facts which show that it is doubtful. If the Statute of Limitations has run he should set it up. Mat- ter of Cooper, 51 Misc. 381. If an executor allege that the legatee is in- debted to the estate in a sum larger than the legacy, this will be deemed a sufficient and conclusive answer under the section. Charlick's Estate, 11 Abb. N. C. 56; Smith v. Murray, 1 Dem. 34. So where an executor alleges payment of the legacy, it will be held a sufficient denial. Mumford V. Coddington, 1 Dem. 27. So where residuary legatees apply to compel a trustee under the will to pay the balance of their legacies alleged to have been retained by him in the form of commissions, and the answer denies the validity and legality of the claim, it was held that the petition was properly dismissed. Hurlburt v. Durant, 88 N. Y. 121. So where the petitioner was a religious corporation and the executor filed a verified answer showing that it was uncertain that the petitioner was the corpora- tion to which the legacy had been given, and on the further ground that the amount of the legacy was in doubt, it was held that the petition was properly dismissed on the ground that the Surrogate had no power to take proof as to the facts put in issue. Matter of Hedding Meth. Epis. Church, 35 Hun, 315. It is manifest that the object of these provisions of the Code is to es- tablish a mode of procedure whereby a beneficiary imder a will may obtain prompt relief whenever it is plain that the rights of other persons cannot thereby be prejudiced; but it does not extend to where the rights of third parties are involved or it is not shown to the satisfaction of the Surrogate that they will not be prejudiced. The proceeding for the judicial settle- ment of the executor's account in which all these matters can be admin- istered and adjusted, is a preferable one. See Beekman v. Vanderveer, 3 Dem. 221, 225; Riggs v. Cragg, 89 N. Y. 479. In this summary proceeding a legatee may not collaterally attack some prior adjudication defeating, or passing adversely upon, his claim, and which was not appealed from. Hence, the executor may set up such former adjudication in the answer, as in bar. Matter of Stevens, 40 Misc. 377. While proceedings for the judicial settlement of an executor's account are pending a Surrogate will not as a rule decree payment of legacies unless it appears to his satisfaction that some very good and controlling reason or necessity therefor exists. Matter of Harris, 1 Civ. Proc. Rep. 162. Where the executors interpose an answer denying the incorporation of the petitioner and allege its nonincorporation and deny the validity of its claim, the answer is sufficient under § 2722 to require the dismissal of the proceeding. Matter of Young Men's Christian Association, 22 App. Div. PAYMENT OF LEGACIES 937 325, 327, citing Matter of Callahan, 152 N. Y. 320; Fiester v. Shepard, 92 N. Y. 251; Matter of Hammond, 92 Hun, 478. § 911. The order or decree. — ^The form for the decree dismissing the petition can be adapted from the similar decree from the chapter on "The Payment of Debts," as may also the decree in case the executor interposes no defense and the petitioner is successful in his application. § 912. Payment of legacy while proceedings are pending to revoke probate. — When citations have been issued and served in a proceeding to revoke the probate of a will it is provided by § 2650 of the Code, that the executor or administrator with the will annexed must suspend until a decree is made upon the petition, "all proceedings relating to the estate except for the recovery or preservation of property and for the collection and payment of debts and such other acts as he is expressly allowed to perform by an order of the Surrogate made upon notice to the petitioner." The effect of this section has been held merely to restrict the powers of the executor, but not to restrict or. enlarge the powers of the Surrogate. Mat- ter of McGowan, 28 Hun, 246. If the executor desire or is requested to _ perform any act other than those in preservation of property or in collect- ing and paying debts which he could have lawfully performed, had the proceedings to revoke probate not been begun, he can do so only upon application to the Surrogate with notice to the petitioner in the proceed- ings to revoke probate. Consequently the Surrogate is not by means of this section deprived of power to direct payment of a legacy in a proceed- ing brought for that purpose, provided the notice is given to the petitioner in the proceedings to revoke probate, and it appears to his satisfaction that the money or other personal property of the estate may be applied to the payment of the petitioner's claim without injuriously affecting the rights of others. If the petitioner in the proceedings to revoke probate can show the Surrogate that his right would be injuriously affected, the Surrogate will dismiss the petition. But if it appears that the legatee is entitled to the payment of his legacy and that such payment will be with- out prejudice, the Surrogate may direct the payment, but would doubtless in such case require security from the legatee under the provisions of § 2721. See Matter of Hoyt, 31 Hun, 176, 179. The petitioner for revoca- tion may himself petition for payment of an interest in the estate when he can show that in any outcome of the litigation he will be entitled thereto. Matter of Hughes, 41 Misc. 75. In this case Thomas, Surr., points out that he would have the same power under § 2672 if a temporary ad- ministrator had been appointed pending a will contest. See Rank v. Cam-p, 3 Dem. 278. But he has no power to direct payment of a legacy except in the very contingencies expressly provided for by statute. Estate of Riegelmann, 2 Civ. Proc. Rep. 98, and see Riegelman v. Riegelman, 4 Redf. 492, and La Bau v. VanderUlt, 3 Redf . 384, 415, decided before the amendment of § 2672 in 1881. This order comes within the contemplation of § 2650 and its entry relieves the executors pro tanto from the suspension of their powers imposed by that section. Ibid. 938 surrogates' courts § 913. Payment of legacies by temporary administrator.— The Sur- rogate has power by order to direct a temporary administrator to pay a legacy or other pecuniary provision under a will or a distributive share or just proportionate part thereof according to § 2723 (formerly § 2719) as though he were an executor or administrator. § 2672, Code Civ. Proc. This power the Surrogate has both in cases of testacy and intestacy, and as a temporary administrator is appointed usually because of a contest causing delay in the probate of a will, it is clear, collating these sections, that the Surrogate may direct payment of a legacy where the probate of the will is delayed by a contest necessitating the appointment of a tem- porary administrator, or where the powers of the executor or administrator with the will annexed are suspended by virtue of proceedings to revoke probate. See Matter of Hoyt, 31 Hun, 176, 181; Matter of Hughes, 41 Misc. 75. But the power of the Surrogate is always subject to the limitation that the title of the applicant for the legacy or distributive share is un- disputed and free from doubt. Keteltas v. Green, 9 Hun, 599. Conse- quently, when during the pendency of a contest of a will one of the con- testants named as a legatee, and who was also one of the next of kin, made, application for an order directing the payment of a sum of money to be charged against such legacy in case the will was upheld or against such distributive share in case the will was refused probate, the petition was dismissed upon its being made to appear that the will propoimded con- tained a clause providing that any legatee or devisee who should contest its validity "shall forfeit thereby the bequest or devise in his favor." Estate of Grout, 2 How. N. S. 140. The provision in the will being one the testator had a right to make, and the party being a contestant, it was clear that the validity of the claim was doubtful in the event of the will being probated. § 914. Payment on account of legacy for support of indigent legatee. — Where the payment of the legacy is necessary for the support or edu- cation of the petitioner, provision is made by § 2723 for the making of an application for such payment although a year has not expired. The sec- tion is as follows: In a case specified in subdivision second of the last section, the surrogate may in his discretion, entertain the petition, at any time after letters are granted, although a year has not expired. In such a case, if it appears, on the return of the citation, that a decree for payment maj"^ be made, as prescribed in the last section; and that the amount of money and the value of other prop- erty in the hands of the executor or administrator appUcable for the payment of debts, legacies and expenses, exceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecun- iary provision or distributive share, or some part thereof, is necessary for the support or education of the petitioner, the surrogate may, in his discretion, make a decree directing payment or satisfaction accordingly, on the filing of a bond, approved by the surrogate, conditioned as prescribed by law, with re- PAYMENT OF LEGACIES 939 spect to a bond which an executor or administrator with the will annexed may require from a legatee, on payment or satisfaction of a legacy, before the ex- piration of one year from the time when letters were issued, pursuant to a direction to that effect contained in the will. § 2723, Code Civil Proc. Of course this section does not apply to the case of a legacy which is di- rected by the will to be paid wholly or in part within the year. Section 2723 (formerly § 2719) has no reference to cases where the will has made explicit provision. The sole object of that section is to provide that, under certain specified circumstances, an executor may be required to pay a legacy in whole or in part, even before the expiration of a year, and even though the testator had given no direction for early payment provided that such payment is necessary for the support and education of the legatee. See Matter of Selling, 5 Dem. 225. The security required by this section is by way of precaution, and emphasizes the legislative intent that the discretionary power given by this section to the Surrogate should be exercised with great care and caution. See Matter of Austin, 50 Hun, 604. § 915. Same subject — Estimating the estate. — The provision in § 2723 requiring it to be shown that the amount of money and the value of the other property in the hands of the executor or administrator applicable to the payment of debts, legacies, and expenses exceed by at least one-third the amount of all known debts and claims against the estate of all legacies which are entitled to priority over the petitioner's claim and of all legacies or distributive shares in the same class, means simply this: "That the Surrogate must see to it that no payment shall be required of a representative of an estate within the year which shall leave in his hands less than one-third in excess of the claims upon the fund exclusive of that of the petitioner." See Tuttle v. Heiderman, 5 Redf. 199, second opinion, 205. And where the petitioner is entitled only to the interest of a specified sum, the residuary legacies should also be excluded in esti- mating the estate. Lockwood v. Lockwood, 3 Redf. 330, 333. § 916. Support or education of the petitioner. — These words are a distinct limitation on the power of the Surrogate. See Hoyt v. Jackson, 1 Dem. 553. But in determining whether the money applied for is necessary for the support or education of the petitioner or how much is necessary, the court will construe the provisions of the Code liberally. Ibid. It will take into consideration the station in life of the petitioner and of the testator, and, particularly where the petitioners are ultimately entitled substantially to the whole estate of the whole residuary estate, the court will not be astute to deny to the petitioners the present benefit of that which they are ultimately to enjoy. It is perfectly competent in such a case for the Surrogate to refer the matter to a referee to determine the exact condition of the estate, the in- terest of the petitioner, and such other questions as may suggest them- selves, provided the validity of the petitioner's claim is not put in issue. For it is especially provided by § 2723 that he may make the decree "if it 940 surrogates' courts appears on the return day of the citation that a decree for payment may be made as prescribed in the last section." Of course the amount must not exceed the amount to which the peti- tioners will be ultimately entitled. And where the interest of the peti- tioner is the income of a trust fund, the Surrogate must be guided by the amount which the fund is earning at the time the application is made. Hoyt V. Jackson, supra. And the Surrogate should not direct the pay- ment of interest not yet accrued. Lockwood v. Lockwood, 3 Redf. 330. The petitioner in such an application must state facts going to show that the advance is necessary. The word "necessary" in the statute means, necessary with reference to the station in society, the former mode of life and surroundings, and the estate or income to which the applicant has been accustomed, and that to which she will ultimately be entitled. See Lockwood v. Lockwood, 3 Redf. 330, 332; Williamson v. Williamson, 6 Paige, 298. See also Seymour v. Butler, 3 Bradf. 193. § 917. The form of petition. — The petition should be substantially in the following form: Surrogate's Court, County of T, .. . Title. I Petition under J S 2723. To the Surrogate's Court of the county of The petition of respectfully shows to this Court and alleges: I. That your petitioner resides at in II. That late of deceased, departed this life leaving his last will and testament duly admitted to probate by the Surrogate's Court of the county of by decree duly made and entered on the day of 19 that letters testamentary were issued thereupon on the day of to the executor therein named. III. That your petitioner's interest under said will con- sists of a legacy of dollars (_or state character of disposi- tion in the vntt in favor of petitioner, such as for example, life interest in whole estate or whatever it may be). IV. Your petitioner further shows that the payment here- inafter prayed for is necessary for the support {or for the education) of your petitioner, in that your petitioner is with- out other income or means of support (or without adequate income to maintain petitioner in the station of life to which Note. See Loch- gj^g ^yas been habituated) (or, state facts showing that such ad- wood V. Lockwood, 3 . ^ ^i. t-^- i ^\ -kt i vance is necessary to the petitioner s support). Note. V. Your petitioner is informed and verily believes from the inventory of the personal property of the said decedent Note It is cus- ^^^^ ^^ ®^^*^ executor on the day of (or state other tomary for the peti- source of information) ; that the said executor has money or tioner in such case other personal property of the estate apphcable to the pay- to present the bond ment or satisfaction of the petitioner's claim sufficient to PAYMENT OF LEGACIES 941 duly executed with pay the same within the provisions of Section 2723 of the the application. The Code of Civil Procedure, and which may be so applied with- bond must conform ^^^ injuriously affecting the rights of others entitled to prior- to the statute. Its jty or equality of payment or satisfaction with your petitioner. f°° fh'°° f ™d' f Wherefore, your petitioner prays for a decree of the Surro- the monerZ,h2Z- ^^^ ™'^^'^ ^^'<^ ■^^'^'°'' 2732 of the Code of Civil Procedure required and not directing the said executor to pay to the petitioner the sum simply for the pay- of dollars forthwith upon the filing of the bond (note) ment of debts and required by said section, to be approved by the Surrogate legacies. See Barnes and conditioned as therein prescribed, and that said executor V. Barnes, 13 Hun, be cited to show cause why such a decree should not be made. 233. § 918. The bond under § 2723. — ^The bond under this section must be a bond " conditioned as prescribed by law with respect to a bond which an executor or administrator with the will annexed may require from the legatee on payment or satisfaction of the legacy before the expiration of one year from the time when letters were issued pursuant to a direction to that effect contained in the will." In this connection it has been held that a bond conditioned for the refunding of the money "in case it is needed to pay debts and legacies" is defective. See Barnes v. Barnes, 13 Hun, 233, 235. The bond should be conditioned for the return of the money whenever required, which condition may be substantially in the following form: Note. The words Now the condition of this obligation is such (see text below) "whenever required" that if the said the legatee above named, shall refund are intended to pro- ^jjg gj^jj gy^^ of dollars so to be paid as aforesaid with tect the executors interest thereon whenever required (Note), then this obli- any on mgency, gg^^ion to be void, otherwise to remain in full force and virtue, as, for mstance, m „ , , , , ,. , "'^ ^^ extent to which it has been executed. (Note.) III. Here allege prior accountings, if any, by the trustee, and recite any directions made by the Surrogate upon such account- ings and allege compliance therewith. IV. And your petitioner further shows that, e. g., he is about to depart from the United States and to reside abroad TESTAMENTARY TRUSTEES 1019 for a number of years, and it will be impracticable for him to properly attend to the duties of the above trust while so out of the United States (or state other sufficient reasons); Note. See text (""te) (and the persons beneficially interested in the trust fcelow as to what is are all of full age, and their consents, duly acknowledged, and what is not to your petitioner's resignation and discharge are filed here- "sufficient reason." with). {Note.) V. And your petitioner accordingly desires to render his account of all his proceedings as trustee under the last will and testament of said deceased, and to pay over such moneys and deliver over such property constituting such trust as he may upon such accounting be lawfully charged with, to the person by law entitled to be paid or to receive the same. VI. That all the persons who are entitled, absolutely or contingently, by the terms of the will, or by operation of law, to share in the fund or estate or the proceeds of any property held by the petitioner as a part of his trust are : Note. See Estate of Phillips, 2 Law Bull. 45. Wherefore your petitioner prays that his account be judi- cially settled, that a decree may thereupon be made allowing your petitioner to resign his trust and discharging him ac- cordingly, and that the said and and may be cited to attend such settlement and to show cause why such a decree should not be made. ' Dated the day of 19 (Signature.) (Verification.) The courts have been disinclined to accept resignations of trusts created "by will, and the words "the Surrogate must first determine whether sufficient reasons exist for granting the prayer of the petition" have been somewhat strictly observed. Leave to resign was refused upon a petition alleging that the trustee was " too busy with her own private matters and no longer desires to be busied " with her trust. Baier v. Baier, 4 Dem. 162. In this case the cestuis que trustent opposed the application, and in such cases the Surrogate will emphasize the rule as to "sufficient reason." The mere fact that the testator contemplated the removal or resignation of one or more trustees appointed by his will does not lessen this burden ■of showing sufficient reason. Cruger'y. Halliday, 11 Paige, 314. 1020 surrogates' courts In Tilden v. Fiske, 4 Dem. 357, it appeared that the petitioning trustee had been actively discharging the trust for sixteen years; that the trust was nearly executed; that he was going abroad to live, and could not longer devote himself to it, and that his resignation would not be likely to embarrass the further execution of the trust. Held, that sufficient reasons existed under § 2814. So where a trustee who had never actively assumed the duties of the trust, all of which had been discharged by his cotrustees, Calvin, Surr., acting under ch. 359, I-. 1870, § 3, discharged the trustee on the ground the estate would not be jeopardized by his removal, and he seemed "to be unnecessary to its security." Where a trustee has accepted a trust and a legacy given upon condition he should execute it, his reasons for resigning must be clear and convincing. Craig v. Craig, 3 Barb. Ch. 76. The application for leave to resign not being an incident of the trust, the trustee must pay his own counsel fee in the proceeding. Matter of Freygang, 3 Law Bull. 60. A resignation of a testamentary trustee for "sufficient reasons" does not disentitle him to his lawful commissions. Matter of Allen, 96 N. Y. 327, 331. See post, svh Accountings. But the granting of compensation in such case is within the court's discretion and cannot be claimed as of course, as if the trusts had been fully executed. Ibid., and see Matter of Baker, 35 Hun, 272. The words "lawful commissions" above used in connection with the voluntarily retiring testamentary trustee, of course means such commis- sions as the court may properly grant. The Allen case, however, is one in which the record shows that the Gen- eral Term denied the resigning trustee the one-half commissions on the principal, but granted full commissions on income received and paid out. The reason underlying this decision is that a succession of resigning trus- tees might seriously deplete the estate. In Johnson v. Bell (not reported). Judge Bischoff made a decree of the same kind on the ground that whatever the discretion of the court as to allowing commissions on income, yet where the trustee puts the estate tO' expense by proceedings in the way of resignation, the court has no dis- cretion to give commission on the corpus, and in case of resignation the elementary condition of the acceptance should be that the trustee should forego such commissions. Such a rule, of course, is in the interest of the beneficiaries, however inequitable its enforcement may seem as against one who in good faith proposes his resignation in order that the trust may be more faithfully administered by someone else. As a matter of fact, in practice, such commissions are frequently allowed. If the petition is entertained, and the Surrogate has first determined " whether sufiicient reasons exist " then an order is to be made and entered, allowing petitioner to account. Where the proceeding is on consent of adult parties, the entertaining of the petition might seem to dispense with such order, if, as is not infra- TESTAMENTARY TRUSTEES 1021 quently the practice, the petition and consents are accompanied by a proper account to which the consents explicitly relate and allege their ap- proval. § 988. Petition for security from testamentary trustee. Any person, beneficially interested in the execution of the trust, may pre- sent to the surrogate's court a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, re- specting a testamentary trustee, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as execu- tor in a will, would make it necessary for such a person to give security, in order to entitle himself to letters; and praying for a decree, directing the testa- mentary trustee to give security for the performance of his trust ; and that he may be cited to show cause, why such a decree should not be made. Upon the presentation of such a petition, the surrogate must issue a citation ^ accordingly. Upon the return of the citation, a decree, requiring the testamentary trustee to give such security, may be made, in a case where a person so named as executor can entitle himself to letters testamentary, only by giving a bond; but not otherwise. § 2815, Code Civil Proc. The first paragraph of this section refers to § 2638, discussed in part IV, eh. 1, and makes applicable the decisions collated in that connection, q. v. This section covers both sole trustees and cotrustees. Where there are several trustees, the application under this section may be made as to any- one, and he must satisfy the Surrogate of his qualifications irrespective of those of his cotrustees. Matter of Sears, 5 Dem. 497. Their solvency and responsibility will not extend to relieving him of the burden of giving a bond. Section 2815, however, has been held to apply only to the trustees named in the will. Matter of Whitehead, 3 Dem. 227, 232. As to other trustees, i. e., those appointed to succeed a removed or resigned trustee, Rollins, Surr., held that of them bonds could be required by a Surrogate whenever necessary. Ibid. See opinion. Moreover, it has been held that § 2815 is not the sole authority whereunder security may be required of a testamen- tary trustee. Where such a trustee applied to have a decree upon ac- counting opened and modified so as to have certain property delivered to him as trustee, it was held proper to require security of him on granting the application. Kelsey v. Van Camp, 3 Dem. 530. The security, given as prescribed in the last section, must be a bond to the same effect,iand in the same form as an executor's bond. Each provision of this chapter, appUcable to the bond of an executor, or to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond, apply to the bond so given, and to the parties thereto. § 2816, Code Civil Proc. § 989. Removal of testamentary trustee. In either of the following cases, a person beneficially interested in the execu- tion of the trust, may present to the surrogate's court a written petition, duly 1022 surrogates' courts verified, setting forth the facts, and praying for a decree removing a testa- mentary trustee from his trust; and that he may be cited to show cause, why such a decree shouWnot be made : 1. Where, if he was named in a will as executor, letters testamentary would not be issued to him, by reason of his personal disqualification or incompetency. 2. Where, by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge, or by reason of other misconduct in the execution of his trust, or dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his trust. 3. Where he has failed to give a bond, as required by a decree, made as prescribed in the last two sections; or has willfully refused, or without good cause neglected, to obey a direction of the surrogate, contained in any other decree, or in an order, made as prescribed in this title; or any provision of law, relating to the discharge of his duty. § 2817, Code Civil Proc. This section assimilates the practice in regard to testamentary trustees to that in cases of executors under § 2685, q. v., ante. It recognizes the status of the trustee as one in whom the testator placed a personal confi- dence, and the same principles obtain, as with executors, in applying the rules as to what constitutes disqualification, improvidence, etc. As to the third subdivision of the section, however, the disregard of a valid order or decree or provision of law, the test is as to the order or decree that it must have been "made as prescribed in this title," and as to the "pro- vision of law" it must relate to the discharge of the trustee's duty. When the trustee is also an executor, his removal as trustee, it has been held, does not of itself terminate his executorship (Deraismes v. Dun- ham, 22 Hun, 86), even where the removal as trustee is on the ground of incompetency due to lunacy. Matter of Wadsworth, 2 BeiTb. Ch. 381. See § 996 and 997, post, discussion of § 2819. Before the Code it was held,' where the cestuis que trustent were of full age, and objected to the incumbent trustee, not upon any of the statutory grounds but on purely personal grounds, that the court would endeavor to be guided by their desire and preference. Ex parte Morgan, 66 N. Y. 618, aff'g 63 Barb. 621. In this case the trustee was not accused of any wrongdoing, and had discharged his trust theretofore with fidelity. This, doubtless, no longer applies except in cases where the trustee is a successor trustee. One whom the testator has personally selected and designated should not be set aside at the mere wish of the beneficiary. Where it does not appear that he is not properly caring for the property in his hands, or that he is in any way imperiling the estate or sacrificing , its interests, no ground is furnished for removing an acting trustee under a will. Baldwin v. Palen, 24 Misc. 170, 176, and cases cited. The allegations of a petition for a removal of a testamentary trustee must be explicit, and must bring the case within the Code provisions. Allegations on information and belief are insufficient. Ferris v. Ferris, 2 Dem. 336. TESTAMENTARY TEUSTEES 102S § 990. Same subject.— The chief object the court keeps in view is the safety of the trust. Misuse of funds or improper investments endanger the trust property. But so also it is held, do hostile and unfriendly rela- tions between a trustee and his cotrustees (Deraismes v. Dunham, 22 Hun, 86), if they are irreconcilable, and make the execution of the trust imprac- ticable, but not if they amount to mere ill-feeling. Russak v. Tobias, 12 Civ. Proc. Rep. 390. For cases on removal of testamentary trustees see: Fraudulent misuse of funds. Hooley v. Gieve, 82 N. Y. 625; Matter of Smith, 7 N. Y. Supp. 327; Ex parte Wiggins, 29 Hun, 271; Matter of Mal- lon, 38 Misc. 27. Improvidence. Matter of Cady, 103 N. Y. 678; 1 Silv. 220. Incompetency. Matter of Cohn, 78 N. Y. 248. Insolvency. Ex parte Paddock, 6 How. Pr. 215. Improper investments. Matter of O'Hara, 62 Hun, 531; Matter of Wotton, 59 App. Div. 584. Disregard of the trust. Hatton v. McFaddon, 15 N. Y. St. Rep. 124; Matter of Havemeyer, 3 App. Div. 519; Matter of McKeon, 37 Misc. 658. So the passive acquiescence or negligent indifference of a trustee as tO' his cotrustees' misuse of the trust moneys is good ground for his removal. Matter of Mallon, supra. So also dissensions between cotrustees to such an extent as to imperil the trust, or obstruct proper administration is proper ground for removing the offending trustee. Deraismes v. Dunham, 22 Hun, 86; Quackenboss v. Southwick, 41 N. Y. Ill; Oliver v. Frisbie, 3 Dem. 122. The Appellate Division may review the Surrogate's action in removing- a testamentary trustee; but no appeal will lie to the Court of Appeals if it affirms his action, in cases where there is evidence to sustain his de- cision. Matter of McGillivray, 138 N. Y. 308. § 991. Investments by trustee. — The substantive law as to what in- vestments a testamentary trustee may properly make is carefully stated,^ and the cases discussed and digested in Mr. Thomas's treatise on the "Law of Estates Created by Will." See vol. I, pp. 741 et seq., and refer- ences. It is also exhaustively covered in the American & English Enc. of Law. For the purposes of a work on practice, it may be sufficient to summarize: concisely- the rules. If the will contains mandatory directions as to investment it establishes- for the trustees a positive rule which it is not in their power to disregard without committing a breach of trust. Matter of Irwin, 59 Misc. 143, Thomas, Surr., citing Denike v. Harris, 84 N. Y. 89; Matter of Stewart, 30- App. Div. 371. In the next place, § 111 of Decedent Estate Law is the present source of authority, outside the will. It gives authority to invest the trust funds in the same kind of securities as those in which savings banks of this State are by law authorized to invest. .1024 surrogates' courts The law regulatiifg this is now in the Banking Law, new § 146 and § 147, as re-enacted in Consolidated Laws, ch. 2, q. v. The ultimate consideration is the safety of the trust. The will may either give to the trustee specific securities with directions to hold the same or the proceeds thereof, or it may direct executors to pay a sum of money over to themselves or another in trust to invest and keep invested. Where the will is silent on the subject of the character of investments to be made by the trustee, he will be limited to so-called statutory investments, and any other kind of securities such as stocks in private corporations or of quasi public corporations will be treated as made at his peril and a vio- lation of his trust. The leading case in this State is King v. Talbot, 40 N. Y. 76. From time to time the legislature adds to the list of securities in which savings banks and the representatives of estates of decedents or of infants may invest trust funds. Municipal or railroad securities so having passed the scrutiny of the legislature are considered to come within the legislative intent as to what is required in the way of prudent investments. The New York laws make legal the mortgage bonds of the following railroad corporations: Chicago & Northwestern, Chicago, Burlington & Quincy, Michigan Central, Illinois Central, Pennsylvania, Delaware & Hudson, Delaware, Lackawanna & Western, New York, New Haven & Hartford, Boston & Maine, Chicago & Alton, Morris & Essex, Central of New Jersey, United New Jersey Railroad & Canal, provided the issuing corporation shall have earned and paid regular dividends of not less than 4% on all issues of capital stock for ten years next preceding the invest- ment and provided the capital stock shall equal or exceed one-third of the par value of all bonded indebtedness, and provided further that the bonds shall be secured by first mortgage on either the whole or some part of the property, such mortgage being executed and recorded prior to January 1, 1905; also the mortgage bonds of the Chicago, Milwaukee, St. Paul and Chicago, Rock Island & Pacific Railroads, subject to provisions similar to those preceding. Investment is also authorized in the mortgage bonds of any railroad incorporated in any of the United States, which actually owns in fee not less than 500 miles of standard gauge railway, provided that for five years, next preceding the investment, matured principal and interest has been paid on all mortgage indebtedness, that 4% or more has been paid during the same period on all issues of capital stock and that the gross earnings for the five years shall have been not less in amount than five times the amount necessary to pay the interest on all bonded indebtedness. The bonds, however, must be first mortgage upon not less than 75% of the road owned in fee, or a refunding mortgage issued to retire all prior lien debts outstanding. Generally speaking, government or state securities or bond and mort- gage on unincumbered real estate affords the range of safe investments for trustees. Savings banks are supposed to be limited to 50% mortgage TESTAMENTARY TRUSTEES 1025 loans on real estate. Trustees are usually safe in making loans to the extent of 60% of a bona fide appraised valuation of the property offered as security. Cautious and prudent trustees usually secure such an appraisal from a competent real estate expert before accepting the loan. Reasonable fees, usually $10 for each appraisal, when paid by the trustee and not by the borrower are so clearly in the interest of the trust that they ought to be allowed as reasonable disbursements of a trustee upon his accounting. § 992. Same subject — Directions given by will. — In view of the per- sonal relationship of the person acting under the will of the decedent, in- volving his knowledge of such person and his confidence in his judgment and discretion, the courts will not only sustain investments made by such trustee where the will gave such trustee, either explicitly or by reasonable implication, the discretion to go beyond tile range of the ordinary trustee securities, but may hold the trustee liable for disregarding mandatory directions of the will. Matter of Irwin, 59 Misc. 143. Testators often provide for this in order to provide a net income larger than would result where the trustee is so confined. Thus where the trustee was directed to keep the securities of a trust estate "invested in good, sound, dividend-paying securities," and was given power to "invest and reinvest the trust estate at his own discretion," it was very properly held that he might continue to hold the securities found by him as the investments deliberately chosen by the testator, and that when he had occasion to sell the same, that he might reinvest in those of a similar character and subject always to the exercise of prudent discretion and good business judgment. Duncklee v. Butler (Special Term) , 30 Misc. 58 (citing Thompson v. Brown, 4 Johns. Ch. 619; Brown v. Camp- bell, 1 Hopk. Ch. 233; Lawton v. Lawton, 35 App. Div. 389). Russell, J., observes: "The testator selects for his trustee and executor a person in whose business judgment he has entire confidence. He, therefore, knows, so far as anyone can know, that any discretion intrusted to such a person will be properly used. He would not aek that a stricter rule should obtain than he exercised for himself, where the investments are simply designated for dividend-paying capacity, as well as security, and there is no im- plication or expectation of the estate being otherwise involved or con- cerned in business transactions. The testator undoubtedly desired a fair rate of income for the beneficiaries, and well knew that the highest class of court securities could afford but a small yearly return. "The language used by this testator, considered with his own conduct in the manner of investments, affords a conclusive interpretation as to his intent, and, therefore, under the proper construction of the will, the executor and trustee may retain the safe investments now in his hands, and as a necessary corollary may reinvest, as necessity compels, in similar securities, using always the fair business discretion which the law re- quires." 65 1026 surrogates' courts In the Lawton case above cited, the court held that similar discretion so to retain securities left by the testator was given by a provision directing him to "convert the whole of my estate into money provided an equitable distribution cannot otherwise be made," and by the further provision in directing him to hold the share of minor children and keep the same in- vested in such securities as to the said executor shall seem best. In this case a loss resulted on certain securities which could not be sold for the amount which had been paid for them, and the court held that as he had acted with care and prudence he should not be held liable for such loss. It must be borne in mind that trustees are expected to keep the funds of the estate properly invested, and if they allow money to lie idle, the burden is on them upon their accounting to justify the noninvestment. Otherwise they will be liable for the interest which the fund might have earned if properly invested. Six months, it seems, is the maximum period usually allowed for funds to lie idle. Lent v. Howard, 89 N. Y. 169. It was held in Matter of Maxwell, 1 Conn. 230, that uninvested money may properly be deposited by a trustee in a bank of good repute; of course in his name as trustee and separate from his private funds. In Matter of Knight, 21 Abb. N. C. 388, the trustee was held liable for moneys lost through deposit in a bank that failed. The deposit of idle money should preferably be in a trust company which allows interest on such deposits. Excepting in a case where the trustee has such discretion, as was given, for example, in the case of Duncklee v. Butler, and takes securities in which the testator himself made investment, it is unwise to invest in securities which place the fund represented thereby beyond the jurisdic- tion of the court. Ormiston v. Olcott, 84 N. Y. 339. To justify such in- vestments requires either ample discretion given by will or exceptional circumstances to be shown to the satisfaction of the court. It may be observed, generally, that such investments are made at the trustee's peril. A familiar phrase in wills, in this regard, is "good dividend-paying, or income-producing securities listed on the New York Stock Exchange." The object of this is to add the prudent and business regulations of that body, increasingly vigilant, that will in time prevent the listing of purely specU' lative securities. Mr. Loring in his "Trustees' Handbook," p. 97, summarizes the rule in King v. Talbot, by saying: "The ideal man would invest in real estate, bonds of individuals secured by first mortgages on real estate, first mortgage bonds of corporations and principal securities." Bonds of a railroad corpo- ration should be scrutinized with care as the securities underlying them may be a mere franchise, or their tracks, or assets liable to deterioration. See Judd v. Warner, 2 Dem. 104. § 993. Erecting separate trusts. — Ordinarily, it is the duty of a trustee of several trusts to keep them separate and separately invested. The object of this general rule is that each beneficiary may be able to trace the administration of the trust in which he is interested from the moment of its erection to the time of the accounting. Nevertheless, the courts, TESTAMENTARY TRUSTEES 1027 where no loss occurs and where it can be done profitably and safely, will approve the investment of the funds as a unit where a number of trusts created by the same will are confided to the same trustee or trustees. Matter of Johnson, 57 App. Div. 494, 503. As was said in Blake v. Blake, 30 Hun, 469, 471: "The actual division of the estate into five parts is not necessary to initiate the trust. It was for the mutual benefit of all that the estate was kept together, and no one objected at the settlements that there was no actual division. Legally it is divided. The shares are separate, and each gets his proper income therefrom." And in Schermerhom v. Cotting, 131 N. Y. 48, the courts say (at p. 61) : " Income and principal given in equal shares out of one fund kept in solido for mere convenience of investment may be severed, and independent trusts created for the several beneficiaries, and thus the shares and in- terests will be several even though the fund remain undivided." Some trust companies will invest the aggregate of several smJiU trusts in one mortgage loan and issue "participation certificates," as a matter of bookkeeping, to each trust. Others discountenance the practice. It seems hardly fair to charge commissions in each estate when the transaction is but one, and may continue undisturbed for years. Otherwise, there seems to be no valid objection to the practice. § 994. Sinking fund. — Where securities are properly bought, at a premium above par value, and by reason of the long continuance of the trust and the approaching maturity of the security, the price depreciates for the- reason that at maturity only the face of the security is collectible, it is important to know whether the trustee should set apart a "sinking fund" to offset such depreciation. This may frequently prove a material inquiry by reason of the claims of those entitled to income to receive the same without diminution, for the sinking fund is primarily intended for the protection of the remaindermen. My attention has been called to an excellent pamphlet, entitled "Amortization," prepared by the trust de- partment of one of our trust companies, from which I quote this definition: "Amortization .... is the gradual charging off and extinction of the premium paid for a bond, by setting aside, at each interest period, a certain amount of the fixed interest the bond bears, the amounts set aside being so calculated that, at the maturity of the bond they will equal the premium paid." The pamphlet contains illustrative tables of how to work out the amount, and a reprint of the laws as to investment. In McLouth v. Hunt, 154 N. Y. 179, the Court of Appeals in an elaborate opinion appeared to discountenance any such inroad upon the income in any case where the intention of the testator is clear that his beneficiaries from year to year should enjoy the same. See opinion at pp. 191 et seq. The court balances the benefit of the remaindermen and that of the life tenant and observes that while securities commanding a premium may depreciate in selling value, so also may they appreciate. 1028 surrogates' courts In Matter of Hoyt, 160 N. Y. 607, the court reiterated the view that the intention of the testator, if discernible from the will, should control, and the court remarks significantly: " It seems quite impossible, in giving to the language of the fourth sub- division of the will its plain and ordinary meaning, to spell out an intention on the part of the testator to provide a sinking fund to be deducted from the income in order to make good the premium paid in purchasing the securities." In McLouth v. Hunt, Judge O'Brien summarizes the law as follows: "Notwithstanding the conflict of authority to which I have just re- ferred, there is one principle or rule applicable to this case, with respect to which the parties are all at agreement, and that is that the questions are not to be determined by any arbitrary rule, but by ascertaining, when that can be done, the meaning and intention of the testatrix, to be derived from the language employed in the creation of the trust, from the relations of the parties to each other, their condition and all the surrounding facts and circumstances of the case." , See also Matter of Johnson, supra. In a more recent case, Matter of Steroens, 187 N. Y. 471, the rule stated in A''. Y. Life Ins. & Trust Co. v. Baker, 165 N. Y. 484, is adhered to, namely that, in the absence of a clear direction in the will to the contrary, a trustee, buying securities at a premium, must maintain the principal intact from loss by such premium. But, if the trustee receives the secu- rities from the testator's estate and holds them, there the rule in the Mc- Louth case applies. § 995. Successor — Trustees — Appointment by Surrogate. Where a person named in a will as sole testamentary trustee dies prior to the probate of the will, or by an instrument in writing renounces his ap- pointment, or when a sole testamentary trustee dies, or becomes a lunatic, or is, by a decree of the surrogate's court, removed or allowed to resign, and the trust has not been fully executed, the same court may appoint his successor, unless such an appointment would contravene the express terms of the will. Where one of two or more persons named in a will as testamentary trustees dies prior to the probate of the will, or, by an instrument in writing renounces his or their appointment, or where one of two or more testamentary trustees dies, or becomes a lunatic, or is by decree of the surrogate's court removed or allowed to resign, a successor shall not be appointed, except where such ap- pointment is necessary in order to comply with the express terms of the will, or unless the same court, or the supreme court, shall be of the opinion that the appointment of a successor would be for the benefit of the cestui que trust. Unless and until a successor is appointed, the remaining trustee or trustees may proceed and execute the trust, as fully as if such trustee or trustees had not died, renounced, become a lunatic, been removed or resigned. Where a decree removing a trustee or discharging him upon his resignation, does not designate his successor, or the person designated therein does not qualify, the successor must be appointed and must qualify, as prescribed by law for the appointment and qualification of an administrator with the will annexed. § 2818, Code Civil Proc. TESTAMENTARY TRUSTEES 1029 This section, as now amended, is the sole statutory authority for one person to execute a power imposed on several, when both or all are living, and all but one renounced or refused to act. Matter of Wilkin, 90 App^ Div. 324. The commissioners originally confined the Surrogate's power to appoint a successor to a trustee to cases where the trustee had been removed or permitted to resign. Tompkins v. Moseman, 5 Redf. 402, 404. But the section now provides for all the four cases of death, insanity, removal or resignation, as well where there is a sole testanientary trustee as where there are several, and by the amendment of 1903, for case of renunciation also. Hence the Supreme Court no longer has exclusive jurisdiction, even un- der the Real Property Law. Matter of Chase, 40 Misc. 616. See also Mat- ter of Brady, 58 Misc. 108. In this case the point was squarely presented. An application was actually pending in the Supreme Court. But the Surrogate appointed a successor to a deceased sole surviving trxistee on settling his executor's account under § 2606. Previous to the Revised Statutes, where a trustee died the trust prop- erty, if real estate, passed to the heir or devisee; and if personal, it went by operation of law to the executor or administrator of the trustee charged with the trust, who held it in the same character in which the decedent held it. De Peyster v. Ferrers, 11 Paige, 13, 14. By § 68, 1 R. S. 730, it was provided that, where the surviving trustee of an express trust died, the trust should not descend to his heirs, nor pass to his personal representatives, but that the trust, if still unexecuted, should vest in the Court of Chancery, to be executed by some person to be appointed for the purpose. Matter of Valentine, 3 Dem. 563. See Benedict V. Dunning, 110 App. Div. 303; Royce v. Adams, 123 N. Y. 402, 405, and cases cited. By the Code of 1880 power was conferred upon Surrogates' Courts to appoint successors, and after the Code went into effect (L. 1882, ch. 185), the legislature substantially re-enacted the provisions of § 68, supra, under the title "An act in relation to trustees of personal estates." This act, however, it was held, related solely to the case where one who was a trustee, as distinguished from an executor, died, leaving the trust unexe- cuted. Matter of Post, 9 'N.Y.Supp. i49. But doubt having arisen as to the effect of this act upon the powers of the Surrogates, § 2818 was re- enacted with amendments in 1884 (ch. 408) in its present form. The present status is to give the Surrogate's Court and the Supreme Court con- current power. Where the vacancy is the result of proceedings in the Surrogate's Court, looking to the removal or resignation of a testamentary trustee, it is unlikely that the Supreme Court would assume jurisdiction to appoint the successor. See Royce v. Adams, 123 N. Y. 403, 405, and cases cited. See also provisions of Real Property Law, § 111 ("trust estate not to descehd") and Personal Property Law, § 20 ("when trust vests in Supreme Court"). 1030 surrogates' courts The power to appoint a successor is discretionary, and discretionary orders of the Surrogate will be reversed only for abuse of discretion. Rus- sell's Estate, 19 N. Y. Supp. 743; Matter of Hecht, 71 Hun, 62. It is the proper practice to cite upon the application for the appointment of a new trustee all the persons beneficially interested. Matter of Valentine, 3 Dem. 563; Milbank v. Crane, 25 How. 193. The executor of a deceased trustee has no such interest ex officio. In selecting a successor, the Surrogate will consult the desires of the cestuis que trustent, if of age, the condition and character of the trust estate, and has the right to require the new trustee to give bonds for the faithful performance of the trust duties. Matter of Whitehead, 3 Dem. 227; Estate of Brick, 9 Civ. Proc. Rep. 397; Estate of Gilbert, 3 N. Y. St. Rep. 208; Russak V. Tobias, 12 Civ. Proc. Rep. 390. He ought not to appoint the beneficiary (Rogers v. Rogers, 111 N. Y. 228; Woodward v. James, 115 N. Y. 346), but such appointment does not necessarily defeat the trust. Rankine v. Metzger, 69 App. Div. 264, 269. If the trustee of a power is disqualified, it has been held proper in certain cases to appoint the bene- ficiary to execute it. People v. Donahue, 70 Hun, 317; Rogers v. Rogers, supra. The Surrogate is limited by the wording of § 2818 to cases where the "express terms of the will" require the contemplated action. Al- though the trust was one devolving upon the executor as a part of his duties as executor, upon his death the trust cannot devolve^ upon an administrator with the will annexed, but must devolve upon a suc- cessor trustee. See ch. II, part IV, on administration with the will annexed; Matter of Hecht, 71 Hun, 62, 66; Matter of Waring, 99 N. Y. 115. The provisions of the personal property" law, being ch. 41 of the Con- solidated Laws, must be borne in mind. Section 20 of that law provides that "On the death of the surviving trustee of an express trust the trust estate does not pass to his next of kin or personal representatives, but if the trust be unexecuted, it vests in the Supreme Court and shall be exe- cuted by some person appointed by the court whom the court may invest with all or any of the power and duties of the original trustee. The bene- ficiary of the trust shall have such notice as the court may direct for the application for the appointment of such person." Such person so ap- pointed to execute the trust is entitled to compensation in the discretion of the court, not exceeding executor's commissions. This is so, by amend- ment of 1902, and covers trusts of realty and personalty. Prior to such amendment, the courts could allow regular salary to the person so ap- pointed, who was in effect its agent in the execution of the trust. Section 2606 of the Code of Civil Procedure contains provisions for accounting by the executor or administrator of a deceased testamentary trustee, both voluntary and compulsory. This will be found to be discussed in part VIII, post, where the general topic of accountings by trustees and the procedure upon accountings is discussed in more detail. TESTAMENTARY TRUSTEES 1031 § 996. Proceedings where testamentary trustee is also executor or ad- ministrator. Where the same person is a testamentary trustee, and also the executor of the will, or an administrator upon the same estate, proceedings taken by or against him, as prescribed in this title, do not affect him as executor or ad- ministrator, or the creditors of, or persons interested in, the general estate, except in one of the following cases : 1. Where he presents a petition, praying for the revocation of his letters, he may also, in the same petition, set forth the facts, upon the showing which he would be allowed to resign as testamentary trustee; and may thereupon pray for a decree allowing him so to resign, and for a citation accordingly. 2. Where a person presents a petition, praying for the revocation of letters issued to an executor or administrator; and any of the facts set forth in the petition are made, by the provisions of this title, sufficient to entitle the same person to present a petition, praying for the removal of a testamentary trustee; the petitioner may pray for a decree, removing the person complained of in both capacities, and for a citation accordingly. In either case, proceedings upon the petition for the resignation or removal, as the case requires, of the testamentary trustee, and for the judicial settle- ment of his account, may be taken, as prescribed in this title, in connection with, or separately from, the like proceedings upon the petition for the revoca- tion of the letters, as the surrogate directs. § 28li9, Code Civil Proc. § 997. Right to commissions where testamentary trustee is also ex- ecutor or administrator. — (See fost, discussion of double commissions under " Accounting.") Apart from the question of the double status of persons who are both executors and trustees, in proceedings taken by or against them, covered by § 2819, the question frequently arises whether there is such a separation of functions as to entitle the incumbent to com- missions in both capacities. In Robertson v. De Brulatour, 188 N. Y. 301, Judge Gray discusses this subject. He shows how the commissions of trustees were formerly allowed upon the same rule as applied to executor and administrators (see Code, §§ 2730, 2802, 2811). That rule was based upon receiving and paying out sums of money. Hence it did not allow commissions on securities received in specie, in advance of their conver- sion into money, or unless turned over in specie but as cash (citing Mc- Alpine v. Pott^, 126 N. Y. 285; Phoenix v. Livingstone, 101 N. Y. 451). Therefore, it is pointed out that the amending of § 3320 in 1904, by allow- ing to trustees of an express trust commissions to be calculated on all sums of principal, and on income, was an intentional change made in the light of the former provision as construed by the courts. In Matter of Roosevelt, 5 Redf. 601, Rollins, Surr., discussed the law at length. The trustees, who were also the executors under the will, had set apart the trust property, divested themselves as executors of it by making formal assignments thereof under the separate trusts to themselves as trustees. As executors their accounts were settled and full commissions awarded them on the property so turned over. Upon the accounting as trustees their claim to trustee commissions upon 1032 SURROGATES COURTS the capital fund was asserted and objected to. It was held that the case turned upon the separation of functions. So long as the characters of ex- ecutor and trustee are coexistent, only one commission could rightfully be paid; but when there has been a separation of duties, and the duties have been performed in the two capacities, separate commissions were properly to be allowed. See also Hurlburt v. Durard, 88 N. Y. 121, 127; Drake v. Price, 5 N. Y. 430 ; Hall v. Hall, 78 N. Y. 536, 539; Cram v. Cram, 2 Redf . 244; In re Pike, Id. 255; Wood v. Ford, 4 Id. 34; In re Carman, 3 Id. 46. A separation of functions marked by an executor's accounting and a Surrogate's decree, is the most satisfactory in its effect. It leaves no room for doubt. But it is not the only way. Hurlburt v. Durant, supra. The separation may be determined by the court upon the facts and without the interposition of such judicial proceedings. There are two inquiries, the one, did the testator design a separation of functions and duties? the other, has such separation actually taken place? Matter of Roosevelt, supra, p. 621. § 998. Application of this title. The provisions of this title apply to a trust created by the will of a resident of the state, or relating to real property, situated within the state, without regard to the residence of the trustee, or the time of the execution of the will. § 2820, Code Civil Proc. § 999. General observations as to administration of the trust. — Where there are two or more testamentary trustees, and they disagree as to the trust property, respecting its custody, provision is made for submission of the controversy to the Surrogate. In such a case The surrogate may, upon the application of either of them, or of a creditor or person interested in the estate, and proof, by aflSdavit, of the facts, make an order, requiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the surrogate may, in his discretion, make an order, directing that any property of the estate or fund be deposited in a safe place, in the joint custody of ... . testamentary trustees, or subject to their joint order; or that the money of the estate be deposited in a specified safe, bank, or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be punished as a contempt of the court. § 2602, Code Civil Proc. The Surrogate has under this section discretionary power (In Matter of Hoagland, 51 App. Div. 347), and his direction for joint deposit and custody of a fund will be upheld even though the dissenting trustee claims the property in question to be his own. See opinion. But this section does not authorize a Surrogate to try an issue as to title or ownership between corepresentatives, one of whom asserts indi- vidual title or ownership. Nor does § 2472 confer such power. Matter of Freligh, 42 Misc. 11. In this case A, the respondent, refused to dis- close secret formula in which he claimed decedent had given exclusive rights to him by contract for a term of years. TESTAMENTARY TRUSTEES 1033. § 1000. The trustee's bookkeeping.— The practice is increasing of hav- ing the accounts of important trust estates set up and written up by ex- pert accountants. But certain definite rules are to be observed by the trustee who keeps his own account. The trouble arises out of the necessity of keeping "principal " and " income " separate. The fundamental idea of a trust is to provide for A for life, or for a time, by the application of that which the fund trusteed will produce. There are two things to provide: (a) Keeping the fund intact. (b) Giving the beneficiary all the creator of the trust intended. As already seen, this may condition the creating of a "sinking fund." But it also crops up in other contingencies. Increment is received by the trustee. Shall it go as a product of the fund to the income-beneficiary, or as a profit of the trust to the remainderman? Thus considered the question is readily answered. The following will illustrate the points: Nature of increment Goes to life tenant Added to principal Rights to subscribe to new stock enuring to hold- ers of record. If sold. Matter of Roberts, 40 Misc. 512, Heaton, Surr.;, Est. of Downing, Thomas, Surr., N. Y. Law J., March. 12, 1903, citing Est. of Mc- Kee, id., January 10, 1902. MaUer of Harteau, 53 Misc. 201, Church, Surr.; Matter of Kernochan, 104 N. Y. 618. Stock dividends. If declared out of profits. Lowry v. Farmers' L. & T. Co., 172 N. Y. 137; Mc- Lcmth V. Hunt, 154 N. Y. 179; Matter of Roberts, 40 Misc. 512. If arising from sale of corporate assets. Matter of Curtis, 29 N. Y. St. Rep.. 469. Corporate intent may govern. Matter of Kemochan, 104 N. Y. 618. Increased value over pur- chase cost. Stewart v. Phelps, 71 App. Div. 91. When apportioned on sale of corporation assets Matter of Rogers, 161 N. Y. 108. for stock of purchasing company. Matter of Elting,3i Misc, 675. Dividends declared be- fore testator died. Can be claimed by widow- given "all the income." Matter of Franklin, 26 Misc. 107. , Matter of Kernochan, supra; Brundage v. Brund- age, 60 N. Y. 544. "Surplus and undivided profits" realized on. MaUer of Stevens, 187 N. Y. 471. 1034 surrogates' courts The other side of the question is as to disbursements. Shall they be charged to the fund, or shall the income bear the burden. Here, again, the will may be controlling; but, the will being silent or ambiguous, the fol- lowing will illustrate the principle that governs: Nature of payment Charged to income Charged to principal If the will gives "net in- come." The expenses of the trust. See Woodward v. James, 115 N. Y. 346. Including attorney's fees. Matter ofBrownell, 60 Misc. 52. Expense of construction of will establishing the -trust. Apportioned. Broxen v. Brown, 41 N. Y. 507. Ordinary repairs, taxes, interest on mortgages, in- surance: WUcox V. Quimhy, 73 Hun, 524: MaOer ofMenzie, 54 Misc. 188; Matter of AlbertsoH, 113 N. Y. 434; Stevens v. Melcher, 152 N. Y. 551; Chamberlin v. Glea- son, 163 N. Y. 214. Assessment for perma- nent improvements. Matter of Memie, supra, and cases cited; Peck v. Shenvoodi 56 N. Y. 415. In Stevens v. Melcher, the court says "Ordinarily the duty devolves upon .... life tenants, or trvistees for equitable life tenants, of pre- serving the premises, defraying the expenses of ordinary repairs, and of paying the taxes, and the accruing interest upon mortgages." See cases reviewed by Haight, J. CHAPTER II GUARDIANS § 1001. Definitions. — A guardian is one upon whom, by operation of law, or by appointment made by will, or deed, or a court having jurisdic- tion, is devolved the duty of caring for the person or property, or both, of a minor. A guardian may be a guardian in socage, a general guardian, a tempo- rary guardian, or a guardian by will or deed. Special guardians or guard- ians ad litem have been treated of under the head of Parties, ante. "Where a minor, for whom a general guardian of the property has not been appointed, shall acquire real property, the guardianship of his prop- erty, with the rights, powers and duties of a guardian in socage, belongs: " 1. To the father; 2. If there be no father, to the mother; 3. If there be no father or mother, to the nearest and eldest relative of full age, not under any legal incapacity; and as between relatives of the same degree of consanguinity, males shall be preferred. The rights and authority of every such guardian shall be superseded by a testamentary or other guardian appointed in pursuance of this ar- ticle. The Domestic Relations Law, art. 6, § 80. § 1002. The parents' rights of guardianship. — "A married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them." Ibid., § 81. "Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child, under the age of twenty-one years and unmarried, may, by deed or last will, duly executed, dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons." Ibid. The duties of a parent, guardian, or guardian in socage, are defined by the same statute, as being the same as those of a general guardian. Such duties and liabilities are as follows: (a) He "shall safely keep the property of his ward that shall come into his custody;" (b) he "shall not make or suffer any waste, sale or destruc- tion of such property or inheritance;" (c) but "shall keep in repair and maintain the houses, gardens and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other moneys belonging to his ward as shall be in his possession;" (d) he "shall deliver the same to his ward, when he comes to full a_ge, in at least as good con- dition as such guardian received the same, inevitable decay and injury 1035 1036 surrogates' courts alone excepted;" (e) he "shall answer to his ward for the issues and profits of the real estate, received by him, by a lawful account." Id., § 83. The penalty of waste, sale or destruction of the ward's inheritance is the loss of custody of the ward and of the property, and of treble damages {Id. § 83), if it should appear that he acted negligently, or in bad f^ith. See Kullman v. Cox, 26 App. Div. 158. When a father to whom a guardian has been directed to pay the ward's net income, subsequently is appointed guardian himself, this does not supersede the decree under which he was; entitled to apply the child's income for her support or maintenance, nor will he be held to as strict accountability in regard to vouchers for his dis- bursements if his use of the income was legal and conformable to such decree. When the ward is a female, and marries lawfully during her mi- nority, it terminates the guardian's rights as to her person, but not as to her property. Id. § 84. § 1003. Guardians in socage. — Such a guardian will be recognized in the courts. Of course, there must be real property, an estate of inheritance, vested in the minor, to create this relationship. Whitlock v. Whithck, 1 Dem. 160; Houghton v. Watson, 1 Dem. 299, 301. But if it exists, the guardian may make proper leases (Thacher v. Henderson, 63 Barb. 271), a,nd in his own name (Id.) ; but only for the guardianship term {Pviman v., Ritchie, 6 Paige, 390), he may sue in ejectment for his ward's lands. Mat- ter of Hynes, 105 N. Y. 560; Holmes v. Seeley, 17 Wend. 75; Byrne v. Van Holsen, 5 Johns. 66. But under the prohibition of the statute he cannot alien the lands, and his contract so to do has no validity or binding force, unless by virtue of peculiar circumstances he has specifically been given the right. Thacher v. Henderson, supra. If such guardian has no means, he or she may use the income, or "so much thereof as may be necessary," for the support and education of the child. It is wise to secure permission of court so to do. Yet if this be not done in advance, the guardian, acting in good faith, may counterclaim an equivalent sum to that expended in accounting proceedings, and the court can then pass on the propriety of the expenditures." Williams v. Clarke, 82 App. Div. 199. For the reason above stated, he will have no right, as such guardian, to claim or receive a legacy left to his ward. Houghton v. Watson, supra; Williams v. Starrs, 6 Johns. Ch. 353. A general guardian must in such a case be appointed. The father or mother cannot virtute parentis, demand the moneys due the child. Ibid. The appointment of a general or testamentary guardian terminates the rights of a guardian in socage. Otis v. Thompson, Hill & D. Supp. 131; Dom. Rel. Law, § 80. If a guardian in socage volunteers to put his own money into the im- provements of the child's real property he has no claim to recoupment such as to enable his creditors to reach it through the realty. Hickey v. Dixon, 42 Misc. 4. § 1004. General guardians. — General guardians may be appointed, in the first place, by will or deed, and when so appointed, the act above GUARDIANS 1037 quoted from requires (§ 81) that the person appointed shall not exercise the power or authority of a guardian until the will is duly probated, or the deed executed and recorded as required by § 2851 of the Code, to the discussion of which below, reference can be made. § 1005. Guardians appointed by Surrogate's Court. — In addition to the mode of appointment referred to, the Surrogate's Court has now power to appoint guardians of the person or property or both {In re Herbeck, 16 Abb. Pr. N. S. 214) of minors residing or having property within the Sur- rogate's County. This is by virtue of the following provisions of the Code. The surrogate's court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of December, eighteen hundred and forty-six. It has also power and authority to appoint a general guardian, of the person or of the property, or both, of an infant whose father or mother is living, and to appoint a general guardian, of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the court of chancery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both ca- pacities; or the guardianship of the person and of the property may be com- mitted to different persons. § 2821, Code Civil Proc. The powers given by this section are apparently broad; but they have been exercised within reasonable limits set by the decisions. Thus, the Surrogate will not appoint where the parent has made proper testamen- tary provision for the custody of his child (Pedple v. Kearney, 31 Barb. 430), and, it seems, that if the parent, by formal instrument surrenders the child to an institution, the Surrogate will not have power to deprive the institution, without its consent of the custody of the child's person, though he may appoint a general guardian of its property. Id., and see history of proceedings in 1 Redf. 292, 294, 297. And, on the other hand, the powers given the Surrogate's Court being similar to those exercised by the Court of Chancery, and being required to be exercised in like manner, it is proper for a Surrogate to annex reason- able terms or conditions to his appointments, looking to the welfare and happiness of the ward. Thus, if for sufficient reasons the guardianship of a child is given, in the parent's lifetime, to someone other than the parent, iiccess of the parent to the child at proper times and intervals may be provided for. Where the parents or either of them are living, they have a prior right "to influence and direct the conduct, residence, education, occupation and associates of the child." In re Barre, 5 Redf. 64. There- fore it is only where the parent is unfit for the duty or incapacitated for the responsibility, that the court will call in third persons. Id., Ledwith v. Ledwith, 1 Dem. 154; Matter of Tully, 54 Misc. 184. § 1006. Parent's appointment when binding. — The Domestic Relations Law provides, in § 81, upon the death of either father or mother, the sur- viving parent, whether of full age or a minor, of a child likely to be born. 1038 surrogates' courts or of any living child under the age of twenty-one years and unmarried, may, by deed or last will, duly executed, dispose of the custody and tui- tion of such child during its minority or for any less time, to any person or persons. Either the father or the mother may in the lifetime of them both, by last will duly executed, appoint the other the guardian of the per- son and property of such child, during its minority. If a parent make a testamentary appointment, ignoring the rights of the surviving parent it is invalid. Matter of Burdick, 47 Misc. 28; Matter of Zwickert, 26 N. Y. Supp. 773; Matter of Haggerty, 9 Hun, 175; Matter of Schmidt, 77 Hun, 201; Matter of Alexander, 70 N. Y. St. Rep. 431. In such case, the Surrogate is free to act under § § 2822 and 2827. Ibid. This parental right is not in conflict with the other parent's right to safeguard property interests by means of a testamentary trustee or guardian of the property. Nor does this preference of the parent as personal guard- ian control the Surrogate in safeguarding the property. A fit custodian of the person might be an unfit administrator of property interests. Ibid. In Matter of Jacquet, 40 Misc. 575, the Surrogate says: "The absolute power of the court to appoint a guardian other than the parent cannot be disputed. The welfare of the child is the primary consideration." "But the parent's right will not be lightly disregarded." Ibid., citing People v. Mercein, 3 Hill, 399; People ex rel. Nicherson, 19 Wend. 16. § 1007. Appointment by Surrogate. — The practice to be followed in the appointment of general guardians, differs according to whether the child is over or under the age of fourteen years. In the one case the infant makes the application and nominates the guardian sought to be appointed, or under the amendment of 1909, below, the Surrogate may act of his own motion, so far as the property is concerned. In the other case the appli- catioii is by a relative, or some other person, on behalf of the infant, and the Surrogate nominates the guardian. When the infant is fourteen or over, the practice is thus regulated: In either of the following cases, an infant of the age of fourteen years or upwards, may present, to the surrogate's court of the county in which he resides; or, if he is not a resident of the state, to the surrogate's court of the county in which any of his property, real or personal, is situated; a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person, or of his property, or both, as the case requires; and, if necessary, that the persons, entitled by law to be cited upon such an applica- tion, may be cited to show cause, why such a decree should not be made: 1. Where such a general guardian has not been duly appointed, either by a court of competent jurisdiction of the state, or by the will or deed of his father or mother, admitted to probate or authenticated, and recorded, as prescribed in § 2851 of this act. Where a general guardian so appointed has died, become incompetent or disquaUfied; or refuses to act; or has been removed; or where his term of office has expired. Where the petitioner is a non-resident married woman, and the petition GUARDIANS 1039 relates to personal property only, it must affirmatively show that the property- is not subject to the control or disposition of her husband, by the law of the petitioner's residence. § 2822, Code Civ. Proc. By ch. 231 of the Laws of 1909 the following was added, taking effect September 1st: Where an infant in one of the cases mentioned in this section has refused, or for ten days has failed, to present the petition, the surrogate, upon notice to be given in such manner as he shall direct, to the infant and the persons who would be entitled by law to be cited upon the appUcation of the infant, shall proceed to the appointment of a general guardian of the property of the infant in the same manner as if the infant had duly presented the petition. This amendment enables, and directs, the Surrogate to act on the in- fant's failure. But his appointment in such case is of a guardian of the property, not of the person. Contents of petition; citation. A petition, presented as prescribed in the last section, must also state whether or not the father and mother of the petitioner are known to be Uving. If either of them is known to be living, and the petition does not pray that the father, or, if he is dead, that the mother, may be appointed the general guard- ian, it must set forth the circumstances which render the appointment of another person expedient; and must pray that the father, or, if he is dead, that the mother, of the petitioner may be cited to show cause, why the decree should not be made. A citation, issued to the father of the petitioner must be served at least ten days before it is returnable. Where the case is within subdivision second of the last section, the petition must pray that the person formerly appointed general guardian may be cited, unless it is shown that he is dead. The surrogate must inquire, and ascertain as far as practicable, what rela- tives of the infant reside in his county; and he may, in his discretion, cite any relative or class of relatives of the infant, residing in that county or elsewhere, to show why the prayer of the petition should not be granted. § 2823, Code Civil Proc. Citation where "petitioner is a married woman. The last section applies, where the petitioner is a married woman; except that her husband must also be cited, and that the surrogate may, in his dis- cretion, make a decree, appointing a guardian of her property, without citing her father or her mother. § 2824, Code Civil Proc. § 1008. Same — Provisions of the general rules of practice. — The gen- eral rules of practice also contain provisions necessary to be kept in mind. They are as follows: "Rule 52. Except in cases otherwise provided for by law, for the pur- pose of having a general guardian appointed, the infant, if of the age of fourteen years or upward, or some relative or friend, if the infant is under fourteen, may present a petition to the court, stating the age and residence 1040 surrogates' courts of the infant, and the name and residence of the person proposed or nom- inated as guardian, and the relationship, if any, which such person bears to the infant, and the nature, situation and value of the infant's estate." "Rule 53. Upon presenting the petition, the court shall, by inspection •or otherwise, ascertain the age of the infant, and if of the age of fourteen years or upward, shall examine him as to his voluntary nomination of a .suitable and proper person as guardian; if under fourteen, shall ascertain who is entitled to the guardianship, and shall name a competent and proper person as guardian. The court shall also ascertain the amount of the personal property, and the gross amount of value of the rents and profits of the real estate of the infant during his minority, and shall also ascertain the sufficiency of the security offered by the guardian." § 1009. Same — The petition. — The petition must be presented to the Surrogate of the county where the infant resides. § 2822, Code Civ. Proc. But this relates only to residents of the State. Where the minor is a non- Tesident of the State, the jurisdiction of the Surrogate depends upon the situs of property of the minor within his county. The case of Matter of Hosford, 2 Redf. 168, limiting the power of the Surrogate as outlined in McLoskey v. Reid, 4 Bradf . 334, is superseded by the express language of § 2822, which provides for infants who are not residents of the State invoking the Surrogate's Court's jurisdiction, and the protection of their property in this State by a local general guardian. See also L. 1875, ch. 442, and L. 1870, ch. 59. Foreign general guardians have no local standing under their foreign letters; but the device suggested in the Hosford case of having a general guardian appointed in the foreign jurisdiction, and having him apply here for ancillary or local letters, is un- necessary (Andrews v. Townshend, 21 J. & S. 522), and roundabout, al- though in certain cases § 2838 of the Code makes ample provision for such ancillary appointment. The Code sections and general rules of practice quoted above indicate •clearly the general form and contents of the petition. It should be substantially as follows: Surrogate's Court, County of Petition by infant Tij+ip ■over 14 years of age. §2822, Code Civil To the Surrogate's Court of County: The petition of residing in the County of {or if a non-resident, state facts showing real or personal prop" erty within said County) respectfully showeth: That your petitioner is not married and is a minor over fourteen years of age, and was years of age on the day of 19 . That the father of your petitioner, is and resides at . That the mother of your petitioner, is and re- sides at . That the only other relations of your GUARDIANS 1041 petitioner residing in said County, as far as he knows or can ascertain, are: Note. Matter of residing at (Note.) Feely, 4 Redf. 306. residing at residing at residing at residing at 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 duly appointed the guardian of person and estate during minority. Your petitioner therefore nominates, subject to the ap- probation of the Surrogate, of the of in said County of to be such guardian, and prays that a citation may be issued out of and under the seal of this Court, requiring the said on a day to be therein specified, to show cause why a decree should not be made appointing the said such general guardian, pursuant to the statute in such case made and provided. And your petitioner will ever pray, etc. Dated this day of 19 (Signature.) (Verification.) County, ss. : Affidavit as to in- County, being duly sworn, doth depose and say, an s proper y. ^j^^^ ^^ j^ acquainted with the property and estate of the above-named minor, and that the same consists of real and personal estate; and that the personal estate of the said minor does not exceed the sum of and that the annual rents and profits of the real estate of said minor do not exceed the sum of Sworn to before me, this propTseT general ^ hereby consent to become the guardian of the guardian. above-mentioned minor, pursuant to the prayer of the fore- Note. This must going petition, be acknowledged, Dated this day ^ 19 (Note.) and if acknowledg- ment is taken with- out the County of the Surrogate, the certificate of the „ Clerk of the County ^ bounty ss.: r ^ t where it is acknowl- I> "^ ^^e of .^f^'^X ., . edged must be at- ^° solemnly swear and declare that I will weU, honestly and tached. faithfully discharge the duties of general guardian of Oath of general according to law. guardian. Sworn to before me, this day of 19 Post Office Address. 66 '1042 surrogates' courts § 1010. Same subject. — ^The persons required to be cited may, if adult, waive the issuance and service of the citation and signify their consent to the entry of the decree, by duly acknowledged waivers. But even then the Surrogate should make some inquiry into the cir- cumstances. The Surrogate's Court is the Orphans' Court and must pro- tect all minors appealing to its jurisdiction. The court must be satisfied and iiot merely the child's relatives. They are not parties but are cited so as to give information to the Surrogate. KeUinger v. Roe, 7 Paige, 362; Cozine v. Horn, 1 Bradf. 143. And the citation of living parents is juris- dictional. If neglected the decree may be vacated. Matter of Jacquet, 40 Misc. 575. When § 2823 was adopted the father's right of custody and control was superior to the mother's. But now by § 81 (formerly § 51) of the Do- mestic Relations Law their rights and duties are joint and equal. Hence, it is now the rule that the Surrogate's discretion to require notice to a living parent is thereby conditioned, so that letters issued to the father without notice to the mother will be vacated. Matter of Drowne, 56 Misc. 417. § 1011. Same — ^The inquiry. — The interests of the infant are first to be consulted. Bennett v. Byrne, 2 Barb. Ch. 216. The Code provides: Upon the return of the citation, the surrogate must make such a decree in the premises, as justice requires. He may, in his discretion, hear allegations and proofs from a person not a party. Where a citation is not issued, the surrogate must, upon the presentation of the petition, inquire into the cir- cumstances. For the purpose of such an inquiry, or of an inquiry into the amount of security to be required of the guardian, he may issue a subpoena, requiring any person to attend before him, to testify respecting any matter involved therein. If he is satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appoint- ment of a general guardian, either of his person or of his property, he must make a decree accordingly, except that a guardian of the person of a married woman shall not be appointed. In a proper case, he may appoint a general guardian in one capacity, without a citation; and issue a citation, to show cause against the appointment of a general guardian, in the other capacity. § 2825, Code Civil Proc. § 1012. The Surrogate's duty. — The Surrogate must be satisfied that the allegations of the petition are true in fact. § 2825, Code Civ. Proc. This means the necessary allegations of the petition. (a) The residence of the infant is a material fact. If a resident of another county of the State, the Surrogate of that county is the one to whom to apply. Ex parte Bartlett, 4 Bradf. 221. But the question of residence is one for the Surrogate to determine {Matter of Sherman, 70 Hun, 465), and if there is evidence to uphold his determination it will not be disturbed on appeal. Ibid. Residence cannot be imposed upon a child by force or fraud. If a minor be sent into this State from without the State without authority, the child's real residence is not thereby divested. Matter of Daniels, 71 GUARDIANS 1043 Hun, 195. But if the child has an actual, though but a temporary, resi- dence in the Surrogate's county, the Surrogate has jurisdiction to act. Matter of Pierce, 12 How. Pr. 532. But upon the death of parents, it is held, the parents' residence still remains that of the child, and cannot be changed, in contemplation of law, except by a guardian. Matter of Hughes, 1 Tucker, 38, and cases cited. But, it seems, if the petition contains all the jurisdictional averments, an appointment made thereupon is valid and stands until vacated or reversed, although the infant never in fact re- sided in the Surrogate's county. Button v. Button, 8 How. Pr. 99. (b) The amount of the property, its character and location, are material facts. The petition should state what the property is (1) so as to show the necessity of appointing a guardian of the property, and (2) so as to enable the court to fix the penalty of the bond. Johnson v. Borden, 4 Dem. 36. (c) The living relatives of the minor ought to be named in the petition, so that the Surrogate may direct them to be cited. But this is unnecessary if the nearest living relatives join in the application, or the nearest living relative is the person nominated for appointment. Matter of Feely, 4 Redf. 306, 308, citing People v.' Wilcox, 22 Barb. 178; Underhill v. Bennis, 9 Paige, 202, 207; White v. Pomeroy, 7 Barb. 640; Holley v. Chamberlain, 1 Redf. 333. § 1013. Who should be appointed. Guardian to be nominated by infant. A guardian appointed upon the application of an infant of the age of fourteen years or upwards, as prescribed in this article, must be nominated by the in- fant, subject to the approval of the surrogate. § 2826, Code Civil Proc. This section was not framed so as to confer upon a minor the right, upon attaining the age of fourteen years, to "emancipate himself at pleasure from parental control," by nominating a guardian. Ledwith v. Ledwith, 1 Dem. 154, 156. It merely gives such infant the right of nomination, and subject to the Surrogate's approval, when and only when a guardian is to be appointed "as prescribed in this article" of the Code. And whether a guardian is or is not to be appointed rests in the judgment and discretion of the Surrogate. The Surrogate's approval is conditioned by the facts of each particular case. He is to safeguard the best interests of the minor {Burmester v. Orth, 5 Redf. 259) ; and will consider the wishes of living relatives, or the proven wishes of deceased parents. Cozine v. Horn, 1 Bradf. 143; Ex parte Be Marcellin, 24 Hun, 207. It has been said that the wishes of the parents "should have a preponderating influence." Smith v. Smith, 2 Dem. 43. But if the wish of the parent is to be himself or'herself appointed, the Sur- rogate's scrutiny as to fitness will be the same as were any more remote relative to be nominated. Thus a mother who is shown to have led a dis- reputable life from girlhood may be said to have thereby forfeited her preferential right to legal guardianship {Matter of Meech, 1 Connoly, 635), 1044 surrogates' courts and a father, divorced for cruelty to and inhuman treatment of his, wife, will not be deemed a suitable person to whom to confide the child or its property. Griffln v. Sarsfield, 2 Dem. 4, 7. So if the parent be immoral or depraved (Matter of Raborg, 3 N. Y. St. Rep. 323), or if there be hos- tility between the child and the parent (Johnson v. Borden, 4 Dem. 36), the Surrogate may pass the parent over. But, in general, the courts favor those nearest of kin, possessing the necessary qualifications of character and capacity, and will prefer such to creditors or strangers. Morehouse v. Cooke, Hopkin's Ch. 226. Where the Surrogate passes over a parent in appointing a general guardian for the child, he may provide, so far as the guardianship of the person is concerned, for parental access under proper regulations. Derick- son V. Derickson, 4 Dem. 295. But Surrogate Ransom declared himself without power to direct that notice of all acts of the guardian should be given to the parent passed over, and that he should be consulted in all that referred to the management of the child. Matter of Lindley, 1 Con- noly, 500. Prior to 1860 a mother who had remarried was not looked upon, as a rule, with favor as a suitable appointee. See Holly v. Chamberlain, 1 Redf. 333. But the objection is no longer a valid one. Matter of Hermance, 2 Dem. 1, 3. The paramount consideration is the minor's welfare, and all questions of kinship therefore may be disregarded, and relatives passed over in favor of a stranger nominated by a minor. Matter of Vandewater, 115 N. Y. 699, afE'g 27 Week. Dig. 314. See Matter of Buckler, 96 App. Div. 397, where a trust company was appointed in lieu of two disputing sisters. And unless it affirmatively appears that the Surrogate abused his discretion, or reached his conclusion without due inquiry, his determina- tion will not be set aside. Ibid. It has been held to be such an abuse of discretion where a Surrogate failed to require notice to be given to rela- tives from whom he could naturally expect to receive full information as to the minor's circumstances, or where he failed to make proper inquiry into the facts. Underhill v. Dennis, 9 Paige, 202; White v. Pomeroy, 7 Barb. 640; Matter of Welch, 74 N. Y. 299. §" 1014. Where infant is under fourteen. — Where an infant is under fourteen, and the appointment of a guardian is necessary, the Code provides (^ 2827) for the appointment, the practice being nearly identical with that already indicated. The differences are: (1) The Surrogate must nominate the guardian. (2) Who is not a general guardian, but a temporary guardian. (3) Who serves only until the child attains the age of fourteen and a successor is appointed. The section is as follows: Appointment of temporary guardian for infant under fourteen. A relative of an infant under fourteen years of age, or any other person in ' behalf of such an infant, may present, to the surrogate's court of the county in which the infant resides; or, if he is not a resident of the state, to the surrogate's GUARDIANS 1045 court of the county in which any of the infant's property, real or personal, is situated; a written petition, duly verified, setting forth the facts, upon which the jurisdiction of the court depends, and praying for a decree appointing a guardian of the person, or of the property, or both, of the infant, to serve until the infant attains the age of fourteen years, and a successor to the guardian is appointed. The cases in which such a guardian may be appointed, the con- tents of the petition, and the proceedings thereupon, are the same, as pre- scribed in the foregoing sections of this article, with respect to the appoint- ment of a general guardian, upon the petition of an infant of the age of fourteen years or upwards; except that the surrogate must nominate, as well as appoint the temporary guardian. § 2827, Code Civil Proc. The temporary guardianship provided for by this section is for all prac- tical purposes the same as that of an ordinary general guardian. This ap- pears from the following section of the Code: Term of office of temporary guardian. The term of office of a guardian, appointed as prescribed in the last section, expires when the infant attains the age of fourteen years. But after the infant attains that age, the person so appointed continues to retain all the powers and authority, and is subject to all the duties and liabilities, of a guardian of the person, or of the property, or both, pursuant to his letters; until his successor is appointed and has qualified, or until his letters are revoked, for some other cause, by the decree of the surrogate's court; and his sureties are responsible accordingly. § 2828, Code Civil Proc. See as to the rule before the Code, Matter of Dyer, 5 Paige, 534; Matter of Nicoll, 1 Johns. Ch. 25. § 1015. Inquiry into the facts as to the minor's property. Where a general guardian of the property of an infant is appointed, as pre- scribed in this article, the surrogate must inquire into the infant's circum- stances, and must ascertain, as nearly as practicable, the value of his personal property, and of the rents and profits of his real property. § 2829, Code Civil Proc. It has already been stated that this is a most material inquiry. The bond of the guardian to be appointed depends upon it. Johnson v. Bor- den, 4 Dem. 36. The question of his suitability may turn upon it. If the property be small in value, or so circumstanced as to require a minimum of administration, one may be eligible who would be deemed unequal to the responsibility of caring for a large property variously invested. Or it may be the Surrogate will appoint one person guardian of the person, and another guardian of the property. Matter of Beebe, 11 N. Y. Supp. 522. § 1016. The appointment. — If the Surrogate, after making the inquiry contemplated by the Code, is satisfied (a) that the allegations of the pe- tition are true in fact; (b) that the interests of the infant will be promoted by the appointment of a general guardian; (c) that the person proposed is a suitable person, he must "make such a decree in the premises as jus- 1046 surrogates' courts tice requires." eral this form: § 2825, Code Civ. Proc. His decree may follow in gen- Present: Surrogate's Court Caption. Hon. Decree appointing general guardian under § 2826, or 2827, Code of Civil Procedure. Surrogate. In the Matter of the Guard- ^ ianship of >■ infant J On reading and filing the duly verified petition of (note) in behalf of an infant fourteen years of age, praying for a decree appointing a guardian of the person and estate of said infant and the persons required by law, .or directed by the Surrogate, to be cited, having been duly cited, and having duly appeared (or state the facts in this respect) and the Surrogate having heard the allegations and proofs, and duly inquired into the circumstances of said infant and ascertained the value of personal property and of the rents and profits of real property, and being satisfied that the allegations of the petition are true in fact, and that the in- terests of said infant will be promoted by the appoint- ment of a guardian; [and the nomination of said as general guardian being approved by the Surrogate]: (note.) Now, on motion of attorney for It is ordered and decreed, that be and he is hereby nominated and appointed guardian of the person and estate of said infant and upon h taking an oath or affirmation to well, faithfully and honestly discharge the duties of guardian of the infant and executing to said infant h bond, with at least two sure- ties in the penalty of dollars, conditioned as prescribed by law, and approved of by the Surrogate, and filing the same with the clerk of this court that letters of (if under § 2827 say " temporary ") guardianship issue to h accordingly. (// it be desired that the letters be limited in any respect, insert the appropriate provision.) Surrogate. Should the letters be directed to be limited, some such clause as the fol- lowing should be incorporated in the letters when issued: These letters are limited to receiving and administering the following personal property of said infant set forth in said petition, and for which said bond has been given, and said guardian is restrained from receiving and administer- ing upon any other personal property, now owned by said infant or which said infant may hereafter become entitled to, until the further order of said Surrogate on additional fiuther satisfactory security. Note. If under § 2825 petition may be by infant over 14 and may nominate. If under § 2827 it will be by some one " on behalf of " in- fant under 14 and cannot nominate. GUARDIANS 1047 § 1017. Qualification by a general guardian. — The Code provides dis- tinct modes of qualifying in the two several capacities of guardian of the property and guardian of the person, of a minor. Before letters of guardianship of an infant's property are issued by the surrogate's court, the person appointed must, besides taking an official oath, as prescribed by law, execute to the infant, and file with the surrogate, his bond with at least two sureties, in a penalty fixed, by the surrogate, not less than twice the value of the personal property, and of the rents and profits of the real property; conditioned that the guardian will, in all things, faith- fully discharge the trust reposed in him, and obey all lawful directions of the surrogate touching the trust, and that he will, in all respects, render a just and true account of all money and other property received by him, and of the application thereof, and of his guardianship, whenever he is required to do so by a court of competent jurisdiction. But the surrogate may, in his discretion, limit the amount of the bond to not less than twice the value of the personal property, and of the rents and profits of the real property for the term of three years. But in case where it appears to be impracticable to give a bond sufficient to cover the whole amount of the infant's personal property, the surrogate may, in his discretion, accept security, to be approved by the surrogate, not less than twice the amount of the particular portion of the infant's property which the guardian will be authorized under the letters to receive, and issue letters thereon limited to the receiving and administering only such personal property for which double the security has been given, and restraining the guardian from receiving any other personal property of the infant until the further order of the surrogate on additional further satisfactory security. § 2830, Code Civil Proc. Before letters of guardianship of an infant's person are issued by the surro- gate's court, the person appointed must take the official oath, as prescribed by law. The surrogate may also require him to execute to the infant a bond, in a penalty fixed by the surrogate, and with or without sureties, as to the surrogate seems proper; conditioned, that the guardian will in all things faithfully discharge the trust reposed in him, and duly account for all money or other property which may come to his hands, as directed by the surrogate's court. § 2831, Code Civil Proc. Reference should be had to the General Rules of Practice. Rules 52-54. And it is to be noted that in New York County provision is made in the rules of the Surrogate's Court for the examination of the guardian's sure- ties as to their sufficiency (Rule 17) and for reducing the bond by a deposit of the securities or a part of them with some approved depositary. Rule 15. It was held in Matter of Flynn, 58 Misc. 628, that the statutory provision making a surety company equivalent to "two sufficient sureties" was not applicable under Rule 59. This rule relates to the payment to a general guardian of moneys arising from the sale of the infant's real property only. Dowling, J., points out that § 811 of the Code is applicable only where the bond required is one to be given under a provision of the Code itself, and not to a bond given under a rule of the Supreme Court which itself controls the proceeds of the infant's realty. 1048 surrogates' courts It is needless to add that if the guardian or one of the sureties become insolvent or their circumstances so precarious as to endanger the ward's property, the Surrogate has power to require further security. Genet v. Tallmadge, 1 Johns. Ch. 561; Monell v. Monell, 5 Id. 248. The sureties must justify in respect of the particular fund committed to their principal. Where one is made guardian of several infants, he must give a bond as to the estate of each, and his sureties must justify in respect to their ability as to the aggregate penalties of the several bonds. Anonymous, 4 Hun,. 414. And the guardian unless he be an ancillary guardian (see post) may be required to give a bond in the county of any Surrogate to whom he may apply for order directing the turning over to him, as guardian, of a legacy,, or of moneys, or securities. His bond in such case is conditioned for the proper application of the money or property delivered to him. Rieck v. Fish, 1 Dem. 75. § 1018. Payment of legacy or distributive share to a general guardian. Decree as to share of infant. Where a legacy or distributive share is payable to an infant, the decree may, in the discretion of the surrogate's court, direct it, or so much of it as may be necessary, to be paid to his general guardian, to be applied to his support and education; or when it does not exceed fifty dollars, the decree may order it to be paid to his father, and if his father be dead, then to his mother, for the use and benefit of such infant. Said court may, in its discretion, by its decree, direct any legacy or distribu- tive share, or part of a legacy or distributive share, not paid or applied as aforesaid, which is payable to an infant, to be paid to the general guardian of such an infant, upon his executing and depositing with the surrogate in his office, a bond running to such infant, with two or more sufficient sureties, duly acknowledged and approved by the surrogate, in double the amount of such legacy or distributive share, conditioned that such general guardian shall faithfully apply such legacy or distributive share, and render a true and just account of the application thereof, in all respects, to any court having cogni- zance thereof, when thereunto required; the sureties in which bond shall justify as required in this act unless the surrogate shall determine that the general bond given by the guardian is ample, and of sufficient amount to cover such legacy or distributive share. The said court may, in its discretion, from time to time, authorize or direct such general guardian to expend such part of such legacy or distributive share, in the support, maintenance and education of such infant as it deems neces- sary. On such infant's coming twenty-one years of age, he shall be entitled to receive, and his general guardian shall pay or deliver to him, under the direc- tion of the surrogate's court, the securities so taken, and the interest or other moneys that may have been paid to or received by such general guardian, after deducting therefrom such amounts as have been paid or expended in pur- suance of the orders and decrees of said court, so made as aforesaid, and the legal commissions of such guardian; and the said general guardian shall be liable to account in and under the direction of the surrogate's court, to his ward, for the same; in case of the death of said infant, before coming of age, GUARDIANS 1049 the said securities and moneys, after making the deductions aforesaid, shall go to his executors or administrators, to be applied and distributed according to law, and the general guardian shall in like manner be liable to account to such administrator or executor. If there be no general guardian, or if the surrogate's court do not order or decree the payment or disposition of the legacy or distributive share in some of the ways above described, then the legacy or distributive share, or part of the same not disposed of as aforesaid, whether the same consists of money or securities, shall, by the order or decree of the surrogate's court, be paid and delivered to and deposited in said court, by paying and deUvering the same to and depositing it with the county treas- urer of the county, to be held, managed, invested, collected, reinvested and disposed of by him, as prescribed and required by section two thousand five hundred and thirty-seven of this act. The regulations contained in the general rules of practice, as specified in section seven hundred and forty-four of this act, and the provisions of title three of chapter eight of this act apply to money, legacies and distributive shares paid to and securities deposited with the county treasurer, as pre- scribed in this section; except that the surrogate's court exercises with re- spect thereto, or with respect to a security in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon the supreme court by section seven hundred and forty-seven of this act. Sections forty-six, forty-seven, forty-eight, forty-nine, fifty and fifty-one of part two, chapter six, title three, article two, of the Revised Statutes, are repealed. § 2746, Code Civil Proc. It was held, under this section that the bond, called for in the second paragraph, is one additional to the bond required by § 2830, above quoted, and that too although the penalty of the original bond was based on the very amount of the share receivable under § 2746. Matter of Miller, 29 Misc. 272, and cases on p. 273. But if such additional bond be not ex- acted, the sureties on the general bond are not released. Accounting of Brown, 72 Hun, 160. But in 1900, eh. 554, the section was amended to prevent such hard- ship by giving the Surrogate discretion to determine whether the general bond is ample and of sufficient amount to cover such legacy or share. Heaton, Surr., in a careful opinion in Matter of Fisk, 45 Misc. 299, goes over the question of the payment by a testamentary trustee to a duly appointed guardian of the income of a trust for the support and mainte- nance of the infant. He may safely do so, without seeing to the applica- tion thereof. § 1019. Parental right not a substitute for letters. — Section 81 of the Domestic Relations Law giving a married woman joint guardianship rights with the father does not operate, on his death, to constitute her "general guardian" by virtue merely of her motherhood and without letters or bond. She cannot therefore without formal appointment receive a legacy or distributive share. Matter of Schuler, 46 Misc. 373, citing Estate of Burn- ham, Surr. Dec, 1896, p. 437. § 1020. Ancillary guardianship. — Full provision is made in the Code 1050 surrogates' courts for letters to a foreign guardian, that is, a guardian appointed by a court of competent jurisdiction, of the property of a minor residing without the State. Where an infant, who resides without the state and within the United States, is entitled to property within the state, or to maintain an action in any court thereof, a general guardian of his property, who has been appointed by a court of competent jurisdiction, within the state or territory where the ward resides, and has there given security, in at least twice the value of the personal property, and of the rents and profits of the real property, of the ward, may present, to the surrogate's court having jurisdiction, a written petition, duly verified, setting forth the facts, and praying for ancillary letters of guardianship accordingly. The petition must be accompanied with exemplified copies of the records and other papers, showing that he has been so appointed, and has given the security required in this section, which must be authenti- cated in the mode prescribed in § 45 of the Decedent Estate Law, for the authentication of records and papers, upon an application for ancillary letters testamentary, or ancillary letters of administration. 2. Where an infant who resides without the state and within a foreign country is entitled to personal property within the state, or to maintain an action, or special proceeding in any court thereof respecting such personal property, a general guardian of his property, authorized to act as such within the foreign country where the ward resides, may apply to the surrogate's court of the county where such personal property or any part thereof is sit- uated, for ancillary letters of guardianship on the personal estate of such infant, and the person so authorized must present to the surrogate's court having jurisdiction a written petition duly verified, setting forth the facts and praying for ancillary letters of guardianship on the personal estate of such infant. The petition must be accompanied with the exemplified copies of the records and other papers showing the appointment of such foreign guardian, or where such foreign guardian has not been appointed by any court, with other proof of his authority to act as such guardian within such foreign country, and also with proof that pursuant to the laws of such foreign country, such foreign guardian is entitled to the possession of the ward's personal estate. Exemplified copies of the records, where used pursuant to this subdi- vision, must be authenticated by the seal of the court, or officer, by which or by whom such foreign guardian was appointed, or the officer having the custody of the seal or of the record thereof, and the signature of a judge oF such court, or the signature of such officer and of the clerk of such court or officer, if any; and must be further authenticated by the certificate, under the principal seal of the department of foreign affairs, or the department of justice of such country, attested by the signature or seal of a United States consul. § 2838, Code Civil Froc. This section covers the case of any foreign guardian, whose appointment our courts could be expected, in comity, to recognize. The requirements laid down are such as to safeguard as fully as is reasonable, the interests of the nonresident minor. The foreign letters are only recognized as giving the guardian a status to petition in our courts for the ancillary appoint- ment {West V. Gunther, 3 Dem. 386), but do not operate in and of them- GUARDIANS 1051 selves to give him a right to the custody of the property here. Trimble v. Dzieduzyiki, 57 How. 208; Morrellw. Dickey, 1 Johns. Ch. 153; McLoskey v. Reid, 4 Bradf. 334. The Code safeguards are clear and distinct. The foreign guardian must show appointment (a) by a court of competent jurisdiction, (6) of the State, territory or country, where the ward resides (not of some other State only). Griffin V. Sarsfield, 2 Dem. 4. Secondly, he must show, if his appointment be within the United States, that he has given security as required by § 2838, or, if his appointment be in a foreign country, that under its law he is entitled to the possession of the ward's personal estate. That is to say, he must prove the foreign law, and the existence of the facts making it applicable; for example, if the foreign law makes it a pre- requisite that he should give a bond, he must show that he has given the bond so required. Section 2838 requires the foreign guardian to present a petition " duly verified." In Matter of Whittemore, 1 Connoly, 155, doubt was expressed as to the regularity of an appointment based upon a peti- tion verified by the petitioner's attorney. The doubt would seem to be unfounded. Nor does it seem necessary to cite and use the method referred to in Russell v. Hartt, 87 N. Y. 18, where a power of attorney was relied on to give another than the executrix the right to present a will for pro- bate. The words "duly verified" clearly contemplate a verification under the Code, under which in a proper case the attorney's verification is ample, if the necessary allegations are set forth. As to the Surrogate having jurisdiction, the locus of the property de- termines that. Where the property is stock of a domestic corporation the rule laid down in Matter of Arnold, 114 App. Div. 244 (a transfer tax case) is doubtless the one applicable, to wit: that such stock is property within the county where the corporation has its principal place of business. These provisions for- an application by the foreign guardian for an an- cillary appointment, are not to be taken as preventing a nonresident minor, over fourteen, having property in this State, from petitioning the proper Surrogate for the appointment of a resident general guardian. Johnson v. Borden, 4 Dem. 36. %l § 1021. Same subject— The procedure. Where the surrogate is satisfied upon the papers presented, as prescribed in the last section, that the case is within that section, and that it will be for the ward's interest that ancillary letters of guardianship should be issued to the petitioner, he may make a decree granting ancillary letters accordingly. Such a decree may be made without a citation, or the surrogate may cite such persons as he thinks proper to show cause why the prayer of the petition should not be granted. But before the ancillary letters are issued, the surro- gate must inquire whether any debts are due from the ward's estate to residents of the state; and if so, he must require payment thereof. § 2839, Code Civil Proc, The Surrogate must be satisfied the application is within § 2838. Where 1052 SURROGATES COURTS on the hearing it appeared that in the foreign jurisdiction the petitioner had merely given an undertaking without penalty or seal, and not such a bond as our statute required, the Surrogate refused to make the appoint- ment, as the statute then required a "bond" as distinguished from the "security" now required. In re Fitch, 3 Redf. 457. As the statute now stands, the word "security" doubtless means such as is required by the foreign court, with the limitation that it must be "in at least twice the value of the personal property, and of the rents and profits of the real property of the ward." Section 2838. The petition should be substantially as follows: Petition under § 2838, Code of Civil Procedure. Note. Where the guardian is from a foreign country he can only claim per- sonal property. Where he is from another state or ter- ritory there is no such restriction. See § 2838. Surrogate's Court, County of Title. respectfully shows to To the Surrogate's Court, County of The petition of of this court and alleges : I. That your petitioner is the general guardian of the property of a minor, duly appointed by the court, a court of competent jurisdiction under the laws of the (name the state or territory) where your petitioner and said ward reside, and your petitioner has there given security, in at least twice the value of the personal property, and of the rents and profits of the real property of the said ward, as will more fully appear from the exemplified copies of the records and other papers, accompanying this petition, showing that he has been so appointed and has given the security required by § 2838 of the Code of Civil Procedure. Or if petitiowsr is guardian of a ward residing in a foreign country, say: la. That your petitioner, a resident of is au- thorized to act as general guardian of the property of a minor, a resident of (name the foreign country) by virtue of (here allege the law, or the appointment of a court, in the said country) as will more fully appear from the exemplified copies of the records and other papers, showing your petitioner's authority to act as such (note language of § 2838, ji 2) ac- companying this petition, and your petitioner also alleges that pursuant to the laws of such foreign coimtry your petitioner is entitled to the possession of said ward's personal estate. II. And your petitioner shows that there is property (note) within the state of New York to which said ward is entitled (or that said ward is entitled to maintain an action, or special proceeding in the state of New York to) (here state nature of action and parties thereto). III. // any debts are due from the ward's estate to residents of the state, allege the fact specifically, giving creditors' names, addresses and amount of claim. See § 2839. lY. Wherefore, your petitioner prays that ancillary letters GUARDIANS 1053 of guardianship of the property {say personal only if petitioner is guardian in a foreign country) of said a minor be granted to your petitioner. (Date.) (Verification.) § 1022. Effect of ancillary letters. (Signature.) Ancillary letters of guardianship are issued as prescribed in the last section, without security and without an oath of office. If issued in a case provided for in subdivision one of section 2838, they ■authorize the person to whom they are issued to demand and receive the persona|;property, and the rents and profits of the real property of the ward, to dispose of them in like manner as a guardian of the property appointed as prescribed in this article; to remove them from the state, and to maintain or defend any action or special proceeding in the ward's behalf. If issued in a case provided for in subdivision two, of section 2838, such ancillary letters of guardianship authorize the person to whom they are issued to demand and receive the personal estate of the ward, and to dispose of it in like manner as a guardian of property appointed as prescribed in this article, and to maintain or defend any action or special proceeding respecting such personal estate in the ward's behalf. But in neither case do such letters authorize such ancillary guardian to receive from a resident guardian, executor, or administrator, or from a testa- mentary trustee, subject to the jurisdiction of a surrogate's court, money or other property belonging to the ward, in a case where letters have been issued to a guardian of the infant's property, from a surrogate's court of a county Tvithin the state, upon an allegation that the infant was a resident of that county, except by the special direction, made upon good cause shown, of the surrogate's court from which the principal letters were issued, or unless the principal letters have been duly revoked. § 2840, Code Civil Proc. Application of the last section to former guardians. The last section applies to letters granted, before this chapter takes effect, by a surrogate's court of the state, to a guardian appointed by a court of another state, or a territory of the United States, upon presentation of an exemplified transcript of the record of the appointment. § 2841, Code Civil Proc. The provision of § 2839 must not be disregarded, as to the payment of any debts due from the ward's estate to local creditors. In § 1017 above it is indicated that a guardian appointed, say in New York County where his bond is filed, may not demand of the Surrogate, say of Erie, payment of property due his ward in that Surrogate's juris- diction, without, if required, filing a bond there conditioned for the proper application of the money. And in § 1018 the rule of § 2746 is stated that a general guardian to whom his ward's legacy is directed to be paid must give an additional bond. See Estate of Flagg, 10 N. Y. St. Rep. 694; Lowman v. R. R. Co., 85 Hun, 188. But, while a domestic guardian may be required to give such a bond, it seems it cannot be required of an 1054 surrogates' courts ancillary guardian. Section 2840 expressly provides that ancillary letters, if granted, shall be issued without security, and the ancillary guardian shall thereupon be authorized to demand and receive the personal property of the ward, and to remove the same from the State. In re Hunt's Estate, 34 N. Y. Supp. 1088. In the case cited Arnold, Surrogate, held that the receipt of the ancillary guardian would be a full protection to the executors in paying over to him the legacies in question. § 1023. Revocation of letters of guardianship. — The letters of a gen- eral guardian may be revoked. This applies to ancillary letters. Johnson V. Johnson, 4 Dem. 93. The revocation may be upon application of the guardian, or of the ward, or on his behalf. In the latter case, that is where the proceeding is not a voltintary one on the guardian's part, the Code provides: In either of the following cases, the ward, or any relative or other persoa in his behalf, or the surety of a guardian, may, at any time, present to the surrogate's court, a written petition, duly verified, setting forth the facts, and praying for a decree, revoking letters of guardianship, either of the person, or of the property, or both; and that the guardian complained of may be cited to show cause, why such a decree should not be made: 1. Where the guardian is disqualified by law, or is, for any reason, in- competent to fulfil his trust. 2. Where, by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the real or personal property of the ward, or by reason of other misconduct in the execution of his office, or his dishonesty, drunkenness, improvidence, or want of under- standing, he is unfit for the due execution of his office. 3. Where he has wilfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate, contained in a decree or an order; or any provision of law, relating to the discharge of his duty. 4. Where the grant of letters to him was obtained, by false suggestion of a material fact. 5. Where he has removed, or is about to remove, from the state. 6. In the case of the guardian of the person, where the infant's welfare will be promoted by the appointment of another guardian. § 2832, Code Oivil Proc. The proceeding may be instituted by the ward or in his behalf by any relative or other person. Boiling v. Coughlin, 5 Redf . 116, 119. A guardian who resigns, and then litigates with his successor, cannot in his own name petition that his successor's letters be revoked. The ward is the one in- terested. Matter of Tvyichell, 117 App. Div. 301. The petition should disclose all the material facts and allegations bringing the case within one or more of the subdivisions of § 2832. The language in subd. 6 as to the promotion of the infant's welfare, does not mean, it has been held, that that consideration alone will weigh as a ground for removal. A sufficient GUARDIANS 1055 ground for revocation of letters must be shown under one of the five pre- ceding subdivisions as well. Com v. Corn, 4 Dem. 394, 398; Ledwith v. Union Trust Co., 2 Dem. 439; Estate of Kerrigan, 2 McCarty, 334. But, in Matter of McConnon, 60 Misc. 22, Beckett, Surr., removed a stepfather as general guardian. He was a Protestant. His ward's own father was born, lived, and died a Catholic. The boy desired to follow the father's faith. The charges against the stepfather were dismissed and the re- moval was based entirely on the "general welfare" clause, in view of the diversity of religious belief. He cites Matter of Jacquet, 40 Misc. 575. In that case the court approved the English rule "that a guardian is to have sacred regard to the religion of the father in dealing with the child, and, unless under very special circumstances, to see that the child is brought up in the religious faith of the father, whatever that religion may have been." See also Matter of Crickard, 52 Misc. 63, citing Matter of Feely, 4 Redf. 306; Boiling v. Coughlin, supra. This seems to bring the status of a guard- ian close to that of a godfather, and might be carried to unhappy ex- treme. The remarriage of a woman who was general guardian had been held to be a proper ground for revoking her letters. Swartwoy,t v. Swartwout, 2 Redf. 52; Matter of Elgin, 1 Tuck. 97; Newhouse v. Gale, 1 Redf. 217, 219. See L. 1837, p. 530, § 34. But the statute, 2 L. 1867, p. 783, § 2, remov- ing the common-law disability, and authorizing a Surrogate to appoint married women as guardians, and the language of the Domestic Relations Law, § 81, make it clear that under § 2832 remarriage would not of itself be a sufficient ground for removal. There is a distinction properly to be noted at this point between gen- eral guardians appointed by the Surrogate and testamentary guardians. Section 2472, Code Civ. Proc, by subd. 7, gives the Surrogate's Court general power to " appoint and remove guardians, in the cases, and in the manner prescribed by law." The various causes which will justify the Surrogate in removing a guardian appointed under title 7 of ch. 18 of the Code are specified in § 2832, just quoted. But the Surrogate's authority as regards testamentary guardians is restricted within narrower limits. For § 2858 (post) permits their removal only "in cases where a testamentary trustee may be removed as prescribed in title sixth of this chapter." This refers to § 2817, q. v. Mackay v. Fullerton, 4 Dem. 153. And it must again be emphasized that, whatever the nature of the guardianship, the Surrogate can act only under the circumstances re- quired by the statute. Ledwith v. Union Trust Co., 2 Dem. 439, 441. That the guardian in office is inferior to one proposed to be substituted for him, is not of itself a ground for the removal of the former. Ihid. § 1024. Grounds for removal. — The grounds indicated by § 2832 for revoking letters of guardianship are substantially similar ,to those pro- vided in the same connection in case of executors and administrators, and the same discussion is applicable here. Where the appointment of a guardian was originally improperly secured, as by concealing material 1056 . surrogates' courts facts from the Surrogate {Boiling v. Coughlin, 5 Redf. 116), or by neglect- ing to give notice to relatives residing in the county {Ex parte Feely, 4 Redf. 306) , the appointment will be revoked by the Surrogate under his general powers to vacate decrees so improperly secured. To warrant a revocation of letters under § 2832, the statutory causes must exist and be alleged and proven. See 9 Am. & Eng. Ency. of Law, pp. 97, 98. Fixed habits of intemperance {Kettleias v. Gardner, 1 Paige, 488; Matter of Moore, 18 Weekly Dig. 42); attempts to profit individually at the ward's expense by improper use of its funds {Matter of Cooper, 2 Paige, 34; Matter of O'Neil, 1 Tuck. 34); the insolvency of the guardian and one of his sureties {Matter of Cooper) are all proper grounds to allege; and the Surro- gate may in such a proceeding enjoin the guardian from disposing of the assets of the ward pending the Surrogate's inquiry. Matter of Plumb, 4 JSr. Y. Supp. 135, and see § 2834. Citation; hearing; decree. Upon the presentation of a petition, as prescribed in the last section, the sur- rogate must inquire into the matter; and, for that purpose, he may issue a sub- poena to any person, requiring him to attend and testify in the premises. If the surrogate is satisfied that there is probable cause to believe, that the allegar tions of the petition are true, he must issue a citation to the guardian com- plained of; and, upon the return thereof, if the material allegations of the peti- tion are established, he must make a decree, revoking the guardian's letters accordingly; except that, where the case is within subdivision third or fourth of the last section, he must dismiss the proceedings, under the like circum- stances and upon the like terms, as prescribed in sections 2686 and 2687 of this act, where a similar complaint is made against an executor or administrator. § 2833, Code Civil Proc. This section provides for two inquiries by the Surrogate, the one pre- liminary to the citation, the other upon its return. The first is merely formal, the other goes to the merits. Pending the inquiry the Surrogate has the power above noted of safeguarding the ward's estate. The Code provides for an order, which amounts to an injunction order, suspending the guardian, wholly or partly from the exercise of his powers and au- thority. The provision is as follows: Upon issuing a citation as prescribed in the last section, the surrogate may, in his discretion, make an order suspending the guardian, wholly or partly, from the exercise of his powers and authority, during the pendency of the spe- cial proceeding. A certified copy of an order so made must accompany the ci- tation, and be served therewith ; but, from the time when it is made, the order is binding upon the guardian and upon all other persons, without service thereof, subject to the exceptions and Umitations prescribed in sections 2603 and 2604 of this act, with respect to a decree revoking letters. § 2834, Code Civil Proc. Where such an order is desired the petition should allege facts requir- ing it, and ask the Surrogate to make it. The order may be in the fol- lowing form : GUARDIANS 1057 SxuTogate's Court, County of Order under In the Matter of the Ap- ' § 2834, Code of Civil plication of for the Procedure. Revocation of Letters of Guardianship heretofore issued to A. B. as General Guardian of the Person and Property of C. D. a minor. A petition having been presented to the Surrogate's Court in the county of by (or on behalf of) C. D. a minor over {or under) the age of fourteen years containing allega- tions under § 2832 of the Code of Civil Procedure praying for a decree revoking letters of guardianship heretofore issued to A. B. as general guardian of the person and property of said minor ; and the Surrogate having inquired into the matter (and if he issued a subpoena under § 2833 set out the facts) and being satisfied that there is probable cause to believe that the allegations of the petition are true and a citation accord- ingly being about to issue to said A. B. requiring him to show cause why the prayer of said petition should not be granted; and the Surrogate being persuaded that pending the above entitled proceeding the interests of said ward require that said guardian be suspended from the exercise of his powers and authority (state in what respect and to what extent), it is, Note. The order on motion of the Surrogate, (note) may also be made Ordered, that during the pendency of the above entitled on motion of peti- proceeding for the revocation of his letters of guardianship, tioner's attorney. ^^ ^^^^^ ^^^ further order of the Surrogate, the said A. B. be and he hereby is suspended from the exercise of his powers and authority as general guardian (state again in what respects and to what extent) and he is hereby prohibited from (state terms of injunction). (Date.) Surrogate. In Matter of Plumb, 4 N. Y. Supp. 135, it was held that an injunction order could be made after the citation had issued. The order of suspension made under this section must be made so as to be served with the citation. I 2834, Code Civ. Proc. § 1025. The decree. — Upon the entry of the decree, revoking the guardian's letters, his powers cease. § 2603, Code Civ. Proc. It is proper, where he is removed for misconduct, or disregard of lawful orders of the court, or for other wrongdoing, to charge him personally with the costs of the proceedings. Such costs become an inherent part of the decree against the guardian, and if he fails to pay them his sureties are liable for them as much as they would be for any other money he might be ad- judged to pay. Phillips v. Ldebmann, 10 App. Div. 128, 130. The costs 67 1058 surrogates' courts directed to be paid " are a part of the debt for which the sureties are lia- ble." Douglass v. Ferris, 138 N. Y. 192. By the decree the Surrogate may require the guardian to "account for all money and other property, received by him; and to pay and deliver over all money and other property in his hands into the Surrogate's Court, or to his successor in office, or to such other person as is authorized by law to receive the same." § 2603, Code Civ. Proc. The form of decree can be adapted from that revoking letters of an executor. § 1026. Voluntary proceedings for revocation of letters. A guardian, appointed as prescribed in this title, may, at any time, present to the surrogate's court a written petition, duly verified,, setting forth the facts upon which the application is founded, and praying that his account may be judicially settled; that a decree may thereupon be made, revoking his letters, and discharging him accordingly; and that the ward may be cited to show cause, why such a decree should not be made. The surrogate may, in his dis- cretion, entertain or decline to entertain the application. § 2835, Code Civil Proc. Proceedings thereupon. If the surrogate entertains an application, made as prescribed in the last section, he must issue a citation, as prayed for in the petition; and he may also require notice of the application to be given to such other persons, and in such a manner, as he deems proper. Upon the return of the citation, a guardian ad litem for the ward must be appointed; and the surrogate may also, in his dis- cretion, allow any person to appear and contest the application, in the interest of the ward. Upon the hearing, the surrogate must first determine whether sufficient reasons exist for granting the prayer of the petition. If he deter- mines that they exist, and that the interests of the ward will not be prejudiced by the resignation of the guardian, the surrogate must make an order accord- ingly, and allowing the petitioner to account, for the purpose of being dis- charged. Upon his fully accounting, and paying all money which is found to be due from him to the ward, and delivering all books, papers, and other prop- erty of the ward in his hands, either into the surrogate's court, or in such a manner as the surrogate directs, a decree may be made, revoking the peti- tioner's letters, and discharging him accordingly. § 2836, Code Civil Proc. The clause originally requiring a new guardian to be appointed has been omitted, the subject being provided for by § 2605, q. v. This voluntary application may be made "at any time," but good and sufficient reasons for the resignation must be exhibited. The decisions in relation to a resignation of his trust by a testamentary trustee are more or less pertinent. Section 2859 makes §§ 2835 and 2836 applicable to the resignation of a guardian appointed by will or deed. The distinction will probably be made which arises out of the element of personal trust and confidence reposed, by the testator or nominator, in the guardian by will or deed, as distinguished from the Surrogate's appointee. Ordinarily, however, the Surrogate will not insist upon the retention of his functions by one to whom the duties of guardianship have become irksome or bur- densome. The ample provisions of the Code as to requiring an accounting, GUARDIANS 1059 and the remedies against the guardian and his sureties make the person- ality of the incumbent less important than in cases of testamentary trusts. Guardians' applications to be allowed to resign have been allowed for such reasons as the following: that the guardian's relations to the trustee of the estate in which the ward is a person interested are unfriendly and litigious {In re Wright, 20 N. Y. Supp. 86); that the ward prefers that another person should act. Ibid. It must appear that the interests of the ward will not be prejudiced if the resignation is accepted. § 2836, Code Civ. Proc. The decree follows the accounting and turning over the ward's estate under the Surrogate's directions. But this account, referred to in the last sentence of § 2836, is merely tentative. Matter of Wright, 20 N. Y. Supp. 86. See also Skidmore v. Davis, 10 Paige, 316. It is merely intended to ascertain the amount due, or the property which ought to be delivered up and is made as a matter of course. See Matter of Tyndall, 48 Misc. 39. This appears from the following: Ward or new guardian may require accounting. Notwithstanding the discharge of a guardian, as prescribed in the last sec- tion, his successor or the ward may compel a judicial settlement of his account, as prescribed in article second of this title, in the same manner and with like effect, as if the decree discharging him had not been made. With respect to all matters connected with his trust, his sureties continue to be liable, until his account is judicially settled accordingly. § 2837, Code Civil Proc. But § 2837, cannot be extended further than its clear intent. Thus the sureties cannot compel an account under it. The section gives this right only to the ward or the guardian's successor. Estate of Voelpel, 4 Law. Bull. 79. See Breslin v. Smyth, 3 Dem. 251. The surety has ample rights under § 2847, discussed below. This section, 2837, means that, on this new accounting, any provision of the first decree, improperly or improvidently made, may be scrutinized, modified or reversed. Matter of Tyndall, supra; Matter of Hawley, 104 N. Y. 266. § 1027. Appointment of successor. — Where a general guardian, who was duly appointed, either by a court of competent jurisdiction of the State, or by the will or deed of the child's father or mother, dies, or be- comes incompetent or disqualified, or refuses to act, or has been removed, or when his term of office has expired, the Surrogate has power to enter- tain an application for the appointment of a successor guardian. § 2822 Code Civ. Proc. See also § 2860 as to sole guardians by will or deed, § 1042 below. Upon such an application the practice is as already stated. But under § 2823 care must be taken to cite the former general guardian, unless it is shown that he is dead. As the fact of the removal of the former guardian is jurisdictional, since the appointment of a successor depends on the termination of the prior incumbency, it is evident that the application should not be made until the prior guardian is actually removed. This occurs upon the entry of the decree discharging him, which is not until after the accounting is had and 1060 surrogates' courts the fund turned over. That the papers are "marked for decree" subject to the passing of the guardian's account, is not enough, not even when they have been so marked and the accounting has been had, and no ob- jections filed, can the application be begun on the assumption the decree will be signed. If the accounting party unreasonably delays the entry of the decree, an order to show cause can be had to expedite the matter, or if the delay is necessary, the infant can be provided for ad interim by proceipdings under § 2846. The infant's right to nominate the successor, of course, depends upon whether he is over fourteen years of age or not. § 2826, Code Civ. Proc. Where he is imder fourteen it is proper for the relative or next friend to be diligent in initiating the application, particularly where there exist any relations of hostility. Where two relatives are in conflict in such a matter, and the Surrogate can discern that the real cause of discord is the desire to control the infant's estate, the Surrogate, who has the power to nominate the temporary guardian, will weigh especially the interests of the child in the designation of the guardian of the person. § 1028. Supervision and control of a general guardian. — Article second of title seven (§§ 2842-2850, inclusive), deals with the powers of the court to supervise and control a general guardian and to settle his accounts. § 1029. Annual inventory — ^Account. — In the first place, it is made his duty to file an annual inventory and account. A general guardian of an infant's property, appointed by a surrogate's court, must, in the month of January of each year, as long as any of the infant's prop- erty, or of the proceeds thereof, remains under his control, file in the surrogate's court the following papers : 1. An inventory, containing a full and true statement and description of each article or item of personal property of his ward, received by him, since his ap- pointment, or since the filing of the last annual inventory, as the case requires; the value of each article or item so received; a list of the articles or items, re- maining in his hands; a statement of the manner in which he has disposed of each article or item, not remaining in his hands; and a full description of the amount and nature of each investment of money, made by him. 2. A full and true account, in form of debtor and creditor, of all his receipts and disbursements of money, during the preceding year; in which he must charge himself with any balance remaining in his hands, when the last account was rendered, and must distinctly state the amount of the balance remaining in his hands, at the conclusion of the year, to be charged to him in the next year's account. § 2842, Code Civil Proc. Substituted for L. 1837, ch. 460, part of § 57. This section does not require the service of this intermediate or in- formatory account upon the guardian's sureties, but it is proper this should be done if requested by them, as it has been held that a refusal so to do may justify the Surrogate in making an order, on the application of the sureties, requiring the guardian to file a new bond or be removed from office. Matter of Bushnell, 17 N. Y. St. Rep. 813. GUARDIANS 1061 This section, in the second place, is directory only. That is to say, if the guardian fails to file the inventory and account he cannot be re- moved therefor. It gives the Surrogate the authority for making an order requiring him to do so, for disobedience of which order he may be re- moved. Ledwith v. Union Trust Co., 2 Dem. 439. But it does not give anyone else the right to apply for such an order. Welch v. Gallagher, 2 Dem. 40. The proceedings are ex parte, and are made wholly dependent upon the Surrogate for their fulfilment. Ibid. Provision is made under other sections (see § 2847) for compelling a judicial settlement of a guard- ian's account. See Draper v. Anderson, 37 Barb. 168; Matter of Hawley, 104 N. Y. 250, 264. But the account under § 2842 is intended merely to inform the court as to the manner in which the guardian is discharging his trust, and not, as the Court of Appeals observed {Matter of Hawley, supra, at p. 266), "to confer jurisdiction upon the Surrogate to judicially settle the guardian's accounts while the guardianship continues." The inventory and account under § 2842, Code Civ. Proc, is furnished in printed form by the Surrogate's office. § 1030. Filing the inventory and account — The aflBdavit. With the inventory and account, filed as prescribed in the last section, must be filed an affidavit, which must be made by the guardian, unless, for good cause shown in the affidavit, the surrogate permits the same to be made by an agent or attorney, who is cognizant of the facts. The affidavit must state, in substance, that the inventory and account contain, to the best of the affiant's knowledge and belief, a full and true statement of all the guardian's receipts and disbursements, on account of the ward ; and of all money and other per- sonal property of the ward, which have come to the hands of the guardian, or have been received by any other person by his order or authority, or for his use, since his appointment, or since the filing of the last annual inventory and account, as the case requires; and of the value of all such property; together with a full and true statement and account of the manner in which he has disposed of the same; and of all the property remaining in his hands, at the time of ffiing the inventory and account; and a full and true descriptifti of the amount, and nature of each investment made by him, since his appointment, or since the filing of the last annual inventory, and account, as the case re- quires; and that he does not know of any error or omission in the inventory or account, to the prejudice of the ward. The surrogate must annex a copy of this and the last section, to all letters of guardianship of the property of an infant issued from his court. § 2843, Code Civil Proc. Annual examination of giiardian's accounts. In the month of February of each year, and thereafter until completed, the surrogate must, for the purposes specified in the next section, examine or cause to be examined, under his direction, all inventories and accounts of guardians filed since the first day of February of the preceding year. The examination may be made by the clerk of the surrogate's court, or by a person specially appointed by the surrogate to make it, who must, before he enters upon the examination, subscribe and take, before the surrogate, and file, with the clerk of the surrogate's court, an oath faithfully to execute his duties, and to make a true report to the surrogate. Where the surrogate seasonably certifies in 1062 surrogates' courts writing to the board of supervisors, or, in the county of New York, to the board of aldermen, that the examination required by this section cannot be made by him, or by the clerk of the surrogate's court, or by any clerk, employed in his office and paid by the county, the board must provide for the compensation of a suitable person to make the examination. § 2844, Code Civil Proc. Proceedings when account defective, etc. If it appears to the surrogate, upon an examination made as prescribed in the last section, that a general guardian of an infant's property, appointed by letters issued from his court, has omitted to file his annual inventory or ac- count, or the affidavit relating thereto, as prescribed in the last section but one; or if the surrogate is of the opinion, that the interest of the ward requires that the guardian should render a more full or satisfactory inventory or ac- count; the surrogate must make an order, requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian personally to pay the expense of serving the order upon him. Where the guardian fails to com- ply with such an order, within three months after it is made; or where the sur- rogate has reason to believe that sufficient cause exists for the guardian's re- moval, the surrogate may, in his discretion, appoint a fit and proper person special guardian of the ward, for the purpose of filing a petition in his behalf, for the removal of the guardian, and prosecuting the necessary proceedings for that purpose. § 2845, Code Civil Proc. See Rule 21, Surrogates' Rules, New York County. These sections do not require extended discussion. § 1031. Surrogates may direct as to infant's maintenance. Upon the petition of the general guardian of an infant's person or property; or of the infant; or of any relative or other person in his behalf; the surrogate, upon notice to such persons, if any, as he thinks proper to notify, may make an order, directing the application, by the guardian of the infant's property, to the support and education of the infant, of such a sum as to the surrogate seems proper, out of the income of the infant's property; or, where the income is inadequate for that purpose, out of the principal. § 2846, Code Civil Proc. Sectiten 2472 of the Code, by subd. 7, gives the Surrogate power to "compel the payment and delivery by guardians of money or other prop- erty belonging to their wards." An application having been made under these two sections, for an order directing a guardian of the property to pay from moneys of his ward in his hands for the maintenance of the ward by petitioner for a year under an agreement made by her with the guardian of the person {Matter of Kerwin, 59 Hun, 589), the guardian of the prop- erty filed an answer disputing the claim, and the Surrogate thereupon dis- missed the proceeding for lack of jurisdiction. The General Term reversed the order and held that the intention of § 2846 was to give the Surrogate jurisdiction in such cases, and said, "there is no limitation of the power of the Surrogate," i. e., in §§ 2846 and 2472, "to direct the guardian of the property of an infant to make a suitable and proper application of the income, or of the property itself to the support of the infant. We know of no authority which restricts the jurisdiction of the Surrogate to cases where the demand for the support is undisputed." It was held, accordingly GUARDIANS 1063 that it was the Surrogate's duty to grant or refuse the application upon the merits. See next section as to expenditure for infant's maintenance. But the section is not a warrant for securing to a guardian reimbursement for services rendered the ward before his appointment. Matter of Tyndall, 48 Misc. 39. For §§ 2719 and 2731 apply only to a representative. Matter ofMarcellus, 165 N. Y. 70. In Welch v. Gallagher, 2 Dem. 40, 42, Spring, Surr., had held that § 2846 did not contemplate providing for the payment of a debt already incurred. But Ransom, Surr. {Matter of Ogg, 1 Connoly, 10), held that a Surrogate had power to make an allowance for past maintenance. See Matter of Bostwick, 4 Johns. Ch. 102. In Hyland v. Baxter, 98 N. Y. 610, it was held that an allowance for past maintenance may be made to executors, trus- tees or guardians, whether upon an accounting or upon petition. It is true that the court said, at p. 614: "The power of a court of equity to make an allowance out of the estate of infants for past maintenance" was af- firmed, etc. But, at p. 616, Andrews, J., says: "The fact that this ques- tion is an equitable one, and depends upon equitable grounds, is not a ground of objection to the jurisdiction. The Surrogate's Court .... has jurisdiction to determine questions either legal or equitable arising in the course of proceedings in the execution of powers expressly conferred, and. which must be decided therein," citing Jumel v. Jumel, 7 Paige, 591; Boughton v. Flint, 74 N. Y. 476; Riggs v. Cragg, 89 N. Y. 480. See also Matter of Putney, 61 Misc. 1. In Matter of Stoehr, 23 N. Y. Supp. 280, Coleman, Surr., distinguished the Kerwin case; but the case before him involved a claim for money and services alleged to have been expended and rendered in the care of the infant's property, which claim was not an adjudicated one, and was disputed by the guardian, while § 2846 con- templates payments for the "support and education" of the ward. The Kerwin case may be taken as an authority for holding that when a claim is made for reimbursement for such a disbursement for a ward, the Surro- gate has power to pass upon it, on its merits, and is not divested of juris- diction by an answer controverting the validity of the claim. The Matter of Wentz, 9 Misc. 240, denied an allowance for past maintenance upon the merits, and not for want of jurisdiction. In Matter of the Estate of Hasle- hurst, 4 Misc. 366, Lansing, Surr., pointed out that a claim for past sup- port of infants contains other elements than does an ordinary debt, and depends for its allowance, not alone on the fact of the disbursements, but on various other circumstances, and thus, though disputed, is not strictly a disputed debt, referring to In re Wandell, 32 Hun, 545. It is hardly necessary to set forth precedents for an application of this nature. § 1032. Disbursements before appointment. — The Surrogate, as above hinted, cannot authorize the reimbursement of the guardian for moneys paid out to secure appointment or in contemplation thereof. Matter of Grant, 56 App. Div. 176; Matter of Tyndall, 48 Misc. 39; Matter of Mar- cellus, 165 N. Y. 70. In the case of Clowes v. Van Antwerp, 4 Barb. 416, 1064 surrogates' courts it was held that upon the settlement of the accounts of a general guardian the Surrogate is not authorized to make any allowance to such guardian for services rendered or expenses incurred by him previous to his appoint- ment as guardian. That case was affirmed by the Court of Appeals upon the opinion of the General Term as reported above. Clowes v. Van Ant- werp, 6 N. Y. 466. In Ex parte Dawson, 3 Bradf . 130, the infant, a citizen of this State, had been clandestinely taken to England, and it was held that the guardian was justified in attempting to recover the custody of his ward by invoking the aid of the English courts, and that the expenses of such a proceeding were a proper charge on the infant's estate. But in that case it appeared that the proceeding had been taken by the guardian after his appointment as such, and the allowance was made because it seemed to the Surrogate that it was the duty of the guardian to take such steps as were necessary to recover the possession of the infant, of whose person he had been appointed guardian. In the Grant case, supra, the mother before her appointment had incurred legal expenses amounting to $1,700, in habeas corpus proceedings to get the custody of her child. It was held that her application was solely as mother, and had no relation to her duty as guardian. § 1033. General maintenance of ward. — The maintenance and educa- tion of the ward is the guardian's primary duty. And by § 288 of the Penal Code, it is a misdemeanor if he "wilfully omits, without lawful excuse, to perform a duty, by law imposed upon him, to furnish food, clothing, /Shelter, or medical attendance to a minor." People v. Pierson, 176 N. Y. 20. [See § 1023, ante, as to religious education.] If there be no fund available to him, but executors or trustees hold a fund under direction to "accumulate" for the benefit of his ward, it is his right and duty to petition the court for the application therefrom of so much as may be requisite, Matter of Wagner, 81 App. Div. 163, even in a case where the fund was to go to another if the ward should not attain the age of twenty-five. The reason being that if the accumulation were not for the infant's benefit, the accumulation would be invalid. Smith v. Parsons, 146 N. Y. 116. See also Matter of Goodwin, 122 App. Div. 800. Again, the infant's real estate may be sold for this same purpose and the proceeds paid to the guardian. Allen v. Kelly, 171 N. Y. 1, 6, citing § 2846. The guardian's sureties are liable for his improper use of any such moneys so paid to him. Where they are paid to him for investment the Surrogate must exact additional security under General Rule 59. If he omit to do so, semble the surety may not be liable. Ibid. Section 2846 is explicit in providing that payment out of the ward's estate shall be made out of the income thereof, save "where the income is inadequate for that purpose." This, it has been held, does not authorize the principal to be resorted to where there is income uncollected and the debtors are solvent. Matter of Plumb, 52 Hun, 119, 122. For the income "is the primary fund from which to give support and maintenance'' to the ward. Matter of Wan- dell, 32 Hun, 545. And the payments must be for the support and educa- GUARDIANS 1065 tion of the ward, and their amount rests primarily in the judgment and discretion of the guardian, taking all the ward's circumstances into con- sideration with the condition a,nd productiveness of its property. Over this judgment of the guardian stands as a safeguard the discretion of the Surrogate to approve or disapprove. This being the case the Surrogate will authorize payments of definite specific bills, for support or for educa- tion of a particular character. Matter of Plumb, supra. The Surrogate will not under this section sign omnibus orders, good for a year or for an indefinite time. Ibid. Nor should the Surrogate permit the general guardian to pay lump sums to the ward's natural guardian. Although it is proper to direct the application of the ward's net income to its support, and to that end to have it paid to its father regularly. Matter of Plumb, 24 Misc. 249. Section 2348 of the Code permits the sale of an infant's real estate to provide for its maintenance and education. See Allen v. Kelly, 171 N. Y. 1, 7. The proceeds may be turned over to the general guardian, with appropriate directions as to its use. Ibid., citing Clark v. Montgomery, 23 Barb. 464; Code, §§ 2746, 2846. The general guardian is amenable to the Surrogate's Court, and is answerable for the proper ap- plication of the moneys he is allowed to disburse. Quin v. Hill, 6 Dem. 39; Houghton V. Watson, 1 Dem. 299. The natural guardian is a competent person to ask for the order under this section, however. If the general guardian chooses to make the natural guardian his disbursing agent, he is liable for any misappropriation of the moneys. Quin v. Hill, supra. Where, before his formal appointment as her guardian, a father, too poor to support his daughter out of his own means, nevertheless incurred ex- penses for her maintenance, and after his appointment made application for leave to reimburse himself out of her property, it was held to be proper to give him leave. Every such case stands upon its own peculiar facts. The appeal is to the Surrogate's sound discretion. Matter of Bushnell, 17 N. Y. St. Rep. 813; Matter of Wright, 22 N. Y. St. Rep. 83. But if a guard- ian contracts for the ward's care and maintenance the liability is a per- sonal one. The execution of such a contract "as guardian," etc., does not remove this liability. Aldrich v. Moore, 26 N. Y. St. Rep. 964; Nether- cott V. Kelly, 24 N. Y. St. Rep. 171. Nor can the person contracted with look to the ward after he attains his majority. Where a guardian main- tained her ward, her own child, as one of the family, it was held proper for the Surrogate, upon her final accounting, to allow her such expendi- tures as would have been proper to provide for by a maintenance order, had she at the outset applied for it. Matter of Klunck, 33 Misc. 267. In. this case the Surrogate approximated the share in the family expenses incurred in the running of the house. See Shaw v. Bryant, 90 Hun, 374,. aff'd 157 N. Y. 715. See also Hyland v. Baxter, 98 N. Y. 610; Browne v. Bedford, 4 Dem. 304, and cases cited; Shepard v. Stebbins, 48 Hun, 247,^ 252. It is proper in certain cases for a Surrogate to appoint a guardian of property of an infant for the express purpose of disbursing a fund con- 1066 surrogates' courts tributed or raised for the express purpose of maintaining the child. For instance, In the Matter of Stotesbury, New York County, unreported, the father of a child who was an invalid, for the purpose of sending the invalid away, under the advice of physicians, for his health, borrowed money on a life insurance policy assigned for that purpose to the use of the infant. A guardian was appointed by the Surrogate to take the proceeds and to disburse them under a running order, so as to maintain the child, as long as the fund should last, in the place to which by advice of physicians he had been sent. In such a case the use of the principal of the fund was riot only necessary but was contemplated in the very appointment of the guardian. There can be no question that the Surrogate had the power which he exercised in the premises. In Matter of Bartsch, 60 Misc. 272, Ketcham, Surr., doubted the power of the Surrogate to authorize a guard- ian himself to borrow on a policy; but such order had in fact been made. Where the principal of the ward's property is encroached upon, the guardian has the burden of showing that such encroachment was nec- essary and proper. The advantage of securing an order under this section is manifest, as it will serve as a protection to the guardian upon his ac- counting. But if no order was had then the guardian must justify the payment by clear proof. Matter -of Wandell, 32 Hun, 545,.. 548, citing 2 Story's Eq. Jur. § 1355; Voessing v. Voessing, 4 Redf. 360, and cases cited on p. 365; Clark v. Clark, 8 Paige, 152; Matter of Bostvnck, 4 Johns. Ch. 102; Kelaher v. McCahill, 26 Hun, 148; In re Clements, 17 W. Dig. 431. Upon an accounting the considerations, that will weigh in determining whether the guardian was justified in making a particular payment, are, the amount of the income; the age of the ward; the ward's educational need; the ward's health, whether requiring more than ordinary attention or attendance; the previous station in life; also the present and probable future social standing. The rule to be applied in passing his accounts is that of fidelity and ordinary diligence and prudence in the execution of his trust. In the absence of fraud his acts will be liberally construed. Matter of Wandell, supra. It is no answer to an application under § 2846, that the ward declines to reside with the guardian. The support and education of the ward is not contingent on such residence. Matter of Wentz, 9 Misc. 240. See § 1035 below. § 1034. Limitations on the general guardian. — The power of the gen- eral guardian to deal with the ward's property is very limited. The ob- ject of his appointment is to conserve the property until the ward is of the age to take it over. The power to lease it, for the term of his guardian- ship, under certain restrictions has been already referred to. But, not only will the guardian be held personally liable for any improper dealing with the trust property, but acts to the detriment of the estate will be treated as having been made without power and will not be enforced by the court. Thus, where a general guardian, who was also executor, sought by an agreement to impose a restriction on his ward's real estate which the court GUARDIANS 1067 held to be burdensome, and likely to impair its rental value, it was held the ward's interest could not be affected thereby, whatever the individual liability he may have incurred. Curry v. Keil, 19 App. Div. 375. He may be surcharged with loss on improvident or unnecessary sale of realty. Matter of Nowak, 38 Misc. 713. The general guardian has no inherent power to convert the ward's per- sonal property into real property. Matter of Boltqn, 20 Misc. 532. He must apply to the Supreme Court for authority to do so. Matter of Decker, 37 Misc. 527. The Supreme Court may, as.the Court of Chancery frequently did, permit a guardian to purchase real property for the ward's benefit, as, for example, to provide a suitable home. Ibid. When, however, this is done, the rule is that the original descendible or inheritable character of the property is not changed. Ibid., at p. 534, and cases cited. The broad rights and powers of the Court of Chancery to sanction certain uses of an infant's money, passed to the Supreme Court, which holds them now, even ■over guardians appointed by the Surrogate's Court. Dayton on Surrogates •(5th ed.), 819, and cases cited; Matter of Bolton, supra. In Forman v. Marsh, 11 N. Y. 544, the court says: "The right of the guardian to change the nature of the estate of his ward was acknowledged by the Court of Chancery at an early period, but it was restricted by two qualifications: Pirst, that the charge should be for the manifest advantage 'of the infant; and second, that the right of succession to the property, in case of the death of the infant, should not be changed." See also Horton v. McCory, 47 N. Y. 21, 26; Story's Eq. Jur. § 1357. If the guardian takes the responsibility of changing the personal prop- erty of the ward into real property, his act will be sustained only if it be such and done under such circumstances that the court would have origi- nally upon application granted him leave to do so. Matter of Bolton, ■supra, at p. 536, and see cases cited on p. 537. See also Tyler on Infancy .and Coverture, p. 260, § 175; Matter of Decker, 37 Misc. 527, 529. And the infant may when he arrives at full age elect to take the land, or the money with interest (Story's Eq.Jur. § 1357; Matter of Bolton, supra), and if he die before his majority his sole legatee may exercise this right of €lection. Matter of Bolton, at p. 539, citing Matter of Gilbert, 39 Hun, ,61 ; Matter of Brunaman, 67 N. Y. St. Rep. 44; Lockman v. Reilly, 95 N. Y. M; Bayer v. Phillips, 17 Abb. N. C. 429; Wood v. Mather, 44 N. Y. 256. The general guardian will not be permitted to profit individually in •dealing with the ward's estate to the ward's prejudice. But if a guardian in socage buy in on a foreclosure sale property owned by the ward's father, and the act is in good faith, it is not void. JBut the court will impress a trust in favor of the children subject to equitable conditions. O'Brien v. General Synod, etc., 10 App. Div. 605, and cases cited. And the purchase is voidable only at the instance of the ward. See Dugan v. Denyse, 13 App. Div. 214, and cases cited. Nor can he invest in personal securities. Matter of Decker, supra. Thus it has been held: 1068 surrogates' courts "A guardian who invests in personal security assumes the risk of loss thereby and he must bear the expenses of litigation, in efforts to collect funds so invested." Torry v. Frazer, 2 Redf. 486. "A guardian has no authority to invest upon personal security, upon bond, promissory note, or other personal security, and if he does he shall be personally answerable if the security prove defective." Dayton on Surr. (3d ed.) 521; Bogart v. Van Velsor, 4 Edw. Ch. 718, 722; Ackerman v. Emott, 4 Barb. 626. "A guardian should not loan the money of his ward upon personal se- curity." Matter of Bushnell, 17 N. Y. St. Rep. 813; S. C, 4 N. Y. Supp. 472. "The guardian has no right to invest the property of the infant in bank stock." Ackerman v. Emott, 4 Barb. 626. When the same person acts in two separate capacities, as say adminis- trator and guardian, and he is directed in the one capacity to pay or de- liver to himself in the other capacity money or property held by him in. the former capacity, he is deemed to have done so, and his sureties are liable if he is shown not to have done so. Matter of Noll, 10 App. Div. 356, 359, aff'd 154 N. Y. 765; Code Civ. Proc. § 2596; Fardette v. U. S. F. & G. Co., 86 App. Div. 50. See Matter of Maybee, 40 Misc. 518, distinguishing the liability as conditioned by priority of appointment to either office, e. g., A, being guardian is appointed administrator, in which capacity he is not liable for money in his hands or control as guardian. But if A, being administrator is appointed guardian he is liable as guardian for moneys of the estate in his hands as such. In whatever capacity he accounts, the question seems to be whether the money received in either capacity is an asset in fact of the other trust, regardless of the capacity in which he may have originally received it. But if a guardian receives from a trustee a security forming part of the corpus of the fund, which proves worthless through no act of his, as where a second mortgage was wiped out by the foreclosure of a first mortgage, the guardian is not liable to the ward. Bumstead v. Sanders, 39 N. Y. St. Rep. 618. A guardian has the right to incur reasonable legitimate administration expenses. Thus a trust company acting as guardian was allowed sums paid to agents for collecting rents. Garvey v. Owens, 35 N. Y. St. Rep. 133. § 1035. Personal relation to ward. — A guardian is not entitled to the services or society of his ward. Ide v. Brown, 178 N. Y. 26, 31. As a rule, he has "no power to make a contract binding on the person or property of the ward, unless authorized by a statute. Ibid., citing Wuesthoff v. Ger- vmnia Life, 107 N. Y. 580, 588, and Woerner on Guardianship, § 49. His protection, if he do contract, is derived from his right to charge the estate for expenses or obligations necessarily and properly incurred in the discharge of his duty. Ibid., citing Warren v. Union Bank of Rochester, 157 N. Y. 259. GUARDIANS 1069 Ide V. Brown involved a contract by the guardian binding the ward to live with A "during his life." Held not only not binding on the ward, but unenforceable against estate of A, who had in turn agreed to make certain testamentary provision for the child. § 1036. Guardians appointed by will or deed. Will or deed containing appointment to he proved, etc., and recorded. A person shall not exercise, within the state, any power or authority, as guardian of the person or property of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the state, and dying after this chapter takes effect, unless the will has been duly admitted to probate, and recorded in the proper surrogate's court, and letters of guardianship have been issued to him thereupon; or by virtue of an appoint- ment contained in a deed of the infant's father or mother, being a resident of the state, executed after this chapter takes effect, unless the deed has been acknowledged or proved, and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county, in which the person making the appointment resided, at the time of the execution thereof. Where a deed containing such an appointment is not recorded, within three months after the death of the grantor, the person appointed is presumed to have renounced the appointment; and if a guardian is afterwards duly ap- pointed by a surrogate's court, the presumption is conclusive. § 2851, Code Civil Proc. See also § 81 Domestic Rel. Law. When such an appointment or designation is made by will or deed, upon its taking effect the person named has the rights and powers and is subject to the duties and obligations of a guardian. And the designation or appointment becomes from the same time valid and effectual against every other person claiming the custody and tuition of the minor, as guardian in socage or otherwise. Domestic Relations Law, § 82. This- law further provides that such guardian by will or deed "may take the custody and charge of the tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in sueh actions for the benefit of his ward. He shall also take the custody and management of the personal estate of such minor, and the profits of his real estate, during the time for which such disposition shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law." § 1037. The appointment. — Section 81, formerly § 51 of the Domestic Relations Law, was amended in 1899, by adding "Either the father or mother may, in the lifetime of them both, by last will duly executed, ap- point the other the guardian of the person and property of such child, during its minority." It is a power statutory in its origin (Schouler on Dom. Rel. 398), and does not exist in the absence of a statute conferring it. Wuesthojf v. Germania Life Ins. Co., 107 N. Y. 580, 588. See Matter of Kellogg, 187 N. Y. 355, where a father attempted, though survived by ■the mother, to appoint by will third parties as such guardian, it was held, 1070 surrogates' courts while the appointment was void under § 51, the directions as to the trust funds given to the several infants were valid as powers in trust to be executed by such third parties. See also discussion by Bartlett, J., dis- senting. In Matter of Walker, 54 Misc. 177, however. Brown, Surr., held the appointment of another than the surviving parent, was simply in- operative so long as he survived, and that the will should be probated,* but letters of testamentary guardianship could not issue thereunder so long as he survived. See also Matter of Waring, 46 Misc. 222, citing Peopk ex rel. Byrne v. Brugman, 3 App. Div. 155; Matter of Schmidt, 77 Hun, 201; Griffin v. Sarsfield, 2 Dem. 4. The Waring case was one where a woman divorced from her husband who survived her appointed a third party by will guardian of person and property of the children whose custody was awarded to her by the divorce decree. And the power to appoint by " deed " in the clause preceding this amendment is construed as meaning a testamentary instrument in the form of a deed, to operate only after the death of the parent. See Wuesthoff case, supra, and see § 2851, last para- graph. A parent cannot appoint a guardian of the estate of his child sepa- rate from the guardian of its person. Matter ofBrigg, 39 App. Div. 485. The Code, by § 2851, recognizes the fact that the guardians by will or deed are domiciliary guardians, appointed by "residents of the State." Our statutes relate exclusively to domiciliary guardianships under wills or deeds of residents of this jurisdiction. Wuesthoff v. Germania Life Ins. Co., supra. A guardian appointed by virtue of the statute of another State, cannot exercise any authority here over the person or property of his ward. "His rights and powers are strictly local, and circumscribed by the jurisdiction of the government which clothed him with his office." 7rf., citing Morrellv. Dickey, 1 Johns. Ch. 153. When the will does not specify the duration of the guardianship it con- tinues during the minority {Matter of Reynolds, 11 Hun, 41), and if more than one guardian is named, and no provision made as to a successor for either in case he does not serve, a failure of either to qualify vests all the powers and rights in the one qualifying. Ibid. The statute provides that the surviving parent may dispose of the custody and tuition of the child during its minority "to any person or persons." So the appointment of a woman, with whom testator cohabited as his wife, as guardian of their children is proper. Gelston v. Shields, 16 Hun, 143, aff'd 78 N. Y. 275. But the appointment must be by a parent. A grandparent is not within the intent of the statute. Fullerton v. Jackson, 5 Johns. Ch. 278; Hoyt v. Hilton, 2 Edw. Ch. 202. See Matter of Kellogg, 187 N. Y. 355, and cases examined by Cullen, Ch. J. If a grandfather i desires to provide for the maintenance and education of his minor grand- child, he can accomplish his purpose by a devise or bequest to his executors in trust, directing the application of the rents and profits, or of the income to the child's needs during minority. In such a case the executors retain and control the fund or property to the exclusion of a guardian. Fullerton V. Jackson, supra. GUARDIANS 1071 § 1038. Qualifying. Where a will, containing the appointment of a guardian, is admitted to pro- bate, the person appointed guardian must, within thirty days thereafter, qual- ify as prescribed in section 2594 of this act; otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affidavit, setting forth, with respect to the guardian so appointed, any fact which is made by law an objection to the issuing of letters testamentary to an executor. Sections 2636 to 2638 of this act, both inclusive, apply to such an affidavit, and to the proceedings thereupon. A person appointed guardian by will may, at any time before he qualifies, renounce the appointment by a written instrument, under his hand, filed in the surrogate's office. § 2852, Code Civil Proc. The rule laid down by this section is new. Before the Code the practice was to bring a proceeding to require the guardian named to qualify in a time specified. See L. 1877, eh. 206. And prior to 1877, -the guardian's right to act depended on the will and not on his qualifying. Geoghegan v. Foley, 5 Redf. 501; 2 R. S. 150, §§ 1, 2. The official oath is similar to that taken by an executor or administrator. See § 2594, Code Civ. Proc. The fact that the appointment is made to take effect upon the happen- ing of a contingency does not make § 2852 inapplicable. The appointee must qualify within the statutory time, regardless of whether the con- tingency has or has not occurred. Then when the contingency does occur he has the right to his letters. Estate of Constantine, 22 N. Y. St. Rep. 883. Whenever facts exist which would in probate proceedings enable a person interested to object to the issuing of letters to an executor, and the case is one where the objection could be obviated by his giving a bond, a guardian appointed by will or deed may be required to give security for the performance of his trust. §§ 2853, 2854, Code Civ. Proc. The letters of guardianship must issue if the person named qualifies and no objections are filed or sustained. § 1039. Control of the guardian. — The Code gives the Surrogate full power of supervision and control over such guardians. They can be com- pelled to file informatory or intermediate accounts and an inventory. The provision is as follows: Inventory and intermediate account may he required. Upon the petition of the ward, or of any relative or other person in his be- half, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may, at any time, in the discretion of the surrogate, make an order requiring a guardian appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account required to be filed annually by a guard- ian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed, in the month of January of each year thereafter. Sections twenty-eight hun- 1072 surrogates' courts dred and forty-two to twenty-eight hundred and forty-five of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court. The provisions of section twenty-eight hundred and forty-six of this act shall apply to a guard- ian appointed by will or deed with the same effect as if such guardian had been mentioned in said section, and the proceedings therein prescribed may be had in the case of any such guardian in the same manner as if he were a general guardian. § 2858, Code Civil Proc. The discussion of §§ 2842-2845, is applicable in this connection. The power to direct the testamentary guardian as to the infant's maintenance is given by the final paragraph of § 2855 added in 1896 by ch. 61. § 1040. Removal of a guardian appointed by will or deed. — The Surro- gate's power over such guardians extends to their removal upon applica- tion of the ward, or on the ward's behalf. Upon the petition of the ward, or of any relative or other person in his be- half, the surrogate's court, having jurisdiction to require security from a guard- ian appointed by will or deed, may remove such a guardian, in any case where •a testamentary trustee may be removed, as prescribed in title sixth of this chapter; and the proceedings upon such a petition are the same, as prescribed in that title for the removal of a testamentary trustee. Where a citation is issued, upon a petition for the removal of such a guardian, he may be sus- pended from the exercise of his powers and authority, as if he had been ap- pointed by the surrogate's court. § 2858, Code Civil Proc. The causes of removal are declared to be identical with those necessary to be alleged to secure the removal of a testamentary trustee. This is a limiting of the power Surrogates have over guardians whose authority depends wholly upon judicial appointment. Mackay v. Fullerton, 4 Dem. 153. But in construing the statute relating to the removal of testamentary "trustees in this connection the courts must bear in mind the distinction between the duties of a trustee and of a guardian. For example, the term "incompetency" may have a different signification in its two applications. The idea of unsuitableness is common to both, but in relation to a guardian, it has relation not only to mental condition and moral status, but also imports that in the interests of the child in respect of nurture, care, educa- tion and safety, the court may take into consideration the relative social and pecuniary position of the guardian and the infant. DamareU v. Walker, 2 Redf. 198, 205. The personality of the trustee is quite immaterial if he possess integrity in his trust. The relations of a guardian to his ward are more personal, and in the case cited the Surrogate observed that if a man of wealth should in a period of insanity nominate by; his will a servant of unrefined habit of life the guardian of his child, the Surrogate would not hesitate to decree her removal. The questions of fact upon an application for such a removal may be referred to a referee, who may take proof of and report the same. Matter of King, 42 B.OW. 607. GUARDIANS 1073 § 1041. Resignation. A guardian appointed by will or by deed, may be allowed to resign his trust, by the surrogate's court, having jurisdiction to require security from him. The proceedings for that purpose, and the effect of a decree made thereupon, are the same, as where a guardian appointed by the surrogate's court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title. § 2859, Code Civil Proc. § 1042. The decree revoking letters. — Whether he is removed or re- signs, the guardian may, by the decree revoking his letters, be required to account for all money and other property received by him; and to pay and deliver over all money and other property in his hands into the Surro- , gate's Court, or to his successor in office, or to such other person as is authorized by law to receive the same. § 2603, Code Civ. Proc; Phillips v. lAebman, 10 App. Div. 128, 129; Matter of Hicks, 54 App. Div. 582. Upon the entry of the decree his powers as guardian cease. Section 2603. Appointment of successor. Where a sole guardian, appointed by will or by deed, has been, by the decree of the surrogate's court, removed or allowed to resign, a successor may be ap- pointed by the same court, with the effect prescribed in section 2605 of this act; unless such an appointment would contravene the express terms of the will or deed. § 2860, Code Civil Proc. 68 PART VIII ACCOUNTINGS AND DISTRIBUTION CHAPTER I ACCOUNTING FOR THE ESTATE § 1043. The obligation to account. — The obligation to account for every administrative act or neglect to act rests upon all who undertake to administer an estate or a fund. See Schouler on Ex'rs and Adm'rs (2d ed.), 631. This obligation may disappear if the representative and beneficial title be completely merged. E. g., A is widow, sole executrix and sole legatee of B. Having paid all debts and funeral expenses, there is no one at whose instance she may be compelled to account and there is no occasion for her to do so. Blood v. Kane, 130 N. Y. 514; Matter of Kinsella, 50 Misc. 235. Generally speaking, where there is a "person interested" or a "creditor" there is a right to an accounting. It goes without saying when there is a beneficiary or cestui que trust. This obligation to account is usually expressly set forth in the bond which administrators or like persons are required to file, but it is not dependent upon any such express stipulation. It rests upon executors, administrators, administrators with the will annexed, temporary adminis- trators, testamentary trustees, guardians by will or deed and representa- tives of deceased executors, administrators, guardians or testamentary trustees. This is so much ingrained in the policy of our law that the courts have held a provision in a will invalid which attempted to free an executor from the obligation to account. Matter of Gilbert, 11 N. Y. Supp. 743. The sections of the Code about to be discussed provide, in some detail, the procedure whereby the Surrogate or some person interested beneficially or otherwise in the estate may enforce this obligation. The Code prescribes (o) Who may be made to account; (b) Who may require such accounting; (c) When such accounts may or must be rendered; (rf) The procedure upon such accounting. § 1044. What is an accounting? — An account, for the purposes of this 1074 ACCOUNTING FOR THE ESTATE 1075 discussion, may be described as a statement in writing, verified, contain- ing, in concise detail, the history of the dealings with the trust estate or fund. It embodies a narrative of the representative's conduct as such (using the term to include everyone whom a Surrogate may require to account) in relation to the debtors to, the creditors of, or the persons in- terested in the estate, together with a full statement of every receipt and expenditure, grouped as to their character in appropriate schedules. It should indicate the growth or shrinkage of the property administered upon, its original and present character and value, and the balance, if any, ■ available for distribution. Where the administration has been pursuant to a testamentary instrument it should show compliance therewith. It should be prepared in contemplation of the right reserved to certain persons, or classes of persons, to test its several items in respect of ac- curacy or propriety, by means of objections to be litigated before the Surrogate, or, in proper cases, his referee. An accounting is the special proceeding in which such an account is subjected to the Surrogate's judicial scrutiny. This scrutiny does not always take the form of any final determination. When it does the ac- count is said to be judicially settled. As will be noted below, some ac- counts are not capable of judicial settlement, but are by the statute ex- pressly declared to be intermediate or informatory merely, not open to be attacked or impeached, but merely intended to disclose the status of the fund at a particular time. § 1045. Kinds of accounts. — ^This suggests the first distinction, which is between accounts intermediate, and those which are, somewhat in- exactly, called final. The adjectives are used arbitrarily. The expression "intermediate account," denotes an account filed in the sur- rogate's office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement. § 2614, Code Civil Proc. subd. 9. The expression "judicial settlement," where it is applied to an account, sig- nifies a decree of a surrogate's court, whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes, or for cer- tain purposes specified in the statute; and an account thus made conclusive is said to be "judicially settled." § 2514, Code Civil Proc. subd. 8. A final account is one that is capable of being judicially settled. It need not be final in the sense of being the last account of the one account- ing. An executor or testamentary trustee may, thus, render and have judicially settled several final accounts. Accounts may also be either voluntary or compulsory. A voluntary account, as the term implies, is one rendered by the repre- sentative or trustee or guardian of his own motion; while a compulsory account is one rendered at the direction of the Surrogate, of his own mo- tion, or at the instance of a person entitled to require it. § 1046. The Surrogate's jurisdiction. — The jurisdiction of the Supreme Court, as successor to the Court of Chancery, over the action for an ac- 1076 surrogates' courts counting, in which any trustee (using the term generically) may be called to account for his trust, is clear and has been repeatedly asserted and sustained. But it needs no discussion in this work further than to observe, in the first place, that it is not an exclusive jurisdiction by any means, but rather con- current, so far as those are concerned over whom the Surrogate is given jur- isdiction by the Code. See Matter of Arkenburgh, No. 2, 11 App. Div. 193. In the second place, it has become the well-settled policy of the Su- preme Court not to exercise its power at all unless the necessity for super- seding the Surrogate's jurisdiction is clear. Hard v. Ashley, 117 N. Y. 606, 611; Hynes v. Alexander, 2 App. Div. 109, 111; Matthews v. Stvdley, 17 App. Div. 303; Borrowe v. Corbin, 31 App. Div. 172, and cases cited (followed in Meeks v. Meeks, 51 Misc. 538) ; Westerfield v. Rogers, 63 App. Div. 18, 21; Garlock v. Vandevort, 128 N. Y. 378; Post v. Ingraham, 122 App. Div. 738; Bushe v. Wright, 118 App. Div. 320, 328. If it does act it will apply the same rules and principles that would control the Surrogate. So, under § 2606, Volhard v. Volhard, 119 App. Div. 266. So under § 2729; Matter of Smith, 120 App. Div. 199; Matter of Nutting, 74 App. Div. 468. The reason lies in the fact that the Surrogate's Court is a tribunal con- stituted expressly to take jurisdiction in the premises, and has been given powers appropriate and' adequate for the purpose. Chipman v. Mont- gomery, 63 N. Y. 221; Uhlman v. N. Y. Life Ins. Co., 109 N. Y. 421. The settlement of decedents' estates is peculiarly within its cognizance, and " a court of equity will not take cognizance of an action for the settlement of an estate, disconnected with the enforcement of a special and express trust, unless special reasons are assigned, and facts stated to show that complete justice cannot be done in the Surrogate's Court. Chifmum v. Montgomery, supra, headnote and opinion by Allen; J., at p. 235; Matter of Fogarty, 117 App. Div. 583, and cases at p. 585; Shorter v. Mackey, 13 App. Div. 20, and cases cited; Leoett v. Polhemus, 86 App. Div. 495; Widmayer v. Widmayer, 76 Hun, 254; Seymour v. Seymour, 4 Johns. Ch. 409. If no proceeding be pending in the Surrogate's Court, the Supreme Court in a proper case will not refuse jurisdiction. Ludwig v. Bungart, 48 App. Div. 613; Steinway v. Von Bermuth, 59 App. Div. 261; Ludtvig v. Bungart, 33 Misc. 177, 179; Meeks v. Meeks, 34 Misc. 465. If it be neces- sary to stay proceedings for an accounting in the Surrogate's Court, pend- ing an action for the same relief in the Supreme Court, application must be made to the Surrogate. Matter of Llado, 50 Misc. 227. The Supreme Court has no power to stay such a proceeding in his court. Rutherford v. Meyers, 50 App. Div. 298; Hamilton v. Cutting, 60 App. Div. 293.* And it is, accordingly, not optional with executors or administrators, account- ing on their own motion, or at the instance of creditors, legatees, or next of kin, to pass by the Surrogate's Court without assigning particular and sufficient reason. Ibid.; Matthews v. Stvdley, 17 App. Div. 303, 312; Hard V. Ashley, 117 N. Y. 606, 611. Of course, if a proceeding be already pend- ing in the Supreme Court, the Surrogate may properly refuse to require * But see § 1062 below. ACCOUNTING FOR THE ESTATE 1077 an accounting in his court of the same acts. Matter of De Pierris, 79 Hun, 279. Or, if prior to an accounting, it is clear there must first be a de- termination of an issue which the Surrogate cannot try, then he may dis- miss the petition pending in his court. Matter of Fogarty, 117 App. Div. 50J, citing Matter of Spears, 89 Hun, 49. The Surrogate's jurisdiction is definite. Section 2472 gives him power to settle the accounts of executors, administrators, testamentary trustees and guardians, "in the cases, and in the manner prescribed by statute." Ihid. But he has no Jurisdiction over an accounting in respect of a fund not belonging to an estate over which he has jurisdiction. For example, the proceeds of a fire insurance policy upon real property belong to the heirs. While the administrator may sue for, and recover such proceeds he holds them as trustee of the heirs and not as representative of the decedent, and therefore cannot be made to account in the Surrogate's Court for such proceeds. Matter of Kane, 38 Misc. 276, 280; Lawrence v. Niagara F. I. Co., 2 App. Div. 267; Wyman v. Wyman, 26 N. Y. 253, 258. The Supreme Court- will retain jurisdiction if the issue necessarily underlying the adjudication is one the Surrogate cannot try, e. g., equitable set-off. Meeks v. Meeks, supra. Or where the title of an assignee of a legacy is involved. Citizens' Cent. Nat. Bank v. Toplitz, 113 App. Div. 73. The decision of the Surrogate, embodied in his decree, is conclusive as res adjudicata, between the same parties in any subsequent controversy on the same point, even in the Supreme Court. Westerfield v. Rogers, 174 N. Y. 230, 243; Matter of McGarren (or McGoughran), 124 App. Div. 312. The sections of the Code relating to the several cases in which such ac- counts may be settled are exhibited in the following table: Table of Accountings Intermediate voluntary Intermediate compulsory Final voluntary Final compulsory By Executor or Adminis- ( trator. ) § 2725, subds. 1-4 §2728 §§ 2726, 2727 Temporary Administra- ) tor. \ §2726 Executor or Administra-"] tor of deceased Execu- I tor, Adm'r, G'dn or [ test, trustee. J §2606 §2606 General Guardian of Per- 1 son, ) §§ 2848, 2849 §§ 2837, 2848 General Guardian of 1 Annual inventory account Property. ) §§ 2842, 2845 §2849 §§ 2837, 2847 Guardian by Will or Deed. f §2855 §2856 §2856 Testamentarv Trustee. § 2802 | § 2803 I § 2810 | §§2807-2809 Ex'r, Adm'r, G'dn or'] Test. Trustee whose 1 letters have been re- I voked. J Ancillary Ex'r or Adm'r. §2702 §2702 §2702 §§ 2700-2702 Executor de son tart. §2706 Freeholder in proceedings J to dispose of decedent's > real estate. ) §2726 1078 surrogates' courts The jurisdiction to settle accounts is a local jurisdiction. It belongs "exclusive of every other Surrogate's Court" to the Surrogate who granted the letters to the one accounting, or, as it sometimes reads, the "Surrogate's Court having jurisdiction to require security." Duffy v. Smith, 1 Dem. 202, 207, 208; § 2476, Code Civ. Proc. It is no exception to this rule that such Surrogate may require an accounting by the executor or adminis- trator of one to whom he issued letters, even though such representative was appointed by another Surrogate, for the accounting he may require is limited solely to the estate administered under the letters he himself granted. Popham v. Spencer, 4 Redf. 399, 401. § 1047. Intermediate voluntary accountings. A. A representative. — Section 2725 of the Code provides, in its first paragraph, that "an executor or administrator, at any time, may volun- tarily file in the Surrogate's office an intermediate account, and the vouchers in support of the same." Section 2802 of the Code similarly provides, in its first paragraph, that "any trustee created by any last will and testament, or appointed by any competent authority to execute any trust created by such last will and testament, may at any time file an intermediate account." He may also "annually render and finally ju- dicially settle his accounts." These annual accounts, passed by the Sur- rogate, are conclusive upon those cited, as to the amounts from time to time involved and the payments made. Bowditch v. Ayrault, 138 N. Y. 222, 231; Matter of Hoyt, 160 N. Y. 607, 618. Section 2702 of the Code makes applicable to ancillary executors or administrators the provisions, in this respect, relating to executors and administrators generally. There seems to be no provision, however, for a voluntary intermediate account- ing by temporary administrators or by guardians. A further word as to the conclusiveness of the decree. See Matter of Elting, 93 App. Div. 516, and Glover v. Holley, 2 Bradf. 291. These cases hold that where, e. g., payments of income have been made, accounted for, and the account settled, and it is afterwards claimed they were not proper charges on in- come, they must be deemed settled by former decrees and remain unaf- fected by the subsequent decision, if made, that thereafter such payments are not proper income charges. See cases cited in Matter of Elting, supra, at p. 518. Of course, this conclusiveness applies to and binds only parties to the former accountings. § 2813, Code Civ. Proc. In the Elting case a re- mainderman, infant not in esse when the former decrees were made, was likewise held concluded, on the authority of Rhodes v. Caswell, 41 App. Div. 229. But in Matter of Hurlburt, 51 Misc. 263, Thomas, Surr., states the rule in a more limited form: "The decree of a Surrogate is not conclusive upon the parties in establishing a rule of law which will control in the later ad- ministration of the estate." But, in construing a will his power is limited by the exigencies of the particular proceeding and the facts then before him. So he permitted capital account to be made good from income ac- ACCOUNTING FOR THE ESTATE 1079 count on the final settlement where in order to pay income beneficiaries on an intermediate settlement such capital had been drawn upon. See cases cited at p. 266. B. Testamentary trustee. — Section 2802 of the Code is as follows: Intermediate accounting; when voluntary; general provision. Any trustee created by any last will and testament, or appointed by any competent authority to execute any trust created by such last will and testa- ment, may at any time file an intermediate account, and may also annually render and finally judicially settle his accounts before the surrogate of the county having jurisdiction of the estate or trust, in the manner provided by law for the final judicial settlement of the accounts of executors and adminis- trators; and may for that purpose obtain and serve in the same manner the necessary citations requiring all persons interested to attend such final settle- ment ; and the decree of the surrogate on such final settlement may be appealed from in the manner provided for an appeal from a decree of a surrogate's court on the final settlement of the accounts of an executor or administrator, and the like proceedings shall be had on such appeal. In all such annual accountings of such trustees, the surrogate before whom such accounting may be had shall allow to the trustee or trustees the same com- pensation for his or their services, by way of commission, as are allowed by law to. executors and administrators, besides their just and reasonable ex- penses therein; and also the additional allowance provided for in section 2562 of this act. The decree of the surrogate on such final annual settlement of an account provided for in this section, or the final determination, decree or judgment of the appellate tribunal in case of appeal, shall have the same force and effect as the decree or judgment of any other court of competent jurisdiction on the final settlement of such accounts, and of the matters relating to such trust which shall have been embraced in such accounts, or litigated or determined on such settlement. § 2802, Code Civil Proc. Section 2802 emphasizes the extent of the Surrogate's power over tes- tamentary trustees. By virtue of title 6 of ch. 18, as well as of §§ 2472 and 2481, he now has jurisdiction over their accounts, to hear and deter- mine all issues arising on their account, to accept their resignation, to re- move them for misconduct, to appoint a successor, and has in short in these matters all the powers of a court of equity. Gladding v. Follett, 2 Dem. 58, 65. The power to determine controversies arising on the ac- counting is given by § 2812, q. v. Section 2802 by its final paragraph makes the decree of the Surrogate of the same force and effect as the de- cree or judgment of any other court of competent jurisdiction upon the final settlement of the account, and of all matters relating to the trust which have been embraced in such an account, or litigated or determined on such settlement. Moreover, § 2802 gives the Surrogate the same powers or authority in reference to testamentary trustees as he has in regard to executors or administrators. Matter of Roosevelt, 5 Redf. 603; Van Sin- deren v. Lawrence, 50 Hun, 272. But this section does not divest the Su- preme Court as a court of equity of its concurrent jurisdiction {Matter of 1080 surrogates' courts Valentine, 3 Dem. 563, discussing L. 1882, eh. 185 and L. 1884, ch. 408, i. e., § 2818, Code Civ. Proc), although the court will not exercise its juris- diction when similar proceedings are pending before the Surrogate's Court. Cass V. Cass, 41 N. Y. St. Rep. 36. The Surrogate's jurisdiction is limited to testamentary trustees. He cannot take or settle the accoimt of trustees under a deed. McSorley v. Leary, 4 Sandf. Ch. 414. § 1048. Intermediate compulsory account. — The Surrogate's jurisdic- tion to compel the filing of an intermediate account extends so as to in- clude nearly every one to whom he may issue letters. This is shown by the foregoing table. Where such an account is filed voluntarily there is no particular object in laying down any rule as to its form and contents; it need only be as full and accurate as the one filing it desires, for it is chiefly for his protection that the right to file it is given. But where it is filed compulsorily, the Surrogate may impose any reason- able requirement as to its form and contents. See appendix to 6 Dem., p. 506, and In re Dwight's Estate, 9 N. Y. Supp. 927, 928. Wherever the Surrogate has the power to compel the representative of an estate to ren- der an account, that involves the authority to consider and pass upon its accuracy. Matter of Bitch, 2 Redf. 330; Tucker v. McDermott, 2 Redf. 312. For if he had not this power, the direction to file an account could be evaded by filing an untrue, or an insufficient account. Surrogate Ran- som accordingly asserted the right (6 Dem. 512), to compel the account- ing party to submit to an examination, of his own motion, just as if ob- jections had been filed and the account contested. He based this on the obvious fact that without the exercise of such power the power to compel the filing of an account which might be false or defective would fail in many cases to benefit the estate or the parties interested therein. The Surrogate's order is a judicial mandate "to render an account of his proceedings, not to the extent he shall deem proper, nor a part of his proceedings, but his proceedings as executor from the day he qualified until the day he answers the order." In re Jones, 1 Redf. 263. The form and contents of the account to be filed are admirably sum- marized by Surrogate Ransom (Matter of Dwight, 9 N. Y. Supp. 927, 928), where he observes: "The account required by the order of the Surrogate is an intermediate account. . . . The account should state if an inventory has been filed; and, if none has been filed, the account itself should furnish the informa- tion usually thus supplied. It should likewise state whether or not ad- vertisements for claims have been published, what claims have been pre- sented, what allowed, and what rejected; and the time and manner in which they were rejected or disputed, and the reason therefor. Also, what claims have been presented and allowed since the expiration of the publi- cation of the advertisement for claims. The accountant should then pro- ceed to credit himself with funeral charges and expenses of administration, with moneys paid to creditors (naming them) and payments to legatees or next of kin. He should state the age of legatees and next of kin, if any ACCOUNTING FOR THE ESTATE 1081 are minors, and whether they have guardians, and, if so, their names and places of residence, and how appointed. If there is any other fact which has occurred, as part of his proceedings, which may affect the estate or the rights of any distributee, or his own rights, he is bound to state it. He must not. only state in what character his payments were made, as whether to creditors, legatees, or next of kin, or for expenses for funeral charges or of administration, distinctly, but he must produce vouchers supporting each payment; or, in cases of claims under $20.00, where no voucher is produced, he must make and present, in lieu of voucher, his own oath positively to the fact of payment, when made, and to whom. Unless the order of the Surrogate, requiring an executor or administrator to ren- der an account of his proceedings, is obeyed in this manner, as plainly indicated by the statute, he will not have made the proper response to the order." It has very properly been observed that the same degree of strictness in regard to an intermediate account will not be exercised as in the case of one which is to be the subject of judicial settlement. But the power of the Surrogate, where the circumstances seem to call for it, to insist upon the filing of such an account as the statute contemplates, is clear. He may do so of his own motion, if he desire. Anon., 14 N. Y. St. Rep. 490. The statute contemplates an account that will disclose the acts of the person and the condition of the estate. § 2514, Code Civ. Proc, subd. 9. The former statutes expressly provided for an examination of the rep- resentative. Tucker v. McDermott, 2 Redf. 312, 316. In this case the Surrogate referred the account to an auditor. This it would seem he had no power, or would now have no power, to do. Such power was in fact expressly denied in Matter ofDe Russy, 14 N. Y. Supp. 177, aff'd 128 N. Y. 619. This does not mean the Surrogate cannot refer, under § 2546 for his own information, any question of fact involved. Estate of Scofield, 3 Law Bull. 37. A proper account can be compelled. The proceeding is a special proceeding, against which the statute may run {Matter of Hale, 6 App. Div. 411, 413), and while of course a final account can be ordered, and judicially settled at the instance of proper parties, this fact should not be taken as divesting the Surrogate of the substance, and leaving him but the shadow of the power given by § 2725. It may be added, apropos of the statement that the filing of an inter- mediate account, on the motion of the Surrogate, is a special proceeding, that the Surrogate should not require such an account if it be made to ap- pear that it is unnecessary, or will not benefit the estate, or any person interested. Thus where it was shown that the executors had actually made distribution and adjusted their accounts with the parties in interest, the Appellate Division in the First Department reversed a Surrogate's order for the filing of an intermediate account. Matter of Hale, supra. § 1049. Same subject — Cases when proper. A. As to representatives. In either of the following cases, the surrogate may, in his discretion make 1082 SURROGATES' COURTS an order, requiring an executor or administrator to render an intermediate account : 1. Where an application for an order, permitting an execution to issue on a judgment against the executor or administrator, has been made by the judg- ment creditor, as prescribed in section eighteen hundred and twenty-six of this act. 2. On the return of a citation, issued on the petition of a judgment creditor, praying for a decree, granting leave to issue an execution on a judgment ren- dered against the decedent in his lifetime, as prescribed in section thirteen hun- dred and eighty-one of this act. 3. On the return of a citation, issued on the petition of a creditor, or person entitled to a legacy, or other pecuniary provision, or a distributive share, pray- ing for a decree directing payment thereof, as prescribed in section twenty- seven hundred and twenty-two of this act. 4. Where eighteen months have elapsed since letters were issued, and no special proceeding, on a petition for a judicial settlement, of the executor's or administrator's account is pending. § 2725, Code Civil Proc, in part. Former §§ 2722, 2723, consolidated. The reasons for these subdivisions are obvious. Subdivision 1. There is no object in permitting execution to issue against the executor or administrator, as such, unless he has funds or property available to satisfy the judgment. Matter of Clark, 2 Abb. N. C. 208; Matter of Thurber, 37 Misc. 155. The power to direct the filing of an intermediate account is of like na- ture with the other powers to make inquiry as to the debts and assets which is conferred upon the Surrogate by § 1826, q. v. Matter of Cong. Unitarian Sac, 34 App. Div. 387, 388. The Code contemplates no pref- erential rights under the execution; but only that the one applying for leave to issue it may have his just proportion of the available assets. Schmitz v. Langhaar, 88 N. Y. 503. The Surrogate is the one to determine ■what that just proportion is. Sippel v. Macklin, 2 Dem. 219. And this is practically the only satisfactory way by which he can arrive at such a ■determination. Mehher v. Fisk, 4 Redf. 22; St. John v. Voorhies, 19 Abb. Ft. 53; Hauselt v. Gano, 1 Dem. 36, 38. Subdivision 2. The reason is similar for directing an intermediate ac- count when application is made under § 1381 for a decree granting leave to issue execution, under a judgment secured against a decedent in his lifetime, against the decedent's estate. Upon the information such ac- count may give him usually hinges his determination whether or not to make the decree prayed for. He has power to make "such a decree in the premises as justice requires." § 1381, Code Civ. Proc, subd. 2. Subdivision 3. The reason for this subdivision may be foimd in the language of § 2722 which requires a dismissal of the petition to compel payment of a claim, where it is not proved "to the satisfaction of the Sur- rogate, that there is money or other personal property of the estate, ap- plicable to the payment or satisfaction of the petitioner's claim," etc. The executor by this intermediate account affords the court the informa- ACCOUNTING FOH THE ESTATE 1083 tion it requires. Matter of Macaulay, 94 N. Y. 574, 579. A widow having a bequest in lieu of dower is covered by the provision of this subdivision. Matter of Tisdall, 110 App. Div. 857. Subdivision 4 gives the Surrogate power of his own motion to stir up inactive representatives. It is an important power and one which it is in the interest of all beneficiaries of decedents' estates that he should pos- sess. Many of the controversies which arise upon the judicial settlement of accounts are traceable to the long delay in securing judicial scrutiny and sanction of the conduct of the representative. It would be a wise rule were all Surrogates to bring to the attention of representatives the fact that eighteen months have elapsed since the issuance of letters and that no accounting has been had, and specify the sections of the Code appHcable to the case. It would in the end facilitate the business of the court, and might operate to save to many estates the consequences of the conduct of executors and administrators who have, perhaps ignorantly, or under improper advice, been making investments or disbursements for- bidden by law, or otherwise incurring liabilities to the persons interested in the estate. § 1050. Same — Objections to intermediate accounts. — Objections may be filed, to an intermediate account, and litigated. The Code expressly so provides: And any party may contest an intermediate account rendered under sec- tion twenty-seven hundred and twenty-five of this act in case the same shall not be consolidated pursuant to section twenty-seven hundred and twenty- seven of this act. § 2728, Code Civil Proc, in part. And see Estate of lAesel, 18 N. Y. St. Rep. 392. Section 2562 empowers the Surrogate to allow the representative, "upon an intermediate account- ing required by the Surrogate" for counsel fees and other expenses, "not exceeding ten dollars for each day occupied in the trial, and necessarily occupied in preparing his account for settlement, and otherwise preparing for the trial." The words "for settlement" of course do not relate to the intermediate account, which cannot be judicially settled, but the section clearly contemplates some possible controversy over an intermediate ac- count. The only way to controvert an account is by filing objections. In the case of an intermediate account the objections must be confined to the question of sufficiency under the Code (§ 2514, subd. 9), as, for in- stance, that the account does not disclose the acts of the person filing in a given respect, or in any respect, or that it does not reveal the condition of the estate. Or if the vouchers, or the affidavit, required by § 2729 are not filed with the account, that might be a proper ground of objection. See Buchan v. Rintoul, 70 N. Y. 1, 3. It has been held that where it appears upon an intermediate accounting that the accounting representative has wasted or lost funds or property of the estate, he may be charged therewith. Estate of Silverman, Law Journal, November 27, 1895, and cases cited. 1084 subrogates' courts § 1051. Same. B. As to general guardians. — The table in § 4, ante, indicates that gen- eral guardians are amenable to a compulsory intermediate accounting. This is true in this sense. The sections specified in the table relate to the annual inventory and account which such guardians are required to file. This annual account is in effect intermediate. The Surrogate is given power by § 2845 to compel the guardian to supply any deficiency which, on the examination to be made under § 2844, appears in the account filed, or to file " a more full or satisfactory account. This fixes the character of this account. It is clearly not a final account, nor is it intended to be ju- dicially settled. The Court of Appeals has expHcitly held {Matter of Haw- ley, 104 N. Y. 250), that it is intended merely to inform the court as to the manner in which the guardian is discharging his trust; and the court de- scribes it as an intermediate account incapable of judicial settlement, and denied the right, consequently, to fix or allow commissions thereupon. It is to be noted that these proceedings are ex parte, wholly dependent upon the Surrogate. Welch v. Gallagher, 2 Dem. 40. Section 2844 gives the Surrogate power to appoint a person specially to examine, under his direction, all inventories and accounts of guardians filed since the first day of February of the preceding year. In New York County this has been availed of and Rule 21, q. v., of that court covers the practice in case that person, so appointed, certifies that a guardian has made no report or that the report is not satisfactory. If the guardian fail to comply with the subsequent order of the Surro- gate, the latter will appoint a special guardian to petition for his removal. C. As to guardians by will or deed. — Section 2855, dealing with guard- ians by will or deed, defines this annual account as intermediate, and makes applicable §§ 2842-2845 to such guardians. But in case of such guardians the proceeding is not ex parte, but the order is made upon peti- tion of the ward, or of any relative or other person in his behalf. § 2855, Code Civ. Proc. D. As to testamentary trustees. — Section 2803 gives the Surrogate power to require a testamentary trustee to render an intermediate ac- count "upon petition of a person interested, absolutely or contingently in the estate or funds .... or in the application thereof, or of the in- come or other proceeds thereof." Matter of Jackson, 16 \^'ek. Dig. 345. Intermediate accounting; when compulsory. Upon the petition of a person interested, absolutely or contingently, in the estate or fund in the hands of a testamentary trustee, or in the application thereof, or of the income or other proceeds thereof, the surrogate may, in his discretion, make, at any time, an order requiring a testamentary trustee to render an intermediate account. § 2803, Code Civil Proc. The distinction between the powers given by these two sections is an important one. Section 2514, Code Civ. Proc, by subd. 9, defines an intermediate account as "an account filed in the Surrogate's office, for the ACCOUNTING FOR THE ESTATE 1085 purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands and not made the subject of a judicial settlement." The expression "judicial settlement" (see § 2514, subd. 8) where it is applied to an account signifies "a decree of a Surrogate's Court, whereby the account is made conclusive upon the parties to the special proceed- ing, either for all purposes or for certain purposes specified in the statute." Thus, it is clear that an intermediate account is one made during the execution of the trust. Upon such an account no decree is required, and the Surrogate has no jurisdiction to make any. Matter of Hawley, 36 Hun, 258, 262, reversed in another particular in 100 N. Y. 206. Inter- mediate accounts are "intended merely as landmarks along the line of the ■execution of the trust and are solely for the benefit of the trustee." But judicial settlements of accounts are had upon notice to all parties inter- ested and contemplate a trial, a judicial determination and a judgment, and they are conclusive upon all who have notice. Ibid. This power to compel an intermediate account is not contingent upon allegations of fraud or misconduct on the part of the trustee. A person interested abso- lutely or contingently in the estate or fund in the hands of a testamentary trustee, or interested in the application thereof, or of the income or other proceeds thereof, has a right even though the trustee is acting in good faith and is exercising the discretion vested in him wisely and properly, to call upon him from time to time to disclose the nature and character of the property in his hands constituting the trust fund, to show its value, the income derived therefrom, and the expenses which the trustee is in- curring in its management, for the purpose of being able to watch over and look after his interest. Hancox v. Wall, 28 Hun, 214, 218. The Sur- rogate may, in his discretion, grant or deny him such disclosure. In Matter of McCarter, 94 N. Y. 558, 561, the Court of Appeals em- phasizes this right of a person interested in the trust fund, and held a petition to be sufficient which set out the facts that the petitioner was a person interested in the trust, alleged that he was by the terms of the will entitled to the interest arising from the trust fund, that it was so invested as to yield an annual income of which at least $337.75 was in the hands of the trustee and that he refused to pay it over to the petitioner, and that more than one year had elapsed since the probate of the will, and that there had been no judicial settlement of the account of the trustee. These ■allegations (in the absence of the dispute of the validity or legality of the ■claim herein below discussed) were held to be ample to justify the Surro- gate in hearing allegations and taking proofs and in making the usual decree. As has been noted, however, the trustee may oust the Surrogate of his jurisdiction by filing a verified answer setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, as required by § 2805. In the absence of such an answer the Surrogate must order the account to be filed. It has been held 1086 surrogates' courts to be immaterial that an action is pending in the Supreme Court between the trustee and the petitioner involving conflicting claims to the fund in question. Estate of McCarter, 18 Week. Dig. 433. It has further been held that such an account may be made the subject of objection and inquiry, but the inquiry will be limited to testing its accuracy; all questions of conduct and propriety of expenditures, etc.,, must be deferred until a judicial settlement. Glaskin v. Sheehy, 2 Dem. 289, Rollins, Surr. E. As to ancillary executors or administrators. — Section 2702 makes applicable to a person holding ancillary letters all provisions of ch. XVIII relating to the rights, powers, duties and liabilities of executors and administrators, except those relating to the disposition of a decedent's real estate. If then the conditions described in any subdivision of § 2725 exist, as it is conceivable some of them might exist, the Surrogate may direct, of his own motion, and in his discretion, the filing of an intermedi- ate account. Such occasions are of rare occurrence. § 1052. Voluntary final accounts. — The third column in the table in § 4, ante, indicates three classes who are not given an absolute right to a voluntary judicial settlement of their accounts. The first is a temporary administrator. Bible Society v. Oakley, 4 Dem, 450. When an executor under the will, or a permanent administrator is appointed, it is his duty to require the temporary administrator to ac- count. The case may be supposed, however, of a temporary administra- tion pending a protracted contest, where it may become necessary for the temporary administrator to resign and be discharged and for another temporary administrator to be appointed. A Surrogate would be sus- tained under such circumstances in receiving and settling his voluntary account, as he would that of a general administrator, under § 2605. Usually the successor or the permanent representative can be relied upon to require a settlement in order to fix definitely the amount with which he is himself to be chargeable. Moreover, even were a Surrogate to re- ceive and settle the voluntary account of a temporary administrator this could not deprive the permanent representative when appointed or even the succeeding temporary administrator of his right to compel a second judicial settlement. The second class is the freeholder who may be appointed under § 2774* in certain emergencies to execute a decree for the mortgage, lease or sale of a decedent's property to pay his debts. His bond which he was re- quired to file only requires him to account " whenever he is required to do so, by a court of competent jurisdiction." The third class, an executor de son tort, obviously will not seek a vol- untary settlement of his account. But, as in the treatise on Reptilia in the Emerald Isle, it may be noted that the Decedent Estate Law pro- vides, in § 112, that executors de son tort are abolished! § 1053. Same subject — Who can so account. — It is now necessary to * Section 2767 repealed, but § 2774 impliee retention of power, as does §2726. ACCOUNTING FOR THE ESTATE 1087 enumerate the Code provisions permitting voluntary accountings by the various persons who may be entitled to begin the proceeding. A. Executors and administrators. — These representatives are given ample opportunity of securing a judicial settlement of their accounts. It is provided that: In either of the following cases, an executor or administrator may present to the surrogate's court his account and a written petition, duly verified, pray- ing that his account may be judicially settled; and that the sureties in his of- ficial bond or the legal representatives of such surety and all creditors or persons claiming to be creditors of the decedent, except such, as by vouchers; annexed to the account filed, appear to have been paid, and the decedent's hus- band or wife, next of kin and legatees, if any ; or, if either of those persons has died, his executor or administrator, if any, may be cited to attend the settle- ment: 1. Where one year has elapsed since letters were issued to such executor or administrator. 2. Where notice requiring all persons having claims against the deceased to exhibit the same, with the vouchers thereof, to such executor or administrator has been duly published according to law. § 2728, Code Civil Froc, in part. (See § 2743, post.) ' These«provisions are sufficiently explicit. It is essential that one of the two cases specified exist. As to the expiration of one year from letters, the object is to safeguard against proceedings to revoke probate, as well as to avoid an accounting before the time when debts may have been liquidated and legacies be payable. See, as to construction of this first subdivision. Matter of Brenner, 30 Misc. 31; Matter of Lawson, 36 Misc. 96; Matter of Lansing, 37 Misc. 177. While the Code intimates that as soon as notice is published an account may be filed {Matter of Crowley, 33 Misc. 624), yet only an administrator in intestacy can progress such account to distribution, by operation of § 2743. See Matter of Lawson, 36 Misc. 96, and post. Distribution. Hence executors, or administrators c. t. a. are required in practice to wait one year. There is one other case provided: An executor or administrator who has been cited to a compulsory accounting under §§ 2726 and 2727 may on the return of the citation issued in such proceeding present a petition such as is pre- scribed in § 2728 provided one year has expired since his letters issued to him. § 2727, Code Civ. Proc, quoted post. When this occurs the hearing on the first citation is adjourned till the return day of the citation issued on the petition of the representative. Then, on such return day, the in- voluntary and voluntary proceedings are consolidated, the Surrogate retaining in the consolidated proceeding any power he could exercise in either of the proceedings consolidated. Ibid.; Estate of James Mulry, N. Y. Law Journal, March 14, 1900; Matter of Hodgman, 10 N. Y. Supp. 491; Matter of Shipman, 82 Hun, 108, 112. Proceedings not of exactly similar scope must not be consolidated. Matter of Wood, 34 Misc. 209. A voluntary accounting proceeding terminates with the death of the 1088 surrogates' courts accounting person. ; Pease v. Gillette, 10 Misc. 467. See Herbert v. Steven- son, 3 Dem. 236. Also, Matter of Schlesinger, 36 App. Div. 77; Matter of Steencken, 51 App. Div. 417; Matter of Koch, 33 Misc. 672. But by amend- ment to § 2606, quoted below, full provision is made for reviving such proceeding. If one of two accounting executors die before the decree, it was, before this amendment, held that the Surrogate could enter no decree charging a liability upon the deceased executor, but only fix the amount of property in the hands of the survivor, and provide for its being distributed or safeguarded as might seem wisest. Matter of Steencken, supra. See Matter of Tredwell, 85 App. Div. 570. An administrator with the will annexed, it has been held, need not wait until a year has elapsed since letters issued to himself. Matter of Burling, 5 Dem. 47, 49; Cuthbert v. Jacobson, 2 Dem. 134. This is based on the theory that he continues the previous administration. It would seem, assuming the theory to be correct in this connection, that one year should have elapsed since letters issued to the original representative, whom he succeeds. This was not raised in the case cited. In Matter of Crowley, 33 Misc. 624, Thomas, Surr., held that he had no power to compel the second representative to account until a year expired from the date letters issued to him, following In re Menck, 5 N. Y. St. Rep. 341. In this case the original administration had continued seven years. , Section 2728 prescribes further who are proper parties to such an ac- counting, who may contest the account, and what the Surrogate's duty is in the premises. (The provision here omitted as to contesting inter- mediate accounts may be found in §, 1050, above.) If one of two or more co-executors or co-administrators presents his account and a petition for a Judicial settlement of his separate account, it must pray that his co-executors or co-administrators may also be cited. Upon the pres- entation of account and a petition, as prescribed in this section, the surrogate must issue a citation accordingly. On the return of a citation issued as pre- scribed in this section the surrogate must take the account, and hear the allega- tions and proofs of the parties respecting the same. Any party may contest the account, with respect to a matter affecting his interest in the settlement and distribution of this estate. . . . A creditor, or person interested in the estate, although not cited, is entitled to appear on the hearing, and thus make himself a party to the proceeding. When letters issued to an executor or administrator have been revoked, he may present to the surrogate's court a written petition, duly verified, praying that his account be judicially settled, and that his successor, if a successor has been appointed, and the other persons specified in this section be cited to at- tend the settlement. § 2728, Code Civil Proc, in part. In New York County, Rule 24 requires the account offered for settle- ment to be filed with the petition. This is the general rule elsewhere as well. In issuing the citation, care must be taken that its requirement meet the prayer of the petition. Where a petition prayed that certain persons be cited to "attend the accounting" of an executrix, and for a ACCOUNTING FOR THE ESTATE 1089 judicial settlement of the account of such executrix, it was held that the citing of parties simply "to attend the accounting" of the executrix was not sufficient to base a judicial settlement upon, and that the accounting must be treated as an intermediate one. Schlegel v. Winckel, 2 Dem. 232, 235. The Surrogate has power, under the last paragraph of § 2728 above quoted, to determine whether a person seeking to intervene is indeed a person interested. Hence, where decedent left living nephews and a niece surviving him, it was held that on the administrator's ac- counting descendants or representatives of deceased uncles and aunts could not take and were therefore not interested. Matter of Thompson, 41 Misc. 223. See Matter of Strickland, 22 N. Y. St. Rep. 901, holding that "creditors" includes "persons claiming to be creditors." B. Executor or administrator of deceased executor, etc, — The some- what nonconsecutive arrangement of the Code is illustrated by the fact that the provisions relating to accountings by executors or administrators of deceased executors, administrators, guardians or testamentary trustees, are to be found not in title 4, but in title 2, of ch. XVIII. The connec- tion is not altogether illogical, as it follows immediately the provisions as to appointing a successor to one whose letters have been revoked and compelling such to account. These provisions are contained in § 2606. So far as they relate to a voluntary accounting, they are as follows: An executor or administrator of a deceased executor, administrator, guard- ian, or testamentary trustee may voluntarily account for the acts and doings of the decedent, and for the trust property which had come into his possession or into the possession of the decedent. And on the death heretofore or hereafter of any executor, administrator, guardian, or testamentary trustee while an ac- counting by or against him as such is pending before a surrogate's court, such court may revive said proceeding against his executor, administrator or successor, and proceed with such accounting, and determine all questions and grant any relief that the surrogate would have power to determine or grant in case such decedent had not died, or in a case where the executor or adminis- trator of said last mentioned decedent, acting at the time of such revival, had voluntarily petitioned for an accounting as provided for in this section. On a petition filed either by or against an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee, or on a revival and continuation of an accounting, pending by or against such decedent at the time of his death, the successor of such decedent and all persons who would be necessary parties to a proceeding commenced by such decedent for a judicial settlement of his accounts, shall be cited and required to attend such settlement. The surrogate's court may at any time, on its own motion, or on the motion of any party to any one of two or more such proceedings, consol- idate such proceedings, but without prejudice to the power of the court to make any subsequent order in either of them. . . . The surrogate's court has also jurisdiction to compel the executor or administrator, or successor of any decedent, at any time to dehver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over a,fter a decree, the court must allow such credit upon the decree as justice re- quires. § 2606, Code Civil Proc, in part. 69 1090 surrogates' courts When the first edition of this work was issued the section provided after the words "may voluntarily account," "for any of the trust property which has come to his possession, and upon his petition such successor, or surviving executor, administrator, guardian or other necessary party shall be cited and required to attend such settlement." And the author (reviewing the cases which held that under this section there could not be a voluntary accounting for all the acts of the decedent in his repre- sentative capacity, excepting in a compulsory proceeding at the instance of the successor or survivor, executor, administrator or guardian or of a creditor or person interested in the estate or a guardian's ward), suggested that this offered an illustration of casus omissus. For this limited account as voluntarily rendered was only conclusive as to property which had come into the accounting party's possession. The language of the section as it now stands is comprehensive. It was amended by ch. 409 of the Laws of 1901, and subsequently by ch. 349 of the Laws of 1902. The latter merely inserting the words "theretofore or hereafter" in the provision as to the death of any accountant during the proceeding, in which case revival thereof could be directed by the Surrogate. Where there is a "revival" it must be on notice to all the parties to the proceeding sought to be revived. Matter of Tredwell, 77 App. Div. 155, 159. The limitations, therefore, originally indicated In re Trash's Estate, 49 N. Y. Supp. 825, and similar cases (see Matter of Williams, 26 Misc. 636), are done away with and the representative of the deceased representative may now file voluntary account of the acts and doings of the decedent and for the trust property which has come into his possession or had come into the possession of his decedent. A decree upon such an account- ing will be conclusive as to the whole trust estate as against all those who are cited and the representative of the decedent, executor, administrator, guardian or testamentary trustee may be relieved from all further liability in respect of said trust estate. It has been held that where deceased executor held a fund ample to cover annuities, and was also residuary legatee, and her executor turned over the fimd to coexecutor of deceased executrix, who wasted it, held he could not be compelled to account out of deceased executrix's residuary estate. Matter of Smith, 46 App, Div. 318. The representative of decedent can only be charged with what is found to have come into his hands. See Farmers' Loan & Trust Co. v. Pendle- ton, 179 N. Y. 486, 493, citing Matter of Ryalls, 74 Hun, 205; 80 Hun, 459. If the decedent was one of several executors or administrators or guard- ians or trustees, the survivors may proceed and complete the administra- tion of the trust estate, pursuant to the letters. § 2692, Code Civ. Proc; Hood V. Haywood, 124 N. Y. 1. And, ordinarily, their final accounting will serve every purpose requisite to the protection of creditors and persons beneficially interested. But if decedent's representative does voluntarily account and all parties are brought in the Surrogate has ACCOUNTING FOR THE ESTATE 1091 power to judicially settle such account. Matter of Fumiss, 86 App. Div. 96. This proceeding under § 2606 is subject to the ten-year limitation. The statute runs from the death of the representative whose executor or ad- ministrator is called to account. Matter of Rogers, 153 N. Y. 316. C. General guardians. — Guardians may present a petition for the judi- cial settlement of their accounts (§ 2849, Code Civ. Proc), in any case where they could be required to do so under §§ 2847 or 2848. The lan- guage of § 2848 indicates that a guardian must show, to justify the ap- plication, that he has received money or property of the ward for which he has not accounted. When he is a guardian of the person he may allege that he has money or property of the ward which he has not paid or de- livered to the general guardian of the infant's property. The guardian himself may secure a judicial settlement of his account under these provisions: A guardian may present to the surrogate's court a written petition duly verified, praying for a judicial settlement of his account and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other person as prescribed in either of the last two sections. The petition must pray that the person who might have so presented a petition, and also the sureties in his official bond of such guardian or the legal representatives of such surety may be cited to attend the settle- ment. § 2849, Code Civil Proc. The persons directed to be cited must all be cited. Eberle v. Schilling, 32 Misc. 195. If the guardian has expended more than the ward's property for his support and maintenance, such an accounting in the Surrogate's Court is the proper way to establish the fact. It has been held that such a de- termination of a balance in his favor is prerequisite to an action in the Supreme Court for such balance. See Colon's Estate, 1 Tuck. 244. But it was held that his claim to have expended his own money for the ward, not fixed by such accounting, was not a claim upon which he could stand to compel an accounting by executors of a will giving a legacy to the ward, so as to secure in such proceeding the satisfaction of his overpayments. Section 2850 prescribes the procedure upon all such accountings whether voluntary or compulsory: Upon the presentation of a petition, as prescribed in either of the last three sections, the surrogate must issue a citation accordingly. Section two thous- and seven hundred and twenty-seven, sections two thousand seven hundred and thirty-three to two thousand seven hundred and thirty-seven, both in- clusive, and sections two thousand seven hundred and forty-one and two thousand seven hundred and forty-four of this act, apply to a guardian ac- counting as prescribed in this article, and regulate the proceedings upon such an accounting. The accounting party must annex to every account produced and filed by him an affidavit, in the form prescribed in this article for the affi- davit to be annexed by him to his annual inventory and account. A guardian 1092 surrogates' courts designated in this title is entitled to the same compensation as an executor or administrator. § 2850, Code Civil Proc. Note. §§ 2733-2737 are now in §§ 2729 and 2730; and § 2734 is now in § 2729. D. Guardian by will or deed. — The Code assimilates the accounting procedure for this class of guardians to that already discussed, whether the judicial settlement be prayed by the guardian himself, or by one of those entitled under § 2847 or § 2848. This is by virtue of § 2856, which is as follows: The surrogate's court having jurisdiction to require security may compel a judicial settlement of the account of a guardian appointed by will or by deed, in any case where it may compel a judicial settlement of the account of a gen- eral guardian; and the proceedings to procure such a settlement are the same as if the guardian so appointed by will or by deed had been a general guardian. A guardian appointed by will or by deed may present to the surrogate's court a written petition, duly verified, praying for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other person as prescribed in this article. The petition must pray that the person who might have so presented a petition may be cited to attend the settlement. Upon the presentation of such petition the surrogate must issue a citation accordingly. Sections twenty-seven hundred and thirty-three to twenty-seven hundred and thirty-seven, both inclusive, and sections twenty-seven hundred and forty^ one and twenty-seven hundred and twenty-four of this act apply to a guardian accounting as prescribed in this article, and regulate the proceedings upon such an accounting. A guardian designated in this title is entitled to the same com- pensation as a general guardian. § 2856, Code Civil Proc. Some of the sections referred to in the latter part of this section have been repealed. Section 2733 relates to advancements, and permits the Surrogate to adjust such advancements in his decree for distribution. Section 2734 covers the case where the ward might be a married woman. Sections 2735, 2736 and 2737 were repealed by ch. 686, Laws 1893. So also was § 2741. Section 2744 enables the Surrogate, upon making his de- cree, to order specific property to be delivered in lieu of the money value of the property with which the guardian is chargeable. It is additionally provided that a decree, made upon the judicial settlement of the account of a guardian ap- pointed by will or by deed, as prescribed in this article {i. e. art. 3, title 7, of ch. XVIII) or the judgment rendered upon appeal from such decree, has the same force as a judgment of the Supreme Court to the same effect. § 28B7, Code Civil Proc. it is only where the accounting is founded upon the guardian's petition that the sureties must be cited (see § 2849, ante, under C), otherwise there is no occasion to cite them, and the decree is binding upon them in the absence of fraud and collusion. Eberle v. Schilling, 32 Misc. 195, 197; Casoni v. Jerome, 58 N. Y. 315; Douglass v. Ferris, 138 N. Y. 192. ACCOUNTING FOR THE ESTATE 1093 E. Testamentary trustees. — Section 2810 prescribes the procedure on the judicial settlement of the account of a testamentary trustee upon his own petition. Jvdidal settlement on petition of trustee. When one year has expired since the probate of the will, or when the trusts, or one or more distinct and separate trusts, created by the will, have been, or are ready to be, fully executed, a testamentary trustee may present to the sur- rogate's court a petition, duly verified, setting forth the facts, and praying that his account may be judicially settled; and that all the persons who are entitled, absolutely or contingently, by the terms of the will, or by operation of law, to share in the fund, or in the proceeds of property held by the petitioner, as a part of his trust, may be cited to attend the settlement. Thereupon the surrogate must issue a citation accordingly. Sections 2729, 2730, and 2731 of this act ap- ply to the proceedings upon the return of a citation, issued as prescribed in this section, and to the testamentary trustee whose account is to be settled. Any person, although not named in the citation, who is beneficially interested in the estate or fund which came to the petitioner's hands, or in the proceeds thereof, is entitled to appfear upon the hearing, and thus make himself a party to the special proceeding. § 2810, Code Civil Proc. It is clear from an examination of the Code that the sections (2729, 2730 and 2731) referred to are the sections now consolidated in § 2728. For it is the identical language of § 2810 as it stood in 1892. The other sections were consolidated in 1893. It has been held that these sections, read together, limit the right to voluntarily intervene in proceedings un- der §2810. Persons not named in the citation may appear "upon the hearing." Matter' of Wood, 5 Dem. 345, if beneficially interested in the estate or fund which came to the accounting person's hands, or in the proceeds thereof. Such intervention is not permitted, however, until the hearing, and an application prior thereto is premature, and must be denied, or, deferred until the hearing. Estate of Wood, 7 N. Y. St. Rep. 721. Certain provisions of title fourth are made applicable to all accountings by such trustees by the Code as follows: Sections 2734 to 2737, both inclusive, sections 2739 to 2741, both inclusive, and sections 2743, 2744, And 2746 of this act, apply to and regulate the like matters, where a testamentary trustee accounts, as prescribed in this title; except as otherwise prescribed in the next two sections. To each account, filed as prescribed in this title, must be annexed an affidavit, in the form prescribed in section 2733 of this act, for the affidavit to be annexed to the account of an executor or administrator; except that the expression, "the trust created by the will," with such other description of the trust, as is necessary to identify it, must be substituted in place of the words, "the estate of the decedent." § 2811, Code Civil Proc. F. Persons whose letters have been revoked. When letters issued to an executor or administrator have been revoked, he may present to the surrogate's court a written petition, duly verified, praying that his account be judicially settled. § 2728, Code Civil Proc, in part. 1094 surrogates' courts Upon such proceedings, the successor if one has been appointed, must be cited, as well as all persons who are proper parties under § 2728 to the usual voluntary accounting by executors or administrators. Ibid. G. Persons holding ancillary letters. — Sections 2700, 2701 and 2702, q. v., all indicate that ancillary executors or administrators are liable to account, and may voluntarily account. The last section makes applica- ble to them all provisions applicable to domestic representatives, excepting as above noted, those relating to the disposition of decedent's real estate to pay his debts. But the main purpose of an ancillary administration must be kept in mind. It is recognized in § 2700. It is to transmit the assets collected in this State to the State or country of principal adminis- tration. Matter of Fitch, 160 N. Y. 87, 92; Matter of Dunn, 39 App. Div. 510. All local rights may be protected by precautionary clauses in the decree awarding the letters, or by order made during the administra- tion. He is entitled to be credited upon his accounting all money or other property so transmitted at any time before he may have been directed to retain it. § 1054. Compulsory accomitings — Who may be required to account.— The table in § 4, ante, indicates that the Surrogate's power to compel a judicial settlement of the accounts of all persons holding letters from his court, or dealing with estates under his jurisdiction, is comprehensive. The next chapter deals generally with the procedure. Before passing to it we note the distinctive Code provisions that apply particularly to compulsory accountings by guardians and trustees. And first as to guard- ians. § 1055. Compulsory account by guardian. — The cases where the judicial settlement on a guardian's account may be compelled are specified in § 2847 of the Code. A written petition, duly verified, praying for the judicial settlement of the account of a general guardian of an infant's property, and that he may be cited to attend the settlement thereof, may be presented to the surrogate's court, in either of the following cases : 1. By the ward, after he has attained his majority. 2. By the executor or administrator of a ward, who has died. 3. By the guardian's successor, including a guardian appointed after the reversal of a decree, appointing the person so required to account. 4. By a surety in the ofiicial bond of a guardian whose letters have been revoked; or by the legal representative of such surety. Citation under this subdivision must be directed to both the guardian and the ward. § 2847, Code Civil Proc. These provisions cover, by reference from other sections of the Code, guardians of the person (see § 2848) and guardians by will or deed (see §2856). They may, therefore, be discussed generally in this connection. The Code distinguishes between guardians of the property, guardians of the ACCOUNTING FOB THE ESTATE 1095 person, and guardians by will or deed; but it will be noted below that the procedure as to requiring them to account is assimilated. Where a parent assumes control of an infant's property, without authority, he may be required to account as guardian, nevertheless. Van Epps v. Van Dusen, 4 Paige, 64. § 1056. Accounting at the ward's instance, after majority. — Upon the judicial settlement of a guardian's accounts after the ward's majority, the guardian is entitled to set up any agreement of adjustment or settlement he may have made with the ward after he or she has attained the age of twenty-one years. When a guardian agreed with such a ward that the amount he was chargeable with was $17,143, and the ward accepted in set- tlement thereof an assignment of a mortgage for $18,000, and receipted therefor, it was held, subsequently, upon a compulsory accounting by the guardian at the ward's instance, that the Surrogate must accept the receipt as conclusive evidence that the ward had received the assignment in satis- faction of the sum therein stated. Downing v. Smith, 4 Redf. 310. For he had no jurisdiction to set aside or try the validity of the settlement. Ihid., citing Bevan v. Cooper, 72 N. Y. 329; Sampson v. Wood, 10 Abb. N. S. 223, notes; Decker v. Newton, 1 Redf. 477, 484. The Court of Appeals has held that although a receipt can be contradicted by parol evidence as to the consideration part of it, yet if it contains words showing that the sum was received in settlement or compromise of a claim it cannot be contradicted by parol evidence as to that part of it. Coon v. Knapp, 8 N. Y. 402. It may be shown, however, by parol evidence that the sum received in settle- ment is less than the whole amount actually due. Ryan v. Ward, 48 N. Y. 204; Miller v. Coates, 66 N. Y. 609. Section 2847 being the only authority in the Code for compelling the account of a guardian {Wehh v. Gallagher, 2 Dem. 40, 42), the petitioner must bring himself within its intent. The mother of infants who has ad- vanced money to their use, cannot compel an accounting by their general guardian to procure reimbursement. Ihid. The proper course to pursue to secure such reimbursemertt is for the guardian to make application to the court for leave to use so much of the principal, if there be no accumu- lated income, as may be necessary. Voessing v. Voessing, 4 Redf. 360, 364. And if the guardian make a payment on his own responsibility the court will ratify and sanction it upon proof that it was necessary, and for the welfare of the ward. Ibid., and cases cited. The decree to be made upon such an accounting may decree payment of the balance found due to the person entitled thereto. Seaman v. Duryea, 11 N. Y. 324; Matter of Camp, 1 26 N. Y. 377. In the latter case the guard- ian accounting was entitled to a life use of the fund he held as guardian. The Court of Appeals held that his acceptance of the fund as guardian did not reduce or affect his rights as life tenant (p. 387) and that the ward on coming of age had no right to demand the immediate payment of the principal of the fund. The facts in the case showed, however, that the guardian had lost the 1096 surrogates' courts corpus of the fund. This it was held did not enlarge the jurisdiction of the Surrogate. § 1057. The surety's right.— The surety given by § 2847 the right to compel an accounting, is only the surety in the official bond of a guardian whose letters have been revoked, or the legal representative of such a surety. This section is exclusive, and the surety of a guardian whose letters have not been revoked cannot call him to account in the Surrogate's Court. Smith V. Lusk, 2 Dem. 595, 597. § 1058. The guardian of the person. A petition, for the judicial settlement of the account of a general guardian of an infant's person, may be presented, as prescribed in the last section, or by the general guardian of the infant's property; but, upon the presentation thereof, proof must be made, to the surrogate's satisfaction, that the guardian so required to account, has received money or property of the ward, for which he has not accounted; or which he has not paid, or delivered, to the general guardian of the infant's property. And a guardian of the estate only of a minor shall be, for the purpose of this chapter, deemed a general guardian. § 2848, Code Civil Proc. The proof to be presented to satisfy the Surrogate that the guardian called to account has money or property of the ward for which he ought to account, may be, primarily, in the form of an affidavit. If the guardian respondent puts its allegations in issue, the Surrogate may cause him to be examined, before himself or before a referee to hear and report. § 1059. Deceased guardians. — ^The decisions holding that the Surrogate could not compel the representatives of a deceased guardian to account and pay over a balance found due from him (such as Andrake v. Cohen, 32 Hun, 225, and Famsworth v. Oliphant, 19 Barb. 30), are no longer au- thoritative in view of the language of § 2606, which expressly gives this power. Matter of Camp, 91 Hun, 204; Matter of Hicks, 64 App. Div. 582. The application for a compulsory accounting may be made as soon as the executor of the deceased guardian is appointed. Matter of Wiley, 119 N. Y. 642. For procedure, see chapter on Accountings, post. § 1060. Limitation. — So long as property of the ward remains in the guardian's hands, unaccounted for, he remains liable to account. Matter of Camp, 126 N. Y. 377, 389. The guardian, by holding the property, occupies the position of a trustee, so far as to prevent the running of the Statute of Limitation in his favor. Ibid. See also Kane v. Bloodgood, 7 Johns. Ch. 89. But if there be act's or relations between the guardian and ward, upon the latter's attaining full age, upon which an abandonment or repudiation of the trust may be predicated, then the statute begins to run, and the ward must commence legal proceedings within the statutory period of six years. Matter of Barker, 4 Misc. 40, 42. But in such case it should appear that the cestui que trust had knowlertlge of the denial or repudiation of the trust relation, and that the guardian was not guilty of fraud. Ibid. § 1061. Compelling judicial settlement of account of testamentary ACCOUNTING FOR THE ESTATE 1097 trustee. — Surrogates have full power to settle the accounts of testamentary trustees. §§ 2492, subd. 3, 2814, 2818, Code Civ. Proc; Conant v. Wright, 22 App. Div. 216. This power of a Surrogate to settle the accounts of testamentary trustees, must be exercised in the manner prescribed by the Code. These provisions are contained in §§ 2807 to 2813, both inclusive. When surrogate may compel judicial settlement. In either of the following cases, the surrogate's court may, from time to time, compel a judicial settlement of the account of a testamentary trustee : 1. Where one year has expired, since the will was admitted to probate. 2. Where the trustee has been removed, or, for any other reason, his powers have ceased. 3. Where the trusts, or one or more distinct and separate trusts, created by the terms of the will, have been executed, or are ready to be executed ; so that the persons beneficially interested are, by the terms of the will, or by operation of law, entitled to receive any money or other personal property from the trustee. § 2807, Code Civil Proc. Under this section it has been held that the Surrogate's jurisdiction extends over a trustee appointed by the Supreme Court to execute the trusts created by a will in lieu of the original testamentary trustee. See In re Pitcher, 4 Law Bull. 32, and § 2514, Code Civ. Proc, subd. 6. This practice is, however, unusual. Where there are several distinct trusts the trustees may be made to ac- count as to any one or all of the separate trusts. Matter of Willets, 112 N. Y. 289. Who may apply therefor. A petition, praying for a judicial settlement, as prescribed in the last sec- tion, and that the testamentary trustee may be cited to show cause, why he should not render and settle his account, may be presented : By any person beneficially interested in the execution of any of the trusts ; Or by any person in behalf of an infant so beneficially interested; Or by a surety in the bond of the testamentary trustee, given as prescribed in this title, or by the legal representative of such a surety. Upon the presentation of the petition, the surrogate must issue a citation accordingly, unless the account of the testamentary trustee has been judicially settled, within a j'ear before the petition is presented ; in which case, the sur- rogate may, in his discretion, entertain, or decline to entertain, the petition. § § 2808, Code Civil Proc. The provision that "any person, in behalf of an infant" may apply for the accounting does not require the appointment of a special guardian until the proceeding acquires permanency. Proceedings upon return of citation. Sections 2727 and 2728 of this act apply to the proceedings upon a citation, issued as prescribed in the last section, and to the testamentary trustee to whom the citation is directed. § 2809, Code Civil Proc. 1098 surrogates' courts If under §§ 2727 and 2728 the trustee himself upon the return day ap- plies for a voluntary accounting, the first proceeding dies and there is then no occasion for appointing a guardian in that proceeding. If the trustee fails to do so and appears to show cause why he should not be required to account, then the Surrogate will give the infant opportunity to be heard by general or special guardian. Matter of Wood, 5 Dem. 345, 349. § 1062. Surrogate's powers upon settling the account. Upon a judicial settlement of the account of a testamentary trustee, a con- troversy which arises, respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, must be determined in the same manner as other issues are determined. If such a con- troversy remains undetermined, after the determination of all other questions upon which the distribution of the fund, or the delivery of the personal prop- erty depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together with the prob- able amount of the interest and costs, and, if the case so requires, that the per- sonal property in controversy, be retained in the hands of th& accounting party; or that the money be deposited in a safe bank or trust company, sub- ject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled; and that so much thereof, as is not needed for that purpose, be afterwards distributed according to law. § 2812, Code Civil Proc. The Surrogate cannot inquire into the validity of an assignment of in- terest by one originally interested in the estate. For the purposes of the accounting and his decree, the Surrogate must treat the assignment as valid, unless it is void by Statute {Matter of Foster, 37 Misc. 581), and recog- nize the assignee as the person to whom payment should be directed to be made. Young v. Purdy, 4 Dem. 455, 462, citing Stilwell v. Carpenter, 59 N. Y. 414; Bevan v. Cooper, 72 id. 317; McNulty v. Hurd, 72 id. 518; Boughton v. Flint, 74 id. 476; Sheridan v. The Mayor, 68 id. 30. But no a,uthority has been conferred upon the Surrogate to enter upon the hear- ing and determination of any collateral or incidental disputes, such as those involving the right or title of any claimants to an interest in the estate. Van Sinderen v. Lawrence, 50 Hun, 272, 274. The sections, made applicable by reference, do no more than to regulate the power of the Surrogate, and prescribe the manner in which the pro- ceedings are to be taken, the hearing to be had, and the disposition or dis- tribution of the funds to be made. Ibid. The language of § 2812 does not confer extraordinary powers. The controversy "must be determined in the sa'me manner as other issues," that is to say by actions, and thus not before the Surrogate. If an action is brought and is pending undetermined when the Surrogate is ready to make his decree, then a proportion may be retained to abide the event, under § 2812. But if no action is pending the Surrogate himself may not issue the dispute and must recognize the ACCOUNTING FOR THE ESTATE 1099 one ■prima facie entitled. See opinion of Daniels, J., in Van Sinderen v. Lawrence, supra. The Surrogate, if necessary, may pass on such questions as whether provision in the will for the widow is in lieu of dower. Matter of Gordon, 68 App. Div. 388. Dower is never deemed excluded merely because of a provision in the will unless the intent of testator is clear, either from ex- press words or by necessary implication. Konvalinka v. Schlegel, 104 N. Y. 125. In this case the court held that it would not infer the intent to make the widow elect, merely from the extent of the provision made for her, or that she was devisee for life, or in fee, or because of the apparent injustice of her having both dower and the provision. Closs v. Eldert, 30 App. Div. 338; Kimbel v. Kimbel, 14 App. Div. 570; Fuller v. Yates, 8 Paige, 325. To compel election there should be a clear incompatibility, arising on the face of the will, between the claim of dower and the claim for the provision of the will. Konvalinka v. Schlegel, supra, and cases cited at p. 130. Where justice requires, the Supreme Court can restrain the proceedings in the Surrogate's Court by injunction until the issue raised as to title to the fund, or to part of it, is settled. See Matter of Wagner, 52 Hun, 23, 28, aff'd 119 N. Y. 28; Van Sinderen v. Lawrence, supra; Pettigrew v. Foshay, 12 Hun, 486. But see § 1046 ante. ' § 1063. Effect of decree. A decree, made upon a judicial settlement of the account of a testamentary trustee, as prescribed in this title, or the judgment rendered upon an appeal from such a decree, has the same force, as a judgment of the supreme court to the same effect, as against each party who was duly cited or appeared, and every person who would be bound by such a judgment, rendered in an action between the same parties. § 2813, Code Civil Proc. 1100 SURROGATES COURTS Illustrative Table of Final Compulsory Accountings (Note) Containing Analysis of Code Provisions Note. " Final" is used arbitrarily only, as indicating any account capable of being judicially settled. Description persons. A, Executor or ad- ministrator. B. Temporary ad- ministrator. C. Executor or ad- ministrator of deceased Ex'r, Adm'r, Guardian or Test. Trustee. Cases when he may be required to account. 1. Where one year has ex- pired since letters were issued to him. § 2726, C. C. P. 2. Where letters issued to him have been revoked, or, for any other reason, his powers have ceased. Ibid. 3. Where he has disposed of all or part of a decedent's real estate pursuant to a de- cree under title 5 of chap. 18. Ibid. 4. Where he has exercised a power under the will, as to decedent's realty, or the rents, profits or proceedings thereof, and a year has dapsed since his letters issued. Ibid. Baldwin V. Smith, 3 App. Div. 350. At anytime. §2726, C. C. P., Bubd. 4. As soon as permanent rep- resentative qualifies. At any time after he shall have qualified. §§ 2603, 2605, 2606, C. C. P. Mat- ter of Wiley, 119 N. Y. 642; Matter of Rogers, 153 N. Y. 316, 323; Peltz v. Sehultcs, 64 Hun, 369. Note. The representative stands, for all pjurposes of the accounting, in place of the decedent. Matter of Clark, 119 N. Y. 427. At whose instance. 1. A creditor. § 2727, C. P. Ferris' Estate, 1 Tuck. 15; Matter of Gill 183 N. Y. 347. But not if his claim be disputed. Matter of Whitehead, 38 App. Div. 319. Even though there has been distribution, when there was no ad- vertising for claims. Matter of Blum, S3 App. Div. 161. 2. A person interested in the estate or fund. Ibid. Note. This includes a child born after the making of a will, or any person in its behalf. Ibid. This also includes great- grandchild. Matter of Watts, m App. 357. See § 2514, subd. 11, defin- ing "person interested." Includes legatee. Mat- ter of Rainforth, 37 Misc. 660. 3. Surety of the represen- tative. Ibid. Note. This includes the legal representative of such surety. Ibid. 4. A coexecutor. Wood V. Broujn, 34 N. Y. 337; Matter of Rumaey, 45 St. Rep. 453. 5. Receiver of a legatee in supplementary proceed- ings. Matter of Beyea, 10 Misc. 198; Matter of Rainey, 6 id. 367. But not if executor ia the judgment debtor. Wor- rall v. Driggs, 1 Redf. 449. Surrogate. § 2726, C. C. P. Permanent representative. §2605, cap. Persons interested in the estate. Successor in the adminis- tration of the trust. M2606, 2605, C. C. P. atter of Watson, 64 Hun, 369. Surviving ex'r, adm'r or guardian. Ibid. Creditor. Person interested in es- tate. Ibid. Ward of deceased guard- ian. Ibid. Surviving trustee. Matter of Kreischer, 30 App. Div. 313, 315. Legatee of original testa- tor. Matter of Irvin, 68 App. Div. 158, Who must be cited. Primarily, the accoimt- ing representative. Subsequently, "if it appears that there- is a surplus, dis- tributable to cred- itors or persona, interested, the Sur- rogate, at any time, may issue a supple- mental citation, di- rected to the persons. who must be cited on the petition of an executor or admin- istrator" in volun- tary proceedings. This includes (see § 2728), sureties .on the official bond; or their legal repre- sentatives; all cred- itors, or persons claiming to be cred- itors of the decedent (except such as by vouchers annexed tO' the account filed ap- pear to have been paid) decedent's hus- band or wife; next of kin; legatees, or personal representar- tives of foregoing. The temporary admin- istrator. The permanent rep- resentative if he ha» qualified. If he has not, the accounting- may be deferred till he does. Bible Sod- ety V. Oakley, 4 Dem. 450. The husband, widow, next of kin. Persons interested^ The representativfr called to account. In re Trask's Estate^ 49 N. Y. Supp. 825, 827. ACCOUNTING FOR THE ESTATE 1101 Illustrative Table of Final Compulsory Accountings — Continued Description of persons. D. General Guard- ian of property. E. Oi the person. F. Guardian by will or deed. «G. Testamentary trustee. H. Person whose letters have been revoked. I. Ancillary execu- tor or adminis- trator. •J. Executor de son tort. See § ll!2. Dece- dent's Estate Law as to rem- edy. K, Freeholder in proceedings to sell decedent's realty to pay his debts. Cases when he may be required to account. 1. After the ward attains his majority. § 2847, C. C. P. 2. After the ward's death Ibid. 3. Upon reversal of decree appointing the guardian Note. These 3 cases are the only cases where a testa- mentary guardian's account can be compelled. Matter of Hawley, 104 N. Y. 250. 4. Upon the guardian's dis- charge. § 2837, C. C. P. Same as 1-3 above under §§ 2847-2848, C. C, P. Same as in case of general guardian. See § 2856, C. 1. When a year has expired since will was admitted to probate. § 2807, C. C. P. subd. 1. 2. When the trustee has been removed, or for any other reason, his powers have ceased. Ibid. subd. 2. 3. Where the trusts, or one or more distinct and sepa- rate trusts, created by the terms of the will, have been executed, or are ready to be executed. Ibid. subd. 2. This means that the persons beneficially interested must be either by the terms of the will, or by operation of law, entitled to money or per- sonal property from the trustee. Ibid. Upon the revocation. § 2605, C. C. P. When administration is com- plete, unless specific direc- tions are set out in decree granting letters, e. g., to ac- count when local creditors shall have been paid. When his dealings with the property come to the Surro- gate's knowledge? In any case when the executor or administrator he takes the place of in executing the decree, could be reciuired to account. § 2726, C. C. P., subd. 4. At whose instance. By the ward. § 2847, C. C. P. By the ward's legal repre- sentative. Ibid. By the new guardian when appointed. Ibid. Mat- ter of Hurlburt, 43 Hun, 311. Generally. By the guardian's suc- cessor. Ibid. By the surety, or his repre- sentative. Ibid. By the successor or the ward. § 2837, C. C. P. Same as above, or by gen- eral guardian of the in- fant's property. § 2818, C. C. P. Same. B^ any person beneficially interested in the execu- tion of any of the trusts. § 2808, C. C. P. If an infant, by anyone in his behalf. Ibid. Surety on trustee's bond or legal representative of such surety. Legatee after life interest. In re Jones, 30 Misc. 354. Successor, § 2605, C. C. P. Remaining executor, ad- ministrator, guardian or trustee. Who must be cited. The guardian called to account. The ward or his legal representative. The successor, if any. Same. Same. See §§ 2S09, 2727 and 2728. Personal representa- tives of life bene- ficiary. Cogan v. McCabe, 23 Misc. 739. See §§ 2605 and 2707. Same as in case of ordinary executor or adminis- trator. Surrogate or any person interested or a creditor? The lawful representative? Any person entitled to the property. § 2706, C. C. Creditor or any person in- terested in or entitled to share in the proceeds. The wrongdoer. The lawful representa- tive if any. All who are parties to the proceeding. CHAPTER II PREPARING THE ACCOUNT § 1064. Form and contents of the account. — It is advisable that every account intended for judicial settlement, whether the proceedings in which it is presented be voluntary or compulsory, should be prepared in view of the right of persons interested to object to its items, and put the account- ing party to his proof in justification of their propriety of amount. No one can be more interested than the accounting party himself in having his account properly made up, so as to include all legal debits and credits, and to disclose consecutively and intelligibly the history of his administration. The law assumes that one who administers a trust will do so in a busi- nesslike way. Matter of Stanton, 41 Misc. 278. For instance, it is a reason- able expectation that he should keep proper books of account. Where this has been done, it can seldom be necessary to employ experts to prepare the account. Only in exceptional cases, and to a limited extent, are dis- bursements for such accountant's services recognized and approved. Section 2562 provides for extra allowances upon accountings. See part II, ch. VI. Within reasonable limits, he must himself administer the trust. Matter of Harbeck, 81 Hun, 26. But if a clerk or agent is necessary the reasonable expense thereof should be allowed as an expense of administration. Matter of Binghamton Trust Co., 87 App. Div. 26, citing Lent v. Howard, 89 N. Y. 169, 178. Under peculiar conditions a trustee was allowed office rent. Matter of Nesmith, 140 N. Y. 610. So also agent's fees for collecting rents. Wells V. Disbrow, 20 N. Y. Supp. 518; Garvey v. Owens, 35 N. Y. St. Rep. 133; Fisher v. Fisher, 1 Bradf. 335. So also for a bookkeeper. Merritt v. Merritt, 32 App. Div. 442. See below as to expenses on contested account- ings. But it is the duty of an executor or administrator to prepare his own account, unless he can show that such preparation would be impossible. Matter of Quin, 1 Connoly, 381, 388, Ransom, Surr. Lack of leisure to devote to its preparation is not an excuse acceptable to the courts. Ibid. But the fact that the account is voluminous, or in- tricate and involved, may be shown. Ibid. Still, if the difficulty arises from the fact that no books of account were kept, or no proper accounts, this extra expense must be borne by the accounting party. Estate of Wilcox, 11 Civ. Proc. Rep. 115; O'Reilly v. Meyer, 4 Dem. 161; Matter of Woodard 13 N. Y. St. Rep. 161. In the case first cited the court allowed the accounting party toward 1102 PREPARING THE ACCOUNT 1103. such disbursement the amount reasonably disbursable had he kept books. But the limits set by the Code must be kept in mind. In Hall v. Camp- bell, 1 Dem. 415, it was held that the account must be rendered and settled without any other expense to the estate than the sums authorized to be allowed to the party accounting by § § 2561-2562, together with the tax- able disbursements connected with the judicial proceedings, citing Fowler V. Lockwood, 3 Redf. 465, 467; Brown's Accounting, 16 Abb. (N. S.) 457, 469. If a disbursement for a bookkeeper's services is justified by setting out facts satisfying the Surrogate that his services were requisite to the proper preparation of the account, it can be allowed. Underhill v. New- burger, 4 Redf. 499, 506. What has been said justifies the further rule that fees paid to an attor- ney for preparing the account will not be credited to the representative. See opinion of Ransom, Surr., in In re Smith's Estate, 2 Connoly, 418. The commissions and allowances made to the representative contemplate not only his administration, but all his acts until his discharge. As his account must when settled be the basis from which to ascertain, by com- putation, his remuneration, he should not make the preparation of what is,, in effect, his bill to the estate, the basis of further charge to the estate. But the discussion in a preceding chapter on costs will show that the courts are reasonable and even liberal with counsel for services properly rendered during the administration period. The responsibility of determining what is reasonable rests primarily on the one administering, and it is important that he should be in a position to justify all such payments in case any objection be interposed thereto, upon his accounting. Matter of Hosford, 27 App. Div. 427, 433. Executors and administrators should insist upon itemized and fully itemized statements from their counsel, for this class of expenditures is a fruitful source of objections to accounts. Special guardians of infants, generally themselves attorneys, are peculiarly open to the temptation of objecting to such items. References are often made necessary and all the expenses and allowances incidental thereto entailed upon estates, by the fact that the vouchers for legal services are so insuffi- cient in point of detail as to invite attack on the score of unreasonableness or exorbitance. § 1065. Same subject — Skeleton outline. — The readiest way to explain the form of an account is by examining a precedent. The account may properly be prepared in pursuance of the formula laid down by Surrogate Ransom, for an intermediate account; and quoted from in the foregoing chapter. The statutes do not prescribe any special form to be adopted in making up an account. Solomons v. Kursheedt, 3 Dem. 307, 312. Some Surrogates indicate their own requirements in this regard by supplying official forms, which practitioners in their courts are expected to use, with such modifications as the peculiarities of each estate may require. The following is the form prepared for use in the county of New York: 1104 SURROGATES COURTS Account of pro- ceedixigs. Note. If no in- ventory was filed, the account should furnish the informa- tion usually so sup- plied. In re Dwight, •9 N. Y. Supp. 927, 928. Surrogate's Court, County of New York. In Matter of the Judicial'] Settlement of the Account Y of of Deceased. J To the Surrogate's Court of the County of New York: of the County of New York, do render the following account of proceedings as of de- ceased: On the day of ' A. D. 19 Letters were issued to . On the day of A. D. 19 caused an Inventory of the personal estate of the deceased to be filed in this office, which personal estate therein set forth amounts, by appraisement by the appraisers duly appointed, to $ (Note.) Schedule A, hereto annexed, contains a statement of all the property contained in said Inventory, sold by at public or private sale, with the prices and manner of sale; which sales were fairly made by at the best prices that could then be had, with due diligence, as then believed ; it also contains a statement of all the debts due the said estate and mentioned in said Inventory, which have been collected, and also of all interest or moneys received by for which legally accountable. Schedule B, hereto annexed, contains a statement of all debts in said Inventory mentioned, not collected or col- lectible by together with the reasons why the same have not been collected and are not collectible; and also a statement of the articles of personal property mentioned in said Inventory unsold, and the reasons of the same being unsold, and their appraised value; and also a statement of all property mentioned therein lost by accident, without any wilful 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 possession or knowl- edge, and all the increase or decrease in the value of any assets of said deceased is allowed or charged in said Schedules A and B. Schedule C, hereto annexed, contains a statement of all moneys paid by for funeral and other necessary expenses for said estate, together with the reasons and object of such expenditure. On or about the day of in the year 19 caused a notice for claimants to present their claims against the said estate to within the period fixed by law, and at a certain place herein 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 refer as part of this account. Schedule D, hereto annexed, contains a statement of all PREPARING THE ACCOUNT 1105 the claims of creditors, presented to and allowed by or disputed by and for which judgment or decree has been rendered against together with the names of the claimants, the general nature of the claim, its amount, and the time of the rendition of the judgment; it also contains a statement of all moneys paid by to creditors of the deceased, and their names, and the time of such pay- ment. Schedule E, hereto annexed, contains a statement of all moneys paid to the legatees, widow, or next of kin of the deceased. Schedule F, hereto annexed, contains the names of all persons entitled as widow, legatee, or next of kin of the de- ceased, to a share of estate, with their places of residence, degree of relationship, and a statement of which of them are minors and whether they have any general guard- ian, and if so, their names and places of residence, to the best of knowledge, information and belief. Schedule G, hereto annexed, contains a statement of all other facts affecting administration of said estate, rights and those of others interested therein. charge as follows: With amount of Inventory, . ... $ " Increase, as shown by Exhibit A. credit as follows: With amount of Loss on sales, as per Schedule B, " Debts not collected, as per do., Schedule C, Schedule D, Schedule E, Leaving a balance of to be distributed to those entitled thereto, subject to the deductions of the amount of commissions, and the expenses of this accounting. The said Schedules, which are severally signed by are part of this account. §1066. Same — Expenses of administration. — "Expenses of adminis- tration" which would be covered by Schedule C of the precedent, is an elastic term. It includes such disbursements as a representative is called upon to make in securing the proper and orderly settlement of the estate, and in carrying out a will. Matter of Pray, 40 Misc. 516. In a final accounting every item so incurred is charged. But when used in a will in connection with a pecuniary legacy the rule may be varied by the facts involved. Thus, a testatrix left to one of several legatees the sum in a certain bank account " l^ss the cost of tombstone and the expenses of the administration of my estate." In the case just cited it was held that this legacy should not be charged with the transfer tax nor with commissions earned, as they are apportionable on the various interests. 70 1106 surrogates' courts Unnecessary expenses will be disallowed. Thus a representative cannot "gratify a taste for litigation at the expense of the estate." Matter of Stanton, 41 Misc. 278. The usual order requiring an account to be rendered for judicial settle- ment follows the statute and directs that the representative "do render an account of his proceedings as" executor or administrator or guardian or trustee. As has been well stated " Its comprehensiveness has its founda- tions in its simplicity. It reaches every part of his administration by the force of the terms used." In re Jones, 1 Redf. 263, 264, and see opinion pp. 265, 268, as to contents of such an account and the reasons for every requirement. See also Wikox v. Smith, 26 Barb. 316; St. Johns's Estate, 1 Tuck. 126. § 1067. What is to be accounted for. — In preparing his account the ex- ecutor or other accounting party must see to it that it includes all with which he is chargeable. If he asks credit for " uncollectible " assets, because of insolvency of debtor or such reason the burden is on him to satisfy the court that it was uncollectible. Matter of Joost, 50 Misc. 78, citing Matter of Hosford, 27 App. Div. 427, 434. But he need only account for that with which he is chargeable in his representative capacity. Thus, where a will conferred upon the person named as executor personally and not as executor a power to sell certain real property, it was held he could not account for the proceeds on his executor's accounting, nor be allowed commissions thereon therein. Matter of Brown, 5 Dem. 223. So also, where an executor disburses an annuity out of a fund contributed by the heirs, no trust being created by the will, he acts as the agent of the heirs, and cannot include the sums in his accounting. Matter of Collins, 144 N. Y. 522. And an executor who is also made a trustee by the will cannot be compelled as executor to account for the trust. Matter of Cooper, 6 Misc. 501. If the executor collects in moneys, which the will gives him no authority to administer, he incurs a^ personal liability to enforce which the Surrogate's Court has no jurisdiction. Estate ofGoetschius, 2 Misc. 278. An executor being also the guardian of an infant may credit himself for the maintenance of such infants, where he has never had any money turned over to him as guardian. Matter of Gearns, 27 Misc. 76, 77, citing Browne v. Bedford, 4 Dem. 304. An executor may be allowed on the ac- counting moneys paid by them on land contracts by which testator at his death was obligated. ilfaWer o/ Dams, 43 App. Div. 331, 334. The rule is stated in Champion v. Brown, 6 Johns. Ch. 398. See also Williams v. Kinney, 43 Hun, 8. Claims which cannot be liquidated until the Surro- gate passes upon them at the accounting need not be set out in the account. When he has adjusted them, they are to be covered by the decree. Matter of Kane, 64 App. Div. 566, 571. Good practice calls, however, for some informatory schedule setting out the items, allowance of which will be claimed or contested by the accounting party, so that those cited may examine into them and act as they are advised. What he must account for are the assets of the estate. But if the will PREPARING THE ACCOUNT 1107 works an equitable conversion of realty, the proceeds become legal assets in the hands of the executor when received by him, and he is accountable therefor in the Surrogate's Court. Stagg v. Jackson, 1 N. Y. 20G; Hood v. Hood, 85 N. Y. 561, 570. But he need not account for realty passing di- rectly to a devisee. Matter of Gill, 42 Misc. 457. Where the decedent's real estate was devised to executors, and they received the rents and profits thereof, and sold part and received the pro- ceeds, it has held that these moneys were assets for the payment of debts and for distribution, and they were compelled to account therefor at the instance of judgment creditors of the estate under a deficiency judgment. Ghcius V. Fogel, 88 N. Y. 434, 445. So where the decedent was a tenant per autre vie, his unexpired estate is a chattel real and goes to the execu- tor or administrator. Reynolds v. Collin, 3 Hill, 441 ; Norton v. Norton, 2 Sandf. 29|6. So where a person had a life interest in certain stock, extraor- dinary dividends declared upon the stock belonged to him and became a part of the assets of his estate. Woodruff's Estate, 1 Tuck. 58. Where lands of the decedent are taken in exercise of the right of eminent domain, during his life, the proceeds are payable to his executors, if not paid to him in his lifetime. Ballou v. Ballou, 8 Week. Dig. 363. Growing crops are legal assets. Bradner v. Faulkner, 34 N. Y. 34:7 ; Sherman v. Willett, 42 N. Y. 146; Wadsworth v. Alkott, 6 N. Y. 64. But it is needless to mul- tiply illustrations. The substantive law is well and clearly stated in the text-books. See, e. g., Schouler on Ex'rs and Admr's; part VII, ch. II; and Am. & Eng. Ency. of Law, subtopics. § 1068. Same — Profit or loss. — The account must show all increment of the estate. No executor or trustee can pay himself bonus or commissions or compensation in dealing with the trust estate except subject to the scrutiny and action of the court. Matter of Sandrock, 49 Misc. 371, and cases cited. Section 2729, hereafter quoted, provides that the representa- tive shall neither profit by an increase nor suffer by a decrease (without his fault) of any part of the estate. He must account for the one and be allowed for the other. In Matter of Thompson, 41 Misc. 420, the estate securities had greatly depreciated because of a great and general "slump" in the market. The court cut the Gordian knot by decreeing distribution in kind and leaving to each beneficiary the responsibility of realizing at a loss or holding for a rise! In Matter of Mitchell, 41 Misc. 603, executors accounted and were di- rected to pay themselves as trustees so much cash, which included the inventory value of a leasehold. But they realized twice the value on the sale of the leasehold but did not pay it to themselves as trustees. Held, they were still liable for such excess, withheld, as executors. § 1069. Same — Assets of the estate — Savings bank accounts — ^The lim- itation on size of interest-bearing accounts in savings banks has resulted in the multiplication of accounts by individuals under sundry names or capacities, primarily to secure the 4% interest on sums in excess of the bank's limit. The words "in trust" followed by real or fictitious bene- 1108 surrogates' courts ficiaries often tend to complicate the question and expose representatives to serious trouble and often to the expense of litigation. When the executor or administrator is the "survivor" named in a joint account or the beneficiary of an "in trust" account the question has to come up. It may affect the transfer tax for one thing. The cases are voluminous. A few citations will put the reader on the track. Surrogate Thomas reviewed the cases as to whether a trust interest was created in Matter of Estate of P. V. Smith, N. Y. Law Journal, March 13, 1903. The account was in name of A in trust for B. In Matter of Finn, 44 Misc. 622, a widow, administratrix, took individual possession of three of decedent's savings banks pass books in his name "in trust for" herself, and also of a fourth in their joint names, J. F. or M. F. Held they were none of them the property of the estate. See opin- ion and cases. If the "in trust for" form ig so accompanied by delivery and acts or conduct sufficient to create a valid trust the estate has no right in the ac- count. See Matter of Biggars, 39 Misc. 426. But if it be a mere "tentative trust" and revocable, it cannot become irrevocable, presumptively or in fact, until the depositor's death, or until he by unequivocal gift or act or declaration equivalent thereto divests himself of any right in or control of the account. See Matter of Totten, 179 N. Y. 112, and cases examined. Matter of Dwyer, 112 App. Div. 195; Matter of BarefieU, 177 .N. Y. 387; Matter of Davis, 119 App. Div. 35. See Kelly v. Beers, 194 N. Y. 49, two cases when account was payable to deceased and her daughter "or the survivor." § 1070. The account must be verified. — The Code requires a particular form of verification of every account filed in the Surrogate's Court. The provisions are as follows: Affidavit to account; vouchers; examination of accounting party. To each account filed with the surrogate, as prescribed in this article, must be appended the affidavit of the accounting party, to the effect that the ac- count contains, according to the best of his knowledge and belief, a full and true statement of all his receipts and disbursements on account of the estate of the decedent, and of all money and other property belonging to the estate, which have come to his hands, or been received by any other person, by his order or authority, for his use, and that he does not know of any error or omis- sion in the account, to the prejudice of any creditor of, or person interested in, the estate of the decedent. On an accounting by an executor or administrator, the accounting party must produce and file a voucher for every payment, except in one of the following cases : 1. He may be allowed, without a voucher, any proper item of expenditure, not exceeding twenty dollars, if it is supported by his own uncontradicted oath, stating positively the fact of payment, and specifying when and to whom the payment was made; but all the items so allowed against an estate, on all the accountings of all the executors or administrators, shall not exceed five hundred dollars. 2. If he proves, by his own oath or another's testimony, that he did not take PREPARING THE ACCOUNT 1109 a voucher when he made the payment, or that the voucher then taken by him has been lost or destroyed, he may be allowed any item, the payment of which he satisfactorily proves by the testimony of the person to whom he made it; or, if that person is dead or carwiot, after diligent search be found, by any com- petent evidence other than his own oath or that of his wife. But an allowance cannot be made, as specified in this section, unless the surrogate is satisfied that the charge is correct and just. The surrogate may, at any time, make an order requiring the accounting party to make and file his account, or to attend and be examined under oath, touching his receipts and disbursements, or touching any other matter relating to his administration of the estate, or any act doile by him under color of his letters, or after the decedent's death and before the letters were issued, or touching any personal property owned or held by the decedent at the time of his death. No profit shall be made by an executor or administrqj^or by the increase, nor shall he sustain any loss by the decrease, without his fault, of any part of the estate; but he shall account for such increase, and be allowed for such decrease on the settlement of his ac- counts. On the judicial settlement of the account of an executor or adminis- trator, the surrogate may allow the accounting party for property of the dece- dent perished or lost without the fault of the accounting party. § 2729, Code Civil Froc, in part. Former §§ 2733, 2734, 2735, 2741, consolidated; also R. S. 2564, § 57. § 1071. Form of such affidavit.— By ch. 293, Laws 1901, a new subd. 3 was added to this section, giving priority to reasonable funeral expenses, and prescribing a procedure to enforce payment thereof. This amendment is quoted under Payment of Debts, ante. The latter paragraph alone is pertinent to this discussion, and is as follows : If upon any accounting it shall appear that an executor or administrator has failed to pay a claim for funeral expenses, the amount of which has been fixed and determined by the surrogate as above set forth or upon such account- ing he shall not be allowed for the payment of any debt or claim against the decedent until said claim has been discharged in full; but such claim shall not be paid before expenses of administration are paid. § 2729, Code Civil Proc. subd. 3, in part. This subd. 3 has been held to apply to a claim accruing before it went into effect. Matter of Kipp, 70 App. Div. 567. For it is a mere regulation of procedure. But where an executor had duly paid out the fund in his hands before September 1, 1901, when subd. 3 went into effect, he cannot be held liable. Matter of Kalbfleisch, 78 App. Div. 464. The following is a proper form for such affidavit to an account: In the Matter of the Judicial ) Affidavit to Ac- Settlement of the Account > count of Proceed- of of Deceased. ) ingby Executor or County of ss.: raTS'Trr**^' of being d^y sworn, say that the charges ' ■ ■ ' made in the foregoing account of proceedings and schedules 1110 surrogates' courts annexed, for moneys paid by to creditors, legatees and next of kin, and for necessary expenses, are correct; that have been charged therein all the interest for moneys received by • and embraced in said account, for which a legally accountable; that the moneys stated in said account as collected, were all that were collectible, according to the best of knowledge, in- formation and belief, on the debts stated in such account at the time of this settlement thereof; that the allowances in said account for the decrease in the value of any assets, and the charges therein for the increase in such value, are cor- rectly made ; and that do not know of any error in said account or anything omitted therefrom which may in any wise prejudice the rights of any party interested in said estate. And deponent further say 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 may not be able to produce vouchers or other evidences of payment, have actually been paid and disbursed by as charged; and that said account contains, to the best of knowledge and belief, a full and true statement of all receipts and disbursements on ac- count of the estate of said decedent, and of all money and other property belonging to said estate which have come into hands, or which have been received by any other person by or order of authority for use, and that do not know of any error or omission in the account to the prejudice of any creditor of or person interested in the estate of the decedent. Sworn to before me this day of 19 § 1072. Vouchers. — The rules as to vouchers are simple. The uncon- tradicted oath of the accounting party will support payments of items less than twenty dollars in amount severally, and not exceeding in the aggre- gate upon the whole administration five hundred dollars. § 2729, subd. 1; Metzger v. Metzger, 1 Bradf. 266; Ticket v. Quinn, 1 Dem. 425, 431; Smith V. Bixby, 5 Redf. 196. If he has vouchers for such items under twenty dollars, he must, however, file them. Orser v. Orser, 5 Dem. 21; Matter of Woodward, 69 App. Div. 285, 291. The fact that the vouchers are very numerous will not avoid their being filed. Matter of Wicke, 74 App. Div. 221. And the failure to file them is proper ground for a timely motion to vacate a decree settling the account. Ibid. But for such items aggregating in excess of five hundred dollars, or where the amount of the payment was over twenty dollars but no voucher was taken, or having been taken was lost or destroyed, the facts as to payment must be satisfactorily proven by competent evidence. § 2729, subd. 2; Matter of Rowland, 5 Dem. 215. This means, of course, PREPARING THE ACCOUNT 1111 proof. Matter of Wilhur, 27 Misc. 126. The best evidence is that of the person to whom he made the payment. But "if that person is dead or cannot, after diligent search be found," then any competent evidence may be offered other than the accounting party's own oath or that of his wife. This provision may be waived, and is waived if the contestant, himself, calls the executor as a witness on the disputed item. Rose v. Rose, 6 Dem. 26, 28. The Surrogate must be "satisfied that the charge is correct and just." See, for discussion of character of proof required. Matter of Davis, 43App.Div. 331,333. The burden is on a contestant of impeaching an expenditure made by the accounting party for which a voucher is produced, such as a debt of decedent, showing upon its face the nature of the expenditure and its reasonableness. Matter of White, 6 Dem. 375, 388, and cases cited; Matter of Hosford, 27 App. Div. 427, 433; Matter of Dittrich, 53 Misc. 511. In the Hosford case the court says: "The burden of proving a claim made by an accountant to be allowed for counsel fees or other expenses rests upon him . ..." he must show "what the services were, that they were necessary, and of the value charged." The court cites Journault v. Ferris, 2 Dem. 320; Wilkon v. Willson, 2 Dem. 462; St. John v. McKee, 2 Dem. 236; Raymond v. Dayton, 4 Dem. 333; Casey's Estate, 6 N. Y. Supp. 608. The distinction is this: expenses paid must be shown to be actual, necessary and reasonable. Debts paid must be shown to be actual and enforceable. See also Matter of Smith, 1 Misc. 269, 280. If the voucher is not denied by objection, the accounting party need not establish the payment further than by the voucher. Boughton v. Flint, 74 N. y. 476. In this case, Rapallo, J., held, at p. 485: "The accounting party is not bound to establish payments for which she presents vouchers unless they are denied by objections, and the burden of impeaching such payments is on the contestants. If the objections filed are insufficient, the Surrogate may allow further objections to be filed from time to time." Matter of Warrin, 56 App. Div. 414, 417; Matter of Frazer, 92 N. Y. 239; Valentine v. Valentine, 4 Redf. 265; Carroll v. Hughes, 5 Redf. 337; Lock- wood V. Thorne, 18 N. Y. 285; Schutz v. Morette, 146 N. Y. 137; Matter of Callahan, 152 N. Y. 320. Vouchers may be impeached upon any ground going to the fact of pay- ment, the reasonableness of the expenditure, or the legality thereof. The objection may show that the signature to the voucher is a forgery, or that the amount it represents was not in fact due or payable. Estate of Butler, 39 N. Y. St. Rep. 851. Charles P. Daly, Surr., held {Broome v. Van Vook, 1 Redf. 444, 446), that in the absence of vouchers he must disallow an expenditure upon a conflict of testimony between the executor (who swore he made the payment) and the person to whom he claimed to have paid it (who denied having received it). The question was presented be- fore Ransom, Surr. (In re Langlois's Estate, 2 Connoly, 481), of the power of the Surrogate to approve an account when no vouchers whatever were produced. The proof required was held to be such as would satisfy the 1112 SUREOGATES' COURTS Surrogate. In this case, however, the objection raised was purely techni- cal, and the evidence not in fact conflicting. In Matter of Cruger, 34 N. Y. Supp. 191, it was held that an item of $100, paid for hotel bills of the decedent could not be allowed on the unsupported testimony of the accounting administratrix, there being no voucher whatever. In Matter of Gerow's Estate, 23 N. Y. Supp. 847, the rule was fully elaborated that the evidence in support of an unvouched item must be competent evidence other than the oath of the accounting party. See p. 850, citing Ticket v. Quinn, 1 Dem. 425; In re Rowland, 5 Dem. 216; In re Topping's Estate, 14 N. Y. Supp. 495-498; In re Taffs's Estate, 8 N. Y. Supp. 282, 283; Willcox v. Smith, 26 Barb. 316; In re Hertfelder's Estate, 1 Law. Bull. 96. The statutory rule is stringent but has been reasonably interpreted. For example, Matter of Nichols, 4 Redf. 284, 288, it was held that an executor could not be expected to prove to whom he had paid out various items of car fares and railroad fares, expended necessarily in business of the estate, or to produce vouchers therefor; but such disbursements were allowed. It has been also held that an executor is not bound to require vouchers of a creditor whose claims are attested by the testator's books and sworn by the executor to be correct and due. Gillespie v. Brooks, 2 Redf. 349. The legality of payments is a proper issue to raise. An executor may not charge in his account items not constituting a legal charge upon the funds in his hands. Matter ofSelleck, 111 N. Y. 284, 287. Such are, for instance, payments of taxes not a lien on property of the testator, at the time of his death, or taxes upon property not owned by the testator. Ibid. Even if he makes such payments at the request of the heirs, it will be deemed to be a personal transaction, and not properly to be incorporated into his accounting. The liability of an executor to pay taxes does not depend upon when the tax became a lien, but upon whether the decedent became personally liable for the same under the statute before his death. Matter of Franklin, 26 Misc. 107, 109; Mygatt v. Washburn, 15 N. Y. 316; Rundell V. Lakey, 40 N. Y. 513; Matter of Babcock, 115 N. Y. 450. Where it is ob- jected that notes paid by the accounting party were fictitious, it is held the burden of proving honest payment is upon him (Matter of Koch, 33 Misc. 153). Whether or not to file objections to an account after examin- ing the same, is often a serious question, with guardians especially. The contesting of certain items may involve the estate in referee's fees, in per diem allowances, and in costs which may amount to more than the amount to be saved to the contestant's share. It has been held that a guardian, in such case, may have a preliminary examination of the ac- counting party before filing his objections (Robert v. Morgan, 4 Dem. 148), in order to determine the propriety of so doing. § 1073. Neglect to set apart exempt property.— In accoimting for his administration the executor or administrator may be required to show PREPARING THE ACCOUNT 1113 performance of every legal duty laid upon him. One such duty is that of setting apart exempt property to a surviving husband, wife or child. The Code provides: Where an executor or administrator has failed to set apart property for a surviving husband, wife or child, as prescribed by law, the person aggrieved may present a petition to the surrogate's court, setting forth the failure and praying for a decree, requiring such executor or administrator to set apart the property accordingly; or, if it has been lost, injured or disposed of, to pay the value thereof, or the amount of the injury thereto, and that he be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that sufficient cause is shown, he must issue a citation accordingly. On the return of the citation, the surrogate must make such a decree in the premises as justice requires. In a proper case, the decree may require the exec- utor personally to pay the value of the property, or the amount of the injury thereto. The decree, made on a jvdicial settlement of the account of an executor or administrator, may award to a surviving husband, wife, or child, the same re- lief which may be awarded in his or her favor on a petition presented as prescribed in this section. § 2724, Code Civil Proc. This exemption is covered by § 2713 of the Code, quoted and dis- cussed, ante. The failure of the appraisers, to set apart the exempt prop- erty, does not divest a widow of her rights. She is not bound to move for an amendment of the inventory. Nor must she make the application contemplated by the first part of § 2724. The question can be adjusted on the accounting by the express letter of that section. Matter of Maack, 13 Misc. 368, 374. Where the widow herself is executrix she ought to wait until the accounting to have her exemptions adjusted. Matter of Warner, 53App. Div. 565, 571. The rights to property which ought to be set apart as exempt is an absolute right, and becomes so at the death of the decedent. Vedder v. Saxton, 46 Barb. 188. The representative's only right to it is a right of possession for purpose of including it in his inventory. Ibid., and Voelckner V. Hudson, 1 Sandf. 215. It is a right that cannot be divested by the will, nor does a widow lose it by accepting a provision under the will. Ibid. Upon the accounting, however, the executor or administrator cannot be credited exempt articles not actually set apart. If they were not so set apart a special application can be forthwith made under § 2724. Comwell V. Deck, 2 Redf . 87. In such a case the creditors and next of kin should have notice. Ibid. If the executors not only did not set apart the property which should have been exempt, but sold it, they must account to the person entitled for the proceeds. § 2724, Code Civ. Proc; Sheldon V. Sheldon, 8 N. Y. 31. This is a different point than that involved in the claim occasionally made where the articles a widow, for example, asks to have set apart to her use are not in the estate, and their equivalent in cash is asked of the executors. This is properly allowed where the facts justify it. See dis- cussion of § 2713, ante. 1114 subrogates' coubts If it appear that the articles, or, in a proper case, the pecuniary equiva- lent were actually tendered and refused, the executor is entitled, having acted thereon, and delivered the same to the next of kin, to be protected against a change of mind on the accounting. Matter of Campbell, 96 App. Div. 561. The right being statutory and personal, the six years' statute of limitations applies and governs. Ibid. The refusal is a waiver, and binds the husband or wife and their representatives. Ibid. § 1074. The schedules of the account. — ^The form of executor's account shown in § 2 above, indicates what the schedules of such an account ought to contain. Those in a trustee's account may be far more complex. They may have to set forth: I. (a) The property, securities or moneys constituting the principal of the personal estate at the testator's death, or at the time of the next preceding judicial settlement. (&) The amount if any of accumulated income with which they may have been debited in the next preceding judicial settlement as income from the personal property. (c) The real property held by them pursuant to the terms of the trust. (rf) The accumulated rents and profits of such real property with which they may have been debited on the next preceding judicial settlement. II. (a) The additions to or any increase in personal principal. (b) The additions to or any increase in personal income. (c) The additions to or any increase in corpus of real property. (d) The additions to or any increase in income from real property. III. When the trustees have held real estate mortgages, a schedule ■should be set apart for them, showing payments of interest, increase or reductions in amounts outstanding, foreclosures, etc. These and cognate schedules should be capable of being summarized as containing statements of all for which the trustees are legally accountable both on account of the principal and of the income of the estate. The schedules of disbursements should on the other hand substantially show: (a) All moneys paid out of principal or income on account of necessary expenses of administration, with the reason or object of each expenditure. (6) All payments made upon the real property of the trust, such as taxes, assessments, repairs, rents, commissions, insurance, etc., with the reason and object of each expenditure. (c) All payments out of income to legatees or other beneficiaries. (d) All payments out of principal to legatees or other beneficiaries. These schedules are merely illustrative, and the order in which they are stated is a minor matter. There should always be the additional schedule, showing the property of every character remaining in the hands of the accounting party for further administration or distribution, and the schedule of all persons entitled as husband or widow, legatees, devisees, or next of kin, to any share in the estate under the will, with their place of residence, degree of relationship, their age, and if minors, whether they have guardians or not. As has been already intimated, this, or a similar, PREPARING THE ACCOUNT 1115 schedule should show what allowance the executor will claim on his ac- counting for his reasonable expenses such as legal fees, etc. Matter of Kane, 64 App. Div. 566, 571. The amount cannot always be even ap- proximated; but its character should be indicated. The vouchers should be arranged so as to correspond with the schedules, particularly if there is any likelihood of contest. Thus if schedule G should be described as containing all payments of taxes, assessments, water rates, etc., made on the trust estate, the vouchers for all such pay- ments should properly be strapped together and lettered to correspond. This will facilitate the court and the referee in its determination upon ob- jection being made, as to the sufficiency of vouchers. The delays in accounting proceedings are not infrequently due to an indifferent preparation of the account itself, and an unsystematic ar- rangement of the vouchers. It is the duty of a special guardian to examine all vouchers for pay- ments affecting the interests of his infants. His report is under oath. If he discovers that vouchers are missing, or clearly defective, or improper, he should interpose objection and may thus place the responsibility upon the court or referee. Still, in view of the fact that a contest is costly to the estate, good faith requires that he act with discretion and exercise his judgment. He is bound to assume the responsibility of his office, and may often fully discharge his trust by careful examination and avoid the nec- essity of objections. CHAPTER III THE PEOCEDUHE ON ACCOUNTINGS § 1075. Initiating the proceeding. — The tables already given indicate the persons by whom the various accounting proceedings may be initiated. The provisions of the Code as to the commencement and conduct of these different accountings are here to be discussed. I. AS TO EXECUTORS AND ADMINISTRATORS GENERALLY Since the provisions about to be discussed are made applicable to trustees' and guardians' accountings as already noted the procedure will be covered by the discussion under this heading. The practice as to these representatives is set out in the following sec- tion of the Code: Citation; order to account and proceedings thereon. A petition, praying for the judicial settlement of an account, and that the executor or administrator be cited to show cause why he should not render and settle his account, may be presented, in a case prescribed in the last section by a creditor or a person interested in the estate or fund, including a child born after the making of a will; or by any person, in behalf of an infant so inter- ested; or by a surety in the official bond of the person required to account, or the legal representative of such a surety. On the presentation of such a peti- tion, a citation must be issued accordingly ; except that in a case specified in subdivision first of the last section, if the petition is presented within eighteen months after letters were issued to the executor or administrator, the surro- gate may entertain or decline to entertain it, in his discretion. On the return of a citation issued as prescribed in either of the foregoing sections of this arti- cle, if the executor or administrator fails either to appear, or to show good cause to the contrary, or to present in a proper case, a petition as prescribed in the next section, an order must be made, directing him to account within such a time, and in such a manner as the surrogate prescribes, and to attend from time to time, before the surrogate, for that purpose. The executor or administrator is bound by such an order, without service thereof. If he dis- obeys it the surrogate may issue a warrant of attachment against him, and his letters may be revoked, as where a warrant of attachment is issued to compel the return of an inventory. If it appears that there is a surplus, distributable to creditors or persons interested, the surrogate may, at any time, issue a sup- plemental citation, directed to the persons who must be cited, on the petition of an executor or administrator for a judicial settlement of his account, and requiring them to attend the accounting. The pendency of a proceeding against an executor or administrator to compel him to account, does not prc- 1116 THE PROCEDURE ON ACCOUNTINGS 1117 elude him from presenting a petition as prescribed in the next section. If such petition is presented at or before the return of a citation in and as prescribed in either of the foregoing sections of this title, the citation issued thereon need not be directed to the petitioner in the special proceeding pending against the executor or administrator, and the two proceedings mwi be consolidated. The Surrogate may, in his discretion, and on such terms as may be just, direct the consolidation of any two or more 0} such proceedings pending before him, and such consolidation does not affect any power of the surrogate, which might be exercised in either proceeding. § 2727, Code Civil Proc. Former §§ 2726, 2727, 2728, consolidated. The cases as to consolidation of proceedings are noted, ante, p. 1087, q. v. § 1076. The petition. — The petition in such compulsory proceedings must set out all the jurisdictional facts. The petitioner must so describe himself as to bring himself within the statute. A legatee may thus petition. Matter of Rainforth, 37 Misc. 660. See Table of Compulsory Accountings, ante. Section 2514, subd. 11, gives petitioner right to accounting if his interest is made to appear by duly verified petition, but this does not de- prive Surrogate of power (discretionary) to deny application where on face of proceedings it appears he is not entitled to order asked for. Doritz V. Doritz, 40 App. Div. 236, 238, citing Matter of Wagner, 119 N. Y. 28, 34. See also Matter of Simonson, 119 N. Y. 661. If he petitions as a creditor he must show the nature of his claim, and allege facts showing it to be a subsisting claim against the estate. The amount due and the time when it became due should appear. Estate of Zeuschner, 15 N. Y. St. Rep. 744. So, the executor may dispute the status of a petitioning creditor, where- upon the creditor must first establish his right as a creditor in a court, having jurisdiction to try the claim. Matter of Whitehead, 38 App. Div. 319. And if on face of petition, it is clear his status as creditor is defective, the Surrogate will deny the application. Doritz v. Doritz, 40 App. Div. 236, 238; Matter of Wagner, 119 N. Y. 28, 34. In Matter of Reinach, 41 Misc. 78, Thomas, Surr., refused to try an issue ■claimed to be raised by presentation and rejection of a claim. But, the executor having denied that the claim was in fact presented he asserted his right to try that issue, and, if it should be found it had been presented, then whether it had been accepted, citing Matter of Miles, 170 N. Y. 75. When a daughter sought to compel her mother's administratrix to ac- count, the answer interposed was payment. Held the answer was not fatal. Matter of Williams, 57 Misc. 537, citing Matter of Kipp, 41 N. Y. Supp. 259. The prayer should conform to the Code, for the citation must follow the prayer of the petition. Where an executor was cited merely to "render an account," it was held, as already noted, that an account filed pursuant thereto was incapable of being judicially settled. Schlegel v. Winchel, 2 Dem. 232. The prayer should therefore be either that the respondent be ■cited to "render and settle his account," or to "file his account for ju- dicial settlement." Ibid. The following may serve as a precedent: 1118 SURROGATES' COURTS Surrogate's Court, County of New York. Petition for com- In the Matter of the Estate \ pulsory accounting of Deceased. ) and judicial settle- To the Surrogate's Court of the County of New York: ment under § 2727, rpj^g petition of who resides at No. street: respectfully showeth: That your petitioner is a of deceased. (Allege petitioner's status concisely, but specifically.) That letters on the estate of said deceased were granted by the Surrogate of the County of New York to on the day of (See below, and see table of compulsory final accountings as to what facts to allege as warranting petitioner to compel account as, for example:) That more than has elapsed since h ap- pointment, and the said ha not rendered any account of proceedings as such. Your petitioner, therefore, prays for a judicial settlement of the accounts of said and that a citation may be issued requiring the said to appear in this court, and show cause why should not render accounts, and why the same should not be judicially settled. Petitioner. (Verification.) It must be remembered that if the prayer is merely that the account be judicially settled, the petitioner's letters cannot be revoked and a discharge be secured thereon. Where that is the intent the petition must so pray and the citation so specify. The words "final account" are used here, as repeatedly noted, not as the last or ultimate account. Executors and administrators, however, are not unapt to expect, when they are given to understand that a "final" account is to be "settled," that it will be fol- lowed by their discharge, and release from further responsibility. If this is intended to be accomplished, the petition and citation must be framed accordingly and the necessary parties brought in, or the estate may be subjected to the expense of a second proceeding. The table in the pre- ceding chapter will show when such a petition may be made. The Code provisions, however, are as follows: When surrogate may require judicial settlement of account. In either of the following cases, the surrogate's court may, from time to time, compel a judicial settlement of the account«of an executor or adminis- trator. 1. Where one year has expired since letters were issued to him. 2. Where letters issued to him have been revoked, or, for any other reasons, his powers have ceased. 3. Where a decree for the disposition of real property, or of an interest in real property, has been made, as prescribed in title fifth of this chapter, and THE PROCEDURE ON ACCOUNTINGS 1119 the property, or a part thereof, has been disposed of by him pursuant to the decree. 4. Where he has sold, or otherwise disposed of, any of the decedent's real property, or the rents, profits or proceeds thereof, pursuant to a power con- tained in the decedent's will, where one year has elapsed since letters were issued to him. The surrogate's court may compel a judicial settlement of the account of a temporary administrator at any time. It may also compel a judicial settlement of the account of a freeholder, ap- pointed to dispose of a decedent's real property, or interest in real property, as prescribed in title fifth of this chapter, in like manner as where the same has been disposed of by the executor or administrator. § 2726, Code Civil Proc. Former §§ 2724, 2725, consolidated. § 1077. Time when accounting may be had. — As to the time limit fixed, by subd. 1, the practice in New York County is that stated in the Crowley case, reported in N. Y. Law Journal, January 16, 1901, where Thomas, Surr., construed the words "issued to him" as personal to the one sought to be made to account. He says: "The proceeding is to compel judicial settlement of the account of Nora L. Crowley, as executrix. By the will of the decedent his wife, Elizabeth Crowley, and his daughter, Nora L. Crowley, were named as executors, and they were also made residuary legatees to share equally in his estate, after the payment of funeral expenses and expenses of ad- ministration. On May 9, 1893, letters testamentary were issued to Eliz- abeth Crowley, Nora L. Crowley not qualifying. In March, 1900, Eliz- abeth Crowley died, leaving the administration of the estate uncompleted. On April 27, 1900, letters testamentary were issued to Nora L. Crowley, and in July she collected and received something over $6,000, being the amount due on a mortgage representing a part of the estate. The peti- tioner is the administrator of the estate of Elizabeth Crowley. It thus appears that more than seven years have expired since letters were first issued and that less than one year has expired since letters were first issued to the executrix who is proceeded against. The question presented is as to the power of the Surrogate to require an accounting at this time. The language of the statute is that the Surrogate's Court may compel a judicial settlement of the account of an executor or administrator when one year has expired since letters were issued 'to him' (§ 2726, Code Civ. Proc). An executor or administrator may proceed voluntarily to procure his ac- count to be judicially settled where one year has expired since letters were issued 'to such executor or administrator' (§ 2728, Code Civ. Proc). It would seem that these provisions were sufficiently explicit and that the application must be denied. There are some decisions which do not point to this result, and, though I cannot agree with them, they should be re- ferred to. In Cuthbert v. Jacobson, 2 Dem. 134, upon somewhat similar facts, Bergen, Surr., on his own motion and without argument, directed an accounting on the ground that the year should be computed from the 1120 SUREOGATES' COUBTS granting of the first letters (citing § 2493, Code Civ. Proc). This section is to the effect that ' where it is prescribed by law that an act, with respect to the estate of a decedent, must or may be done within a specified time after letters testamentary or letters of administration are issued, and suc- cessive or supplementary letters are issued upon the same estate, the time so specified must be reckoned from the issuing of the first letters, except in a case where it is otherwise specially prescribed by law.' It is not ap- plicable to the present question because the act of accounting and pro- curing a judicial settlement is not required to be done ' within a specified time after ' the issue of letters. The provision has application only to acts which must or may be done, if at all, within a specified limited time, reckoned from the granting of letters. Such an act is the filing of a peti- tion in a proceeding to sell land for the payment of debts within three years after letters issued (§ 2750, Code Civ. Proc.) It does not apply to an act which may only be done after the expiration of a specified time after the issue of letters, and can only be compelled after the expiration of that time. And even if that provision had application this case is not within it because it is ' specially prescribed by law ' that the judicial settle- ment of the account of an executor can only be compelled when one year has expired after letters were issued 'to him.' In Matter of Burling, 5 Dem. 47, Coffin, Surr., distinguished an administrator de bonis non from an administrator receiving the original letters, and permitted him to account and distribute after one year from the issue of the original letters. This case is different in its facts from the one now before me, and, even if cor- rect in its conclusions, has no application. A decision of Rollins, Surr., sustains my conclusion (Estate of William Menck, 5 State Reporter, 341), The application is denied on the ground of want of power to direct a ju- dicial settlement of the account of the executrix before the expiration of a year from the time of the granting of letters to her." Under subd. 2, see Matter of Hood, 104 N. Y. 103; Estate of Lavfrence, 1 Tuck. 68. Under subd. 4 it must be noted that where there is a mere discretionary power of sale in the will, and where the proceeds of property so sold remain, in contemplation of law, real property, the occasion is not presented for an accounting, as is the case when the proceeds become personalty by equitable conversion. Matter of McComb, 117 N. Y. 378. § 1078. Parties. — It will be noted that the petition originally prays that the executor, or other accounting party, be cited. But § 2727 pro- vides that if it appears that there is a surplus distributable, either to cred- itors or to persons interested, the Surrogate may, at any time, issue a supplemental citation, directed to the persons who must be cited in pro- ceedings under § 2728. These are: (a) The sureties or their legal representatives. This only applies to volimtary accountings. Matter of Storm, 84 App. Div. 552; McMahon v. Smith, 24 App. Div. 25. (b) All creditors or persons claiming to be creditors of the decedent, THE PROCEDURE ON ACCOUNTINGS 1121 except such as by vouchers annexed to the account filed, appear to have been paid; (c) The husband or wife (if any) of the decedent; (d) The next of kin; (e) The legatees if any; (/) Or the legal representatives of any necessary parties who may have (iied. It is not an uncommon practice to cite them at the outset in order to avoid subsequent delays. In Matter of De Forest, 86 Hun, 300, it was held that the better practice was to serve the citation upon all creditors, in- cluding those who, it was claimed, had been paid in full, and had receipted for such payment. This ruling was based upon the ground that the cred- itor, being cited, might be able to establish either that the voucher was not his voucher, or that the payment was but partial. The rule now, however, is different. This decision was made at April Term, 1895. In that year § 2728 was amended (ch. 426, L. 1895), by excepting from creditors en- titled to citation those who appeared to be paid, and the vouchers filed with the account were made prima facie proof of payment. All creditors' rights are preserved, however, by the later provision in the same section that "any creditor, or person interested in the estate, although not cited, is entitled to appear on the hearing, and thus make himself a party to the proceeding." The creditors must be creditors of the decedent. Creditors of a dis- tributee are not such creditors. Duncan v. Guest, 5 Redf. 440. But if a legatee or other person interested is a judgment debtor, and a receiver in supplementary proceedings has "been appointed of such legatee, this re- ceiver stands as to the estate in the judgment debtor's place, and is entitled to be made a party (^Monahan v. Fitzpatrick, 16 Misc. 508); or even to pe- tition for the accounting. Matter of Beyea, 10 Misc. 198; Matter of Ldlien- thal, Westchester County, Surr. Court, February, 1899. Anyone entitled to be made a party and not cited, is not concluded by the decree, and although the representative accounts and is discharged such person is entitled to compel an accounting and secure payment from the executor of any moneys misapplied as to him. Matter of Lamb, 10 Misc. 638. The citation of additional parties is discretionary with the Surrogate. The provision is "may" not "must." So it is held that he will not issue such supplemental citation, unless it is made to appear either on the face of the account or from other satisfactory allegation and proof that there is the distributable surplus contemplated by the section. Matter of Rain- forth, 37 Misc. 660. On the accounting of an executrix of one who was executor, a " person interested" in the estate of which he was such executor is a proper party to her accounting. Matter of Walton, 38 Misc. 723, citing Matter of Quinn, 30 N. Y. S. E,. 212; Bunnell v. Ranney, 2 Dem. 327; Solomons v. Kursheedt, 3 Dem. 310. Where one intervenes "upon the hearing" and makes himself a party 71 1122 surrogates' courts the Surrogate may then examine into and pass upon intervener's status. Matter of St. John, 104 App. Div. 460. § 1079. Resisting the proceeding to account. — As it is not everyone who can compel an accounting the Surrogate has power to determine pre- Hminarily whether the petitioner comes within any of the classes designated in the Code. The petitioner must have such an interest as the Code recog- nizes, and must petition in the capacity in which he has such interest. Thus, in an early case (Colon's Accounting, 1 Turk. 244), the petitioner was a general guardian claiming to have made to his ward advances in excess of receipts. He prayed that certain executors of a will, under which his ward was a legatee, should render an account. He petitioned personally, and his application was refused, as being that of a person who had no claim against the estate. See opinion. The person sought to be called to account may also set up in answer the Statute of Limitations. See Matter of UnderhiU, 1 Connoly, 541 ; Martin v. Gage, 9 N. Y. 398. But it must be set up in time. Ibid.; Van Vleck v. Burroughs, 6 Barb. 341. It should be asserted upon the return day, but as no written reply is required to the objections, the defense may be availed of on the hearing. Matter of Rothschild, 42 Misc. 161, Thomas, Surr., citing Matter of Chadeagne, 10 Hun, 97. Where funds have come into the hands of a representative for which he has never accounted, and he has not effectually renounced the trust or been discharged, it was held the statute does not begin to run in his favor. Matter of Taylor, 30 App. Div. 213, 216. But this case was overruled in Matter of Longbotham, 38 App. Div. 607, which held the ten-year statute applicable in such a case; following Matter of Rogers, 153 N. Y. 3f6. Where the primary object and result of the accounting will be to turn over the estate to a trustee under the will it is not improper for the execu- tors in their answer to his petition to set up his incompetency to receive and administer the trust. Hall v. Strong, 117 App. Div. 912. It not unfrequently occurs that estates are settled out of court, between the representatives and the persons interested, being competent and of full age. Such settlements are not against public policy. Ledyard t. Bull, 119 N. Y. 62, 71. And the representative who has made such a settle- ment and distribution on consent is entitled to set it up as a reason why he should not render an account for judicial settlement. Matter ofPruyn, 141 N. Y. 544. But if he does set up such an answer, it should be full and ex- plicit. (See Stowenel's Estate, 1 Tuck. 241.) The right to set up satisfac- tion by the persons interested must be timely asserted, or it is waived. Kellett V. Rathburn, 4 Paige, 102. The releases relied on should be ex- hibited so that the Surrogate may determine whether the petitioner's rights, or those of one under whom he claims were thereby concluded. Sayre v. Sayre, 3 Dem. 264. But he cannot try the issue of validity of such releases. See Matter of U. S. Trust Co., 175 N. Y. 304; Matter of Wagner, 119 N. Y. 28. There are cases where the petitioner concedes the release but alleges that THE PROCEDURE ON ACCOUNTINGS 1123 it was secured by fraud or coercion, or otherwise improperly. The inva- lidity of the release being not within the Surrogate's jurisdiction to try he must treat the sworn allegation of its invalidity as a sufficient allega- tion of interest and direct the accounting thereon. Reilley v. Duffy, 4 Dem. 366, 368, Rollins, Surr., citing Fraenznick v. Miller, 1 Dem. 136; Harris v. Ely, 25 N. Y. 138; Rieben v. Hicks, 4 Bradf. 136; Schmidt v. Heusner, 4 Dem; 275. See also Thomson v. Thomson, 1 Bradf. 24; Bur- well v. Shaw, 2 Bradf. 322; Cotterell v. Brock, 1 Bradf. 148; Creamer v. Waller, 2 Dem. 351. This is based on the requirement in § 2514 of the Code in subd. 11, that when the Code provides that a person interested may apply for an account, "an allegation of his interest, duly verified, suffices, although his interest is disputed;" and the exception is only when he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending. Ibid. But this rule must not be extended beyond its obvious intent. Where executors continued the decedent's partnership business, and a general creditor of the firm sought to compel an accounting by them as executors, the application was denied. Froth- ingham v. Hodenpyl, 41 N. Y. St. Rep. 398. The Court of Appeals dis- cussed fully the discretion of the Surrogate, in Matter of Wagner, 119 N. Y. 28, 33, reviewing the various sections of the Code applicable, and held that the Surrogate could, where a full release was alleged, and not alleged per contra to be invalid, protect the executor from a further accounting. The person may be a "person interested;" as to that his verified allegation of interest suffices. But even then he may have disentitled himself to de- mand an accounting. Ibid., opinion of Gray, J., at p. 34. See also Matter of Pruyn, 141 N. Y. 544, 546, where the doctrine is reasserted and empha- sized. The person entitled to demand an accounting is not required to demand his legacy, or his distributive share of the person called to account as a condition precedent. There is no such rule. Matter of Dunham, 1 Connoly, 323, 328. An account may be ordered rendered in order to disclose the condition of the estate. Matter of Lawrence, 16 N. Y. St. Rep. 971. When an action is already pending in the Supreme Court for an account- ing to which the petitioner is a party, it may be set up as a good and suffi- cient reason for denying the accounting in the Surrogate's Court. This is peculiarly proper if the petitioner in the Surrogate's Court is the plaintiff in the other court. Matter of De Pierris, 79 Hun, 279. § 1080. As to others than executors and administrators. — In part VII, which treats of testamentary trustees and guardians,, the sections of the Code exclusively applicable to them are set forth. The procedure, except as there distinguished, is assimilated to accountings by the legal repre- sentatives. The precedents also may be readily adapted from those given in this connection. § 1081. Objections. — In the absence of a local rule, no pleadings or specifications are required in objecting to an account. Matter of Consalus, 95 N. Y. 341, 344. In the county of New York Rule VII requires: 1124 surrogates' courts "On an accounting by an executor, administrator, guardian or trustee, which may be contested, any party interested, or a creditor desiring to contest the account, shall file specific objections thereto in writing, and serve a copy thereof upon the accounting party (Note. In the absence of a specific rule to this effect, failure to serve a copy is no ground for over- ruling the objections. Journault v. Ferris, 2 Dem. 320) or upon his attorney in case he shall have appeared by attorney, and within eight days after the filing of the account in the office of the clerk of the court, where the accounting is a compulsory one, and within eight days after the return of the citation, where the accounting is a voluntary one, or within such further or other time in either case as shall be allowed by the Surrogate ; and the contest of such account shall he confined to the items or matter so objected to. If it shall appear to the satisfaction of the court, by affidavit Or petition, that an examination of the accounting party will be necessary to enable the contesting party to interpose his objections, such examination may be ordered by the court for that purpose." This rule might well be made of general application, and is, in sub- stance, in force in the majority of Surrogates' Courts throughout the State. The Court of Appeals had held {Peck v. Sherwood, 56 N. Y. 615, head- note), that "while it is a proper and a better practice to object specifically to the items of an executor's account which it is meant to question, yet under a general objection to any and all of the items, the Surrogate can inquire into and scrutinize the account, and is not bound by the executor's oath thereto, or the vouchers produced by him." But a "general" ob- jection does not mean an indefinite objection. If an objection be so vague as not to raise a distinct issue as to the propriety or legality of a particular item or class of items, or as to the sufficiency of the account, the Surro- gate may overrule it (France v. Willets, 4 Dem. 369), or he may allow the objection to be amended. The practice of Surrogates is liberal in this respect. See Matter of Hall, 7 Abb. N. C. 149. Rollins, Surr., held (Thomp- son V. Mott, 2 Dem. 154), that in determining whether, in a given case, objections are sufficiently specific, regard should be had to the particular circumstances of such case, and to the facilities afforded the contestant for compliance with the terms of the rule (Rule VII); and he adds: "Ob- jections which might be deemed under some circumstances vague, might under other circumstances be regarded as sufficiently specific." He also held that he had power under § 2533 of the Code to require the objection filed to be verified. See also Bainbridge v. McCullough, 1 Hun, 488. In the absence of such a direction they need not be verified. In re Mott, 2 Dem. 154. The wisdom of adhering to a rule whereby specific issues may be raised for trial in these proceedings was asserted by the General Term, First De- partment, in Matter of Heuser, 87 Hun, 262, 265. The accounting party ought to have notice of the claims to be urged by the objection, and have opportunity, by adjournments or even by rehearing, to meet them. lUd. In Matter of Hart, 60 Hun, 516, the same court held that "ia these pro- THE PROCEDURE ON ACCOUNTINGS 1125 ceedings the account and the objections thereto form the pleadings; and the objector to an account is as much bound to set up in such objections any claims which he proposes to make .... as the defendant in an action is bound to set up in his answer any claims which he proposes to urge." And the court further held that its power to amend the objections nunc pro tunc, in order to consider the issue upon the appeal, would never be exercised for the purpose of reversing a judgment, but only for the purpose of affirmance. Ibid., p. 517. See Vouchers, ch. II, ante, as to burden of proof, and Matter of Warrin, 56 App. Div. 414. Where parties come in after the time to file objections has expired, and ask leave to contest the account, the Surrogate may impose conditions as terms of granting the request. Matter of Turfler, 78 Hun, 258. And he may refuse such leave on the ground of laches. Matter of Von Glahn, 53 App. Div. 165, 167. If objections are not filed in time, the costs of reforming the account required to meet the objections ought not to be charged upon the executor. See Matter of Peyser, 5 Dem. 244. If the one desiring to contest is shown to have released his rights, the release is a bar to his filing objections to the account. Matter of Irvin, 24 Misc. 353. The validity of the release cannot be tried by the Surrogate. It must stand until set aside by a court of competent jurisdiction. Ibid.; Matter of Randall, 152 N. Y. 508. So where the one objecting is shown to have already objected to the same items on an accounting involving the same question, in which his objections were heard and overruled, and a decree duly made thereupon, he cannot be allowed to relitigate the same issues. Matter of Clapp, 30 Misc. 395. It is the duty of a special guardian to put in issue by objection any questionable item in the account. Matter of Parr, 45 Misc. 564. § 1082. Examination of account. — In New York County, Rule 24 pro- vides that "Upon an accounting, wherein there is no general or special guardian, no decree will be entered, until the account has been audited by a referee appointed for that purpose, except upon the consent of all the Rule 11 provides: "In any proceeding for a judicial settlement of the account, wherein a special guardian shall be appointed or a general guard- ian shall appear to protect the interest of an infant party to such account- ing no decree will be entered as upon default against such infant, but such decree shall be so entered only upon the written report of the guardian appearing for such infant that he has carefully examined the account, and finds it correct, and upon two days' notice to the guardian of the settle- ment thereof." § 1083. Reference to try issues raised by objection. — Where proper objections are filed, and issues duly raised, the Surrogate has power to try the same by reference under § 2546 of the Code. Such referee has, by the express terms of the statute, power to hear and determine all questions arising upon the settlement of such an account, which the Surrogate him- self has power to determine. See Matter of Gearns, 27 Misc. 76, and cases 1126 SUHKOGATES' COURTS cited. It becomes important, therefore, to discuss first what these ques- tions are. § 1084. What questions may be heard and determined upon an ac- coimting. DISPUTED CLAIMS See amendment chap. 595, L. 1895, to § 1822, C. C. P., as to stipulating disputed claims over to final accounting for determination by Surrogate. There has been a. serious divergence of decisions as to the Surrogates' power to adjudicate upon disputed claims in these proceedings. These claims can be roughly divided into five classes. (a) Claims of creditors paid or allowed by the one accounting or other disbursements made by him the propriety or legality of which payment is put in issue upon the accounting. (b) Claims rejected by the one accounting and^ sought to be allowed at the instance of the claimant upon the accounting. (c) Claims of the representative against the estate. (d) Claims of the estate against the representative. (e) Claims of the estate against any debtor. In § 775, ante, the new § 2718a is discussed, q. v. If the special proceed- ing thus provided has been resorted to it will eliminate from the account- ing a vexatious element. We noted in § 782 et seq. that a creditor whose claim was rejected could: (a) Sue under § 1822. (b) Consent to refer under § 2718. (c) Stipulate its determination by the Surrogate on the final accounting. (d) Secure a determination in advance of accounting under § 2718a. See § 782 et seq. for discussion. Section 2743 refers to the conclusive effect of a decree on accounting. This is preceded by a clause giving the Surrogate power to determine to whom a debt, claim, or distributive share is payable when (a) Its validity has been admitted. (b) Or has been established upon the " accounting or other proceeding in the Surrogate's Court or other court of competent jurisdiction." See Matter of Clark v. Hyland, 88 App. Div. 392, as to meaning of this. § 1085. Claims or payments akeady adjusted and contested upon ac- counting. — As to a, the Surrogate has power to pass upon the propriety or legality of payments made by the accounting party. The chief object of permitting objections to be filed is that just such issues may be raised. The executors having made the payment in question, and producing vouchers therefor, the burden is on the contestant to show that it was not a just debt of the estate, and the Surrogate's determination is conclusive. Accounting of Frazer, 92 N. Y. 239, 247; Matter of Strickland, 1 Connoly, 435, 437; Matter of Stevenson, 86 Hun, 325; Matter of Cozine, 104 App. Div. 182; Matter of Brown, 60 Misc. 35. But if his determination be THE PROCEDURE ON ACCOUNTINGS 1127 against the weight of evidence, it will be set aside. Thus, where the ob- jector claimed that the accounting party should include in his account and charge himself with a stud horse which had been omitted as having been given away by gift inter vivos by the testator, it was held that the evidence of such a gift must be of "great probative force," clearly estab- lishing every element of a valid gift, and that not being the case as to the evidence offered by the executor, he must be surcharged with the horse. Matter of O'Connell, 33 App. Div. 483. For two cases involving expenditures made by way of compensation to a relative of the accountant, and claimed to be an expense of adminis- tration, see Matter of Wagner, 40 Misc. 490, employment of son sustained; and Matter of Rainforth, 40 Misc. 609, contract with son (to buy in claims at less than face, though charged as paid in full) held collusive and fraudu- lent. The general rule is well stated in Matter of Hosford, 27 App. Div. 427, 433: "On the final accounting before a Surrogate, an unassailed voucher for the payment of a debt of the deceased throws upon a contes- tant the burden of impeaching the justice, as well as the fact of the pay- ment of the claim. The burden of proving a claim made by an accountant, to be allowed for counsel fees or other expenses, rests upon him .... (he must) show what the services were; that they were necessary, and of the value charged," citing Journault v. Ferris, 2 Dem. 320; Willson v. Willson, id. 462; St. John v. McKee, id. 236; Raymond v. Dayton, 4 id. 333; In re Casey's Estate, 6 N. Y. Supp. 608. Payments made after an account is filed must in order to be passed upon by the Surrogate be set up in a supplemental account to which objections may be duly interposed. Matter of Arkenburgh, 38 App. Div. 473. In Matter of Watson, 115 App. Div. 310 (2 dissents) the executors were surcharged a claim paid by them. They rejected the claim originally, and defended pro forma the ensuing action thereon, and made no objection under § 829 to evidence establish- ing its validity. Then they paid the judgment. Held collusive, citing Matter cf Saunders, 4 Misc. 28; Dye v. Kerr, 15 Barb. 444. § 1086. Claims of unpaid creditors. — Prior to 1895, ch. 595, the Surro- gate was without jurisdiction to determine the validity of a disputed claim or in any way examine the same. Glacius v. Fogel, 88 N. Y. 434. Also Matter of Callahan, 152 N. Y. 320; McNulty v. Hurd, 72 N. Y. 518. The law referred to amended § 1822 which limits the time within which a claimant against the estate of a decedent must begin an action for the re- covery of his claim against an executor or administrator, by providing that, where an executor or administrator disputes or rejects the claim against his decedent's estate, exhibited to him, regardless of whether it be before or after he has commenced to publish notices to present claims, the claimant and the representative may enter into a written consent that the claim so disputed or rejected may be heard and determined by the Surrogate upon the judicial settlement of the accounts of the representa- tive as provided by § 2743. (Amended to correspond by same act.) This consent must be filed with the Surrogate. The statute says the consent 1128 surrogates' courts "shall be filed by the respective parties;" but this undoubtedly means that the filing of the consent duly executed by the respective parties -may be done by either party. In Matter of Brown, 76 App. Div. 185, the administratrix rejected the claim and filed her consent. The creditor had not joined in such consent, and filed his fourteen months later. Held, he was barred. Since these amendments, the Surrogate can try such disputed claims, but only by the consent of the parties and only by such consent when regularly made and filed. Matter of Gall, 182 N. Y. 270. Hart v. Hart, 45 App. Div. 280; Matter of Edmonds, 47 App. Div. 229, 231; Matter of Kirby, 36 Misc. 312. It follows from the power of the Surrogate to pass upon a claim so sub- mitted by a filed consent that he has power under § 2546 to refer the same by a reference to hear and determine. Matter of Hoes, 54 App. Div. 281. Should it develop on the reference that no consent was filed, it is the duty of the referee to reject the claim. Matter of Kirby, supra. This section provides a new practice which has been readily availed of by creditors in regard to which, so far as observation has gone, there have been no evils resulting from this enlargement of the Surrogate's jurisdic- tion in the matter of disputed claims. The consent must be filed within six months after dispute or rejection; or if no part of the debt is then due, within six months after a part thereof becomes due, for the reason that if it is not so filed the claimant must com- mence his action within the time so limited. The Brown case above cited shows the risk of not doing this. So does Matter of Bork, 55 Misc. 175, citing Clark v. Scovill, 111 App. Div. 35. See Clark v. Scovill, 191 N. Y. 8, aff'g 116 App. Div. 923. This section, however, must be read together with § 1836 which gives the creditor a right to costs in the action to be brought by him against the executor or administrator if such defendant "did not file the consent provided in § 1872 at least ten days before the expiration of six months from the rejection thereof." Hence it appears from this, first, that to protect himself, the representative should see to the filing of the consent if it has been entered into, and second, that the creditor to entitle himself to costs, must wait five months and twenty days before beginning suit. If on the expiration of that time, the consent has not been filed, he has still ten days in which to commence his action. Hart V. Hart, 45 App. Div. 280; Hoye v. Flynn, 30 Misc. 636. See generally as to this subject, discussion under " Ascertaining the Debts." Therefore if the consent in writing be so filed with the Surrogate within that time, it would operate to postpone to the accounting the determination of the claim; and would also operate to confer upon the Surrogate jurisdiction to determine such disputed claim. This is the clear intent of the amend- ment. But in all other cases not so reserved he is expressly denied this power in a direct proceeding to compel payment of a debt or legacy, which proceeding the Code requires, by § 2722, must be dismissed if the validity of the claim is denied. The decisions have been contradictory as to the THE PROCEDURE ON ACCOUNTINGS 1129 intent of the statute, in § 2743 as it now stands, and in the former pro- visions of the Revised Statutes, in giving the Surrogate power to deter- mine concerning a debt, claim or distributive share, who is the person to whom it is payable, the sum to be paid by reason thereof, and " all other questions concerning the same." They are well summarized by Rollins, Surr., in Greene v. Day, 1 Dem. 45. Section 2743 distinctly limits this power by the words, "where the validity of the debt, claim or distributive share is admitted or has been established upon the accounting or other pro- ceeding in the Surrogate's Court, or other court of competent jurisdiction." It is now clear that the Surrogate cannot pass upon any disputed claim of this character. Riggs v. Cragg, 89 N. Y. 480. The real intent of the section might be plainer if its wording be transposed so as to read, " Where the validity of the debt, etc., is admitted upon the accounting or other proceeding in the Surrogate's Court, or has been established in another court of competent jurisdiction." The words, "all other questions con- cerning the same," mean any question other than that of the validity of the debt. Estate of Orser, 4 Civ. Proc. Rep. 129. Thus the Surrogate may decide to whom the debt, claim or distributive share is payable. For example, to the assignee of a legatee. Tilden v. Dows, 2 Dem. 489. (See also discussion of new remedy under § 2718a, at § 775, ante.) Clark V. Scovill, 191 N. Y. 8, holds that the filing of a consent by a cred- itor is a "final and conclusive" election to submit to the Surrogate's juris- diction and he must await the accounting, or compel it under § 2727. The Surrogate has power to determine whether a claim has been ad- mitted or rejected by the accounting executor. Potts v. Baldwin, 67 App. Div. 434, 437; Matter of Miles, 33 Misc. 147, afi'd 170 N. Y. 75; Bowne v. Lange, 4 Dem. 350, and cases cited at p. 351 ; Matter of Von der Leith, 25 Misc. 255. See opinion of Davie, Surr., in Matter of Brown, 60 Misc. 35, reviewing cases. If he finds it was disputed and rejected, and no proceed- ing begun for its enforcement, he may disregard it and decree distribution. But if he finds it to have been admitted, he must treat it as a liquidated and undisputed debt, which the representative is bound to pay, and be- cause of which the creditor is entitled to be a party to the accounting, and to file objections to the account. Ibid.; Matter ofDoig, 125 App. Div. 746. A claim allowed by the representative but not actually paid is open to attack on the accounting. Matter of Knab, 38 Misc. 717. It stands on the same footing as a claim paid. Hence the burden of impeaching it is on the objectant, citing Matter of Warrin, 56 App. Div. 414. But if on its face it seems to be barred by the statute, Marcus, Surr., held the representative was bound to show that he considered the matter and believed the defense could not be successfully interposed. § 1087. Representative's claims against estate. — See, ante, sub. "As- certaining the Debts." As to c, claims by the representative against the estate, the Surrogate may pass upon them. Kyle v. Kyle, 67 N. Y. 400, 408; Boughton v. Flint, 74 N. Y. 476; Shakespeare v. Markham, 72 N. Y. 400; Smith v. Christopher, 3 Hun, 585. 1130 surrogates' courts Section 2731 expressly so provides: Determination of claims hy surrogate, suspension of statute of limitations in certain cases. On the judicial settlement of the account of an executor or administrator he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party and any of the other parties resffecting property alleged to be- long to the estate, but to which the accounting party lays claim either individ- ually, or as representative of the estate ; or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must, except where the claim is made in a representative capacity, in which case it may, be tried and determined in the same manner as any other issue arising in the surrogate's court. From the death of the decedent until the judicial settlement of the accounts of the executor or administrator the running of the statute of limitations against a debt due from the decedent to the accounting party, or any other cause of action in favor of the latter against the decedent, is suspended, unless the accounting party was appointed on the revocation of former letters issued to another person, in which case the running of the statute is so suspended from the grant of letters to him until the first judicial settlement of his ac- count. After the first judicial settlement of the account of an executor or ad- ministrator the statute of hmitations begins again to run against a debt due to him from the decedent, or any other cause of action in his favor against the decedent. § 2731, Code Civil Proc. Former §§ 2739, 2740, consoUdated. This section substantially embodies the rule under the Revised Statutes, 3 R. S. 96 (6th ed.), § 43; Barms v. Barras, 4 Redf. 263; Matter of Gardner, 5 Redf. 14. The Surrogate may not try a claim to property between the represen- tative individually and a third party. Matter of Finn, 44 Misc. 622. Prior to 1893, it was held that the representative was given this right to have his claim determined by the Surrogate upon his accounting be- cause he is denied the right to begin a proceeding solely to establish such a personal claim. Matter of Saunders, 4 Misc. 28, 35; In re Ryder, 129 N. Y. 640; Mayer v. Weil, 1 Dem. 71. But this was because ch. 460, Laws 1837, had been repealed. Chapter 686, Laws 1893, amended § 2719 of the Code by restoring the provision of the act of 1837: "An executor or ad- ministrator shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the Surrogate." Matter of Marcellus, 165 N. Y. 70, 75. This restores, as applicable, such cases as Kyle V. Kyle, 67 N. Y. 400, 408; Shakespeare v. Markham, 72 N. Y. 400, etc. This, however, does not mean that now the representative must in- stitute a separate proceeding. The Surrogate has power to take proof of and allow the claim when presented to him for determination. But he may not retain ex parte assets in satisfaction of his claim, without being chargeable therewith, and with interest. Matter of Gardner; 5 Redf. 14. The circumstance that the executor is interested jointly with others in THE PROCEDURE ON ACCOUNTINGS 1131 the demand does not affect the authority to adjudicate with regard to it. Estate of Eisner, 8 N. Y. St. Rep. 748; Neilley v. Neilley, 89 N. Y. 352. Even though the representative having the claim against the estate dies, the Surrogate's jurisdiction is not thereby divested. The represen- tative of the deceased representative may urge and prove the claim. Mat- ter of Cooper, 6 Misc. 501, 504. See, as to mode of proving debt due by estate to executor or adminis- trator, Wood V. Rusco, 4 Redf. 380, and Matter of Humfreville, 6 App. Div. 535. The proof must be the clearest legal proof. Matter of Humfreville, supra; Van Slooten v. Wheeler, 140 N. Y. 624; Ellis v. Filon, 85 Hun, 485; Matter of Saunders, 4 Misc. 28; Matter of Furniss, 86 App. Div. 96; Mat- ter of Arkenburgh, 58 App. Div. 583. By legal proof is meant evidence competent to prove the fact in issue. Hence § 829 may interpose an insuperable obstacle. See, e. g:. Matter of Blair, 99 App. Div. 81. There is no presumption in favor of such claims. Matter of Cozine, 113 App. Div. 23. Of course this does not apply to a mortgage debt or one reduced to judgment. Such a claim can only be attacked in a court of equity. Matter of Eadie, 39 Misc. 117, citing Matter of Randall, 152 N. Y. 508; Matter of Bolton, 159 N. Y. 129. The representative must present his claim, accompanied by the affi- davit verifying the same, before it can be allowed {Terry v. Dayton, 31 Barb. 519; Matter of Saunders, supra); but such verification alone in no way establishes the validity of the claim. Matter of Saunders, citing Underhill v. Newburger, 4 Redf. 499; Williams v. Purdy, 6 Paige, 168. The provision of § 2719 must be kept in view that "an executor or adminis- trator shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the Surrogate," and also that "it shall not have preference over others of the same class." But if all the persons interested assent to his doing so, such payment of his own claim will be allowed on the accounting. Ledyard v. Bull, 119 N. Y. 62. The executor is called upon to prove his own claim as satisfactorily as he may require other creditors to prove theirs. Wood v. Rusco, 4 Redf. 380. But he is not bound in his representative capacity to object under § 829 to his personal testimony to transactions proving his own claim. Nor will the court of its own motion raise the objection. Matter of Porter, 60 Misc. 504. In Matter of Archer, 51 Misc. 260, Thomas,- Surr., held that he had power to pass on whether certain property assigned to the executor by testatrix, inter vivos, was his or belonged to the estate. A person named as executor in a will, but not qualified as such, must proceed on any claim he has against the decedent as any other creditor would. Snyder v. Snyder, 5 Civ. Proc. Rep. 267. But if it be objected that his claim has been paid, he is not called upon to prove that it has not. Payment is an affirmative defense, and must be affirmatively proven. 1132 surrogates' courts Matter of Neil, 35 Misc. 254; Lerche v. Brasher, 104 N. Y. 157, and cases cited. § 1088. Claims of estate against representative. — As to d, the Surro- gate has also power to pass on claims of the estate against the repre- sentative. § 2731, Code Civ. Proc. supra; Matter of Cooper, 6 Misc. 501; Gardner v. Gardner, 7 Paige, 112; Kyle v. Kyle, 67 N. Y. 400, 408. This, includes a temporary administrator. Matter of Eisner, 5 Dem. 383. The Code provides in § 2714 that The naming of a person executor in a will, does not operate as a discharge or bequest of any just claim which the testator had against him ; but it must be- included among the credits and effects of the deceased in the inventory, and the executor shall be liable for the same as for so much money in his hands at the time the debt or demand becomes due, and he must apply and distribute the same in the payments of ^ebts and legacies, and among the next of kin as. part of the personal property of the deceased. It has been held, however, that while the Code is explicit, and the debt must be treated by the courts as money, that yet the debt will not for all purposes stand on the same footing as if he had actually received so much money {Baucus v. Stover, 89 N. Y. 1, 4) ; and so, if the executor is insolvent and cannot pay, he cannot be punished as for contempt in failing to pay or distribute the money equivalent of the debt. Ibid. The Court of Appeals therefore observed that it would be well for a Surrogate in a decree which charges an executor with a debt as so much money, to specify the charge separately so as to save all the rights of the executor. And it has been held that such an executor's sureties cannot be proceeded against upon his failure to pay the debt so adjudged and which he is directed to distribute as money in his hands. Baucus v. Barr, 45 Hun, 582, 584, aff' d 107 N. Y. 624. Just as an executor must prove his own claim as fully and fairly as he requires other creditors to do, so- must he deal with himself as a debtor, of the estate. Warner v. Knower,. 3 Dem. 208. See Keegan v. Smith, 60 App. Div. 168, for discussion as to conclusive- ness of Surrogate's decree, on surety, as to question of representative's ability to pay a debt to the estate. Where an executor had stated his debt to the estate as an item of his inventory, but disputed his liability thereon upon his accounting it was held, before the Code, that the auditor could pass upon the issue, and the Surrogate in fac* affirmed the auditor's determination. Matter of Leslie, 3 Redf. 280. It is held that the Surrogate's power to pass on claims of this character extends, not merely to executors, but all representatives, e. g., a. temporary administrator. Matter of Eisner, 5 Dem. 383. An ad- ministrator indebted, under a mortgage debt to his intestate, in whose estate he had an interest, paid nothing in the way of interest after his creditor's death but undertook to stop interest by crediting the estate, as of the death, with principal and interest and debiting the estate with THE PROCEDURE ON ACCOUNTINGS 1133 the same amount on account of his distributive share. This was disal- lowed as unauthorized by § 2714. Matter of Davis, 37 Misc. 326, citing Keegan v. Smith, 33 Misc. 76, and Soverhill v. Suydam, 59 N. Y. 142. See Matter of Ablotuich, 118 App. Div. 626, limiting § 2714, to an exec- utor "named in a will." In this case the administrator was held account- able, as for "money in his hands," for a debt his firm owed decedent. Also held that the revocation of his letters would not affect his obligation to account for it to his successor de bonis nan. § 1089. Claims of estate against debtor.— As to e, it has been held that the Surrogate has not jurisdiction to determine the validity of a claim of an estate against a debtor who is not a representative of the decedent. Van Valkenburg v. Lasher, 53 Hun, 594, 597, citing Matter of Colwell, 15 N. Y. St. Rep. 742; Greene v. Day, 1 Dem. 45; Kintz v. Friday, 4 Dem. 540; Matter of Kellogg, 39 Hun, 275; Matter of Keefe, 43 Hun, 98. This rule is not affected by the fact that the debtor is a legatee and the executor is seeking to offset the debt as entire or partial satisfaction of the legacy. Jbid. But, in Matter of Robinson, 42 Misc. 169, the executor paid part of the legacy and offset the debt against the balance, and in his account stated the legacy as "paid." The Surrogate treated the issue raised as being whether the legacy was paid, which he held he had a right to try, and overruled the claim that the issue was whether a debt was due the •estate. The reason of the distinction above noted is simple: when the executor or administrator himself is the debtor he cannot in his representative capacity sue himself for the debt. But it is his duty to sue on and recover in debts due by third persons, and he is expected in his accounting to re- hearse all such suits and account for the proceeds thereof. The Surrogate's powers to pass upon disputed matters upon the ac- counting of a testamentary trustee are no broader than upon that of an ■ordinary representative. Where a judgment creditor presents his claim it is not of the character ■contemplated by §§ 1822 or 2718. Hence it can neither be rejected nor referred. Matter of Wait, 39 Misc. 74. And under § 2743 the Surrogate may therefore determine to whom it is payable, to what extent, etc. Ibid., siting McNulty v. Hurd, 72 N. Y. 521; Matter of Browne, 35 Misc. 362. In the Wait case the administrator raised issues, other than payment, such as a change of rights due to transactions between decedent and the ■claimant. The Surrogate, having no power to pass on such issues, but ■only on the payments made on account in order to fix the amount due, and to whom it is payable, refused to dismiss the claim, held himself bound by the judgment, but withheld his decree for its payment for sixty days to afford the representative time to attack the judgment in a court ■of equity. In Matter of Griffith, 49 Misc. 405, a peculiar situation existed. A, the deceased husband, had entered fro confesso a judgment against his wife who became his administratrix. On her accounting she did not refer to it. 1134 surrogates' courts Held, it must be charged to her as so much money in her hands for debts and distribution. She claimed (a) the judgment was invalid. Held, it was binding on the Surrogate's Court. (6) She was financially unable to pay it. Held, nevertheless she must return it as an asset and that its execution should be enforced or attempted ' in the usual way. (c) She claimed that § 2714 applied only to executors. But it has repeatedly been held to apply to all representatives. (See cases cited.) § 1090. Other questions adjudicable. — Excluding all questions as to disputed claims of the various classes just discussed, the power of the Sur- rogate to pass on other questions concerning the validity of debts, claims or distributive shares "admitted or established" within the meaning of § 2743 is uncontroverted. This must be taken to mean that the Surrogate may determine to whom the payment is to be made, and how much is to be paid. The language of the section is clear. Decree for payment and distribution. Where an account is judicially settled as prescribed, in this article, and any part of the estate remains and is ready to be distributed to the creditors, lega- tees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled according to their respective rights. In case of administration in intestacy the decree must direct immediate payment and distribution to creditors, next of kin, husband or wife of the decedent, or their assigns, where the administrator has petitioned voluntarily for judicial settlement of his account as, and in the case provided in subdivision two of section twenty-seven hundred and twenty- eight of this article. If any person who is a necessary party for that purpose has not been cited or has not appeared, a supplemental citation must be issued as prescribed in section two thousand seven hundred and twenty-seven of this act. Where the validity of the debt, claim or distributive share is admitted or has been established upon the accounting or other proceeding in the surrogate's court or other court of competent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same. With respect to the matters enumerated in this section the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared and upon every person deriving title from such party. § 2743, Code Civil Proc. Section 2743 does not apply to a temporary administrator. When the time comes for him to'pay over, he must do so to the executor or perma- nent administrator. Matter of Philp, 29 Misc. 263, 266. By § 2481, subd. 11, the Surrogate is given power "to exercise such in- cidental powers as are necessary to carry into effect the powers expressly conferred." And so in determining the questions he has power to pass upon under § 2743 the Surrogate may construe the will, so far as is nec- essary in order to decree distribution. In re Verplanck, 91 N. Y. 439, 450; Garlock v. Vandevort, 128 N. Y. 374; In re Havens, 8 Misc. 574; Brovm v. THE PROCEDURE ON ACCOUNTINGS 1135 Wheeler, 53 App. Div. 6, 8; Riggs v. Cragg, 89 N. Y. 480; Purdy v. Hayt, 92 N. Y. 446; Fraenznick v. Miller, 1 Dem. 136. In the Havens case it was held that the Surrogate had power to deter- mine as a matter of fact whether a sole residuary legatee had assigned one- hajf of his legacy to another; and as a matter of law whether such agree- ment of assignment actually entitled the assignee to be paid part of the distributive share. See also Matter of Heelas, 5 Redf. 440. But the cred- itor of the one assigning his share cannot come in before the Surrogate and secure a determination as to the validity of such transfer (Duncan v. Guest, 5 Redf. 440), for the validity of the assignment cannot be tried. Matter of Lawson, 36 Misc. 96; Matter of Randall, 152 N. Y. 508, 517. See also authorities discussed in Matter of Havens, 8 Misc. 574. So it has been held that the question of legitimacy of children claiming to be dis- tributees could be determined {Matter of Laramie, 24 N. Y. St. Rep. 702); or the capacity of an institution to take a legacy. Matter of York, 1 How. Pr. N. S. 16. In Matter ofLattan, 42 Misc. 467, it was held that no claimants would be recognized save such as had legal titles. Those claiming adversely to the legal title on equitable grounds must seek a court of equity, citing Matter of Brown, 3 Civ. Proc. Rep. 39. The Surrogate's power to pass upon a disputed legacy was asserted, and is well illustrated in Tappen v. M. E. Church, 3 Dem. 187, Rollins, Surr. The legacy was one of $500 to the trustees of a church "towards paying off the debt of the church." The executor disputed the legacy, claiming the church was not in debt, neither at the time, nor when the testator died. The Surrogate asserted his right to pass on this issue, and ordered a reference for the purpose. So the Surrogate may have to pass on the validity of a trust provision. Matter of Pearson, 21 N. Y. St. Rep. 128; Matter of Colly er, 4 Dem. 24. As to any matter the Surrogate is em- powered to decide, his decree in the premises is made conclusive by § 2743. Brovm v. Wheeler, 53 App. Div. 6, 8; Sexton v. Sexton, 64 App. Div. 385. So, if a creditor's claim is heard, and determined adversely, the decree is a bar to a subsequent action on the same claim. Ibid. § 1091. The amount the accountant is chargeable with. — The inventory, if any was filed, is prima facie evidence of the quantum of the estate. Mat- ter of Shipman, 82 Hun, 108. But it is no more than prima facie. Matter of Maack, 13 Misc. 368. The executor may explain a discrepancy if any there be. Ihid. But if a person interested alleges that articles were omitted, or that the executor sold some and received more than he has charged himself with, the burden is on him of establishing the fact alleged, "with reasonable certainty," and of surcharging the account. Matter of MuUon, 145 N. Y. 98; Matter of Stevenson, 86 Hun, 325; Matter of Arken- burgh, 13 Misc. 744; Matter of Smith, id. 592; Matter of Baker, 42 App. Div. 370, 372; Marre v. Ginochio, 2 Bradf. 165. Where executors are charged by the will with the duty of selling real estate they are required to act only as a prudent man would in dealing 1136 SUKBOGATES' COURTS -with his own property. The mere fact of depreciation in value of the property is not enough to charge the executors with the loss. Matter of Hosford, 27 App. Div. 427, 430. The Court of Appeals has held: "There is and there can be, no rigid and arbitrary standard by which to measure the reasonable time within which the discretion of an executor directed to convert an estate into money must operate." Matter of Weston, 91 N. Y. 502, 510. Each case must stand upon its own facts. But where an asset is specified in the inventory, in the nature of a chose in action 6r a claim of the decedent, and upon the accounting it appears it was never sued upon, or collected in, or reduced to possession, then the onus is upon the accountant to explain and Justify the failure or neglect to act. Matter of Hosford, supra; Harrington v. Keteltas, 92 N. Y. 40. Matter of Ward, 49 Misc. 181, where a successor guardian omitted to ac- count for money lent him by his predecessor out of the fund decreed on the accounting to be in his hands. For the presumption is that it could have been collected, as solvency is presumed until the contrary is shown. Insolvency cannot be presumed. O'Connor v. Gijford, 117 N. Y. 275, 279. Not of a representative himself indebted to the estate. Keegan v. Smith, 60 App. Div. 168. It is an affirmative defense. In Matter of Guldenkirch, 35 Misc. 123, 124, Thomas, Surr., says, "It is quite plain that culpable neglect to collect a claim, which forms an asset of the estate, can only exist -when knowledge, or notice legally equivalent to knowledge, of its existence is also found. This principle is emphasized in all of the cases upon this sub- ject." Harrington v. Keteltas, 92 N. Y. 40; Mills v. Hoffman, 26 Hun, 594; Moore's Estate, 1 Tuck. 41 ; Matter of Hosford, 27 App. Div. 427; O'Conner v. Gifford, 117 N. Y. 275; Matter of Hall, 16 Misc. Rep. 174. From this may be deduced the statement that executors, who have not sued upon or collected in a promissory note payable to their decedent, must show on the accounting that the note could not have been collected had an action been commenced thereon. It is not enough to produce «vidence from which the court must guess that legal proceedings would have been useless. The testimony must leave no reasonable doubt in that regard. Matter of Hosford, supra. Nor will the advice of an attorney alone relieve an executor from the duty of active vigilance in the collecting in of the assets left by his dece- dent. Ihid. CHAPTER IV COMMISSIONS AND COMPENSATION § 1092. Allowance for commissions and expenses in administering the estate. — Provision is made by law for remunerating and reimbursing those who administer estates as representatives or trustees. These provisions are as follows: COMMISSIONS OF EXECUTOR OR ADMINISTRATOR On the settlement of the account of an executor or administrator, the sur- rogate must allow to him for his services, and if there be more than one, appor- tion among them according to the services rendered by them respectively, over and above his or their expenses : For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five per centum. For receiving and paying out any additional sums not amounting to more than ten thousand dollars, at the rate of two and one-half per centum. For all sums above eleven thousand dollars, at the rate of one per centum. In all cases such allowance must be made for their necessary expenses ac- tually paid by them as appears just and reasonable. If the gross value of the personal property of the decedent amounts to one hundred thousand dollars or more,* each executor or administrator is entitled to the full compensation on principal and income allowed herein to a sole exec- utor or administrator, unless there are more than three, in which case the compensation to which three would be entitled must be apportioned among them according to the services rendered by them, respectively, and a like ap- portionment shall be made in all cases where there shall be more than one ex- ecutor or administrator. Where the will provides a Specific compensation to an executor or adminis- trator he is not entitled to any allowance for his services, unless by a written instrument filed with the surrogate, he renounces the specific compensation. Where successive or different letters are issued to the same person on the estate of the same decedent, including a case where letters testamentary or letters of general administration, are issued to a person who has been pre- viously appointed a temporary administrator, he is entitled to compensation in one capacity only, at his election, except that where he has received com- pensation in one capacity he is entitled to the excess, if any, of the compensa- tion allowed by law, above the sum which he has aheady received in the other capacity. § 2730, Code Civil Proc. * " Over all his debts," omitted by ch. 328, L. 1905. 72 1137 1138 surrogates' courts commissions of testamentary trustees Section 2811 of the Code, quoted, ante makes applicable to accountings by testamentary trustees §§ 2734 to 2737, both inclusive. As above noted, § 2730 of the Code as it now stands consolidates former §§ 2736, 2737 and 2738. See L. of 1893, ch. 686. This act repealed the sections then numbered 2735 to 2741, but the legislature in so doing omitted to correct and amend § 2811 referring to and making applicable the sections therein enumerated. So far, therefore, as § 2730 re-enacts the provisions of the consolidated sections they might still be deemed applicable to ac- countings by testamentary trustees, as § 2802 recognized the similarity before the law of testamentary trustees to executors and administrators in respect of the right to commissions. This section, quoted ante, expressly provides that, upon the annual accountings which testamentary trustees are by that section authorized to render and have judicially settled, "the Surrogate before whom such accounting may be had shall allow to the trustee or trustees the same compensation for his or their services by way of commission as are allowed by law to executors and administrators, besides their just and reasonable expenses therein, and also the additional allowance provided for in § 2562 of this Act." This is the section pro- viding for the additional allowance for counsel fees and other expenses upon accountings "not exceeding ten dollars for each day occupied in the trial and necessarily occupied in preparing the account for settlement and otherwise preparing for the trial." The Court of Appeals in Hurlbut v. Durant, 88 N. Y. 122, 128, had ex- pressly held that the then §§ 2736 and 2811 of the Code contained the statutory provision for the compensation of executors and of testamentary trustees. See also Laytin v. Davidson, 95 N. Y. 263, expressly recognizing the jurisdiction of the Surrogate to award commissions to testamentary trustees under the Code of Civil Procedure, citing Johnson v. Lawrence, 95 N. Y. 154, and In re Roosevelt, 5 Redf. 601. In the case last cited Sur- rogate Rollins passed directly upon the authority of the Surrogate to di- rect the payment of commissions to testamentary trustees and reviewed the statutes dealing therewith. His decision was based upon the appli- cability of the sections to testamentary trustees, to which reference is made in § 2811 as above quoted. His opinion is concurred in by the Court of Appeals in the case of Laytin v. Davidson, supra. But, in 1904, by ch. 755, the Legislature amended § 3320 of the Code, entitled "Receivers' commissions," by adding this provision: A trustee of an express trust is entitled, and two or more trustees of such a trust are entitled, to be apportioned between or among them according to the services rendered by them respectively, as compensation for services as such, over and above expenses, to commissions as follows : For receiving and paying out all sums of principal not exceeding one thousand dollars, at the rate of five per centum. For receiving and paying out any additional sums of principal not exceeding ten thousand dollars, at the rate of two and one-half per centum. COMMISSIONS AND COMPENSATION 1139 For receiving and paying out all sums of principal above eleven thousand dol- lars, at the rate of one per centum. And for receiving and paying out income in each year, at the like rates. In all cases a just and reasonable allowance must be made for the necessary expenses actually paid by such trustee or trustees. If the value of the principal of the trust estate or fund equals or ex- ceeds one hundred thousand dollars, each such trustee is entitled to the fuD commission on principal, and on income for each year, to which a sole trustee is entitled, unless the trustees are more than three, in which case three full commissions at the rates aforesaid must be apportioned between or among them according to the services rendered by them respectively. If the instru- ment creating the trust provides specific compensation for the services of the trustee or trustees, no other compensation for such services shall be allowed unless the trustee or trustees shall, before receiving any compensation for such services, by a written instrument duly acknowledged, renounce such specific compensation. This would have seemed to be a provision applicable not to testamentary trustees, as § 2802 was not changed. But in Robertson v. De Brulatour, 188 N. Y. 301, aff'g 111 App. Div. 882, it is applied as governing just such trustees, and as changing in their favor the rule still applicable to repre- sentatives which is that their commissions are figured on "sums of money" received and paid out, whereas trustees may now; be paid on the basis of "principal" which was held to apply to securities in bulk or in kind. See opinion in Chisolm v. Hamersley, 114 App. Div. 565, discussing same sub- ject as to trust under a deed. The commissions of "persons appointed to execute a trust left unex- ecuted by the death" of an original or surviving trustee are fixed by the Supreme Court. They cannot exceed the commissions allowed to executors, etc. This is by virtue of amendments in 1902 to the Real Property and Personal Property Law. See § 20, Pers. Prop. Law and § 111, Real Prop. Law. COMMISSIONS OF GUARDIANS Section 2850 quoted, ante, expressly provides in respect to all guardians over whom the Surrogate has jurisdiction that they are "entitled to the same compensation as an executor or administrator." Matter of Decker, 37 Misc. 527. EXECUTOR OP DECEASED TRUSTEE It seems, an executor of a deceased trustee is not entitled to commis- sions, but may in the Surrogate's discretion be compensated as justice requires. See careful opinion by Ketcham, Surr., in Matter of Ingraham, 60 Misc. 44. But in Matter of Wilcox, 125 App. Div. 152, full commissions were allowed to "estate" of deceased trustee on principal of which she was life tenant. And Matter of Heaney, 125 App. Div. 619. § 1093. The right to remuneration. — It is the policy of our law that those who administer a trust or estate shall receive compensation there- 1140 StTREOGATES' COURTS for. The language of § 2730, "the Surrogate must allow" expresses this general intent. The section is not mandatory in the sense that no depar- ture from it is ever permissible {Secor v. Sentis, 5 Redf. 570, 572), for if a testator expressly prohibits his executor from receiving compensation for administering the estate, the Surrogate will be controlled by such direction. Ibid.; Meacham v. Stearnes, 9 Paige, 403. This has been held in a case when of two executors under such a will one refused to serve, and the other, by reason of the extra labor thereby claimed by him to have been required, sought to have the prohibition disregarded. Surrogate Rollins declined to do so. Matter of Gerard, 1 Dem. 244; Matter of Marshall, 3 Dem. 173. If, however, the executors named in a will denying any com- pensation to the executors decline to qualify, the prohibition cannot ex- tend to an administrator with the will annexed. In the second place, in spite of the statute, the Surrogate may deny commissions to a negligent or wrongdoing executor or trustee. Matter of Rutledge, 162 N. Y. 31, aff'g 37 App. Div. 633; Wheelwright v. Rhoades, 28 Hun, 57; Matter of Harnett, 15 N. Y. St. Rep. 725; Stevens v. Melcher, 152 N. Y. 551 ; Cook v. Lowry, 95 N. Y. 103, 114; Matter of Welling, 51 App. Div. 355, 358; Matter of Mathewson, 8 App. Div. 8, 11, 12. See also Mat- ter of Hayes, 40 Misc. 500, case of an administrator who mingled trust with personal funds; and Matter of Ward, 49 Misc. 181, case of a guardian. In Matter of Hunt, 38 Misc. 613, the court declined to charge one executor with the devastavit of his coexecutor. See opinion. So, also, where a trustee resigns before executing his trust, he loses his right to commissions on the corpus of the fund. Matter of Hayden, 54 Hun, 197. It becomes discretionary with the Surrogate, and that discretion is reviewable. Matter of Gall, 107 App. Div. 310. And the court may im- pose as a condition of permitting the resignation of a trust, that the right to commissions be waived, in whole or in part. Matter of Allen, 96 N. Y. 327; Matter of Curtiss, 9 App. Div. 285, 288. Matter of Douglas, 60 App. Div. 64. A quantum meruit may be allowed in the exercise of this discre- tion within the legal limits for full service. Matter of Fisk, 45 Misc. 299; Linsly v. Bogert, 152 N. Y. 646, aff'g 67 N. Y. St. Rep. 653. So also as to an administrator, acting in good faith, but removed on discovery of a win. Matter of Hurst, 111 App. Div. 460. See opinion of Jenks, J. If a trustee dies before administering the estate, his executors may receive one-half commissions in a proper case. Matter of Todd, 64 App. Div. 435. Where the estate has never been reduced to money, it seems it is not a such proper case. McAljrine v. Potter, 126 N. Y. 285, 290. It is always improper in such a case to allow the executors of a deceased trustee the one-half commissions for distributing the estate. Palmer v. Dunham, 6 N. Y. Supp. 262. Unless the right, however, to commissions is thus divested, the courts will recognize it and in fact cannot deny it. Matter of Curtiss, 9 App. Div. 285, 291. Mere discourtesy or refusal to take beneficiary's advice as to litigation is not wrongdoing. Matter of IngersoU, 95 App. Div. 212. COMMISSIONS AND COMPENSATION 1141 But the right may be lost by remissness of the trustee. For example, if a trustee pays out the whole income annually and fails to reserve enough to cover his commissions, he cannot subsequently be allowed them in lump. Olcott V. Baldwin, 190 N. Y. 99; Matter of Harper, 27 Misc. 471; Spencer v. Spencer, 38 App. Div. 403; Matter of Haight, 51 App. Div. 310, 318; Matter of Slocum, 60 App. Div. 438; Hancox v. Meeker, 95 N. Y. 528. Matter of Norton, 58 Misc. 133. The reason is that the income is the only source from which commissions thereon can be paid. Whitson v. Whitson, 53 N. Y. 479; Shipman's Estate, 82 Hun, 108; Conger v. Conger, 105 App. Div. 589. But see Matter of HasMns, 111 App. Div. 754, rev'g 49 Misc. 177, when there was enough balance on income account, at time of judicial settlement, to equalize the deficiencies on annual payments. It is quite competent for an adult beneficiary to assent to the payment of commissions to a trustee whose right thereto may have been lost by his remissness. Matter of Johnson, 57 App. Div. 494, 504. This emphasizes the propriety and necessity of either an annual settle- ment or of so erecting the accounts as to make annual rests. No sound reason exists why a trustee should wait to the end of his trust for his com- pensation or why he should not compute and receive on such annual rests his annual commission. Beard v. Beard, 140 N. Y. 260, 265. In Conger v. Conger, 105 App. Div. 589, the method of "annual rests" is summarized, compliance with which will bring the trustee within the rule in Hancox v. Meeker, 95 N. Y. 528, and Matter of Mason, 98 N. Y. 527. The authority given the Surrogates' Courts to allow and to apportion commissions carries with it the power to enforce payment thereof. Matter of Dunkel, 5 Dem. 188, 194. On the other hand, as the amount of the com- missions, until paid, or rather until the accountant is legally entitled to receive them, remains an asset of the estate, the Surrogate has power to direct the application of such amount, or so much thereof as may be nec- essary, to Hquidate an unpaid debt of the accountant to the estate, whether shown to be uncollectible or not. Freeman v. Freeman, 4 Redf. 211. § 1094. The basis of remuneration. The primary basis of commissions is the actual rendition of services in administering the estate. Matter of Clinton, 16 Misc. 199, 202. An executor who renders no services can have no commission. Matter of Manice, 31 Hun, 119, 121. But, as the statute gives the Surrogate power where there are several executors, to "appor- tion among them according to the services rendered by them respectively," it follows that any assumption of responsibility, or liability, or services however slight, brings the executor within the category and entitles him to his apportionate share. Matter of Dunkel, 5 Dem. 188. Though one executor voluntarily, or perhaps by design, take possession of all the assets, and transacts substantially all the business of the estate, he does not thereby become entitled to receive all the commissions, to the exclusion of the coexecutor. Ibid. The pecuniary basis of the commissions is defined by § 2730. It is per- sonal property, and the amount is that which is received and paid out. 1142 SURBOGATES' COURTS If the trustee is surcharged with a sum lost by his negligence, he is entitled to the benefit of that amount as a basis of computation. So also as to debts due himself as one of the beneficiaries. Meachamv. Stearnes, 9 Paige, 398. No commissions allowed on a mortgage taken in .part payment on sale of realty under judgment for specific performance of decedent's con- tract. Matter of Dill, 60 Misc. 294. Real property is no basis for the com- putation of commissions (Smith v. Buchanan, 5 Dem. 169, and cases cited), excepting only where it has been actually sold under the terms of the will (Matter of Clinton, 16 Misc. 199), or where the will works an equitable conversion. Matter of Hardenbrook, 23 Misc. 538, 543. Matter of Wan- ninger, 120 App. Div. 273, citing McAlpine v. Potter, 126 N. Y. 285; Phoenix v. Livingstone, 101 N. Y. 451; Robertson v. De Brulatour, 188 N. Y. 301. But it has been held proper to allow executors commissions where on foreclosing an estate mortgage, they had to buy in the land which they divided into lots and sold them at auction to the legatees, and the purchase price was offset against the various legacies to the purchasing legatees. Matter of Franklin, 26 Misc. 107; Matter of De Peyster, 4 Sandf. Ch. 511; Matter of Ross, 33 Misc. 163. The mere holding of title will not be deemed money for the purpose of computing commissions. Phoenix v. Living- stone, 101 N. Y. 451 ; Estate of McLaren, 6 Misc. 483. Where the executors actually sell, in pursuance of a lawful power, they will be considered as having performed a lawful trust duty, and are as much entitled to com- missions upon the amount involved as upon any other sums passing through their hands. Matter of Prentice, 25 App. Div. 209, 212. More- over, they are to be allowed a reasonable time within which to execute the power of sale. Hancox v. Meeker, 95 N. Y. 528. Where there is no impferative direction to the executors to sell the real estate, there is no equitable conversion. Matter of Hardenbrook, 23 Misc. '538, 540. "To constitute a conversion of real estate into personal in the absence of actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any event. Such conversion rests upon the prin- ciple that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result." White v. Howard, 46 N. Y. 144; Stagg v. Jackson, 1 N. Y. 206; Hobson v. Hale, 95 N. Y. 598. • The distinction must be clearly kept in mind where the same persons are named as executors and as trustees between their rights to deal with real property as executors and as trustees. If the right to deal with the real estate devolves upon the trustees by the terms of the will and the executors have no right to deal with it except as it may become necessary for them to convert it for the purpose of pajring debts or legacies under the will, then commissions can be allowed upon the basis of the real es- tate to the persons named as executors only in their capacity as trustees; and upon their accounting as executors, the real estate cannot be taken as a basis of computation of their commissions. Matter of Curtiss, 9 App. Div. 285; Matter of Wanninger, 120 App. Div. 273. See also opinion of COMMISSIONS AND COMPENSATION 1143 Thomas, Surr. Matter of McGlynn, 41 Misc. 156. He points out that if executors are under a mandatory power of sale, so they are under obliga- tion to account for proceeds and hence entitled to use the value as a basis for commissions. But he says: "its value may be considered, not for the purpose of awarding them commissions upon such value in advance of a sale; but in order to determine whether the entire estate exceeds $100,000, so as to give to each executor a full commission." So also as to their commissions, and the basis of computing them. We have already noted the effect of the amendment to § 3220 which operates to distinguish the trustee from the representative. The latter must figure his commissions on "sums of money." The former may deal with • "principal" whether turned into money or not. The reason for the dis- tinction is obvious, for the theory of a trust is to keep invested, and of ad- ministration is to reduce to cash and pay over. See opinions in both courts in Robertson v. De Brulatour, 188 N. Y. 301, aff'g 111 App. Div. 882. Where executors sell incumbered real estate and the purchaser takes subject to the mortgages, the commissions may be computed on the basis of the whole purchase price, and is not to be limited to the value of the equity. Cox v. Schermerhorn, 18 Hun, 16, 19; Baucus v. Stover, 24 Hun, 109, 114, rev'd on another point, 89 N. Y. 1. If a power of sale is conferred on the executor personally and not as executor, he cannot include the proceeds in his account, nor use them as the basis of computing his commissions as executor. Matter of Brown, 5 Dem. 223. § 1095. Same subject. — It is further to be noted that the commissions are to be based on moneys lawfully received or disbursed, or on the pro- ceeds of real property lawfully sold by the accountant as executor, ad- ministrator, trustee, or guardian. That is, the commissions are computed upon what are legal assets in the executor's hands for purposes of admin- istration. It was noted above that an executor having a mere personal power of sale, could not include the proceeds of the sale in his account as executor nor compute commissions thereon. Matter of Brown, 5 Dem. 223. Commissions may properly be computed on the value of personal assets not actually converted into cash, but delivered to and accepted by legatees as equivalent to so much cash. Matter of Ross, 33 Misc. 163, citing Cairns v. Chaubert, 9 Paige, 160; Matter of Moffat, 24 Hun, 325; Matter of Curtiss, 15 Misc. 545, 551; Phoenix v. Livingstone, 101 N. Y. 451; Cox V. Schermerhorn, 18 Hun, 16; Matter of De Peyster, 4 Sandf. Ch. 511; McAlpine v. Potter, 126 N. Y. 285. So, if an executor die during the ad- ministration, his commissions must be apportioned to the degree of com- pletion of the duty. Matter of Whipple, 81 App. Div. 589. See Matter of McCormick, 46 Misc. 386, where Heaton, Surr., reviews the cases. As to such cases the amount of commissions are determined in the accounting had under § 2606. Matter of Hallenbeck, 119 App. Div. 757. So, also, where executors were empowered to make actual partition of testator's realty which he devised to several persons, it was held that, 1144 surrogates' courts while the executors rendered services, appointed commissioners, effected a partition and allotted the several shares, yet they were not entitled to any commissions upon such real estate. Bruce v. Bruce, 62 Hun, 416; Matter of Ross, supra. Again, specific legacies are not a proper basis for computing commis- sions. All the executor has to do is to deliver the actual thing bequeathed to the legatee named. Hall v. Tryon, 1 Dem. 296; Matter of Robinson, 37 Misc. 336; Matter of Whipple, supra; Matter of Fisher, 93 App. Div. 186. This is so even if the specific article is sold at the legatee's request, and the proceeds paid to him. Farquharson v. Nugent, 6 Dem. 296. But where an estate consists of securities, and the general legatees accept their dis- tributive shares in the form of these very securities, nevertheless the ex- ecutors are entitled to treat these securities as money received and paid out, and will be allowed commissions thereon. Ibid.; Matter of Curtiss, 9 App. Div. 285; Matter of Fisher, supra. But, it has been held that a temporary administrator who has received and held and delivered over to the permanent representative property specifically bequeathed by the will, is entitled to commissions thereon. Estate of Egan, 7 Misc. 262. The distinction is based on the difference in the functions of the permanent and temporary representative. See Matr ter of Hurst, 111 App. Div. 460. The latter is appointed to insure the safety and preservation of the property, and his right to compensationt depends on his doing that. Green v. Sanders, 18 Hun, 308; Estate of Egan, supra, and cases cited. It seems that it is not an executorial duty under the will to pay dower, admeasured by a judgment of the Supreme Court, and hence commissions cannot be allowed on a sum thus paid. Matter of Lawrence, 37 Misc. 702. § 1096. Same — Continuing business or stock venture. — Commissions will not be allowed on the money received and disbursed in continuing the business of the testator, even under express direction of the will. Mat- ter of Hayden, 54 Hun, 197, 205; Beard v. Beard, 140 N. Y. 260. This rule is based on the theory that the money is continually being reinvested, and turned over, and that to allow commissions thereon might result in eating up the whole fund involved. See Matter of Peck, 79 App. Div. 296. When business is carried on by a trustee, his compensation is not based upon the receipts or disbursements of the business, but only upon the receipts for capital, and the profits of the business. Ihid. See Estate of Munzor, 4 Misc. 374; Matter of Peck, 177 N. Y. 538, aff'g 79 App. Div. 296; Matter of Suess, 37 Misc. 459. The vahdity of a direction to continue a business is discussed by Gray, J., in Thorn v. De Breteuil, 179 N. Y. 64, with special reference to its amount- ing to an unlawful accumulation. In the absence of a direction in the will, the executors have no power to continue the business, except in order to convert the assets into money. Matter of McCollum, 80 App. Div. 362, citing Willis v. Sharp, 113 N. Y. 586, and cases cited. And the creditors can only look to the business and COMMISSIONS AND COMPENSATION 1145 not to the estate, for the assets of the estate may not be thus involved as against the beneficiaries. Even, it seems, if they assent to the business being carried on. Manhattan Oil Co. v. Gill, 118 App. Div. 17. An executor has no right to continue a speculative account opened by testator nor to pay margins on it. Matter of Hirsch, 116 App. Div. 367. Yet it is conceivable that the estate may be so involved as that its pres- ervation might require the advance of money. In such case, however, the sanction of the court, on proper notice, should be applied for. The law on this subject is admirably reviewed by Gaynor, J., in a con- cise and consecutive opinion in Matter of Popp, 123 App. Div. 2, reviewing the cases as to guardians, committees, receivers, executors, administrators, trustees, as to extra compensation. The opinion is too long to quote but is a brief of the law. The headnote is as follows: Executors and administrators — Extra compensation for carrying on business. A surrogate is not authorized to allow an executor directed to continue his testator's business extra compensation for so doing. He cannot be allowed compensation from the estate of the decedent other than that fixed by statute, except for services apart from and entirely outside his office, as an individual, nor is he entitled to extra compensation for services merely because he might employ and compensate another therefor. An agreement by beneficiaries to allow an executor extra compensation is subject to the general rule governing transactions between trustee and bene- ficiary : while not void, it is voidable and may be attacked as unfair and inequi- table. When two of several beneficiaries consent in open court to an allowance of extra compensation to an executor, it is not a consent that the same be paid in full out of their shares, but only that their shares be charged with their pro- portionate part. Cases collated and distinguished. § 1097. Extra compensation. — The general rule is that extra compen- sation is not to be allowed. Matter of Krisfeldt, 49 Misc. 26 (adm'x c. t. a.) ; Matter ofSeigler, 49 Misc. 169 (adm'r). When, at the request of the heirs, the person named as executor, being a skilled machinist continued the testator's business and paid himself a salary for managing it for eleven years, showing a profit to the estate for that period, and charging himself therewith as executor, Tompkins, Surr., declined to surcharge his account with the sum so paid to himself as salary. Matter of Braunsdorf, 13 Misc. 666, 672. In this case the will did not direct the continuation of the busi- ness; the services were rendered individually and not as executor; some- one must have been employed to render similar services; the heirs were benefited thereby, and assented thereto. So in Matter of Moriarity, 27 Misc. 161, compensation was allowed temporary administrator for carry- ing on intestate's business. In such cases the executor, while he must account to the estate for the profits, need not upon his accounting state the details of the business, or produce vouchers for the disbursements thereof. Estate of Munzor, 4 Misc. 374. See also Lent v. Howard, 89 N. Y. 1146 surrogates' courts 169; Matter of Kempf, 53 Misc. 200. But a trustee should. See cases •cited in last section. But, it is the general rule that extra compensation beyond legal com- missions cannot be allowed. Russell v. Hilton, 37 Misc. 642, 652; Matter ofDummett, 38 Misc. 477, 479, citing Collier v. Munn, 41 N. Y. 143; Matter ■ofHayden, 54 Hun, 197, 125 N. Y. 776; Matter of Hosford, 27 App. Div. 427; Matter of Butler, 9 N. Y. Supp. 641. Effect of copartnership of ex- ecutor with decedent. Ibid., citing Matter of Taft, 8 N. Y. Supp. 282 (cases above cited, distinguished). Nevertheless, as the court observed in Russell v. Hilton, supra, additional compensation may be allowed for services beneficial to the estate, but not strictly executorial in char- acter. See for such instances. Lent v. Howard, supra: Matter of Brauns- dorf, supra; Matter of McCord, 2 App. Div. 324; Matter of Young, 17 Misc. 680; Matter of Moriarity, supra. This will not include, e. g., moneys paid himself for "service of citations" or "posting notice of appraisal." Mat- ter of Wick, 53 Misc. 211, and cases at p. 212. Or for "painting and re- pairing" decedent's premises. Matter of Woods, 55 Misc. 181. § 1098. Compensation under the will. — It is perfectly competent for a testator to fix a definite remuneration to his executor or trustees, sub- stituting it for the statutory commissions. Matter of Sprague, 46 Misc. 216. But a mere legacy to one named as executor, unless explicitly stated to be in lieu of commissions, does not deprive him of his right to them. Matter of Mason, 98 N. Y. 527. But an executor may renounce the re- muneration specified in the will, and insist upon his statutory commis- sions. § 2730, Code Civ. Proc; Matter of Arkenburgh, 13 Misc. 744. But he must do so before the entry of the decree (Ibid.), and within a reason- able time. Arthur v. Nelson, 1 Dem. 337. Nine years is an unreasonable time to delay such renunciation (Ibid.), although in Matter of Weeks, be- low, Rollins, Surr., said, "There is no time fixed by law." In Matter of Arkenburgh, 38 App. Div. 473, 477, it was held that when no one could be prejudiced, a delay of two and a half years was not unreasonable. His assent to the will when read or probated is immaterial. Ibid. If he does renounce this specific compensation he cannot retract his renunciation," ■except upon consent of the Surrogate, and of all the parties in interest. Matter of Weeks, 5 Dem. 194. If the will expressly provides that the ex- «cutors shall have "a reasonable compensation" for their services as such, the coxirt will enforce the obvious intent that "the compensation should be reasonable with reference to the special circumstances of his estate, and the services which he has required them to perform." Matter ofSchell, 53 N. Y. 263, 266. It cannot be held that the use of the word " reason- able " means the statutory rate merely because that is presumed to be rea- sonable. Ibid. But where a testamentary guardian was given a bequest for his services as such, and rendered no services it was held he could not take the bequest. Matter of Brigg, 39 App. Div. 485. The acceptance of a legacy "to my executor and trustee" and described as "in full of all commissions, personal expenses, disbursements and charges COMMISSIONS AND COMPENSATION 1147 of every kind relating to the full and final settlement of my estate" was held, by Heaton, Surr., in Matter of Rome, 42 Misc. 172, to be (a) Conclusive against the representative in both capacities. (6) But not to include reasonable and necessary counsel fees. As to trustees § 3320 provides that the compensation fixed by the will is exclusive unless "before receiving any compensation" he renounce the same by "a written instrument duly acknowledged." See § 1092, ante. § 1099. Commissions where estate is $100,000, or over. — ^The right to separate full commissions, when there are more than one and not more than three executors, administrators or trustees, is very clearly defined in §§ 2730 and 3320. The difficulty has usually arisen out of the question of how the quantum of the estate was to be fixed. What can be taken into consideration in bringing the total up to $100,000? It must be observed in the first place that the words in § 2730 "if the gross value of the personal property of the decedent amounts to one hun- dred thousand dollars or more" have been interpreted to mean the value of the estate at the time of the final accoimting when the commissions are to be computed, and not the value at the death of the decedent. Matter of Blakeney, 1 Connoly, 128, and cases discussed. The rule in that case was summarized as follows: "That all the property of the estate that comes to their hands in money and is paid out by them as well as all per- sonalty upon the inventory is to be regarded, when 'presented upon one accounting, as the basis for determining whether several executors are entitled to full commissions." The test is how much is involved in the' particular accounting. Where income of a fund is dealt with the gross income received and paid out is the basis on any but the ultimate account- ing, when alone the corpus of the fund can be said to be involved in the sense of being the basis upon which to compute the commissions. Mc- Alpine v. Potter, 126 N. Y. 285. But if an executor is directed to turn over a fund, or the proceeds of specified realty to trustees by whom the income thereof is to be disbursed, the executor's commissions are based upon the corpus and not upon the income. Matter of Gilbert, 25 Misc. 584. The funeral expenses and expenses of administration are not to be de- ducted as decedent's debts in estimating whether the estate amounts to $100,000. Matter of Franklin, 26 Misc. 107, 111. This is made clear by § 2730 as amended to read "if the gross value of "the personal property," etc., see § 1092, ante, and omitting the words "over all his debts." Where a will creates out of an estate of over $100,000, three separate trusts, none amounting to $100,000, every trust constitutes an estate by itself so far as the trustees thereof are concerned. It is immaterial that the same persons are the trustees of all the trusts. Matter of Johnson, 170 N. Y. 139. When there is an equitable conversion under the will the court may take the value of the real property so converted into account for the purpose of determining whether there is $100,000 or over involved. Estate of 1148 surrogates' courts McLaren, 6 Misc. 483. See also opinion of Thomas, Surr., in Matter of McGlynn, 41 Misc. 156, already discussed (effect of mandatory power carrying obligation to account for proceeds). But there is a distinction to be kept clearly in mind. The question of whether the value of the per- sonal property of the decedent amounts to $100,000 or more merely con- ditions the right to separate full commissions; it does not entitle the ex- ecutors to commissions on moneys not received and paid out. Matter of Clinton, 16-Misc. 199, 204. In this case Marcus, Surr., observed: " Although the moneys actually received by the executors do not exceed $100,000, yet for the purpose of ascertaining the value of the personal property over all debts, evidence was properly given to show that the remainder of the unadministered estate will exceed $100,000, so that the court can deter- mine whether the allowance should be a full compensation to each executor, or a full compensation to all, but the executors are entitled to no more compensation than for moneys actually received and paid out." The words "over all debts" do not now apply since the amendment striking them out of § 2730. In the McGlynn case, supra, the same rule is followed, that commissions on the proceeds of the sale would not be paid in advance of the sale. § 1100. Mode of computation. — Where there is more than one exec- utor or trustee, and the value of the personal property of the decedent amounts to $100,000 or over at the time of the final accounting (see Matter of Blakeney, 1 Connoly, 128), the conamissions are to be computed as fol- lows: (a) If there are two or three executors, each is entitled to a full com- mission on principal and interest allowed by § 2730 to a sole executor or administrator. Matter of Franklin, 26 Misc. 107, citing Matter of New- land, 59 N. Y. St. Rep. 526; Estate of Willing, 7 Civ. Pro. 92; Matter of Kenworthy, 63 Hun, 165. (6) If there are more than three, three full commissions must be ap- portioned among them according to the services rendered by them respec- tively; and the same section further provides that a like apportionment shall be made in all cases where there shall be more than one executor or administrator. The only difficulty in such cases arises where one or more of the execu- tors has been the active administrator or administrators of the estate and claims a right to a substantial part of the two or three full commissions. It has been held that where the value of the personal property of the dece- dent amounted to $100,000 or over, and only one of the executors named in the will rendered services as such, only one full commission can be al- lowed to such executor, and the others, having resigned before executing, were not allowed any commissions on the body of the estate. Matter of Hayden, 54 Hun, 197. In that case the active executor made a claim for three full commissions, and this was denied. Where, however, of two or three executors all qualify and incxir respon- sibility in the administration, the mere fact that one of two or more, or COMMISSIONS AND COMPENSATION 1149 that two of three have had the active handling of the funds and the man- agement of the property does not exclude the inactive executor or exec- utors from his or their right to compensation. The Surrogate is given power to apportion the two or three full commissions, as the case may be, among those who have rendered services, according to such services rendered; but this does not give him the right to exclude one of such ex- ecutors from participation in the commissions; such exclusion can only be in one or other of the cases above indicated, such as misconduct or res- ignation. Matter of Kenworthy, 63 Hun, 165-167. The fact that one of the executors dies before the final accounting does not destroy the right to commissions which would have been payable to him had the accounting taken place at the time of his death, and in such a case, where the estate was over $100,000, the estate of the deceased executor was allowed upon the final accounting one full commission upon all the property actually received, paid out or distributed up to the time of his death, and half commissions (i. e., for receiving), upon the estate then undistributed. Matter of Newland, 7 Misc. 728, and cases cited. The surviving executor was allowed one full commission, plus the half com- mission for paying out the estate undistributed at the time of his coexec- utor's death. See also Welling v. Welling, 3 Dem. 511. In Matter of Whipple, 81 App. Div. 589, the rule was limited to comput- ing the commissions on actual sums received and paid, and not on inven- tory estimates. In Matter of Holbrook, 39 Misc. 139, full commissions on income were claimed by the trustees because the estate was over $100,000. Held, that unless income itself exceeded $100,000 per annum the trustees must divide one income commission between them. See opinion, citing Matter of Willets, 112 N. Y. 289. But in Matter of Hunt, 41 Misc. 72, Thomas, Surr., shows, we think conclusively, that the real intent is that if the estate is $100,000 or over then full commissions are allowable on both, regardless of quantum of annual income. In determining whether the property of the decedent is $100,000 or over in value, the inventory is not conclusive; the Surrogate may inquire into the facts and determine the value upon the accounting. Matter of Blakeney, 23 Abb. N. C. 32. As to executors the gross quantum of the estate determines the right to such separate full commissions. As to trustees the gross quantum of each trust. Matter of Johnson, 170 N. Y. 139. An "estate" of $100,000, may be left in four equal and separate trusts. In such a case the executors might get full commissions while the trustees, accounting for each trust could manifestly not. § 1101. Apportioning the full commissions. — The apportionment be- tween executors who have rendered varying degrees of services in the administration of the estate, necessitates an inquiry on the part of the Surrogate into the facts. Matter of Arnton, 106 App. Div. 326. It has been held that in such case "consideration should be given to the amount of time devoted by them respectively to the affairs of the estate, and to 1150 surrogates' courts the extent and importance of the labors which they have severally per- formed" (Matter of Harris, 4 Dem. 463, 467), and in that case Rollins, Surr., remarked: "I can easily conceive of an administration conducted by two executors, of whom one should receive and distribute all the assets, and the other should nevertheless be entitled, because of his care and pains in the management of the estate, to a larger share than his associate in the statutory compensation." But where one of two executors, as was the fact in the case just cited, was the surviving partner of the testator, and wound up the business of the firm, it was held that "such services could not be taken into account in determining the comparative value of the services of the two executors, by reason of the fact that this duty was incident to the contract of partnership, and he was entitled to no remu- neration as executor for performing it." Ibid., p. 467, and cases cited. Where there is a controversy between the executors as to the manner of division of the commissions, the Surrogate may direct a reference, and the expenses of such reference may be required to be defrayed out of the aggregate commissions. Hill v. Nelson, 1 Dem. 357; Matter of Harris, supra. § 1102. Double commissions. — Where the same person is executor and trustee \mder a will, the question as to whether he is entitled to full com- missions as executor and subsequently full commissions as trustee, depends upon whether the two functions are separable or blended. Matter of McAlpine, 126 N. Y. 285. While executors may have trust powers given them to enable them conveniently, wisely and safely to place the estate upon an income-bearing basis pending the time of distribution, this alone does not give the right to double commissions. Matter of Slocum, 1&9 N. Y. 153, 154. The allowance of double commissions is predicated upon two distinct administrations; the one as executor terminating in an ac- counting and the delivery over of the trust property to himself, alone or jointly with another, as trustee, and the subsequent administration as trustee under the terms of the will. See Matter of Rafferty, 52 Misc. 69, and cases at p. 74. The courts will be guided in passing upon this question of the right to double commissions by the scheme of the will. Ohott v. Baldwin, 190 N. Y. 99; Matter of Waterman, 60 Misc. 292. See also Matter of Union Trust Co., 70 App. Div. 5, 9, where the court observes: "To determine in what capacity one acts, it is important to keep in view what ordinarily are the duties of an executor. They are similar to those which in the event of intestacy would devolve upon an administra- tor. That is to say, in either capacity, the duties are to administer upon the estate by collecting and reducing to possession the assets of the estate and, after paying debts, to have the balance in hand for distribution. It is only at this point that a distinction arises, which is that an executor makes distribution under the will and an administrator under the law." See also Matter of Hunt, 121 App. Div. 96. The duties of an executor and those of a trustee are well contrasted in Drake v. Price, 5 N. Y. 430, as follows: "To take possession of all the goods COMMISSIONS AND COMPENSATION 1151 and chattels, and other assets of the testator, to collect the outstanding debts and sell the goods and chattels so far as is necessary to the payment of the debts and legacies; to pay the debts and legacies, and under the order of the Surrogate to distribute the surplus to the widow and children, or next of kin of the deceased. These acts embrace all the duties which appropriately belong to the executorial office. If any other duty is im- posed upon the executor, or any power conferred, not appertaining to the duties above enumerated, a trust, or trust power, is created, and the ex- ecutor becomes a trustee, or the donee of a trust power. And such powers are conferred and such duties imposed upon him, not as incidents to his. office of executor, but as belonging to an entirely distinct character — that of trustee. And in all such cases the trust and executorship are distin- guishable and separate." If the will, either by express terms or fair in- tendment, permits or practically accomplishes a separation between the functions of executors and those of the trustees in which the two functions- cannot be said to be blended for any purpose or to coexist for any period of time, but in which, on the contrary, the duties of the executors are to- end before those of the trustees begin, then the persons exercising these two separate and distinct functions are entitled to compensation in both, capacities. Matter of Johnson, 57 App. Div. 494, 503; Matter of Leinkauf, 4 Dem. 1-4; Matter of Beard, 77 Hun, 111-113, citing Johnson v. Lawrence, 95 N. Y. 154; Laytin v. Davidson, 95 N. Y. 263; Phcenix v. Ldvingstone, 101 N. Y. 451; Matt^ of Mc Alpine, 126 N. Y. 285; Matter of Crawford, 113 N. Y. 560. It is therefore important that where double commissions are to be claimed the executors should accoxmt as such as soon as their func- tions as executors have been discharged (Bacon v. Bacon, 4 Dem. 5), and thereafter they may claim, upon their accounting as trustees, further and full commissions in that capacity. See Matter of Slocum, 169 N. Y. 153,, 160, and cases cited; Matter of Johnson, supra; Hulburt v. Durant, 88 N. Y. 122, 127; Matter of Underhill, 35 App. Div. 434, 437, aff'd 158 N. Y. 721. The necessity of this appears in Matter of Martin, 124 App. Div. 793, dif- ferentiating between trust property duly set apart, and a residue still held as by the executor. The mere entry of a decree settling an executor's ac- count does not of itself alone operate to change his executorial functions into those of a trustee. Matter of Smith, 66 App. 1)1^.340,34:5. See Mat- ter ofHitchins, 39 Misc. 767, where widow was executrix and life beneficiary. Held, she could not be deemed her own trustee and ask or have allowed to her estate double commissions. In the McAlpine case above cited, the will was such as to make in the language of Judge Finch, "the executors either wholly and continuously such, or wholly and continuously trustees. . . . There is no provision^ requiring any share or trust fund to be severed from the body of the es- tate, or to be ascertained as a residue of principal to be kept invested for its specific income payable to a beneficiary, but all duties without separa- tion, whether imposed by the law or by the will, run on together mingled and blended to the end." 1152 surrogates' courts An examination of the cases in which double commissions have been allowed will show that they were exceptional in their nature and contained provisions distinctly and definitely pointing to a holding by trustees as such after the duties of the executors were completed and ended. Wildey V. Robinson, 85 Hun, 362-366; Matter of CurHss, 9 App. Div. 285. Robert- son V. De Brulatour, 188 N. Y. 301, presents this situation very plainly. The executors accounted, had a decree, and turned over to themselves as trustees the trust securities. As Gray, J., says (at p. 316) , " At that moment they assumed a new office with distinct duties and responsibilities." So on their accounting as trustees they were allowed commissions under § 3320 as amended, computed not as formerly on "simis of money" but on "sums of principal" and for "receiving and paying out income." No double commissions can be based on trust lands still unsold. Matter of Tucker, 29 Misc. 728, 730; Roosevelt v. Van Alen, 31 App. Div. 1, 5; Matter of Clinton, 16 Misc. 199. Even where there is equitable conversion, there must be actual conversion before commissions are computable. Matter of Tucker, supra; Estate of McLaren, 6 Misc. 483. The same rule applies to persons occupying double positions of guard- ians and trustees. If they administer the fund in a double capacity for the same period they are entitled only to single commissions. Foote v. Bruggerhof, 66 Hun, 406. The property turned over by executors to themselves as trustees need not be turned into cash as a prerequisite to commissions, if the will clearly contemplates separate management or administration by the same per- sons in distinct and separate capacities. Matter of Freel, 49 Misc. 386. § 1103. When commissions are payable. — So far as executors or ad- ministrators are concerned, it is well settled that the commissions are not payable until the accounting. The commissions being in the nature of remuneration for a proper administration of the estate and the execution of the trust devolved upon a representative, it is manifest that until he shall have accoimted it cannot definitely appear that he has properly ad- ministered the fund. The right of the Surrogate to deny commissions to an executor for his misconduct, illustrates this rule, and therefore the retention of commissions prior to the accomiting is discountenanced by the courts. Matter of Robertson, 2 Misc. 288, 291; Matter of Fumiss, 86 App. Div. 96, 99. The rule is stated to be "Commissions cannot be paid or retained until judicially allowed" (Matter of Butler, 1 Connoly, 58-70, citing Wheel- wright V. Rhoades, 28 Him, 57; U. S. Trust Co. v. Biicby, 2 Dem. 494, and Freeman v. Freeman, 4 Redf. 211), "and if retained or paid in advance of their allowance by the Surrogate the executor is liable for interest thereon." Matter of Peyser, 5 Dem. 244-247; U. S. Trust Co. v. Bixby, 2 Dem. 494, and cases cited at p. 496; Whitney v. Phcenix, 4 Redf. 194. An executor, however, will not be charged with interest upon a sum retained as commis- sion where it appears that there was a distribution to the beneficiaries by consent of all parties (being competent) and voluntary disclosure by way COMMISSIONS AND COMPENSATION 1153 of an accounting was made to such beneficiaries at the time. Wyckoff v. Van Sicklm, 3 Dem. 75; Matter of Dunkel, 10 N. Y. St. Rep. 213; Matter of Franklin, 26 Misc. 107, 111; Matter of Ross, 33 Misc. 163, 165. The mere fact that executors paid themselves commissions in advance, upon advice of counsel, does not relieve them from the obligation to pay interest thereon. Meeker v. Crawford, 5 Redf. 450; Wheelwright v. Rhoades, supra. The fact that at the time the accounting is made there is not sufficient property before the court to defray the commissions which have been earned, does not affect the power of the court to fix the amount payable (Matter of Prentice, 25 App. Div. 209), and it cannot be held that because executors have failed to retain moneys sufficient to pay their commissions up to the time of their accounting that they have thereby made a gift of the equivalent to the beneficiaries of the estate. Ibid. The same rule holds as to trustees. Beard v. Beard, 51 N. Y. St. Rep. 735; 140 N. Y. 260, 265. This rule may be affected by the fact that the trustee has for a num- ber of years distributed all the income without retaining anything to cover his commissions. In such a case he cannot be allowed to collect them in lump out of one year's income, nor from the principal. He will be deemed to have waived them. Matter of Harper, 27 Misc. 471; Spencer v. Spencer, 38 App. Div. 403. But see § 1093, ante, and cases there discussed, espe- cially Mazier of Haskin, 111 App. Div. 754. He need not pay himself and so incur interest, but he may retain an amount sufficient to cover the commissions. Trustees are entitled under § 2802 to annually render and finally judicially settle their accounts before the Surrogate, and that sec- tion provides in terms: "In all such annual accountings of such trustees the Surrogate before whom such accounting may be had shall allow to the trustee or trustees the same compensation for his or their services, by way of commission, as are allowed by law to executors and administrators, besides their just and reasonable expenses therein," etc. But where the duties of the executor continue over a period of years — that is in the case of a continuing trust — executors also may make annual rests and be al- lowed commissions (Fisher v. Fisher, 1 Bradf. 335), provided, however, they make an annual accounting. Belts v. Belts, 4 Abb. N. C. 317; Vander- heyden v. Vanderheyden, 2 Paige, 287. But an executor cannot charge this annual commission at annual rests unless they are directed to be made for the purpose of compelling him ta pay interest upon periodical balanced which ought to have been invested by him. Hosaok v. Rogers, 9 Paige, 461. The rule as to commissions on successive settlements by executors or administrators is stated in Hawley v. Singer, 3 Dem. 589, 593, as follows: ^' On the first accounting they are entitled to full commissions on all moneys received and paid out, and half commissions only on moneys received and not paid out. On the second accounting they are allowed the other half on money since paid out and full commissions on the increase received and paid out, or directed by the decree to be paid; taking care, however, that all of such commissions shall not exceed what would have been the 73 1154 surrogates' courts full commissions had the whole estate been settled upon one final account- ing." § 1104. Successive letters to same person. — Section 2730 provides further that "when successive or different letters are issued to the same ■person on the estate of the same decedent including a case where letters testa,mentary or letters of general administration are issued to a person who has beeri previously appointed a temporary administrator" he will be entitled to commissions in one capacity only. He may elect in which capacity he will take his compensation; but if in one capacity he has already received his commissions this will not be deemed an election; for by the same section he is in such case permitted to receive the excess, if any, of the compensation allowable in the other capacity. For example, if as temporary administrator he has received $250 as commissions, and his general administration is such as to entitle him to $500, he may receive an additional $250. In no case may he receive in both capacities under the successive or different letters more than the maximum commissions allowable in either. This section does not affect the right to double commissions in proper cases. It deals only with cases of persons who receive successive letters upon the same estate. Note. See Thomas on Estates Created by Will, vol. I, pp. 782 et seq. for analysis of cases on commissions. § 1105. What fund chargeable with the conimissions.^The question now arises, on what fimd to charge the commissions allowed. Manifestly, as appears from the language of the many cases already discussed, com- missions on "income" received and paid out are chargeable to income, . for if the whole income be paid out without allowing for commissions we have seen that the right thereto is deemed waived: But, if the bequest is of a specific sum per annum, then that sum must be paid full and clear of any deduction for expenses or commissions. Whitson v. Whitson, 53 N. Y. 479. But if it be "the income" of a fund put in trust, then of course that income must bear the burden of the commissions. Ibid., and Matter of Dewey, 153 N. Y. 63, 66; Matter of Shipman, 82 Hun, 108. But the commissions on the corpus or principal must be paid out of the fund constituting such basis of computation. This is elementary. Ex- cepting annuities, the fund involved bears its own burden of the commis- sions which are calculated on the basis of its amount. § 1106. Expenses allowable. — Section 2730 is the Surrogate's authority for allowing not only the commissions earned, but also the expenses of the executor, administrator, guardian or testamentary trustee. "In all cases such allowance must be made for their necessary expenses actually paid by them as appears just and reasonable." (See Thomas on Estates, above cited.) The first point to note is "actually paid." That is, the Code contem- plates reimbursement, or ratification, not approval before payment. Matter of Woods, 55 Misc. 181, and cases cited. Matter of Sayles, 57 Misc. 524. The only exception is the allowances under §§ 2561-2562. Matter COMMISSIONS AND COMPENSATION 1155 of O'Brien, 25 N. Y. Supp. 704. In other words, the accountant must himself have administered the estate and fund, determining the necessity and reasonableness of his expenditures; subject to being surcharged for unnecessary and unreasonable payments. (See below.) Counsel fees are one of the most important items under this head. Judge Woerner in his treatise on the American Law of Administration summarizes this rule very clearly.. Vol. 2, §§ 384 and 515, and cases cited. He says: "Reasonable fees for such services, paid in good faith, are proper items of credit in the administration account, and will be allowed for legal assist- ance in resisting claims against the estate which the administrator does not know to be just and lawful {Young v. Brush, 28 N. Y. 667), or in as- sisting him in discharging his official duties, .... collecting the assets if a suit be necessary {Spencer v. Strait, 40 Hun, 463), preparing the ac- count, or defending the settlement." But allowance can be made, as he points out, only for counsel fees actually paid {Matter of Spooner, 86 Hun, 9), " and no more than is a reasonable compensation {Matter ofQuinn, 16 Misc. 651) for the services rendered to the estate, no matter what the administrator has actually paid or contracted to pay; and the onus to prove the necessity and value of such services is on the administrator." St. John V. McKee, 2 Dem. 236; Matter of Smith, 2 Connoly, 418; Matter of Van Nostrand, 3 Misc. 396. See also Matter of Blair, 67 App. Div. 116, 120; Douglass v. Yost, 64 Hun, 155; Gilman v. Oilman, 63 N. Y. 41; Matter of Hara, 50 Misc. 495, citing Matter of Hosford, 27 App. Div. 427; Matter of Peck, 79 App. Div. 296, aff'd 177 N. Y. 538. He cannot be allowed counsel fees incurred by reason of his own neglect or misconduct or "gross ignorance." 2 Woerner on Am- Laws of Adm. § 516; O'Reilly v. Meyer, 4 Dem. 161. The Surrogate has power to confirm upon the accounting such reasonable fees as have been paid {Matter of Arkenburgh, 13 Misc. 744; Matter of Spooner, 86 Hun, 9), but he is limited by the Code to the taxable costs in making allowances direct to the counsel. Reed v. Reed, 52 N. Y. 651. He cannot award counsel fees. Seaman v. Whitehead, 78 N. Y. 300, 309, and cases cited. The executor may be allowed on his accounting counsel fees paid for sustaining the will oh a contested probate. Douglass v. Yost, 64 Hun, 155; Matter of Ogden, 41 Misc. 156. Also for litigating a proceed- ing to obtain a construction of the will. Matter of Washbon, 38 N. Y. St. Rep. 619; Matter of Hutchison, 84 Hun, 563. Even if unsuccessful, provided it was done in good faith. Matter of Title Guarantee & Trust Co., 1 14 App. ' Div. 778. But not for litigation in the result of which she alone was in- terested. Matter of Pond, 42 Misc. 165. Where the probate of a will was set aside and the executor was appointed administrator, it was held that counsel fees in the will matter must go into his executor's account, not being proper items in his administrator's account and that if his account as executor had in fact been settled, he could move to open the proceed- ing. Matter of Blair, 67 App. Div. 116. But if the executor unnecessarily brings an action for the construction of the will, he cannot be allowed his 1156 SUREOGATES' COURTS legal expenses therefor, particularly if it appears it was to further his in- dividual interest. Matter of Thrall, 30 App. Div. 271. An executor, who has to sue his coexecutor for waste, may also be allowed reasonable sums paid to counsel. Matter of Stevens, 25 N. Y. St, Rep. 993. The legal ex- penses of appeals taken in good faith, and upon reasonable groimds, must be allowed out of the estate. Matter of Ritch, 76 Hun, 36. Where pro- ceedings were brought to revoke letters on the ground of irresponsibility and the executors had to give bonds in order to retain their office, the al- lowance of counsel fees actually paid in such proceeding is discretionary with the Surrogate. If he refuse to allow them, and his exercise of dis- cretion is affirmed by the Appellate Division, the Court of Appeals will not review the matter. Matter of O'Brien, 145 N. Y. 379. A Surrogate should not allow such fees paid to coimsel for doing what the executor ought himself to have done. His commissions cover such services. Matter of Quinn, 16 Misc. 651. Matter of Ogden, supra, citing Matter of Arkenburgh, 13 Misc. 744; Matter of Van Nostrand, 3 Misc. 396. Nor can he be allowed expenses in renting or managing realty if no duty respecting the same is imposed on him by the will. Ibid. Even when there is a power of sale not imperative. Nor can an executor be allowed counsel fees when, being himself an attorney, he conducted the legal pro- ceedings. Matter of Van Wert, 3 Misc. 563; Matter of Howard, 3 Misc. 170, 178, citing Collier v. Munn, 41 N. Y. 143; Lent v. Howard, 89 N. Y. 169. As to other expenses, such as bookkeeper's bills and the like, the test is the necessity for the services and the reasonableness of the disbursements. Merritt v. Merritt, 32 App. Div. 442; Matter of Harbeck, 81 Hun, 26. Un- der a complicated trust, where an office was needed for purposes of ad- ministration, office rent and office expenses were allowed the trustee on his accounting. Matter of Nesmith, 140 N. Y. 609. Traveling expenses may be allowed if necessary. Matter of Biggars, 39 JVIisc. 426. § 1107. Premium paid on official bond. — Under § 3320, as now amended, "any .... guardian, trustee .... executor or administrator, required by law to give a bond as such, may include as a part of his lawful expenses, such reasonable sum, not exceeding one per centum per annimi upon the amount of such bond, paid his sureties thereon," as the court by which he is appointed allows. L. 1892, ch. 465. Expenses of actions defended in good faith, arising in the course of administration, may be allowed. In re Grout, 15 Hun, 361. See further for full summary of cases, 1 Thomas on Law of Estates, pp. 800 et seq. § 1108. Surcharging. — Improper payments, rejected by the Surrogate in judicially settling the account, are surcharged. That is, the accountant is refused credit for them as payments and is charged with them as money still in his hands. To surcharge an accountant does not necessarily im- pugn his good faith or integrity. The cases discussed in the last section involving payments which "will not be allowed," illustrate this subject. The famiUar and most common cases are where the persons interested dispute the reasonableness of COMMISSIONS AND COMPENSATION 1157 funeral expenses, or tombstones, or monuments; or where they complain of delay in selling assets, e. g., keeping horses that "eat their heads off" or of failtire to realize timely on notes or accounts, where total or partial loss results; or, sadly often, where legal expenses assume what to them is an undue magnitude. The Surrogate enjoys a wise and wide discretion. And it is wisely exercised. In Matter of Colly er, 1 Con. 551, the adminis- trator was surcharged legal fees paid before his appointment. In Matter of Siegler, 49 Misc. 189, he was surcharged legal fees paid in asserting a personal claim against the estate. In Matter of Marx, 49 Misc. 280, he was surcharged a Federal inheritance tax paid after the Act of Congress was repealed. CHAPTER V MISCELLANEOUS PROVISIONS § 1109. " Marked for decree." — If there are no objections to an account or, when they have been disposed of, the matter is "marked for decree." Before discussing the decree, however, we must note certain further points that may enter into the disposition of the estate, or into the pro- cedure. These are the reference of a disputed account, and the question of "Advancements" and "Hotchpot." § 1110. The reference. — It is unnecessary to discuss in detail again the procedure upon a reference in this particular proceeding. Contested ac- counts are usually referred. The reference is generally a reference to hear and determine, and if inadvertently the order of reference limits the ref- eree to hear and report, it may be amended nunc pro tunc if it was intended to be an order to hear and determine, and the parties have acted upon it as such. Matter of May, 53 Hun, '127. The discussion of § 2546, ante, may be referred to in this general connection. The procedure is similar to a Supreme Court reference. The original papers are dehvered by the Surrogate's clerk to the referee, who receipts therefor. The issues to be tried are determined by the objections filed. The referee has the same power as the Surrogate possesses to allow amendments (Estate of Munzor, 4 Misc. 374; Matter of Gearns, 27 Misc. 76), which do not relate to transac- tions subsequent to the return day of the citation (Id., and Estate of Odell, 18 N. Y. St. Rep. 997), and may permit the accountant to file a supple- mental account in a proper case. Matter of Frank, 1 App. Div. 39. The account is deemed the prima fade case of the one accounting. The issues are of two descriptions. One, where the burden rests upon the objector of sustaining his objection, as in the 'case of a disbursement properly vouched. The other where the accountant must justify the act or neglect to which attention is called. The form of the report, the filing of exceptions, its confirmation or mod- ification are all discussed in an earlier chapter. See Rules of N. Y. County, 8, 22 and 24. § 1111. Summary statement of accotmt. — The account of his proceed- ings, filed by the accounting party, must be the basis of the decree to be made. The Code provides: Each decree, whereby an account is judicially settled, must contain, in the body thereof, a summary of the account as settled; or must refer to such a summary, which must be recorded in the same book, and is deemed a part of the decree. § 2661, Code Civil Proc. 1158 MISCELLANEOUS PROVISIONS 1159 But the decree must also provide, as usually prayed for in the petition for the ultimate judicial settlement of the account, for whatever distribu- tion is to be made to the persons entitled to share in the remaining undis- tributed assets. The decree must therefore define the extent of each dis- tributee's share. § 1112. Advancements. — First, then, must be considered what advance- ments may have been made to such distributees, for the Code gives the Surrogate power to adjust them in his decree: Section 99 of Decedent Estate Law now contains what was formerly part of § 2733. It provides as follows: If any child of such deceased person have been advanced by the deceased, by settlement or portion of real or personal property, the value thereof shall be reckoned with that part of the surplus of the personal property, which re- mains to be distributed among the children; and if such advancement be equal or superior to the amount, which, according to the preceding section, would be distributed to such child, as his share of such surplus and advancement, such child and his descendants shall be excluded from any share in the distribution of such surplus. If such advancement be not equal to such amount, such child, or his descendants, shall be entitled to receive so much only, as is sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of this section, nor shall the foregoing provisions of this section apply in any case where there is any real property of the intestate to descend to his heirs. Section 2733, accordingly, has been amended to read as follows: Where there is a surplus of personal property to be distributed, and the ad- vancement as provided in section ninety-nine of the decedent estate law, con- sisted of personal property, or where a deficiency in the adjustment of an ad- vancement of real property is chargeable on personal property, the decree for distribution, in the surrogate's court, must adjust all the advancements which have not been previously adjusted by the judgment of a court of competent jurisdiction. For that purpose, if any person to be affected by the decree, is not a party to the proceeding, the surrogate must cause him to be brought in by a supplemental citation. § 2733, Code Civil Proc. The real property law (ch. 46, Gen. Laws, §§ 295, 296), provisions have also been transferred to the Decedent Estate Law, without amendment and provide as follows: § 96. Advancements. — If a child of an intestate (i. e., one dying leaving no will, Messman v. Egenberger, 46 App. Div. 46, 50) shall have been advanced by him, by settlement or portion, real or personal property, the value thereof must be reckoned for the purposes of descent and distribution as part of the 1160 surrogates' courts real and personal property of the intestate descendible to his heirs and to be distributed to his next of kin; and if such advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceased, such child and his descendants shall not share in the estate of the intestate; but if it be less than such share, such child and his descendants shall receive so much, only, of the personal property, and inherit so much only, of the real property, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise it must be estimated according to the worth of the property when given. Maintaining or educating a child, or giving him money without a view to a portion or settlement in hfe is not an advancement. An estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection is an advancement. § 97. How advancements adjitsted. — When an advancement to be adjusted consisted of real property, the adjustment must be made out of the real prop- erty descendible to the heirs. When it consisted of personal property, the adjustment must be made out of the surplu? of the personal property to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other. As to the substantive law and what is and what is not an advancement, see 2 Thomas on Estates Created by Will, pp. 1541 et seq.; Redfield on Wills, pp. 428 et seq.; Jarman on Wills (6th ed.), 394 n, 495 n; 1 Am. & Eng. Ency. of Law (2d ed.), 760 et seq. The question from the representative's point of view is whether the heir or legatee received the money from decedent as a gift, a loan or an advancement. See Cole v. Andrews, 176 N. Y. 374, for interesting agree- ment examined by court. The question involves the item of interest on the sum involved. In the case cited the executors were held to have the right of electing whether to treat it as a debt or as an advancement, and only entitled to charge interest from the date of such election. So far as the proof to be taken by the Surrogate or his referee goes, parol evidence will be held inadmissible to contradict a clause in a will to the effect that a child has had an advancement, but is admissible so far as the amount thereof is concerned. 2 Thomas on Estates, p. 1675. Declarations subsequent to the transaction are inadmissible. Johnson v. Cole, 178 N. Y. 364. The statute applies only to cases of intestacy. Matter of Weiss, 39 Misc. 71, and cases discussed by Thomas, Surr. But where the intent of the will is clearly to "work equality in sharing" thesame principle is applied. Bhir v.Keese, 59 Misc. 107. The intention of decedent,'if ascertainable, controls. Matter of Morgan, 104 N. Y. 74. If the will refers to decedent's books of account, such books are to be taken into consideration in determining the fact and amount of advance- ments. Thorne v. UnderhiU, 1 Dem. 306, 314, citing Tonnele v. Hall, 4 MISCELLANEOUS PROVISIONS 1161 N. Y. 140, and Lawrence v. Ldndsay, 68 N. Y. 104. But a mere entry in his books will not alone prove an advancement. Marsh v. Brovm, 18 Hun, 319. But the child may prove either a discharge or repayment of the amount claimed to be an advancement, or where the advancement was in stock or other securities which were estimated in value and proved worthless that fact may be proved and considered in adjusting the child's share. Marsh v. Gilbert, 2 Redf. 465. See Matter of Merritt, 86 App. Div. 179, for an excellent illustration of how to adjust advancements. If the decedent is shown to have taken a note or security for the sum claimed to have been an advancement, it negatives the idea of its being in fact such. Kintz v. Friday, 4 Dem. 540; Matter of Robinson, 45 Misc. 551. This last case holds that it is not to be presumed that an advance- ment was a gift, in the absence of clear proof of such intent. It tends rather to show it to have been a loan (Bruce v. Griscom, 9 Him, 280 ; Mess- mann v. Egenberger, 46 App. Div. 46, 51), for an advancement may be defined as the giving by the decedent in his lifetime, by anticipation of the whole or part of what it is supposed the donee will be entitled to upon the death of the party taking it. 18 Hun, 170. A will providing that moneys given by testator to any of his legatees were absolute gifts and not advancements was held not to cover money given to a legatee who had given notes therefor and repaid part thereof. Matter of Cramer, 43 Misc. 494. For the idea of a gift was wholly negatived thereby. Ibid., citing Rogers v. Rogers, 153 N. Y. 343. So an agreement to treat a fund as an advancement was held annulled by a will made years later making different provision for the contracting beneficiary. Bowron v. Kent, 190 N. Y. 422, rev'g 120 App. Div. 74. If the security is shown to have been surrendered by the decedent and the donee claims it to have been done with the intent of canceling the debt, an issue is raised which the Surro- gate may not try. Bauer v. Kastner, 1 Dem. 136. See generally Miller v. Coudert, 36 Misc. 43, and Adams v. Cowen, 177 U. S. 472. See case under a will where testator paid a son's note and kept it. Held an advancement- Ebeling v. Ebeling, 61 Misc. 537. (Special Term.) Should the beneficiary to whom advancements were made prove to be sole legatee or distributee there is no occasion for applying the statute; although, conceivably, a case might arise under a will where the next of kin might claim intestacy as to the amount of such advancements. §1113. Same subject —" Hotchpot." — The reckoning in with the dis- tributable surplus of the advancements which may have been made to a child or children is sometimes called bringing the estate into "hotchpot." The purpose is to make the shares of all the children as nearly equal as can be. It operates substantially as follows: If the distributees are, say, three in number, and the distributable estate amounts in value to $100,000, and an advancement of $20,000 is proved to have been made to A, the total to distribute is assumed in such case to be $120,000, and B and C 1162 surrogates' courts each receive one-third thereof, or $40,000, A getting only $20,000 in addi- tion to his advancement. This is the correct method of distribution of a hotchpot fund. Grandchildren are entitled to insist upon advancements made to their imcles or aunts being brought into hotchpot in order to equal distribution. Beebe v. Estabrook, 11 Hun, 523, aff'd 79 N. Y. 246. It has been held that the English rule that only where a, father dies intestate can the child's advancement be brought into hotchpot, does not apply in this State. Kintz v. Friday, 4 Dem. 540, 546. Section 2733 expressly says "deceased person," and the policy of our law is to include females as well as males in terms importing the masculine gender. See 1 R. S. (7th ed.) 124. In Matter of Meyer, 95 App. Div. 443, such a scheme is discussed, and the rule as to charging interest is illustrated. In this connection we repeat that a will made subsequent to advances to children, which will divides the estate equally among them, cancels the advancements and destroys the hotchpot. Bowron v. Kent, 51 Misc. 136; Camp V. Camp, 18 Hun, 217; Arnold v. Haronn, 43 Hun, 278. CHAPTER VI DISTRIBUTION AND DESCENT § 1114. Time of distribution. — A decree finally settling the accounts of a representative will provide for the distribution of the surplus of the personal property to the persons entitled thereto. From what has already been observed as to the time within which an account may be presented and settled, it is very clear that no distribution can be had until a year has elapsed from the issuance of letters testamentary or of administration. The reasons for this are very adequately set out in Matter of Bonner, 30 Misc. 31, where Fitzgerald, Surr., points out the effect of allowing an ac- counting and distribution to be had at any earlier period. For example, a proceeding to revoke the probate of a will can be instituted any time within a year after the probate decree has been recorded, and legacies cannot be paid unless expressly directed by the will before the expiration of a year. In the second place, it is to be observed that where full distribution might be impossible by reason of contest involving certain items or in- terests, it is always proper, where it can be done irrespective of the rights so involved, to direct a partial distribution. Matter of Ockershausen, 10 N. Y. Supp. 928. Distribution under a will means to carry into effect its testamentary directions. The questions therein involved will be such as: amoimt pay- able, whether interest is to be added, whether beneficiary takes directly, or as one of a class, or his assignee under a transfer of interest, or his issue jier stirpes or per capita. § 1115. Law governing distribution. — While, as will be observed later, persons entitled to succeed to real property should be determined by the law of the place where the real property is situated, the persons entitled to distributive shares in case of intestacy, entire or partial, are always to be determined by the law of the place of domicile of the decedent at the time of his death. Section 2694 of the Code provides that, except where special provision is otherwise made by law, the ownership and dis- position of any property situated within the State other than real prop- erty or an interest in real property, where it is not disposed of by will, are regulated by the laws of the State or coimtry of which the decedent was a resident at the time of his death. If the decedent die domiciled in this State, the surplus of his personal property after the payment of debts, must be distributed according to the Decedent Estate Law now embodying in § 98 thereof what was for- merly § 2732 of the Code, which is as follows: 1163 1164 surrogates' courts § 98. Distribviion of personal property of decedent: [Note. See post, for dis- cussion of subdivisions.] If the deceased died intestate, the surplus of his personal property after pay- ment of debts; and if he left- a will, such surplus, after the payment of debts and legacies, if not bequeathed, must be distributed to his widow, children, or next of kin, in manner following : 1. One-third part to the widow, and the residue in equal portions among the children, and such persons as legally represent the children if any of them have died before the deceased. N 2. If there be no children, nor any legal representatives of them, then one- half of the whole surplus shall be allotted to the widow, and the other half dis- tributed to the next of kin of the deceased, entitled under the provisions of this section. 3. If the deceased leaves 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 one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars; if the residue exceeds that sum, she shall receive in addition to the one-half, two thousand dollars; and the remainder shall be distributed to the brothers and sisters and their representatives. 4. If there be no widow, the whole surplus shall be distributed equally to and among the children, and such as legally represent them. 5. If there be no widow, and no children, and no representatives of a ehild> the whole siu-plus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives; and if all tne brothers and sisters of the intestate be living, the whole surplus shall be distributed to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants in whatever degree of those dead ; so that to each Uving brother or sister shall be distributed such share as would have been distributed to him or her if all the brothers and sisters of the intestate whd shall have died leav- ing issue had been living, and so that th^re shall be distributed to such descend- ants in whatever degree, collectively, the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descend- ants of every brother and sister of the intestate whenever such descendants are of unequal degrees. 6. If the deceased leave no children and no representatives of them, and no father, and leave a widow and a mother, the half not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in Uke manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters. 7. If the deceased leave a father and no child or descendant, the father shall take one-half 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 one-half; and the whole, if there be no widow. 9. If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, such mother shall take the whole and shall be entitled to letters of administration in exclusion of all other persons. If the mother of DISTRIBUTION AND DESCENT 1165 such deceased 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. 10. Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal. 11. When such descendants or next of kin are 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. 12. No representation shall be admitted among collaterals after brothers' and sisters' descendants. 13. 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. 14. Descendants and next of kin of the deceased, begotten before his death, but born thereafter, shall take in the same manner as if they had been born in the life-time of the deceased, and had survived him. 15. If a woman die, leaving illegitimate children and no lawful issue, such ohildren shall inherit her personal property as if legitimate. 16. If there be no husband or wife surviving, and no children, and no repre- sentatives of a child, and no next of kin, then the whole surplus shall be dis- tributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this article or in chapter eight-* eenth of the Code of Civil Procedure ; but such surplus shall not, and shall not be construed to, embrace any personal property except such as was received by the deceased from such husband or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person. See below as to estates of married women. § 1116. The statute of descent. — The statute of descent is embodied in the Decedent Estate Law, art. 3, §§80-95. Section 80 contains the rules for interpreting the article. Section 96 deals with advancements and has already been quoted. The other sections read as follows: § 81. General ride of descent.-^The real property of a person who dies with- out devising the- same shall descend : 1. To his lineal descendants. 2. To his father. 3. To his mother; and 4. To his collateral relatives, as prescribed in the following sections of this article. § 82. Lineal descendants of equal degree. — If the intestate leave descendants in the direct line of hneal descent, all of equal degree of consanguinity to him, the inheritance shall descend to them in equal parts however remote from him the cpmmon degree of consanguinity may be. § 83. Lineal descendants of unequal degree. — If any of the descendants of such intestate be living, and any be dead, the inheritance shall descend to the 1166 surrogates' courts living, and the descendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living; and so that issue of the descendants who shall have died shall respectively take the shares which their ancestors would have received. § 84. When father inherits. — If the intestate die without lawful descendants, and leave a father, the inheritance shall go to such father, unless the inherit- ance came to the intestate on the part of his mother, and she be living; if she 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 inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters or their descendants Uving, such inherit- ance shall descend to the father in fee. § 85. When mother inherits. — If the intestate die without descendants and leave no father, or leave a father not entitled to take the inheritance under the last section, and leave a mother, and a brother or sister, or the descendant of a brother or sister, the inheritance shall descend to the mother for life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the intestate in such case leave no brother or sister or descendant thereof, the inheritance shall descend to the mother in fee. § 86. When collateral relatives inherit; collateral relatives of equal degrees. — If there be no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter specified to the collateral relatives of the intestate; and 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 re- mote from him the common degree of consanguinity may be. § 87. Brothers and sisters and their descendants. — If all the brothers and sis- ters of the intestate be living, the inheritance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living and the de- scendants, in whatever degree, of those dead ; so that each living brother or sister shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees. § 88. Brothers and sisters of father and mother and their descendants. — If there be no heir entitled to take, under either of the preceding sections, the inherit- ance, if it shall have come to the intestate on the part of the father, shall descend : 1. To the brothers and sisters of the father of the intestate in equal shares, if all be hving : 2. If any be living, and any shall have died, leaving issue, to such brothers and sisters as shall be Uving and to the descendants of such as shall have died. 3. If all such brothers and sisters shall have died, to their descendants. 4. If there be no such brothers or sisters of such father, nor any descendants of such brothers or sisters, to the brothers and sisters of the mother of the in- testate, and to the descendants of such as shall have died, of if all have died, to their descendants. But, if the inheritance shall have come to the intestate on DISTRIBUTION AND DESCENT 1167 the part of his mother, it shall descend to her brothers and sisters and their descendants; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. In all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intestate's, father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate. 5. If there be no such brothers or sisters of such father or mother, nor any descendants of such brothers or sisters, the inheritance, if it shall have come to the intestate on the part of his father, shall descend to his father's parents, then living, in equal parts, and if they be dead, then to his mother's parents, then Uving, in equal parts; but if the inheritance shall have come to the in- testate on the part of his mother, it shall descend to his mother's parents, then living, in equal parts, and if they be dead, to his father's parents, then living, in equal parts. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to his living grandparents in equal parts. § 89. Illegitimate children. — If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this sec- tion, the inheritance shall descend to his mother; if she be dead, to his relatives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not in- herit. § 90. Relatives of the half blood. — Relatives of the half blood and their de- scendants, shall inherit equally with those of the whole blood and their de- scendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance. § 91. Relatives of husband or wife. — When the inheritance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of such deceased husband or wife, as the case may be, and the persons entitled, under the pro- visions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate. § 92. Cases not hereinbefore provided for. — In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of the common law. § 93. Posthumous children and relatives. — A descendant or a relative of the intestate begotten before his death, but born thereafter, shall inherit in the same manner as if he had been born in the lifetime of the intestate and had survived him. § 94. Inheritance, sole or in common. — ^When there is but one person entitled to inherit, he shall take and hold the inheritance solely; when an inheritance or a share of an inheritance descends to several persons they shall take as tenants in common, in proportion to their respective rights. § 95. Alienism of ancestor. — A person capable of inheriting under the pro- 1168 subrogates' courts visions of this article shall not be precluded from such inheritance by reason of the alienism of an ancestor. § 1117. The form and provisions of the decree. — Before discussing these provisions just quoted, the decree needs further attention. The decree finally and judicially settling the account of an executor or administrator not only adjudges the balance with which he is chargeable, but the persons to whom such balance is distributable. The decree should direct payment of specific amounts to persons identified by name. As elsewhere noticed, assignments of interests not attacked as to validity may be recognized by the court and payment in such case may be decreed to A, as assignee of B. In the case of foreign next of kin it seems the appropriate consul general may intervene and payment made to him officially as representing the ■citizens of his nation. This right is cognate to his right to letters of ad- ministration. See Matter of Davenport, 43 Misc. 573, Church, Surr., citing Matter of Tartaglio, 12 Misc. 245; Matter of Fattosini, 33 Misc. 18; Matter of Lobrasciano, 38 Misc. 415. And referring to Matter of Logiorato, 34 Misc. 31, when the right of such consul to administer was denied. The shares are computed imder the provisions of the statute of distri- bution, taking into account any advancements proved, or payments already made on accoimt of any distributive share. If there be a will, and yet partial intestacy, the part undisposed of goes according to the statute, the balance pursuant to the will. As to the part undisposed of, the heirs or next of kin are to be ascertained as of the date of testator's death. Grinnell v. Howland, 51 Misc. 132, citing Hoes v. Van Hoesen, 1 Barb. Ch. 379; Doane v. Mercantile Trust Co.) 160 N. Y. 494; Simonson v. Waller, 9 App. Div. 503. The executor is entitled also to set off against a legacy or distributive share a debt due the decedent from the one entitled thereto. Matter of Rohinson, 45 Misc. 551. This has been held even where the debt was due from a partnership of which the legatee was sole surviving partner at decedent's death. Ferris v. Burrows, 34 Hun, 104, aff'd 99 N. Y. 616. (See ante. Payment of Legacies.) The decree may in the Surrogate's discretion contain a direction with- holding from distribution a sum equal to the amount of disputed claims •on which actions have not yet been brought. Matter of Rasch, 28 Civ. Proc. Rep. 98. But see Downing v. Marshall, 1 Abb. Ct. App. Dec. 525. But distribution will not be deferred merely because an action may be brought by one who has shown no particular diligence in asserting his rights. Ibid. There are certain cases where moneys must be directed to be retained. The claims to cover which this provision is made are defined as follows: Where an admitted debt of the decedent is not yet due, and the creditor will not accept present payment, with a rebate of interest; or where an action is pending between the executor or administrator, and a person claiming to be a creditor of the decedent; the decree must direct that a sum, sufficient to sat- DISTRIBUTION AND DESCENT 1169 isfy the claim, or the proportion to which it is entitled, together with the prob- able amount of the interest and costs, be retained in the hands of the account- ing party; or be deposited in a safe bank, or trust company, subject to the surrogate's order; or be paid into the surrogate's court, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled ; and that so much thereof, as is not needed, for that purpose, be afterwards dis- tributed according to law. § 2745, Code Civil Proc. The debts for which money can be thus retained must be debts of the deceflent, enforceable against the estate in the hands of the one account- ing. Thus where decedent had been a member of a firm it was held that a firm debt was not capable of being deemed an estate debt unless by in- ability to collect from the surviving partners the decedent's liability should have been duly fixed. Hoyt v. Bonnett, 50 N. Y. 538. When a distributee is an infant the Code provides for a direction in the decree that his share be paid to his general guardian or in certain cases to the parents. § 2746, Code Civ. Proc. See ante, sub. Guardians. Where the distributee is a bankrupt, and "a, trustee has been appointed, the interest of the bankrupt, as it existed anterior to the adjudication, is payable to such trustee. But he cannot receive surplus income from a trust fund, as his rights are not greater than those of the creditors and they cannot reach such income. McNaboe v. Marks, 51 Misc. 207. The general scope of the decree is indicated in § 2743 quoted in § 1090, ante, q. v. In addition to the specific directions already noted which may be incorporated in the decree it may also in certain definite cases order specific property to be delivered. When decree may order specific property to be delivered. In either of the following cases, the decree may direct the delivery of an unsold chattel, or the assignment of an uncollected demand, or any other per- sonal property, to a party or parties entitled to payment or distribution, in lieu of the money value of the property : 1. Where all the parties interested, who have appeared, manifest their con- sent thereto by a writing filed in the surrogate's office. 2. Where it appears that a sale thereof, for the purpose of payment or dis- tribution, would cause a loss to the parties entitled thereto. The value must be ascertained, if the consent does not fix it, by an appraise- ment under oath, made by one or more persons appointed by the surrogate for the purpose. § 2744, Code Civil Proc. Where there are securities in the estate directly bequeathed by the will, and they have not been turned over the decree will direct it to be done. Where the securities are merely the form in which the residue consists then § 2744 is applicable. Subdivision 1 covers the case of consent of parties and subd. 2 of judicial discretion. The failure to sell may often be justifiable. The executor or administrator has what is called an " adminis- trative title" "good against all the world except the beneficiaries, but as to them a mere aid and instrument to pass it forward to them in the due 74 Il70 surrogates' courts course of administration" as the law or the will may direct. See Stdnway V. Stdnway, 163 N. Y. 183, 200; Lane v. Albertson, 78 App. Div. 607, 614, and cases cited. Also Martin v. Andrews, 59 Misc. 298, 306. The parties beneficially interested, if of full age and there is no opposing trust may take their share in specie. So if there be a will directing the sale of securities and the investing of the proceeds in land, the legatees may none the less elect to take the securities directly. Mellen v. Mellen, 139 N. Y. 210. See also Cook v. Lowry, 95 N. Y. 103, 111, and cases cited in Lane v. Albertson, supra, at p. 615. The "administrative title" of the representative is a mere channel of transmission, not a link in a chain of title. Matter of ... . Argus Co., 138 N. Y. 557; Chemical Nat. Bank v. Colwell, 132 N. Y. 250. § 1118. Same subject — ^Where legatee or distributee is unknown or not to be found. Where the person entitled to a legacy or distributive share is unknown, the decree must direct the executor or administrator to pay the amount thereof into the treasury of the state, for the benefit of the person or persons who may thereafter appear to be entitled thereto. The surrogate, or the supreme court, upon the petition of a person claiming to be so entitled, and upon at least fourteen days' notice to the attorney- general, accompanied with a copy of the petition, may by a reference, or by directing the trial of an issue by a jury, or otherwise, ascertain the rights of the persons interested, and grant an order directing the payment of any money, which appears to be due to the claimant, but without interest, and de- ducting all expenses incurred by the state with respect to the decedent's estate. The comptroller upon the production of a certified copy of the order, must draw his warrant upon the treasury, for the amount therein directed to be paid; which must be paid by the state treasurer, to the person entitled thereto. § 2747, Code Civil Proc. It will be important to note, in beginning a proceeding under the second paragraph of this section, that the question whether to apply to the Sur- rogate or to the Supreme Court, will be determined by which court had jurisdiction of the accounting in which the payment to the state treasury was ordered. That court alone has jurisdiction of the new proceeding to "ascertain the rights of the persons interested, and grant an order directing the payment." Matter of Kinnealy v. People, 98 App. Div. 192. When legacy, etc., to he paid to county treasurer. The decree must also direct the executor or administrator to pay to the county treasurer a legacy or distributive share, which is not paid to the person entitled thereto, at the expiration of two years from the time when the decree is made, or when the legacy or distributive share is payable by the terms of the decree. The money, so paid to the county treasurer, can be paid out by him, only by the special direction of the surrogate ; or pursuant to the judgment of a court of competent jurisdiction. § 2748, Code Civil Proc. Executors or administrators must comply with the exact terms of the DISTRIBUTION AND DESCENT 1171 statute in making payments of this character. Neither of these sections contemplate what is known as a payment into court. Nor is a payment to the Surrogate personally any protection. Matter of Te Culver, 22 Misc. 217. Payment into court when made must be made strictly as prescribed in § 2537 of the Code, q. v., in the case above cited. See also Matter of Sack- ett, 38 Misc. 463, 465. § 1119. The double character of the decree.— Before outlining a prece- dent for the decree it must be noted that there are actually two adjudica- tions made by a Surrogate in the settlement of an estate; one is an adju- dication on the settlement of the executors' or administrators' accoimt; another is on the distribution of the funds of the estate. The questions arising on these adjudications are, as is readily seen, different, and the force and effect of the decree as it relates to the settlement of the executors' account, or as it relates to the distribution of the fund among those who are entitled to it, also differ. These adjudications may be made in separate decrees, or they may be made in one decree. Matter of Whitbeck, 22 Misc. 494, 499; Johnson v. Richards, 3 Hun, 454, 457. Where there is partial intestacy under a will, the Statute of Distribution is not the sole statute applicable and that controls the terms of the decree. For example, there may have been an accumulation of income, or of rents and profits, unlawful under the Personal or Real Property Laws. In such case the provisions of the appropriate statute control. Under the Real Property Law, the rents thus accumulated go to the person entitled to "next eventual estate." U. S. Trust Co. v. Soher, 178 N. Y. 442; Matter of Harteau, 53 Misc. 201; Reeves v. Snook, 86 App. Div. 303. This law changes the English rule which would give the surplus to the next of kin. 1 Jarman on Wills (5th ed.), 312; Cochrane v. Schell, 140 N. Y. 516, 539. The same rule applies to personal property. Matter of Harwood, 52 Misc. 82, and case examined. See discussion ante, sub. "Continuing Busi- ness" as to how the decree will settle an accoimt of such business so con- tinued. The force and effect of each decree, or of each part of the decree, are specified. Section 2742 provides what the effect is of a judicial settlement of an account. A judicial settlement of the account of an executor or administrator, either by the decree of the surrogate's court, or upon an appeal therefrom, is conclu- sive evidence, against all the parties who were duly cited or appeared, and all persons deriving title from any of them at any time, of the following facts, and no others : 1. That the items allowed to the accounting party, for money paid to cred- itors, legatees, and next of kin, for necessary expenses, and for his services, are correct. 2. That the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he was legally accountable. 1172 surrogates' courts 3. That the money charged to the accounting party, as collected, is all that was collectible, at the time of the settlement on the debts stated in the account. 4. That the allowances made to the accounting party, for the decrease, and the charges against him for the increase, in the value of property, were cor- rectly made. § 2742, Code Civil Proc. And § 2753, quoted ante, provides that with respect to all matters enumerated in that section, the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title from such party. See Matter of Underhill, 27 N. Y. St. Rep. 720. Section 2813 of the Code, quoted ante, defines the effect of a decree judicially settling the accoimt of a testamentary trustee. Similar provision as to a decree judicially set- tling the account of a guardian is made in the following section: A decree, made upon a judicial settlement of the account of a guardian ap- pointed by will or by deed, as prescribed in this article, or the judgment ren- dered upon appeal from such decree, has the same force, as a judgment of the supreme court to the same effect. § 2857, Code Civil Proc. If the account has been judicially settled upon waivers by persons en- titled to citation and consents that "the account be judicially settled," decree for distribution should not be made without notice to such persons, if distributees, for the waiver will be deemed limited and confined to the matter it relates to. § 1120. Limits of discharge. — Though final, and intended so to be, the decree, in discharging the accountant, limits such discharge, as a rule, by the words "as to all matters embraced in this accounting." As to such matters, on compliance with the directions of the decree, it is final. But, if later on previously undiscovered or undisclosed assets turn up, the functions of the one " discharged" revive, or are assumed to have con- tinued as to such assets and the obligation to account is the same, as is also the correlative right to require an account. Rosen v. Ward, 96 App. Div. 262; Mahoney v. Bernard, 45 App. Div. 499. The discharge is thus said to be jyro tanto. The finality of the decree, again, is of course subject to. the rights of re- view in Appellate Courts, as well as to the Surrogate's power to amend or modify. If the decree was made on an erroneous theory, and it has not been acted under, it seems it may be reopened and a new distribution de- termined upon. Or if partially executed, it may be corrected as to the unexecuted portions. Matter of Hoes, 119 App. Div. 288. § 1121. Precedent for a decree. — The following precedent of a decree settling an executor's account may be readily adapted for use where the accounting party is a guardian or administrator or testamentary trustee: DISTEIBUTION AND DESCENT 1173 Decree judicially settling account of executor, with clauses as to dis- tribution and dis- charge. Surrogate's Court Caption. Present : Hon. Surrogate. In the Matter of the JudiciaP Settlement of the Account of Execut of the Last Will and Testament of Deceased.^ A. B. as Execut of the last Will and Testament of late of the deceased, having heretofore made application to one of the Surrogates of the County of New York, for a judicial settlement of his account as such Execut and a citation having been thereupon issued, pursuant to statute, directed to all persons interested in the estate of said deceased, citing and requiring them and each of them personally to be and appear before the said Surrogate, at his office in the city of New York, on the day of at 10 : 30 o'clock in the forenoon of that day, then and there to attend such judicial settlement, and the said citation having been returned with proof of the due service thereof on (recite waivers, if any, and due acknowledg- ment thereof) (also supplemental citations, if any). and the said Execut having appeared on the return day of said citation and the said Execut having rendered account under oath before the said Surrogate; and the said account having been filed, together with the vouchers in support thereof, and (Here state whether objections were filed, and by whom, and recite reference, if one was had, and the filing of the report of the referee; also state if exceptions were filed thereto, and actions of Surrogate thereon with all necessary dates of filing or of entry) 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 account to be as stated and set forth in the following summary- statement thereof, made by the said Surrogate as judicially 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 of the account of made by the Surrogate as judicially settled and allowed. The said charged as such executor with $ cts. the amount of Inventory .... Increase as shown by Schedule (Add any other items with which he is found charge- able.) The said credited as such exec- *iitor with amount of loss on sales as shown by schedule $ cts. 1174 surrogates' courts With amount of funeral expenses and f cts. Ji cts. expenses of administration, as shown by schedule With amount of debts of the deceased as shown by schedule {Here insert legacies "paid, or any other payments lawfully made, referring to ap- propriate schedule.) Leaving a balance in his hands of . And it appearing that the said Execut ha thus fuUy accounted for all the moneys and property of the estate of said deceased which have come into hands as such Execut and account having been ad- justed by the said Surrogate, and a summary statement of the same having been made as above and herewith recorded, it is hereby Ordered, adjudged and decreed, that the said account be and the same is hereby judicially 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 Execut retain the sum of dollars and cents ($ ) for the commissions to which he entitled on this accounting; and that re- tain the sum of dollars and cents ($ ) for costs, counsel fee and disbursements on this accounting. // the decree may properly be one of distribution also it may go on to provide: a. For the payment of any bequests made by the testator, payment of which was deferred until the accounting, re- citing briefly any construction of the will necessitated there- upon. 6. For the retention and investment of any fimds, of which the executor is directed to pay the income to any particular beneficiary under the will. c. For the retention of any moneys to meet undetermined claims, or debts not yet due (see §2745, C. C. P.), pre- scribing whether it shall be retained by the accounting party, deposited in a bank or trust company, "subject to the Surro- gate's order," or be paid into court {in which case observe directions of § 2537, C. C. P.) ; adding provision as to subse- quent distribution. d. For the payment to the state treasurer or county treasurer of a legacy or a distributive share in cases covered by §§2747and2748, C. C. P. e. For the regular distribution. {Under this clause shoidd be separately stated a direction as to each distribviee, defining his share, and directing payment to h^, noting the provisions of § 2746, C. C. P., as to infants' shares.) DISTRIBUTION AND DESCENT 1175 /. // the -petition and citation were drawn so as to admit of discharge after the account shall have been settled add: And it is further ordered, adjudged and decreed that upon complying with all and every the foregoing directions of this decree the said be discharged as executor of the last will and testament of said deceased, and re- lieved from all further responsibility thereunder and from all Uability to any person interested thereunder as such exec- utor as aforesaid as to all matters embraced in this ac- counting. Surrogate. § 1122. Representative deals only with personal property. — Section 98, quoted Dec. Est. Law, ante, is known as the Statute of Distributions, and relates to the personal estate of a decedent. Such personalty vests in the representative by whom it must be distributed. This representative has nothing to do with the rdal property of the decedent, which passes to the heirs in default of a will. Even if there be a will, it may be adjudged in- valid in whole or in part. Where such a will has directed in its invalid provisions a conversion of realty into money and such conversion has been had prior to the adjudication of invalidity, the proceeds of such sale of real estate cannot be deemed personalty and therefore subject to distri- bution through the representative. It passes, so far as there is intestacy, to the heirs without the intermediation of such representative; conse- quently if, at the time of such adjudication, the proceeds are in his hands he will be deemed to hold them as trustee for the heirs to whom he should account for the same. See Wood v. Keyes, 8 Paige, 365. § 1123. Estates of married women. The provisions of this article respecting the distribution of property of de- ceased persons apply to the personal property of married women dying, leav- ing descendants them surviving. The husband of any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more. § 100, Decedent Estate Law. This section, formerly § 2734 of the Code, applies to residents of this State. Where a married woman dies in another State where she is domi- ciled, the law of the State of domicile controls. So where a married woman died in New Jersey before her husband leaving no will nor children, a chose in action belonging to her became the property of her husband, and he hav- ing died subsequently without taking out letters, it was held that such chose in action, which was the proceeds of a policy of insurance, belonged to him and upon his death he and his next of kin are entitled to the ulti- mate benefit therefrom by virtue of his relation of husband. Matter of Nones, 27 Misc. 165, and cases discussed in opinion. In Matter of Bmhbey, 59 Misc. 317, the testatrix was wife of a resident of Pennsylvania, whom she separated from and came to this State. Held, under the facts in opinion, she never acquired a separate legal residence. 1176 surrogates' courts even assuming her intent to do so. Hence the distribution of her estate must be according to the Pennsylvania law; dist'g Matter of Walker, 54 Misc. 177. § 1124. Jure mariti. — Where a married woman dies intestate leaving no descendants, the husband takes all her estate by virtue of jus mariti. Matter of Bolton, 159 N. Y. 129, 133; Robins v. McClure, 100 N. Y. 328. Gittings v. Russel, 114 App. Div. 405. This case holds that the fund is so entirely his as to be subject to attachment as his, even if he have taken letters of administration. He takes, of course, subject to the payment of her debts; but if he die, his representative is entitled to administer upon her estate so coming to him by virtue of this right. Ryder v. Huhe, 24 N. Y. 372; Estate of Warner, 2 Connoly, 347. This includes choses in ac- tion regardless of whether they are payable on the death of the wife or are mere reversionary or contingent interests or mere possibilities. Olmsted v. Keyes, 85 N. Y. 593. § 1125. Computing degree of kinship. — If the case arise where the per- sons surviving do not correspond exactly with one of the cases covered by the subdivisions of § 98, it has been held that the next of kin nearest in degree will be entitled to the surplus, that is to say, the computation of classes of kinship must be decided by the rule of the ecclesiastical law. Sweezey v. Willis, 1 Bradf. 495, 498. The canon law and the common law reckon consanguinity when it is lineal in precisely the same way, i. e., be- ginning at the common ancestor and reckoning downwards so that "in whatever degree the two persons or the most remote of them is distant from the common ancestor that is the degree in which they are related to each other." But the civil law starts not from the common ancestor, but from the intestate and counts upwards from either of the persons related to the common stock and then downwards again to the other, reckoning the degree of each person both ascending and descending. The ecclesias- tical law adopts the rule of civil law in reckoning the degree of propinquity. Thus by the civil law the grandfather of an intestate is two degrees removed, while an aunt of the intestate is three degrees removed. In the case just cited the learned Surrogate remarked: "The statute of distributions al- tered in special particulars the mode of distribution consequent upon the computation of the civil law, but whenever the statute directs distribution to the next of kin, the rule of the civil law will prevail, not to the extent of preferring ascendants in all cases excepting that of brothers and sisters of collaterals, but in regard to the manner of computing the degree of kindred." § 1126. Distributing under the statute. — Where the persons surviving a decedent sustain a direct relationship such as child, or grandchild, parent or grandparent, brother or sister, or any or all of these, the computation for distribution is not attended with difficulty. Where the persons entitled to share are collaterals the situation is more complex. The statute is explicit in determining the interest of a surviving wife or husband, child or grandchild, parent or grandparent. It is pro- vided as to the next of kin that where they are all in equal degree to the DISTRIBUTION AND DESCENT 1177 decedent their shares shall be equal (subd. 10) ; and where there is no widow and no children and no representative of a child, the whole surplus is distributed to the next of kin in equal degree of kinship to the deceased and their legal reptesentatives (subd. 5). Under this subdivision it has been held (Hurtin v. Proal, 3 Bradf. 414), where the development of the statute is concisely set forth by the learned Surrogate, that nephews and nieces are in the same degree of kinship as uncles and aunts, and should in that case share equally. The words "legal representatives" are held not to affect this rule. The Surrogate observes: "Before we can find rep- resentatives we must designate the person whom they represent; and thus as on one side we would proceed from the nephew to the brother, so on the other side, from the uncle to the grandfather, and each would be in the second degree." Representation never changes or advances the degree; though where the degrees are unequal, it operates when declared by the statute to give the representatives of a deceased person the share they would have taken if living. Ibid. § 1127. The scheme of the statute. — Probably Mr. Remsen has most satisfactorily covered this subject. It belongs properly to a treatise on substantive law. But some anaylsis of the statutes is proper in order to properly frame a decree. It seems proper to do this by illustrative diagrams, annotated, exem- plifying the rule under each subdivision of the statute. In the square in these diagrams D will represent the decedent W=wife H= husband F =father M = mother C= child GC= grandchild B= brother S= sister A==aunt U= uncle N= nephew or niece DIAGRAM I w m '/3 and so on. Deceased beneficiary squares will be shaded ^ Subdivision 1. This is a typical case. The decedent leaves a widow (or husband) and one living child, and two children of a deceased child. Under subd. 1, the widow gets one- third. This leaves two-thirds as the residue, which goes "in equal portions among the children and such persons" as legally represent predeceased chil- dren. This makes subd. 11, applicable, i. e., GC and GC take "according to their respective stocks." It will be noted that in this situa- tion, i. e., of a wife and descendants surviving, we are not concerned with parents or collaterals, however numerous they may be. % '/iO/^^ry^ \'/iOf%<"-'/3\ 1178 surrogates' courts But we are concerned with certain questions as to what is meant by -"children." Is the scheme affected by their being "adopted," or "afterborn" or ^'illegitimate"? Or what effect has the annulment of a marriage on previously born offspring? Before answering these inquiries we may note that where a will provides that lapsed legacies shall go to "next of kin" according to statute of dis- tribution, a "widow" or "husband" will be excluded. Matter of Devoe, 171 N. Y. 281; Murdoch v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 N. Y. 36; Piatt v. Mickle, 137 N. Y. 106. We also note that the acceptance of a devise in lieu of dower will not preclude the widow from sharing in personalty given to "persons entitled thereto under the statute." Matter of Mersereau, 38 Misc. 208. § 1128. Adopted children. — As is pointed out in part V treating of adop- tion, a valid adoption gives to the child all the rights of that relation, in- cluding the right of inheritance. Reference may be had to ch. I of part V, merely reiterating the rule that as the adoption of children is wholly regulated by statute and the right of inheritance depends upon the regu- larity of the proceedings in compliance with the statute, a child standing upon this right as an adopted child, must if the issue is raised, affirmatively prove compliance with such statute. See Dodin v. Dodin, 17 Misc. 35; JSimmons v. Burrell, 8 Misc. 388. In Matter of Hopkins, 102 App. Div. 458, a stepchild, adopted after the making of a will, was held not within the intent of the testator in using the word "children" in his will. But had there been no will, the child would have shared. In Theobald v. Smith, 103 App. Div. 200, it was held that a child adopted before the amendment to the statute became operative (Laws, 1887, ch. 703), acquired at the mo- ment it became operative the rights of inheritance, and that her status was determined by the statute as in force at the death of the one from whom she claimed to inherit. But this right of inheritance, mutual between the child and foster parent, •does not extend to give the child inheritance from others through the foster parent. Kettell v. Baxter, 50 Misc. 428. § 1129. Afterborn children. — (See subd. 14.) A child born after the mak- ing of a will by its father or its mother, if the parent shall die leaving such child unprovided for by any settlement or in any way mentioned in said will, is entitled to a distributive share of the personal estate equal to what it would have received had the parent died intestate, and is given a cause •of action to recover the same from devisees and legatees in proportion to and out of the parts devised and bequeathed to them by said will. 2 JR. S. 65, § 49; Matter of Huiell, 6 Dem. 352; MaUer of Murphy, 144 N. Y. 557, 561. Stachelberg v. Stachelberg, 124 App. Div. 232. It appears from this case that the settlement referred to in the statute is one outside of the will and that proof is admissible before the Surrogate on the question of whether or not such settlement has in fact been made. It is of course clear that the share which such afterborn child has in the parent's estate is in DISTEIBUTION AND DESCENT 1179 the surplus remaining after the payment of debts and administration charges. The court points out in the case last cited, that where a mother makes a will not providing for an afterborn child, the birth of such a child after the making of the will did ndt operate to revoke it, but merely ren- dered it ineffective as to that portion of the estate which if the mother had died intestate would have been distributed to her as the next of kin. See also Tavshanjian v. Abbott, 59 Misc. 642; Minot v. Minot, 17 App. Div. 520; Matter of Morgenstem, 9 Misc. 198. See Revocation of Wills, ante. § 1130. Effect of annulling marriage. — This is covered by § 1749 since the amendment of 1903, ch. 225. Issue; when entitled to succeed, et cetera. — A child of a marriage, which is an- nulled on the ground of the idiocy or lunacy of one of its parents, is deemed, for all purposes, the legitimate child of the parent who is of sound mind. A child of a marriage, which is annulled on the ground that one or both of the parties had not attained the age of legal consent, is deemed, for all pur- poses, the legitimate child of both parents. § 1749, Code Civil Proc. § 1131. Illegitimate children. — Subdivision 9 provides that the mother of one who is illegitimate, and who dies leaving no child descendant or widow, shall take the whole estate and shall be entitled to letters of ad- ministration in exclusion of all other persons, and if the mother be in such contingency dead the relatives of the decedent on the part of the mother shall take in the same manner as if the decedent had been legitimate. See Matter of Lutz, 43 Misc. 230, where sister of the full blood of an illegitimate son took by their deceased mother's right in spite of next of kin of father who claimed a valid adoption of the son. The son might be .given rights thereby, but held, the rights given by subd. 9 were not thereby impaired. Subdivision 15 provides that if a woman die leaving illegitimate chil- dren and no lawful issue, such illegitimate children inherit her personal property as if legitimate. This subdivision was added by Laws 1897, ch. 37. The burden of establishing illegitimacy rests upon those contesting the right of the one claiming as a child, and in the absence of evidence to the contrary, a child, eo nomine is presumed legitimate. Matter of Matthews, 153 N. Y, 443, 446. By act of the legislature (Laws of 1895, ■ch. 531), provision is made legitimizing all illegitimate children whose parents have intermarried. They are considered legitimate for all pur- poses and are given all the rights and privileges of legitimate children, ex- cepting that .the act is not to be deemed to affect vested interests or es- tates. See Matter of Schmidt, 42 Misc. 463. It will be noted that the language of subd. 15, giving to illegitimate children a right they did not previously have, is not to be extended; there- fore, they will not inherit property of an ancestor of the mother. Matter ofMariclo, 63 How. Pr. Rep. 62. That is, the same rule applies as governs ■adopted children. They inherit from, but not through. 1180 surrogates' courts § 1132. Subdivisions 2 and 3. Subd. 2 DIAGRAM II I ^ NEXT OFKIN w ■ % Subd. 3 No children nor legal representatives of any DIAGRAM ni No parent If there be a widow and no de- scendants she takes one-half and the "next of kin" the other half. But, this is a general provision, re- quiring, for the elucidation of "next of kin" who divide with the widow, reference to other subdivisions below. Subd. 3 DIAGRAM IV No parent w '^^^^^A No brother, sister, (b) Yi9k^A — nephew or niece All 1 surplus No surplus No descendant plus all residue descendant " if it does not exceed $2000 Note limiting effect this has on subd. 2. Diagram of subd. 2 showing interest of "next of kin" does not diminish W's right if the situation pre- sented in diagram iv exists. Matter of Hardin, 44 Misc. 441. § 1133. Subdivisions 4 and 5— No widow. Subd. 4 DIAGRAM V m No widow I % % Here there is no widow but there are " children.' They take all, in equal shares, per %tirpes DIAGRAM VI Subd. 5, first paragraph No widow- Then all to next of kin legal representativeB. * in equal degree to the deceased, and their No children or descendants This requires some further illustration. And first we refer to subd. 12, which has had a kaleidoscopic career. (a) It read that no representation shall be admitted among collaterals after brothers' and sisters' children. (b) In 1898 it read that representation should be admitted among col- laterals in the same manner as allowed by law in reference to real estate. (c) Now it reads, "No representative shall be admitted among collat- erals after brothers' and sisters' descendants. The language of subd. 5 as now amended makes this situation perfectly explicit. That is, under a DISTRIBUTION AND DESCENT 1181 where property went to brothers or sisters, representation ceased with their children. Grandnephews and grandnieces could not take. Matter of DeVoe, 107 App. Div. 245. But under b, this limitation was removed: the statute of descent rule was made applicable and the descendants, in whatever degree, of deceased brothers and sisters took per stirpes. This seemed to open a wide avenue of distributable interest. The Public Administrator of Kings County administered an estate where decedent left no husband, ancestor, descendant, brother or sister. But she was survived by a nephew and niece, two uncles, two aunts, forty-five first cousins, thirty-three second cousins and one third cousin, a grand total of €ighty-one next of kin, the cousins being descendants of and representing deceased uncles and aunts. Confronted and confused with this collateral cohort the Surrogate decreed division into eighty-one shares and distribu- tion accordingly. On appeal. Matter of Davenport, 67 App. Div. 191, aff'd 172 N. Y. 454, this was reversed, by holding applicable also subds. 5 and 10, namely, 5, "next of kin, in equal degree," 10, equality of shares of those in equality of degree. It was clear, then, that the nephew, the niece, the two uncles and the two aunts were all of equal degree of nearness. Held, there was no power to invoke the rule of representation to bring in those of lesser degree of nearness. The court said, had there been none of those six surviving, but only their or any of their descendants then the rule of representation would be followed as allowed in reference to real estate. Judge Cullen's dissenting opinion, 172 N. Y. 459, doubtless had some influence in inducing the repeal of b. c, accordingly, now stands, restoring the rule as before 1898 save that "brothers' and sisters' descendants" makes clearer the word "children" that was formerly in lieu of "descendants." See Matter of McMillan, 126 App. Div. 155, and Matter of Peck, 57 Misc. 535, decided under statute as amended in 1898. See Matter of Nichols, 60 Misc. 299, where uncles and aunts took (3d de- gree) excluding cousins (4th degree). Returning therefore to subd. 5, we find the "next of kin" limited by subd. 10, the "equal degree" clause, and by subd. 12. "No repre- sentation after brothers' and sisters' descendants." DIAGRAM VII Subd. 5, last paragraph B Vz Whole surplus to brothers aod sisters if aS, living. No Descendants 1182 ffoW/cfow surrogates' courts a/lto DIAGRAM Vin Ye. /a ^ m rl y*. 'A tfo Descendants § 1134. Subdivision 6. In this situation, the widow gets one-half and the other half goes "in equal shares to M, B and S." And descendants of B or S or both (if deceased) will take "ac- cording to their respective stocks." Living brother=J Living nephew=J Living grandneph- ews, each=J "If any (brother or sister) be dead' ' to the "descendants in . jSjj^ whatever degree o f those dead." See for illustration, h|^ Matter of Prote, 54 Misc. 495. HH* DIAOBAM IX If we shade % No father Nil B w '/a 1 No children or descendants S which means there is no widow, then the whole surplus goes to M, B and S, and descendants per stirpes. § 1135. Subdivisions 7 and 8. DIAOBAM X DIAGRAM XI No widow No child or descendants The decedent, being childless, and a father surviving, that father sharea with widow equally, or takes all if there be no widow. This is regardless of the existence of brothers or sisters. Thus, subds. 6 and 8 show the lesser right of the mother. We saw under subd. 6 that M shares with B and S, where F under subd. 7 does not. Under subd. 8 we note DIAGBAM XII No father No brother, or sister or their descendants No child or descendant DISTRIBUTION AND DESCENT 1183; No parent DIAGRAM XIII half brother No widow own brother No descendants But if there be no widow then M gets all. See for illustrative case, where the intestacy was partial under a will, Pomroy v. Hincks, 180 N. Y. 73. § 1136. Subdivisions 9-15. — These need no special discussion, beyond what has already been given. A diagram will il- lustrate subd. 13 as to relatives of the half blood. B and B "take equally" as being in the same degree. If the half-brother were dead leaving issue, they would take " in the same manner as the representatives of the whole blood. § 1137. Distribution under § 1903. — The proceeds of an action for neg- ligent killing of the decedent are by § 1904 said to be a "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action is brought." Section 1902 says the action may be brought by the representative of one who has left a "husband, wife, or next of kin." Section 1905 says "next of kin" has the meaning specified in § 1870,, which in turn reads: "The term 'next of kin' .... includes all those entitled, under the provisions of law, relating to the distribution of personal property, to share in the unbequeathed assets of a decedent .... other than a surviving husband or wife." Section 1903 says, "The damages .... are exclusively for the benefit of the decedent's husband or wife, and next of kin, and, when they are collected they must be distributed by the plaintiff as if they were unbe- queathed assets left in his hands." See Snedeker v. Snedeker, 47 App. Div. 471, as to apparent inconsistency between §§ 1903 and 1904. In Austin v. Metropolitan St. Ry. Co., 108 App. Div. 249, the plaintiff was decedent's father. She had separated from her husband, and was survived by him and by her parents. Under § 1904 held, the husband was entitled to prove "the fair and just compensation for the pecuniary injuries," for jure mariti he was the only person entitled to "unbequeathed assets" under § 1870. Had this been a case of a widow surviving and parents, diagram X or XII would apply. CHAPTER VII VARIOUS LIMITATIONS APPLICABLE IN MATTERS AFFECTING DECEDENTS' ESTATES § 1138. Twenty-five years. — ^^Section 2785 of the Code provides as follows: Where the records of the surrogate's court have been heretofore, or are here- after, removed from one place to another, in either the same or another county, and twenty-^ve years have elapsed after a sale or other disposition of real property, or of an interest in real property, as prescribed in this title, the due appointment of a guardian for each infant party to the special proceeding must be presumed, and can be disproved only by aflSrmative record evidence to the contrary. § 1139. Twenty years. — Satisfaction of a decree for payment of a sum of money is presumed after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. § 376, Code Civ. Proc; § 382, subd. 7. See Matter of Warner, 39 App. Div. 91, as to justice's judgment, docketed in 1880, i. e., before amend- ment in 1894 of §§ 376, 382, 3017, Code Civ. Proc. Section 1596 of the Code gives the widow twenty years in which to commence an action for dower, excepting in the case of the existence of disabilities; minority, insanity or imprisonment for a term less than life. § 1140. Ten years. — All actions not otherwise specifically covered. § 388, Code Civ. Proc. Any matters over which, before Code, equity held exclusive jurisdiction. Butler V. Johnson, 111 N. Y. 204. See distinction in Matter of Rogers, 153 N. Y. 316, 323, between equitable actions, where ten-year statute applies, and actions at law to recover a demand that is due, where six-year statute applies. Matter of Latz, 33 Hun, 618. The Rogers case held that the ten- year limit applied to compelling an executor of a deceased representative to account. See also Matter of Lesser, 119 App. Div. 507. E. g., an action, under §§ 1843-1860, against heirs or devisees, to charge lands with decedent's debts. Mortimer v. Chambers, 63 Hun, 335. Application by administrator de bonis non to compel representative of deceased representative to account under § 2606. Matter of Rogers, 153 N. Y. 316. Application to revoke probate of heirship. § 2658, Code Civ. Proc. § 1141. Six years. — An action upon a contract obligation, express or implied; except a judgment or sealed instrument. § 382, Code Civ. Proc. subd. 1. See Matter of Warner, supra. See as to effect on claim for eleven 1184 VARIOUS LIMITATIONS, ETC. 1185 years' services, Matter of Meehan, 29 Misc. 167. This includes special proceedings, § 414, Code Civ. Proc. This covers, therefore, the obligation to account. Garvey v. N. Y. Life & Trust Co., 27 N. Y. St. Rep. 389; Matter of Van Dyke, 44 Hun, 394; Matter of Miller, 15 Misc. 556. See also Matter of Irvin, 68 App. Div. 158, 161. See also Matter of Pond, 40 Misc. 66, citing Church v. Olendorf, 19 N. Y. St. Rep. 700, and Matter of Rogers, supra. In Matter of Cruikshank, 40 Misc. 325, a successor trustee sought to compel an accounting by his predecessor's executrix in order to compel payment of a judgment in his favor. Held, the six, and not the ten-year statute controlled. By guardians also. Matter of Van Derzee, 73 Hun, 532. The time runs from the expiration of one year, for that is the time within which account may be required after granting of letters. Matter of Bradley, 25 Misc. 261; Matter of Perry, 37 N. Y. St. Rep. 576. It covers also obligation to account of one who administers an estate as agent of an executrix. Matter of Waite, 43 App. Div. 296, 301, and cases cited. "The trust arising out of an agency is not such as to prevent the running of the statute. Ibid., citing Budd v. Walker, 113 N. Y. 637; Mills V. MiUs, 115 N. Y. 80, 86. Application by next of kin to compel account under § 2606. Matter of Rogers, 153 N. Y. 316; Matter of Boy Ian, 25 Misc. 281. Time to sue for a legacy or distributive share is after expiration of one year from granting of letters. § 1819, Code Civ. Proc. But statute does not run until the representative's account is judicially settled. Id., and Matter of Irvin, 68 App. Div. 158, 159; Matter of Rogers, supra; Matter of Watson, 64 Hun, 369. This does not revive debts or legacies barred be- fore the Code of Civil Procedure went into effect. Butler v. Johnson, 111 N. Y. 204. See Matter of Miller, 15 Misc. 556, holding the six-year statute rather than the ten-year applicable to proceedings to enforce the payment of a legacy or distributive share. See cases cited, pp. 559, 560. In Matter of Cooper, 51 Misc. 381, it was held the limitation of § 1819 applies to actions and not to a procee&ng in the Surrogate's Court to compel payment. The petitioner was at the time of the accounting an infant, duly cited, but no guardian ad litem had been appointed. Held, no statute ran against her until from and after her majority. Legacy payable on A's majority. See Smith v. Remington, 42 Barb. 75. An action to establish a will, § 358, Code Civ. Proc. subd. 6, which also prescribes when statute begins to run. As to disputed claims, the entry of the order of reference is the date of "the commencement of an action." Leahy v. Campbell, 70 App. Div. 127. § 1142. Five years. — Section 392 of the Code provides as follows: Cause of action accruing between the death of a testator or intestate, and the granting of letters. For the purpose of computing the time, within which an action must be 75 1186 surrogates' courts commenced in a court of the state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary, or letters of administration; or to recover damages for taking, detaining, or injuring personal property within the same period; the letters are deemed to have been issued, within six years after the death of the testator or intestate. But where an action is barred by this sec- tion, any of the next of kin, legatees or creditors, who, at the time of the trans- action upon which it might have been founded, was within the age of twenty- one years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. § 1143. Four years. — Section 46 Deced. Est. Law, formerly § 2628 of the Code provides as follows: When purchaser from heir protected, notwithstanding a devise. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded as a will of real property in the office of the surrogate having juris- diction, or established by the final judgment of a court of competent jurisdic- tion of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or without the state; or, if the will was concealed by one or more of the heirs of the testator, the limitar tion created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his representative, or to the proper surrogate. § 1144. Three years. — Proceeding to sell lands to pay decedent's debts. § 2750, Code Civ. Proc. Time runs from granting of letters. Ibid. See as to letters granted three years before present Code, O'flyn v. Powers, 136 N. Y. 412. What litigation stops running of statute. § 2751, Code Civ. Proc. Section 2771 of the Code provides that the Surrogate may give three years' credit upon such sale. An action against a representative brought to recover a chattel, or damages for taking, detaining or injuring personal property, by the defendant, or the person he represents. § 383, Code Civil Proc. subd. 4. Section 1380 of the Code provides a three-year period within which execution may not be issued against the decedent's estate and continues the lien of a judgment for three years and six months after his death not- withstanding the previous expiration of three years from the filing of the judgment roll. VARIOUS LIMITATIONS, ETC. 1187 Section 2751 of the Code gives an executor or creditor three years in which to obtain a sale of land decreed to have been fraudulently conveyed by the decedent. § 1145. Two years. — Action under § 2653a, Code Civ. Proc. Section 2748 of the Code directs that, where a person entitled to a legacy or distributive share is unknown, a decree directing distribution must provide for the payment of such legacy to the county treasurer at the ex- piration of two years from the time the decree is made, or the time when the share is made payable. Section 1902 of the Code provides that where a person dies leaving next of kin and his death was due to negligence, his executor or administrator must commence an action for damages within two years after his death. § 1146. Eighteen months. — Section 391 of the Code provides that where a person dies without the State, a period of eighteen months after letters are issued, upon his estate are excluded from the running of the statutory time to commence an action against an executor or administrator upon a cause of action existing at the decedent's death. Section 2725 of the Code provides for a compulsory and intermediate accounting. Subd. 4. "Where eighteen months have elapsed since letters were issued, and no special proceeding, on a petition for a judicial settlement of the exec- utor's or administrator's account, is pending. § 1147. One year. — Revocation of probate on allegations of invalidity. Katz V. Schnaier, 87 Hun, 343. Time runs from entry of decree. Matter of Ruppaner, 15 Misc. 654. Compulsory or voluntary accoimtings by executors or administrators. §§ 2726, 2729, Code Civ. Proc. Section 2674 of the Code provides that one year after a temporary ad- ministrator has been appointed, he may have an order directing him to pay decedent's debts. Section 2635 of the Code provides that the Surrogate shall retain in his possession every will filed in his office for one year after it has been pro- bated. Section 2807 and § 2810 of the Code provides that voluntary or com- pulsory accountings by testamentary trustees may be had. § 1148. Six months.— Action on claim against decedent rejected by representative. § 1822, Code Civ. Proc. Effect of nonresidence of rep- resentative. Hayden v. Pierce, 144 N. Y. 512. Time runs from rejection if debt is then due. Wintermeyer v. Sherwood, 77 Hun, 193. If not then due it runs from first day any part becomes due. Statute suspended by offer to refer, if acted upon (Comes v. Wilkin, 79 N. Y. 129), and throughout the reference. § 411, Code Civ. Proc. Death of either party revokes the agreement. § 411, Code Civ. Proc. Statute cannot be evaded by changing form of claim. Titus v. Pook, 145 1188 surrogates' courts N. Y. 414. This short statement covers claims for funeral expenses paid. Koons V. Wilkin, 2 App. Div. 13. Section 2722 of the Code provides that a creditor may petition for the payment of his debt after six months ex- pire from the issuance of letters. Section 2673 of the Code permits the temporary administrator to ad- vertise for creditors when six months have expired from the date of his letters. Section 2718 of the Code provides for the publication for six months of a notice to persons claiming against the decedent. §1149. Three months. — Under new § 2718o if the representative pe- titions for the determination of a creditor's claim by the Surrogate, the return day is "not less than three months" after service of the citation. If he (the creditor) shall not have commenced an action against the peti- tioner upon his claim prior to the return day, the claim shall be deemed for- ever barred, unless on the return day he shall consent to its determination by the surrogate. Supplemental Notes as to Effect on Statute of Sundry Conditions Where cause of action accrues between death of testator or intestate and the grant of letters. See § 392, Code Civ. Proc. Effect of bankruptcy proceedings. Von Sachs v. Kretz, 72 N. Y. 548. Disabilities which prevent running of statute. § 396, Code Civ. Proc. E. g., "infancy." Matter of Pond, 40 Misc. 66; Matter of Rogers, 153 N. Y. 316. Effect of nonreside'nce. §§ 390, 401, Code Civ. Proc. does not cover mere absence. Hart v. Kip, 148 N. Y. 306. Effect of death without the State. § 391. within the State. § 403. Hall v. Brennan, 140 N. Y. 409. before limitation runs. § 402. How to compute periods of limitations. § 415, Code Civ. Proc. Statute does not begin to run in favor of wrongdoing trustee until he openly, to the beneficiary's knowledge, renounces, disclaims or repudiates the trust. Lammer v. Stod- dard, 103 N. Y. 672; MerriU v. Merritt, 32 App. Div. 442; Putnam v. Lincoln S. D. Co., 49 Misc. 578, and cases cited. But as against a trustee ex maleficio, the statute runs from the commission of the wrong. Ibid. Same as to general guardian. Matter of Camp, 50 Hun, 388. Same as to executor. Matter of Ashheim, 185 N. Y. 609. Same as to administrator. Matter of Williams, 57 Misc. 537. Nor does it begin to run in favor of neghgent executor, until the occurrence of the neghgent or wrongful act complained of. Harrington v. Keteltas, 92 N. Y. 40. Statute does not run against representative to whom decedent was indebted dur- ing time between death and first judicial settlement. O'Flyn v. Powers, 136 N. Y. 412; Matter of Macomber, 2 Connoly, 278. This does not include debt' due third party but assigned to representative. Matter of Bobbins, 7 Misc. 264. Statute does not run in favor of heir or devisee of a debtor during three years after debtor's death. § 1844, Code Civ. Proc. Adamsv. Passett,li9N.Y.'51. Statute does not run in favor of representative into whose hands assets have come for which he has never accounted, and he has not renounced the trust or been dis- charged. Matter of Taylor, 30 App. Div. 213. VARIOUS LIMITATIONS, ETC. 1189 Nor against creditor who presents claim which is not disputed, though accounting is delayed nine years. Matter of Harmon, 46 Misc. 229. If a trustee pleads the statute, he must show the lapse of the statutory period since the repudiation of the trust and must so plead specifically. Matter of Meyer, 98 App. Div. 7, and cases examined. Matter ofAshheim, 111 App. Div. 176, aff'd 185 N. Y. 604; Matter of Anderson, 122 App. Div. 453. It seems no statute of limitations runs against collecting the transfer tax. Laws 1899, ch. 737, retroacts to remove a prior limitation. Matter of Moench, 39 Misc. 480. INDEX TO PRECEDENTS OR FORMS References are to pages. Accountings: Administration c. t. a. : Administration de bonis non: Administration, General: Administration, Public : Administration, Temporary: Admission: Adoption: Affidavits: Table of final compulsory accountings, Form of account of proceedings, Affidavit to account, Petition for compulsory account. Decree judicially settling account. Petition for letters. Petition for letters, Petition for letters, Consent to, joint administration. Petition for order to seize personal property, Affidavit on such application, Order to seize personal property. Application for inquiry as to concealed or with- held property. Order for inquiry. Citation to appear after inquiry had. Order indorsed on such citation. Affidavit to obtain order to sell perishable property. Order to sell perishable property. Notice by public administrator of application for permanent letters. Petition of public administrator for letters, Notice of motion for appointment of tempo- rary administrator. Affidavit on motion for appointment. Order for letters. Petition for appointment under subd. 2, § 2670 Form of order under subd. 2, Admission of service of citation and consent to probate (see Probate), Agreement of adoption under domestic rela- tions law. Statement as to age of minor to be adopted. Order of adoption under domestic relations law, Affidavit of mailing citation and order, of special guardian upon his appointment, of parent or person with whom infant re- sides on appointment of special guard- ian, to procure examination of aged, sick or infirm witness, 129, 130 1191 1100 1104 1109 1118 1173 504 580 562 564 637 638 638 640 641 641 642 643 43 645 645 533 534 535 536 537 395 739 741 741 67 89 90 1192 Affidavits — continued. Aged: Agreement : Ancillary Guardians: Annuity Table: Answer: INDEX TO PRECEDENTS OR FORMS References are to pages. on application to enforce decree by pun- ishment for contempt, 167 to bill of costs, 243 of intention to file objection to granting of letters, 481 on motion for appointment of temporary administrator, 534 on application by public administrator to seize personal property, 638 by public administrator to obtain order to sell perishable property, 643 for compulsory return of inventory, 782 as to assets of decedent (see Transfer Tax), 920 as to infant's property on application to appoint general guardian (see Guardian), 1041 to account by representative, 1109 of sufficiency of sureties, 696 Aged, infirm, or sick witness. (See Witness.) Agreement to refer disputed claim, of adoption (see Adoption), Petition for appointment, Appeal: Application: Appraisal of Estate (see also In- ventory) : AnsweAin contested probate, to objections to grant of letters, in proceedings for discovery of property withheld (see Discovery of Property), to application to compel return of inven- tory, to interrogatories in contempt proceed- ings (see Contempt), Notice of appeal from order fixing transfer tax, of appeal, general. Undertaking on appeal. Application for order designating paper in which to publish notice for claims (see Claims), 810 739 1052 1000 301 482 760 785 173 905 198 202 798 For commission under § 888, 125, 126 Attachment: Bill of Costs: Bond: Bonds of Executors, Adminis- trators, etc. : Application for appointment, of appraiser, 763 Order appointing appraiser, 763 , Notice of appraisal, 763 Skeleton of inventory, 765 Affidavit for a compulsory return of inven- tory, 782 Order to compel filing, 784 Attachment for contempt (see Contempt), 171 243 Clause in bond, required upon payment of leg- acy by § 2723, 941 Petition for leave to deposit securities to re- duce penalty of bond, 693 Order directing such deposit, 694 INDEX TO PRECEDENTS OR FORMS References are to pages. Bonds of Executors, Administrators, etc. — continued. General form of bond, 1193 Certificate: Citation; Claims of Creditors: Commission: Complaint: Compromising Claims against Decedent's Estate: Compulsory Filing of Inventory: Consent: 695 Identification of person executing bond, 696 Affidavit of sufficiency of sureties, 696 Petition to compel executor to give new bond or new surety, 715 Order requiring executor so to do, 716 Application by sureties for substitution of new sureties, 716 Order for citation on such application, 719 Order releasing original surety from further liability, 719. Clause requisite on payment of legacy, 941 Certificate as to disability or disqualification of Surrogate, under § 2485, 16 of Surrogate as to examination of aged, infirm or sick witness, 131 of probate (see Probate), 400 Petition for citation, general form, 65 Order for citation, 65 General form of citation, 66 Proof of service of citation, 66 Proof of mailing citation and order under § 2524, 67 Order for service under § § 2522, 2523 , 72 Short form order for citation and publication, 73 Citation upon revocation of probate (see Rev- ocation of Probate), 312 on probate of heirship (see Probate of Heirship), 431 to appear in proceedings to discover con- cealed property (see Public Adminis- tration), 641 Application for order designating paper in which to publish notice for claims, 798 Order designating papers, 798 Notice to creditors, 799 Form in which to present claims, 800 Verification, 800 Notice disputing claim presented, 810 Agreement to refer claim, 810 Order referring disputed claims, 811 Application for, 125 Order directing, 126 In action to establish a will, form of, 462, 463 Petition for leave to compromise. Order granting leave to compromise. (See Inventory.) To probate (see Probate), To joint administration. Of proposed general guardian in proceedings to appoint general guardian (see General Guardian), 791 792 395 664 1041 1194 INDEX TO PRECEDENTS OR FORMS Consent — continued. Contempt Proceedings: Contested Probate: Costs: References are to pages. Of Special Guardian, Affidavit on application to enforce decree by punishment for contempt, Order to show cause in contempt proceedings, for warrant of commitment without no- tice to disobedient party, for such warrant upon return of an order to show cause. Warrant of commitment, Attachment for contempt, Indorsement of Surrogate required thereon. Order directing interrogatories in contempt proceedings, Interrogatories, Answer to interrogatories, Order for commitment, (See Probate.) Skeleton bill of costs. Affidavit to such bill. Debts of Decedent, Compelling Pa3mient of: Decrees: Deposit of Securities to Reduce Penalty of Bond: Deposition: Discovery of Property Withheld: Disposition of Real Property to Pay Decedent's Debts: Petition to compel payment of a debt, Decree for such payment under § 2722, Decree granting probate, no contest, after contest, admitting lost or destroyed will to pro- bate, refusing probate. Decree revoking probate, for probate of heirship, Clause in, granting ancillary administration, in proceedings to discover property with- held, for payment of a debt under § 2722, appointing general guardian, clause in such decree limiting the let- ters, judicially settling account, with clause as to distribution and discharge, revoking letters, (See Bond.) Petition for. Order directing such deposit, Of subscribing witness to will. Petition by representative for such discovery. Order under § 2708 Tequiring person to attend for examination, Answer under § 2709 by such person. Decree in proceedings to discover property withheld, Petition in the proceedings confirming fhe sale, 89 167 168 168 169 169 171 171 172 172 173 173 243 244 851 857 397 398 401 400 418 432 596 761 857 1040 1046 1173 684 693 693 397 753 756 759 761 970 993 INDEX TO PRECEDENTS OR FORMS References are to pages. 1195 Disqualification or Disability of Surrogate: Domestic Relations Law: Examination of Aged, Infirm or Sick Witness under §§ 2539 to 2640: Examination of Person With- holding Property in Proceed- ings to Discover Same: Executor: Guardian Ad Litem: Guardian, Ancillary: Guardian, General: Heirship: Infant: Certificate as to such disability or disqualifi- cation under § 2485, 16 Proof of authority required by § 2487, 17 Order designating an acting Surrogate under § 2487, 18 Order remitting proceedings under § 2491, 20 (See Adoption.) Affidavit to procure examination under § 2539, 129 Order for examination, 129 Notice of such examination, 130 Record of such examination, 130 Certificate of Surrogate as to such examina- tion, 131 Order requiring person to attend for examina- tion, 756 Answer of person required to attend, 759 Decree on such examination, 761 Oath of, 475 Renunciation by, 477 Retraction of renunciation, 477 Petition by infant over fourteen years of age for appointment of special guard- ian, 86 for such appointment when infant is un- der fourteen years of age, 87 Consent of special guardian, 89 Affidavit of special guardian, 89 of parent or person with whom infant re- . sides. Order appointing special guardian. Report of special guardian in probate proceed- ings, Petition for appointment. Petition by infant over fourteen for appoint- ment of general guardian. Affidavit as to infant's property, Consent of proposed general guardian Oath, Decree appointing general guardian, Clause limiting letters. Order suspending powers pending revoca- tion, (See Probate of.) Petition by infant over fourteen for appoint- ment of special guardian, for appointment of special guardian for infant under fourteen years of age (see Guardian Ad Ldtem), 90 91 397 1052 1041 1041 1041 1041 1040 1046 1057 86 87 1196 INDEX TO PRECEDENTS OR FORMS References axe to pages. Inqixiry by Public Administrator as to Concealed or Withheld Property : Interrogatories: Intervention: Inventory Appraiser: Issues of Fact: Judicial Settlement of Account: Jury Trial of Issues in Surro- gate's Court: Letters of Administration c. t. a. : Letters of Administration de bo- nis non: Letters of Administration, Gen- eral: Letters of Ancillary Administra- tion: Letters of Public Administration: Letters of Temporary Adminis- tration: Legacies; Compulsory Payment of: Letters, Revocation of: Letters Testamentary: Application for, Citation to appear after inquiry had, Order indorsed on such citation, In contempt proceedings. Answer to interrogatories. Petition for leave to intervene, Order allowing intervention. Application for appointment of appraiser, Order appointing appraiser. Notice of appraisal, Skeleton inventory, Affidavit for compulsory return of inventory. Order to compel filing of inventory, Answer of executor or administrator on such application, (See Jury, Trial.) (See Account.) Order directing such trial, transferring probate proceedings for jury trial, Petition for, Petition for such letters, Petition for such letters, Consent to join in administration. Petition for, (See Public Administration.) Notice of motion for appointment of tempo- rary administrator, Affidavit on such motion. Order for letters, Petition for appointment of temporary ad- ministrator under subd. 2 of § 2670, Form of order imder such subdivision, Petition to compel, under § 2723 to secure payment for sup- port or education of petitioner. Clause of bond on such application. Petition to compel repayment of legacy, Order upon such objections, Petition for revocation, Decree revoking letters. Affidavit of intention to file objections against grant of letters, Objections to granting such letters, Answer to such objections, Order for inquiry and stay. 640 641 642 172 173 106 107 763 763 763 765 782 784 785 144 144 504 580 562 564 595 533 534 535 536 537 934 940 941 954 483 682 684 481 481 482 482 INDEX TO PRECEDENTS OR FORMS 1197 References axe to pages. lost or Destroyed Will: Decree admitting to probate, 401 Mailing Citation and Order: Affidavit of, 67 Notice: Notice of examination of aged, sick or infirm witness, 130 of appeal, general, 198 of application for order for production of witness under § 2618, 307 of motion for appointment of temporary administrator, 533 of application by public administrator for permanent letters, 645 of inventory and appraisal, 763 to creditors to present claims, 799 of application for order designating paper in which to puBlish such notice, 798 disputing claim and offering to refer, 810 of appraisal under transfer tax, 889 of appeal to Surrogate from order fixing tax, 905 Notice of motion on application to remit trans- fer tax penalty, 912 Oath: Of executor, 475 Of general guardian, 1041 Objection to Granting Letters: Affidavit of intention to file objections, 481- Form of objections, 481 Answer to objections, 482 Order for inquiry and stay, 482 Order on objections, 482 Objection to Probate: (See Answer; Probate), 301 Orders: Order under § 2487 designating acting Surro- gate, 18 remitting proceedings back to Surrogate's Court under §2491, 20 for citation, general form, 65, 66 for service of citation under § § 2522, 2523, 72 for citation and service of same by publi- cation, short form, 73 appointing special guardian, 91 for intervention, 107 for commission, 126 for examination of aged, sick or infirm witness, 129 directing trial of issues by jury, 144 transferring probate to Supreme Court, 144 to show cause why one should not be pun- ished for contempt, 168 for warrant of commitment without no- tice to disobedient party, 168 for such warrant on return of order to show cause, 169 directing interrogatories, 172 of commitment, 173 for production of witnesses on probate, 306 for inquiry into objections with stay, 482 1198 INDEX TO PEECEDENTS OB FORMS Orders — continued. Payment of Debts: Payment of Legacies: Petition: References axe to pages. upon objections, 482 for letters of temporary administration, 535 for such letters under subd. 2 of § 2670, 537 to seize personal property by public ad- ministrator, 638 for inquiry as to concealed or withheld property, public administrator, 641 indorsed on citation to appear after in- quiry, 641 to sell perishable property, public admin- istrator, 643 directing deposit of securities under § 2595 to reduce penalty on bond, 694 Order requiring executor to give bond or new surety, 715 for citation on application to substitute new sureties, 719 releasing original surety from further lia- . bility, 719 of adoption under Domestic Relations Law, 741 under § 2708 requiring person to attend for examination as to property with- held, 756 appointing inventory appraiser, 763 to compel filing of inventory, 784 granting leave to compromise claims, 792 designating papers in which to publish notice for claims, 79S referring disputed claims, 811 fixing transfer tax, 901 remitting ten per cent penalty, 912 confirming sale in such proceedings, 993 suspending powers of guardian, pending revocation of letters, 1057 (See Debts of Decedent.) Petition to compel, 934 to secure payment for support or educa- tion of petitioner, 940 Form of bond required on such application, 941 Petition for citation, general form, 65 to compel a repayment of legacies, 954 for leave to dispose of decedent's real property to pay debts, 970 for leave to resign a testamentary trust, 1020 by infant over fourteen for appointment of general guardian, 1040 for letters of ancillary guardianship, 1052 for compulsory accounting, general form, 1118 by infant over fourteen for appointment of special guardian, 86 when infant is under fourteen, 87 for leave to intervene, 10& INDEX TO PRECEDENTS OR FORMS References are to pages. 1199 Petition — continued. Probate of Heirship: Probate of Will: Probate, Revocation of: for probate, 272 for production of subscribjing witnesses, 306 for revocation of probate, 412 for probate of heirship, 430 for letters of administration c. t. a., 604 for appointment of temporary adminis- trator, 536 for letters of administration, general, 562 for letters of administration de bonis non, 580 for ancillary letters, 595 by public administrator for letters, 646 for order to seize personal property, 637 for inquiry by public administrator as to property, 640 to compel payment of debts, 851 for appointment of transfer tax ap- praiser, 886 for remission of ten per cent penalty un- der transfer tax proceedings, 911 for revocation of letters, 684 for leave to deposit securities to reduce penalty of bond, 693 Petition to compel executor to give bond or new surety, 715 by representative for discovery of prop- erty withheld, 753 for leave to compromise claim, 791 Petition for, 430 Citation upon, 431 Decree, 432 Petition for, 272 Verification, 273 Indorsed memorandum required on petition in New York County, 273, 274 Answer in contested probates, 301 Petition for production of witnesses, under § 2618, 306 Notice of application for order for production of witnesses, 306 Order thereon, 307 Waiver of issuance of citation and consent to probate, 395 Admission of service of citation and consent, 395 Deposition of subscribing witness to will, 397 Special guardian's report, 398 Decree granting probate, no contest, 397 granting probate, after contest, 398 Certificate of probate, 400 Decree admitting lost or destroyed will to pro- bate, 401 Order transferring, for a jury trial, 144 Petition for, 412 Citation on, 414 1200 INDEX TO PRECEDENTS OR FORMS References are to pages. Probate, Revocation of — corUinvsd. Proof of Authority: Decree revoking probate, To act in place of disabled or disqualified Sur- 418 Proof of Service of Citation: Personally, 11 60 By mail. 67 Public Administrator: Petition for order to seize personal property. 637 Affidavit on such application, 638 Order to seize personal property. 638 Application for inquiry as to concealed or with- held property. 640 Order for such inquiry. 641 Citation to appear after inquiry had. 641 Order to be indorsed thereon. 642 Affidavit to obtain order to sell perishable property, 643 Order to sell. 644 Notice of application by public administrator for permanent letters. 645 Petition by public administrator for letters. 645 Publication of Citation: Short form of order, 73 Ordinary form, 72 Publishing Notice for Claims against Decedent: Application for order designating paper. 798 Order designating papers. 798 General form of notice to creditors, 799 Form in which notice should be presented, 800 Record : Of examination of aged, infirm or sick witness. 130 Reference of Disputed Claims: Notice disputing claim. 810 Agreement to refer under § 2718, 810 Order referring disputed claim, 811 Remission: Of ten per cent penalty. (See Transfer Tax.) Petition for, 911 Notice of motion on application to remit. 912 Order remitting penalty, 912 denunciation: By executor. 477 Attestation thereof. 477 Report: Of special guardian, probate proceedings, 398 iiesignation of a Testamentary Trust: Petition for leave to resign, 1018 Retraction: Of renunciation. 477 Revocation of Letters: Petition, general form. 682 Decree, 684 Order suspending powers of guardian pending hearing. 1057 Revocation of Probate: Petition for, 412 Citation on. 414 Decree revoking probate, 418 Schedules: In account, 1114 Service of Citation: Affidavit of mailing citation and order, Order for service of citation under §§2622, 67 2523, 72 Short form of order for citation and service by publication, 73 INDEX TO PRECEDENTS OR FORMS 1201 References axe to pages. Service of Citation — continued. Special Gxiardian: Stay Pending Appeal: Subscribing Witnesses to Will: Sureties: Surrogate: Temporary Administrator: Transfer Tax: Trial of Issues in Siurogate's Court by Jury: Undertakings: Vacancy: Verification: Waiver: Warrant: Will, Lost or Destroyed: Witness: Admission of, 395 Waiver of, 395 (See Guardian Ad Litem.) Form of undertaking, when desired, 202 Deposition of, 397 Identification of, when executing bond, 696 Affidavit of sufficiency, • 696 Petition to compel executor to give new surety, 715 Order requiring executor to give new surety, 716 Application of sureties for substitution of new sureties, 718 Order for citation thereon, 719 Order releasing original surety, 719 (See Disqualification, Certificate and Proof of Authority.) Notice of motion for appointment of, 533 Affidavit on such application, 534 Order for first letters, 535 Petition for appointment under subd. 2 of § 2670, 536 Form of order, 537 Affidavit as to decedent's assets for informa- tion of State, 920 Petition for appointment of appraiser, 886 Notice of appraisal 889 Order fixing tax, 901 Notice of appeal from such order to Surrogate, 905 Petition for remission of ten per cent penalty, 911 Notice of motion on application to remit, 912 Order remitting such penalty, 912 Order directing such trial, 144 Transferring probate proceedings for a jury trial, 144 On appeal, 202 On appeal from commitment, 205 (See Certificate; Disqualification of Surrogate.) Of probate petition, 273 Of claim against estate, 800 Of issuance of service of citation with consent to probate, 395 Of commitment in contempt proceedings, 169 Order for such warrant without notice , 168 Order for such warrant on return of order to show cause, 169 Form of warrant (see Contempt Proceedings), 169 Decree admitting to probate, 401 Examination of aged, sick or infirm witness: Affidavit to procure such examination, 129 Order for such examination, 129 Notice of such examination, 130 Record of such examination, 130 Certificate to Surrogate of such examination, 131 76 1202 Witness — continued. Witnesses: Witness, Subscribing: INDEX TO PBECEDENTS OR FORMS References are to pages. Application for commission, 125 Order for commission, 126 Petition for production of on probate proceed- ings, 306 Notice of application for order under § 2618, 306 Order for such production, 306 Deposition of on probate, 397 GENERAL ANALYTICAL INDEX Hints as to its use: I. This index is analytical of the text. The " catchwords " are very numerous, but the cross-references are important in order to reach every page upon which the several subjects are discussed. II. This work being chiefly a commentary on Chapter XVIII of the Code of Civil Pro- cedure, frequently the readiest method of locating the discussion of a particular sub- ject will be to turn to the Index of Code sections, which shows not only where every section is cited, but also by italics where it is quoted. The general discussion usually follows the quoted section. The author has endeavored to make every proposition in the text available by means of this Index. References are to pages. Abatement. See Death. Proceeding in Suekogate's Court. On death of party, 108. Different from other proceedings, 110. Not covered by § 755, 110. by § 766, 110. Effect on publication, 81. if incomplete, 81. Proceeding to Probate Will. Cannot abate until will is refused, or admitted to, probate, 105, 109. Not even if proponent die, 105. Nor if aU parties die, 105. For it is proceeding quasi in rem, 105, 109. Proceedings to Judicially Settle an Account. Effect of death of accounting party, 109, 110, 1087. Proceeding in Personam. Abates on death of respondent, 109. e. g., compulsory accounting, 109. volxmtary accounting, 110. Proceeding to Sell Decedent's Realty, to Pay Debts. Exception, as to, 110. Any Proceeding Directed by Law, etc., 110. Abatement of Legacy: Defined, 950. Advantage of specific and demonstrative legacies, 950. General are subordinated to, 929. Principle not applicable in certain cases, 950. e. g., for support of child, 950. General rule governing, 950. 1203 1204 GENERAL INDEX [References are to pages.] Abatement of Legacy — continued. Ratable abatement, 951. Dower legacies, 951. Abrogation: Of adoption (see Adoption). Absentee. See Letters of Administration; subhead Temporary. Account. See Accounting for the Estate, for General Discussion. Accounting for the Estate; and Distribution (Part VIII, 1074 et seq.) : Analysis. Ch. I. The obligation, and accounting generally, 1074. II. Preparing the account, 1102, III. The procedure on accountings, 1116. IV. Commissions and compensation, 1137. V. Miscellaneous provisions, 1158. VI. Distribution and descent, 1163. VII. Various limitations, 1184. Parties to, 121. Effect of assignment of interest, 101. Law regulating such transfers, 102. Receiver of administrator, who is, 102. Allegation of interest, verified, gives petitioner status, 98, 99, 101. Powers of referee on, 132, 133 et seq. Limited to estates of $1,000 or over, 132. Amendment allowed by, 134. Or supplemental account, 134. What objections he is to act on, 138. To allow new or amended objections, 138. (See Referees in Surrogates' Courts.) Decree on, Where infant interested, 88. In N. Y. Co., made only after guardian's report filed, 88. Purport of such report, 88-89. (See below. Decree.) Costs of, (See Costs and Allowances in Surrogates' Courts.) The obligation to account, general, 1074. Not dependent alone on words of bond, 1074. Release from, by wills disregarded, 1074. Enumeration of those on whom it rests, 1074. May disappear on merger of interests, 1074. What is an, 1074-1075. Kinds of Account. Enumerated, 1075 et seq. Intermediate, defined, 1075. Code provision, 1075. Judicial settlement, defined, 1075. Code provision, 1075. Final, defined, 1075. Voluntary, defined, 1075. Compulsory, 1075. Surrogate's Jurisdiction Over, 1075 et seq. GENERAL INDEX 1205 [References are to pages.] Accounting for the Estate; and Distribution — continued. Sukrogatb's Jurisdiction Over — continued. Gives him incidental power to construe will, 436, 442, 443. (See Construction of Will by Surrogate.) Is a local jurisdiction, 1078. If assumed, exclusive of other Surrogates, 1077. Concurrent with that of Supreme Court, 45, 1076. Supreme Court only acts, where necessary, 46, 1076, 1080. Surrogate's Court peculiarly adapted, 1076. . Stay pending action in Supreme Court, 1076 Object of going into Supreme Court, 1077. If questions involved which Surrogate cannot try, 1077. His decision is res judicata, 1077. Table of four kinds of accounting, 1077. Showing who may account. Who may be made to. Code sections applicable to each case. Intermediate Accounting, 1078 et seq. Defined, 1084. Voluntary: Form and contents not arbitrary, 1080. By a representative, 1078. Code provision, 1078. To what extent conclusive, 1078. By testamentary trustees, 1079. Code provision, 1079. Not trustees under a deed, 1079. Compulsory: Surrogate's power to compel, 1080. Not if clearly unnecessary, 1081. A. As to representatives generally. Control over form and contents, 1080. Passing upon accuracy, 1080. Examination of accountant, 1080. Form and contents judicially summarized, 1080. Scrutiny milder than on judicial settlement, 1081. Power to refer, 1081. Running of statute of limitations, 1081. Where ordered on Surrogate's motion, is a special proceeding, 1081. Cases, when proper to compel, 1081 et seq. Code provision (§ 2725), 1081-1082. Section discussed, 1082 et seq. Subd. 1; execution on judgment against representative, 1082. Subd. 2; execution on judgment against decedent, 1082. Subd. 3; in proceedings for payment of legacy, etc., 1082. Subd. 4; after 18 months from letters granted, 1083. Importance of power, to stir up representative, 1083. Objections to inti^rmediate accounts may be filed and litigated, 1083. Code provision, 1083. Scope of such objections, 1083. Do not involve judicial settlement, 1083. Charging accountant for apparent waste, 1083. B. By others than executors and administrators, 1084. 1206 GENERAL INDEX [References are to pages.] Accounting for the Estate ; and Distribution — continued. Intermediate Accounting — continued. General guardians, 1084. Not to be judicially settled, 1084. Infonnatory, 1084. Special officer to examine under § 2844, 1084. Guardians by will or deed, 1084. Proceeding not ex parte, 1084. But on petition, 1084. Testamentary trustees, 1084. Code provision, 1084. What intended thereby, 1085. Landmarks of execution of trust, 1085. How prevented, 1085. Ancillary executors and administrators, 1086 Final Accounting: Voluntary. Three classes not entitled to, 1077, 1086 Temporary administrator, 1086. Freeholder on sale of realty, 1086. Executor de son tort, 1086. Who is entitled to have his account judicially settled, 1086. A. Executors and administrators, 1087 et seq. Code provision, 1087. Three cases, stated, 1087. (1) After one year from letters, 1087. (2) After notice to creditors published, 1087. (3) On return of compulsory citation, 1087. Abates by death of accountant, 109, 110, 1087. How revived, 1088, 1090. Administrator c. t. a., need not wait one year, 1088. Practice on, prescribed, 1088. Code provision, 1088. Proper parties, 1088. Account filed with petition, 1088. Issuance of citation, 1088. • Surrogate must give a hearing, 1088. Intervention of parties, 1088. (4) After letters revoked, 1088. Code provision, 1088. B. Executor, etc., of deceased representative, 1089 et seq. Code provision (§ 2606), 1089. Scope of this accounting, 1090. For any trust property in possession, 1090. Not formerly, for deceased representative's administration, 1090. Not necessary where a corepresentative survives, 1090. When consolidated with compulsory, 1089. May include all acts and doings ,of the decedent, 1089. Amendment of the statute relative to, 1089. Running of statute of limitation, 1091. Power to direct delivery of trust property, 1089. (See Executor, etc., op Deceased Executor.) C. General guardian, 1091. GENERAL INDEX 1207 [References are to pages.] Accounting for the Estate; and Distribution— confonwed. Final Accounting: Voluntary — continued. Procedure on, 1091. Code provision, 1091. Petition, 1091. Citation, 1091. Sureties entitled to, 1091. Affidavit annexed to account, 1091. Compensation of accountant, 1092. D. Guardian by will or deed, 1092. Code provision, 1092. Whom to cite, 1092. Other Code sections made applicable, 1092. Sureties necessary parties, 1092. Effect of decree rendered on, 1092. Code provision, 1092. E. Testamentary trustee, 1093. AflBdavit to account requisite, 1093. Code provision, 1093. Necessary parties, 1093. All entitled "absolutely or contingently" 1093. i. e., under the will, or by operation of law, 1093. Intervention of parties, upon, 1093. Upon the hearing, 1093. Certain Code sections made applicable, 1093. P. Person whose letters revoked, 686, 1093. Successor; if any, to be cited, 1094. Are temporary administrators included, 686. G. Holders of ancillary letters, 1094. Purpose of ancillary administration noted, 1094. Terms of decree, 1094. (See Ancillary Administration.) Final Accountings Compulsory, 1094 et seq. Tafile showing who amenable to, 1077. i. e., every kind of representative, guardian, trustee, etc., 1077, 1094. Power of Surrogate comprehensive, 1094. Table analyzing Code provisions, 1100. Showing who amenable. When amenable. At whose instance. Whom to cite. A. As to representatives generally, see table on p. 1100. When required, 1100, 1118. At whose instance, 1100. Code provision, 1116. See for procedure, that head, below. B. As to guardians, see table, 1101. When requh-ed, 1101, 1118, 1119. Code provision, 1094. At whose instance, 1094, see table, 1101. Includes guardians of person and by will or deed, 1094, 1101. By express Code reference, 1094. At ward's instance upon majority, 1095. 1208 GENERAL INDEX [References are to pages.] Accounting for the Estate ; and Distribution — continued. Final Accounting Compulsory — continued. The surety's right, 1096. Only in case letters were revoked, 1096. Special provision as to guardian of person, 1096. Code provision, 1096. Deceased guardians, 1096. Now covered by § 2606, 1096. As soon as executor of decedent appointed, 1096. Limitation, 1096. C. As to testamentary trustees, 1097. See table, 1101. When required, 1097. Code provision, 1097. At whose instance, 1097, see table, 1101. As to distinct trusts, 1097. Infant; guardian ad litem, 1097. Merged in voluntary account, 1098. Code sections made applicable to procedure, 1097. Power of Surrogate in settling the account, 1098. Code provision, 1098. Effect of the decree, 1099. Code provision, 1099. Preparing the Account, 1102 et seq. Form and contents, in general, 1075, 1102. Preliminary precautions, 1102. Keeping proper books, 1102. Incumbent on accounting party, himself, 1102. When expense of assistance allowed as disbiirsement, 1102. Office rent, 1102, 1156. Agents' commissions, 1102, 1156. Bookkeeper, 243, 1102, 1103, 1166. Accoimtant presumed to prepare his own account, 1102. Fees paid to attorney for, not credited to representative, 1103. * Commissions, etc., of representative supposed to pay for, 1103. Executors, etc., should demand items from counsel, 1103. Statute prescribes no form for account, 1103. Skeleton form of account, 1103-1105. Contents of account indicated, 1104, 1105. if no inventory was filed account should set out equivalent information, 1080, 1104ra. "Expenses of administration" discussed, 1105, 1106, 1127. What to be Accounted for, 1106. "His proceedings as" executor (or other capacity), 1106. And only such, 1106. e. g., not in another capacity, 1106. Although under same will, 1106. i. e., if also trustee, 1106. Or for acts as agent of heirs, 1106. Or as a volunteer, 1106. Note as to guardianship, 1106. In case no distinct administration, 1106. All with which representative chargeable, 1106. GENERAL INDEX 1209 [References are to pages.] Accounting for the Estate ; and Distribution — continued. What to be Accounted for — continued. If he asks credit, burden on him to justify, 1106. e. g., for "uncollectible'' assets, 1106, 1136. For money paid on decedent's contract, 1106. Cannot include payments not a charge on estate, 1112. e. g., taxes not a lien at death, 1112. The assets of the estate, 1106. His debt to estate, 765, 1132. As to rents, and proceeds of sale, of land, 1107. Proceeds of condemnation proceedings, 1107. Profit and loss, 1107. All increment to be stated, 1107. No selfish profit to be retained, 1107. e. g., personal bonus or rake off, 1107. Savings Bank accounts, 1107. "In trust" accounts, 1107, 1108. Joint accounts, 1108. Verification of account, 1108. Code provision, 1108. Provision as to funeral expenses, 1109. Vouchers, rule as to, 1107, 1108, 1110. Form of affidavit of verification, 1109. Vouchers; for items under $20.00, 1108, 1110. Effect of, 1111. Throw onus probandi on objector, 1111. May be impeached, 1111, 1112. Lost vouchers, 1110. Vouchers; competent evidence, where no, 1110, 1111. Special guardian bound to examine, 1115. Neglect to set apart exempt property, 1112. Code provision, 1113. Citation and decree, in such case, 1113. Exemption, an absolute right, 1113. Representative has only qualified right of possession, 1113. Cannot have credit for articles not actually set apart, 1113. As to pecuniary equivalents, 773, 1114. The schedules; in executor's account, 1114. In trustee's account, 1114. Given are merely illustrative, 1114. Vouchers arranged according to, 1115. Pbooeduhe. (Covers practically all compulsory accountings, except as noted below.) (1) As to executors and administrators, generally, 1116. Code provision, 1116. Petition; by whom presented, 1116. Contents prescribed, 1116. Described, 1117. Prayer of, 1117. Form of, 1118. Prayer of, where discharge sought, 1118. Executor, etc., may present counter-petition, 1116. Consolidation with counter-proceeding, 1117. 1210 GENERAL INDEX [References are to pages.] Accounting for the Estate; and Distribution — continued. Procedubb — continued. Citation; must be issued, 1116. Cases, where Surrogate may compel settlement, enimierated, 1118. Code provision, 1118, 1119. Expiration of one year, how fixed, 1119. Parties to be cited; classes stated, 1120. Original citee, the accountant, 1120. Supplemental citation to others, 1120. Sureties when letters revoked, 1096. Paid creditors, when not entitled to citation, 1121. Creditors must be those of the decedent, 1121. If not cited, not concluded, 1121. Surrogate must determine applicant's status, 1122. (2) Resisting the compulsion, 1122. Settlement by parties sui juris, 1122. But if release repudiated Surrogate cannot try issue, 1123. Action pending in Supreme Court for same relief, 1123. Defense of statute of limitation, 1122. Preliminary demand, by petitioner, not necessary, 1123. (3) As to others than executors and administrators, 1123. Assimilated to that on settlement of account of executors, etc., 1123. (4) Objections; manner of interposing, 1123. No pleadings or specifications requisite, generally, 1123. Rule in N. Y. County, 1124. Liberally construed, in respect of sufficiency, 1124. May be ordered verified, 1124. May be amended, 1125. Should be effectual to raise specific issues, 1124. Guardian's right to preliminary examination, 1112. To prevent unnecessary expense of contest, 1112. Terms on allowing tardy, 1125. Effect of release, on, 1125. Special guardian's duty, 1125. (5) Examination of account, 1125. Rule in N. Y. County, 1125. (6) Reference of issues raised by objections, 1125. (See Referees in Surrogate's Court.) (7) Questions Determinable by Surrogate, 1126 ei seq. "Disputed claims," 795, 1126. Five classes suggested, 1126. Surrogate's power to pass on, stated, as to each class, 1126 et seq. New section 2718o referred to, 1126, see p. 796 also. Status of claims already paid, 1126. Burden of proof on objectant, 1126. Status of unpaid claims of creditors, 1127. Written consent to be filed, 1127. Referee may be appointed, 1128. Time for filing consent, 1128. A new practice, 1128. Surrogate may determine whether claim was rejected, 1129. Claim allowed, but not paid, attackable, 1129. GENERAL INDEX 1211 [References are to pages.] Accounting for the Estate ; and Distribution — continued. Procedure — continued. Status of claim made by accountant, 1129. Code provision, 1130. Statute of limitation, runs how, in such case, 1130. Must be proved, 1130, 1131. Death of accountant defeats not, 1131. Status of claim of estate against accountant, 1132. Effect of appointing debtor executor, 1132. Code provision, 1132. Debt is treated as money, 1132. Must be passed upon by Surrogate, 1132. If executor dispute his liability, 1132. Limited to executor "named in will," 1133. Although one Surrogate extended it to temporary adminis- trator, 1132. Status of claim of estate against stranger, 1133. No jurisdiction to pass on, 1133. Power to pass on disputed claim, on testamentary trustees' settle- ment, 1133. Other questions adiudicable, 1134. Dbckeb roR Payment and Distribution, 1134. Code provision, 1134. Contents prescribed, 1134. Distribution to persons entitled, 1134. , So as to next of kin. creditors, husband or wife, assigns. owner of disputed claim. Not applicable to temporary administrator, 1134. Who pays to permanent representative, 1134. Power to construe will, by, 1134. Instance of exercise of power to pass on disputed legacy, 1135. As conclusive as a judgment, 1079, 1134. What amount accountant chargeable with, 1135. Effect of inventory as evidence, 1135. Proceeds of converting land, 1135-1136. For business of decedent, if continued^ll45. Onus, as to choses in action, 1136. Effect of attorney's advice, 1136. Insolvency of debtor, 1136. Commissions and Administration Expenses, 1137 et seq. Compensation fixed bylaw, 1137, 1139, 1140. Commissions of executor or administrator, 1137. Code provision, 1137. Commissions of testamentary trustees, 1138. Code provisions cited, 1138. Surrogate's jurisdiction to award, 1138. History of the legislation, 1138. Effect of provision in the will, 1139. Special rule as to "person appointed to execute" incomplete trust, 1139. 1212 GENERAL INDEX [References are to pages.] Accounting for the Estate : and Distribution — continued. Commissions and Administration Expenses — continued. Fixed by Supreme Court, 1136. Not to exceed executors', 1139. Commissions of guardians, 1139. Commissions of executor of deceased executor, etc., 1139. Compensation in lieu of, 1139. Payable to ''estate of" decedent, 1139. Right to remuneration, of accountant, 1139. Recognized by courts, 1140. Effect of negation, in will, 1140. As affected by representative's acts or omissions, 1140. by resignation, 1140. Power to enforce, 1141. Basis of remuneration, of accountant, 1141. Primary, is rendition of service, 1141. Can active representative deprive passive one of his rights, 1141, 1148. Pecuniary, is personalty received and paid, 1141. Surcharge to be included in basis, 1142. Cases of equitable conversion, 1142. Where same persons are executors and trustees, 1142. Legal assets the basis, 1143. Actual partition of land under power, not a, 1143, 1144. Specific legacy not a, 1144. When securities distributed "in kind," 1144. But, qtujere as to temporary administrator, 1144. As to continuing testator's business, 1144 et seq. Extra compensation for services not strictly executorial, 1145. Compensation fixed by will, effect of, 1146. Legacy in lieu of, 1146. May be renounced, 1146, 1147. And statutory rate exacted, 1146. If timely insisted on, 1146. By agreement of beneficiaries, 1145. Which is voidable if unfair, 1145. Commissions, where estate $100,000, or more, 1147 et seq. Code provision (§ 2730), 1139. Time of valuation, 1147. Rule as to income, 1147. What is to be deducted, 1147. Effect of equitable conversion, 1147. Mode of computation, where more than one executor, etc., 1148. Effect of difference in activity of representatives, 1141, 1148, 1149. Apportioning pro adivitate, 1149. Reference to decide dispute as to, 1150. Who to bear expense of, 1150. Effect of death of representative before accounting, 1148. Inventory not conclusive, 1149. As to executor's right based on gross estate, 1148. As to trustee's is based on gross of separate trust, 1148. GENERAL INDEX 1213 [References are to pages.] Accounting for the Estate; and Distribution — continued. Commissions and Administeation Expenses. — continued. Double commissions, for two capacities, 1150. Depend on scheme of will, 1150. Separation of functions and administration essential, 1150, Duties of executor and trustee distinguished, 1150. Commissions when payable, 1152. As to executors, etc., not until accounting, 1152. Must be judicially allowed, 1152. Interest charged if sooner taken, 1152, 1153. Effect of deficiency of funds, at time of accounting, 1153. Commissions on successive settlements, 1153. Commissions on successive letters to one person, 1154. On what fund charged — i. e., principal or income, 1154. Annuities net of charge, 1154. Expenses Allowable, 1154. Code provision (§ 2730), 1139, 1154. Means expenses "actually " paid, 1154. Except the allowances under §§ 2561-2562, 1154. Clerk hire, accountants, etc., 243, 1102, 1156. Counsel fees an important item, 237, 1155. Same discussed, 237 et seq., 1155. (See Costs.) Instances where disallowed, 242. Premium on surety bond, 1156. Sukchabging. Payments improperly made to be surcharged, 1156. i. e., credit refused on account, 1156. And accountant deemed to still hold the amount, 1156. Hence available as basis for commission, 1142. Marking for Decree. Proper if no objection raised, 1158. Reference op Objections, 1158. (See Referees, etc., 132 et seq.) Procedure on, like that in Supreme Court, 1158. Two classes of issues to be determined, 1158. The Decree. Must contain summary of account, 1158. Code provisions, 1158. Must also provide for distribution of surplus, 1159. Advancements to distributees. See Advancements. Distribution. See Distribution. When to direct delivery of specific property, 1169. Code provision, 1169. When to direct payment into state treasury, 1170. Code provision, 1170. When to direct payment to county treasurer, 1170. Code provision, 1170. Double character of decree noted, 1171. Effect of judicial settlement, 1171. Code provision, 1171. Conclusiveness of, 152, 1171. Same effect as judgment of Supreme Court, 1172. Code provision, 1171. 1214 GENERAL INDEX [References are to pages.] Accounting for the Estate ; and Distribution — continued. The Decree — continued. Precedent for decree, 1172, 1173. (See Distribution; Next of Kin.) Acknowledgment : Qf debt; can representative revive, 817. Of sundry consents, agreements, etc. See, e. g., Adoption; Probate; Re- nunciation; Waiver, etc. Acting Surrogate. See Surrogate, Acting. Action : Surrogate has no jurisdiction over civil, 59. Distinguished from special proceeding, 59. Code definition, 59. Begins with summons, 59. Whereby court acquires a divestible jurisdiction, 59. On official bond. See Official Bond. When reference of claim against decedent deemed an, 807, 809. (See Titles of Particular Actions.) Action for an Accounting. Not cognizable by a Surrogate. See Accounting for the Estate. But by Supreme Court, 45, 1075. As successor to Court of Chancery, 45, 1075. And its jurisdiction is not exclusive, 45, 1076. And will not be exercised imless necessary, 45, 1076. Executors, etc., should account to Surrogate whenever practicable, 1076. Action to Recover Damages for Causing Death of Decedent. See Negli- gent Killing of Decedent. Action to Construe Will: Relating to real property; may be brought, when, 464. Code provision, 465. Judgment in, nature of, 465. Code provision, 465. Opponent of alleged will may maintain, 465. Relating to personalty; also, 465. Power of court of equity to entertain, 465. Incident to jurisdiction over trusts, 465. Who may bring, 465. Person not interested in any event cannot maintain, 465, 466. §§ 1866, 1867 enlarge previous powers of Supreme Court, 466. (See Construction of Will by Surrogate.) Action to Determine Validity of Probate: Applies to wills of realty and personalty, 421, 422. To be brought in Supreme Court, 421. Who may bring, 421. Cannot sue in behalf of "others similarly situated," 421, 422. Necessary parties to, 419, 425. Disability, 420. " Absent from the State," 420. GENERAL INDEX 1215 [References are to pages.] Action to Determine Validity of Probate — continued. Code provision, 419. Purpose of, 422. Practice in, prescribed, 425 et seq. Issue is limited, 419, 426, 427. Burden of proof, 427. Temporary injunction, 425. No receivership, 426. Verdict may be directed, 421, 427. Effect of verdict in, 419. Form of verdict, 427. Injunction in judgment establishing will, 420, 428. Provisions as to filing, etc., directory, 425. Judgment to be certified to clerk of Surrogate's Court, 425. "Extra allowance" may be granted, 428. Rule as to costs, 428. Discretionary, 428. Limitation of time for commencement of, 420. Two years after will probated in Surrogate's Court, 420. Exceptions in cases of disability, 420. Natubb of the Remedy. Additional to proceeding in Surrogate's Court, 420, 422. Insures right to jury trial, 421. Puts real and personal wills on par, as to conclusiveness of probate, 421, 422. Effect of double amendment, of 1897, to Code, § 2653a, 421, 423. Must be invoked by one interested in the estate, 421. Effect and operation of § 2653a discussed, 420 et seq. Makes appeal from probate decree of little value, 426. (See Probate op Will; Revocation op Probate.) Action to Establish a Will (Part III, ch. IX, pp. 455 et seq.) : Apparent exception to Surrogate's exclusive jurisdiction over probate, 30. How wills proved outside Surrogate's Court, 455. Judgment to be recorded in Surrogate's Court, 30. Letters under will issued by Surrogate only, 30, 455. Surrogate must issue letters under the will, 30. Must record the will, if established, 30, 391. Thereby starting limitation, 393. As against purchaser from heir, 395. Code provision, 402^ 1186. When proper, 30. After rejection by Surrogate, 394. Classes of wills provable in Surrogates' Courts, 455. Which alone have right to issue letters, 30, 455, 456. Jurisdiction of Supreme Court and Surrogate's Court concurrent as to pro- bate merely, 455. Jurisdiction of Supreme Court, 455, 456. Code provision, 456. Limited to two classes of wills, 456. Subd. 1. Those retained in another jurisdiction, 456. Wills lost or destroyed, 456. Difference between this relief and probate, 456. Retained in another jurisdiction discussed, 457. 1216 GENERAL INDEX [References are to pages.] Action to Establish a Will — continued. When actual production is not requisite to probate, 457. (See Probate.) Lost or destroyed, discussed, 458 et seq. (See Probate, Lost or Destroyed Will.) Conditions of recovery; Code provision, 458. If unsuccessful, e. g., for lack of witness, may assert right in another action, on common-law evidence, 458. " Number of witnesses necessary, as to contents of will, 458, 460. Limitation of this requirement, 458. To contents not to factum, 460. " One credible witness," 458. Two credible witnesses, 460. Independently to all facts, 460. Procedure in action, 459. Complaint, to allege what, 459, 462. Nature of proof required in, 459 et seq. Burden of proof in, 460. Meaning of "provisions of the will," 460. Of "two credible witnesses," 460. Necessity of proving existence of will at testator's death, 461. Presumption of destruction, "animo revocandi," 461. (See Probate, subhead Lost or Destroyed Will.) Maintainable only by one interested in establishment, 462. Fraudulently destroyed in testator's lifetime, 462. Complaint in; contents suggested, 462 et seq. . In case of will not obtainable, 463. Lost or destroyed will, 463. Prayer for relief in each case, 463, 464. Judgment in; form and contents, 464. Code provisions, 464. Construction of Will. Can be had in this action, 464. Or in another action, 464. Code provision, 464. Other action is brought under § 1866, 464, 465. Code provision, 465. Who may bring such action, 465. (See Probate op Will.) Action to Recover Estate Assets after Distribution: Brought by creditor of decedent, 973. Under §§ 1837-1849, 973. Section 1845 quoted, 974. Its effect on proceedings to sell realty, 974. " Brought against debtor's next of kin, legatee, heir or next of kin, 973. Ademption: Of legacy, rules governing, 947. Where legacy is specific, must exist in specie at death, 947. Or it is adeemed, 947. " No ademption by strangers," 948. Doctrine of, not applicable to residuary legacies, 948. Of real property taken in condemnation, 948. GENERAL INDEX 1217 [References are to pages.] Ademption — continued. Effect of codicil on legacy adeemed since original will, 335. Cannot reinstate such satisfied legacy, 335. Adequate Security: For administration of estate, what is, 486. Revocation of letters for lack of, in executor's circumstances, 677. (See Letters of Administration; Letters Testamentary; Official Bond.) Administration : See Analysis of Contents of Part VI in front of this book. Ancillary. See Ancillary Administration. De bonis non. See Letters of Administration. In intestacy. See Letters op Administration. With will aiinexed. See Letters of Administration. (See Accounting for the Estate; Appraisal of Assets; Ascertaining the Estate; Ascertaining the Debts; Consular Courts; Discovery of Assets; Disposition op Decedent's Real Property, etc.; Inventory op Assets; Letters Testamentary; Payment op Debts; Payment op Legacies; Trans- fer Tax.) * Administrators : (See also Executors.) Where there are several, they are one ''party," 104. But not parties at all, unless they hold letters, 104. i. e., in this State, 104. But if "necessary" parties, all must be joined, 104. See for procedure, priority, duties, rights, etc., the following headings: General, Pt. IV, ch. IV. See Letters op Administration, in intestacy. Ancillary, Pt. IV, ch. VI. See Letters op Administration, ancillary. c. t. a., Pt. IV, ch. II. See Letters op Administration, c. t. a. De bonis non, Pt. IV, ch. V. See Letters of Administration, de bonis non. Temporary, Pt. IV, ch. III. See Letters of Administration, temporary and Temporary Administrator. Public, Pt. IV, ch. VIII. See Public Administrator. Bond of. See Official Bonds. Joint. Liability of, with respect to each other, 726. Powers and Duties. May be limited by letters granted. See Administration, Part VI, and sub- chapters. Accounting by. See Accounttng for the Estate; Executor, etc., of De- ceased Executor, etc. Admission : Of service of citation, in probate proceedings, 395. (See Service of Citation.) Of will, to probate. See Probate of Will. Adoption: (Part V, ch. I.) A statutory relation, 734, 742. Concurrent jurisdiction of Surrogates' and County Courts, 29, 734. Effect of, 94. 77 1218 GENERAL INDEX [References are to pages.] Adoption — continued. Includes adopted with lineal heirs, 94. Gives the child adopted the right of inheritance, 94. But does not effect revocation of parent's will, 252. Jurisdiction of Surrogates over, 734. Now regulated by domestic relations law, 734. Power to pass on validity, 7, 310, 787. History of legislation concerning; L. 1873, 734. Definition of, 734, 737. Voluntary adoption, 737. Effect of former lawful methods confirmed, 734, 735. Change as to "right of inheritance," in 1887, 735, 1178. Child's rights under contract of, independently of statute, 735, 736. Contract to will, 736, 743. Where right of inheritance is now claimed, regularity of statutory proceedings essential, 734, 736. Present right of inheritance inoperative, in respect of wills before 1873, 735, 736. Mutual right of inheritance, 737. From one another, 737. But not through the parent, 737, 1178. Gives exemption under transfer tax, 871. Present operation of law, 736. Proof of lawful adoption before the act, 736. Who may adopt, 737. Termed "foster parents," 737. Consents required, 737. Whose dispensed with, 737. Proceedings before Surrogate, 737 et seq. Petition exacted in N. Y. Co., 738. Facts to be shown to his satisfaction, 738. Contents of order to be made, 739. Contents of agreement of, 739. Agreement to be acknowledged, 738. May be directly with child, when, 740. Form of affidavit as to age of child, 741. Surrogate may supplement this, 741n. Form of order confirming adoption, 741. Order and other papers to be filed and recorded, 742. Proceeding to effect is statutory, 734, 742. Statute must be followed, 742. Effects of; enumerated in the statute, 742. Relief of former parents, 742. Rights of inheritance and succession, 742, 743. Contract of, may be specifically enforced, 743. As to rights in insurance on adopted parent's life, 743. Rights of adoptee, to exemptions in transfer tax law, 743, 744, 871. From charitable institutions regulated, 745. Provision as to " residence " of foster parent, 745. Can nonresident adopt from such institutions, 745, 746. What is "residence," 745, 746. Acquisition of temporary residence, 746. Act of 1898 (ch. 264), prohibition in, of "placing out" children, 746. GENERAL INDEX 1219 [References are to pages.] Adoption — continued. Disability of "family not residing within this State," 747. Abrogation of voluntary, 747. From charitable institution, 747. At instance of child, 747. At instance of foster parent, 747, 748. Exclusive jurisdiction in court which made order of adoption, 748. Indenture of apprentice, under poor laws, 749. Evidence of good faith, in proceedings for, 749. Surrogate's power to pass on status of alleged adopted child, 310, 749. e. g., on probate, 310. May declare adoption invahd, 310. But without affecting adoptee's right of action under agreement, 310. Adult. See Parties. Advancement : By representative, to creditor or legatee, effect of, 805. Subrogates him to their rights, 805. By decedent to distributees, 1159. Surrogate may adjust in decree for distribution, 1159. Code provision, 1159. Dec. Est. Law provision, 1159. Provisions of real property law, 1159.. How to be adjusted, 1160, 1161. What is and what is not, 1160. Intestacy a condition, 1160. Unless will directs "equality in sharing," 1160. Proof of, 1160. When parol evidence admissible, 1160. Effect of reference to decedent's books, 1160. Mere entry in books insufficient to prove, 1161. Child may rebut, 1161. Effect of security taken by decedent, 1161. What issues Surrogate may not try, 1161. Hotchpot, 1161, 1162. Advertising for Claims: Against decedent's estate. See Ascertainment of Debts. Affidavit : Petition, duly verified, may be treated as, 64. Of mailing citation and order, under § 2524, 67. Of services of citation must be filed before citation is deemed served; § 437 made applicable, 70. By publication, who must make, 76. Must be tendered within ten days after publication is complete, 79. Personal, must be made by person who served, 76. What must contain, 76. Upon appointment of special guardian. See Special Guardian. In contempt proceedings, form of. See Contempt. (See Index of Precedents for Sundry Affidavits.) Affirmation. See Official Oath. 1220 GENERAL INDEX [References are to pages.] After-bom Child: Protected against parent's will, not providing for it, 264, 265, 266, 1178. This does not include child adopted after will, 252. Nor "discovery" of existence of a child, 266. Nor birth of illegitimate child, 266. Procedure indicated, 953. Statute contemplates: 1st. Execution of will, 251. Disposing of whole estate, 251. Without mention of or provision for after-bom child, 251, 265. 2d. Subsequent marriage of testator, 251. 3d. Birth of issue, including posthumous, 251. 4th. That wife or issue survive testator, 251, 265. Status of, in probate proceedings, 310. None, unless will includes " settlement " for its benefit, 310. Which is a "fact" for Surrogate to determine, 310. Rights on distribution, 1178 et seq. Effect of settlement upon, in will, 310. May petition under § 2722, 932. Age: Important inquiry on probate, 312. As conditioning power to make will, 311, 349. (See Will.) Of alleged testator, effect of, on testamentary capacity, 349 et seq. (See Tbstamentaey Capacity.) Of infant. See Adoption. Aged, Sick, or Infirm Witness. See Witness; Probate of Will. Agreement : To adopt minors. See Adoption. To refer disputed claim. See Ascertaining the Debts. To make mutual or irrevocable wills. See Mutual Wills; Ikbevocable Will. Enforceable in equity, 268, 269. As an equitable lien on the estate, 269. Has no effect on probate of will made in violation thereof, 270. Which transfers legal title, 270. Alien : Nonresident cannot be executor, 471. Or administrator, 558. (See Letters Testamentakt.) Alienist. See Experts. Allowances. See Costs. Amendment : Surrogate may allow. Of variance between citation and petition, 62. Of citation, 62, 6a. Of petition, 62, 63. §§ 721-730, C. C. P., applicable, 63. GENERAL INDEX 1221 [References are to pages.] Amendment — continued . In proceedings to sell real property. See Real Property, Proceedings TO Sell. Of objections to account. See Accounting for the Estate. Of order referring contested account. See Accounting for the Estate. Referee may allow amendments, 134. To account, 134. Right how limited, 134, 136. (See Nunc Pro Tunc.) American Citizens Dying Abroad : If within U. S. consular jurisdiction, 611. Provisions of TJ. S. Rev. Stat., 611. Treaty rights,"611. Consul can probate will, 611. Or issue letters, 611. Surrogate here can issue letters ancillary thereto, 612. Amount. See Commissions; Costs; Fees. Ancillary Administration (Part IV, eh. VI, pp. 581 et seq.): A means of enforcing foreign wills and letters, 581. Surrogate's jurisdiction over, wholly statutory, 581. Defined, 581. Is secondary and subordinate, 581. Conditioned by regard for resident creditors, 581. And interstate and international comity, 581. Validity and effect of foreign will, on law of transmission, 582. In case of real property, 582. Personal property, 582. Provision of Dec. Est. Law, 581, 582. Analyzed, 582. Decision of Court of Appeals before the Code, 582. Surrogate's control of ancillary administrator, how far affected, 582. Difference between principal and, 583. As to balance not needed to pay creditors here, 583. Under Foreign Probate, 583. Meaning of "foreign executor," 584. Not residence, but source of his letters that makes, 564. His office created by a will or law foreign to our own, 584. Status of foreign executor in courts of this State, 584. May sue here on his own contract, 584. But not ex virtute officii, 584. On record of foreign will of personalty and letters under § 2695, 584. May acquire representative status, 585. Under letters ancillary issued here, 585. Contrast this with record of foreign will of real property, 404 et seq. Under which no letters here, 404 et seq. Evidential value; 405. Ancillary letters testamentary, when to issue, 584. Code provision, 584, 585. Rights, powers, duties and liabilities of ancillary executor or administrator, 585. Code provision, 585. 1222 GENERAL INDEX [References are to pages.] Ancillary Administration — continued. Under Foreign Probate — continued. Three prerequisites to ancillary letters testamentary on foreign probate, 585 et seq. Contents and character of petition, 586, 594. Must be verified, 586. Basis for assuming jurisdiction, 586. Existence of property here, 586. Creditors here, 586. If none, no need of letters, 587. What allegations confer jurisdiction, 586. What sufficient proof of foreign probate, 587. Foreign will or letters, etc., how authenticated, 587 et seq. Provision of Dec. Est. Law, 587-588. Intent of the 'section, 588. New probate here not contemplated, 589. What papers to accompany petition, 587 et seq. Original administration here, instead of, when, 589. Letters of administration, c. t. a., issue in such case, 589. To justify, on foreign probate, testator must have resided without the State, 590. In case of foreign administration, 590. When ancillary letters of administration to issue, 591. Code provision, 591. Attorney in fact of party entitled may apply for letters, 591, 592. Two cases where not granted, 592. (1) Where ancillary letters testamentary have issued, 592. (2) Where application has been made for domiciliary administration, 592. Mandatory effect of § 2696, 592. Evidence of authority of attorney in fact of claimant, 591, 592. Letters of, to whom to be granted, 593. Code provision, 593. Section analyzed, 593. Where no foreign letters have been issued, 594. Procedure on application for letters of, 594. Code provision; petition; citation, 594. Essentials of petition, 585, 586, 594. Form of petition, 695. Form of decree awarding, 596. Proceedings on return of citation, 597. Penalty of bond of grantee, 597. Code provision, 597. Purpose of the section, 597. Protection of creditors; keeping down penalty of bond, 597. The security discussed, 598. Peculiarity of the security required, 597 et seq, 704 et seq. Rule explained by the Court of Appeals, 598. Domiciliary and ancillary security contrasted, 598-600. Security never more than twice local assets, 600. Regardless of amount of local debts, 600. Creditors must be ascertained, 599-601. But protected only to extent of local assets, 601. Effect of disputing creditor's claim, 600, 601. GENERAL INDEX 1223 [References are to pages.] Ancillary Administration — continued. Under Foreign Probate — continued. Relation of grantee of ancillary letters, to representative in chief, 601. Duty of ancillary appointee to transmit assets, 601. Code provision, 601. But Surrogate has modifying power, 601. Code provision, 601. The sections construed, 602. Surrogate's power of control discussed, 602, 603. He may compel accoimting, 601. As to assets collected, 603. Can he order legacy paid, 603. If valid under foreign law, 603. Though invalid here, 603. Ancillary representative has no trustee powers under the foreign will, 604. Where no local creditors, assets to be transmitted, 604. When letters of, determine, 604. Revocation of foreign letters kills ancillary letters here, 604. Grantee of letters of, how far bound by judgment of foreign court, 605. Statute gives Surrogate a broad discretion to direct conduct, 605. If distribution made here, must be pursuant to foreign law, 605. Effect of § 2702, regulating powers, duties, etc., of grantee of letters of, 606. Does not enlarge ancillary representative's powers, 606. Requisites of petition for letters of, in respect of transfer tax, 610. Imposition of tax; decree, 611. Under U. S. Consular Court letters. See Americans Dying Abroad. Accounting by ancillary executor, etc. See Accounting for the Estate. (See also Foreign; Executors; Administrators; Letters; Probate; and Will.) Ancillary Guardians. See Guardian, subhead Ancillary. (See also Official Bond.) Ancillary Letters. See Ancillary Administration. Annual Accounting: By testamentary trustee, 1079. Annual Inventory and Account: By guardian, 1060. (See Guardian, General.) Annual Rest: In account of testamentary trustee, 1141. Annuity : Is a "charge" on estate, 959. Must be made good, 959. Unless in form a charge on specific fund, 959. Transfer tax on, 882. Apportionment of, 792. Code provisions, 792 et seq. (See Apportionment.) Status of beneficiary, 959. Not a "measuring life," 959. 1224 GENERAL INDEX [References are to pages.] Annuity — continued. May be compovinded, 959. Under mortality tables, 959. Annuity Table: Showing value of an annuity of one dollar on a single life, etc., 1000. Annulment of Marriage. See Divorce. Answer : See subheadings of various proceedings, also Index to Pkbcedents; Verifi- cation. Antenuptial Agreement: Surrogate's power to enforce, 8. To pass on validity, 8. But only as incidental, 8. May defer action until equity acts, 267. Effect on transfer tax, 878, 879. To make mutual wills, 268. How enforced, 268. Only in equity, 267 et seq. Meanwhile Surrogate may probate the will made in breach of the agreement, 269. Rights imder are subject to ''due administration," 8, 538. Executor has primary possession, 538. Interest on legacy pursuant to, 943. (See Will.) Appeal; General Discussion (Part II, ch. V.): Exclusive remedy to correct — Error of law, 49, 151, 176, 180. Error of fact arising on trial, 176, 179. (See § 1283, C. C. P.) How Taken. Practice assimilated, 185. Code provisions, 185. Only as expressly provided, 185. Otherwise special art. 4, title 2, chap. XVIII, controls, 185. By notice, 197. (See Notice of Appeal.) Served upon parties, 197. Within the State, 198. Unless they cannot be found, 197, 198. Or upon attorney, 197. Who May Take. See Parties, subhead, below. What Appealable and Reviewable. See below, subhead Mode of Review. Notice of, 197-199. (See Notice of Appeal.) Time for. See Time. Perfecting. Undertaking for $250, pecessary, 202. Unless waived, 202. Or deposit made under § 1306, 202. GENERAL INDEX 1225 [References are to pages.] Appeal; General Discussion — continued. Pekfecting — continued. (See Undertaking.) Code provision, 201, 202. Necessity of undertaking, 201. Unless dispensed with by statute, 202. Form of undertaking, 203. (See Undertaking.) Effect of, 203. Filing, plus serving notice, perfects appeal, 211. Effect of, on Surrogate's powers, 211, 212. Stays proceedings to enforce decree or order appealed from, 203. (See Stay.) Provided appeal rightly taken, 203. Except such as are not affected by appeal, 203. And those excepted by statute, 206 et seq. Always necessary to "perfect,'' the second undertaking given to effect "stay," 204 et seq. Stat. See Stay. Parties. , Special guardian may take, 92. Is proper party upon appeal, 92. Designation in Appellate Court, 92. Unnecessary where necessary party, 92. As when he is appellant, 231. Intervening on, who may, 105, 188. (See Intervening.) Mode of, controlled by Appellate Court, 105, 188. Not by Surrogate, 105, 189. Character of judgment on appeal, 200. Who may appeal from Surrogate's decrees and orders, 185. Any "party aggrieved," 185. Code provision, 185. Within 30 days, 192. This means someone who has reason to complain, 186. A party, 186. At time of appeal, 186. If interest has determined so will right, 186. Who has actual and practical interest, 186, 187. And only as to that interest, 186. e. g., costs, 186. Effect of Code on meaning of "interest," 187. Case of executor. ^ Appeals only to protect interests represented, 186, 187. e. g., where probate refused, 186. Of a codicil, 186. Testamentary trustee, 186. Representative of deceased party, 187. Assignee of party, 187. Default, may vitiate right if unexcused, 186. What is, 186. What is a substantial right, 190. Attorney aggrieved by client's settlement, 188. Sometimes, persons not parties may appeal, 187. 1226 GENERAL INDEX [References are to pages.] Appeal; General Discussion — continued. Pabtibs — continued. Code provision, 187. Within ninety days, 192. Extends right to creditors, and persons interested in estate or fund, 187. F/iots entitling such party to appeal shown by affidavit, 188. Which must be filed, 188. And served with notice, 188. Such persons need not obtain leave of court, 188. After decree, Surrogate cannot grant leave to intervene, 189. Stranger to proceeding cannot appeal, 187. Unless he brings hiniself within § 2569, 188. Nor can he appeal from order denying leave to appeal, 188. Who should be made parties to appeal, 188. Code provisions, 188. May be brought in by order of Appellate Court, 105, 188, 189. On motion, 188. Or of its own motion, 189. Not by Surrogate, 189. Special guardian, 92, 189. Heirs at law, next of kin, legatees, executors, 189. Persons entitled to money under decree, 189. Attorney to whom counsel fee is payable, 189. Time to apply for intervention, 189. After appeal perfected as to those already in, 189. Case, Settling. General discussion, 193 et seq. (See Case on Appeal.) Mode of Review. How errors of Surrogate to be reviewed, 118. Upon exceptions duly taken by appellant, 118, 119. i. e., under § 2545, 118. Discretion reviewable, 197, 661. But not in Court of Appeals, 197, 661. When mandamus proper, 191. What brought up by appeal from decree, 119, 191, 199. Each decision to which exception is duly taken, 119, 191, 199. Intermediate orders, 191. If specified, 191. Necessarily affecting the decree, 191. Not already, reviewed, 191. Should separate appeal be taken in first instance, 191, 192. In case jurisdiction has been objected to, 192. May be on facts and on law, 195. Necessity of findings and exceptions, 195. When appeal heard without a case, 117. Code provision, 117. Case unnecessary in cases under § 998, latter part, 117. When order ex parte, 190. Proper remedy by motion to vacate, 190. Which may result in appealable order, 190. Dismissal. GENERAL INDEX 1227 [References are to pages, 1 Appeal; General Discussion — continued. Dismissal — -continued. Only by appellate court, 212. Reversal Upon. Upon decision on conflicting testimony, 199. If decision against weight of evidence, appellate division can reverse, and order trial of specific issues, 199. Not for error in admitting or rejecting evidence, 200 Unless appellant necessarily prejudiced, 200. Such error may be disregarded, 200. Duty of Appellate Court to determine whether error was prejudicial, 200. If Appellate Court in doubt, appellant should have benefit, 200. Difference between errors in receiving and rejecting evidence, 200, 201. e. g., under § 829, 201. If on the facts, important to so state in order, 222. Effect of omission, in Court of Appeals, 222. Fbom Probate Decbee. When does not stay letters, 471. If issued, limited powers, 471. From Verdict of Jury. In probate cases in N. Y. County, 213. Lies from order granting or refusing new trial, 213. Which must be made upon the minutes, 213. Within ten days after verdict, 213. But cannot be made by Surrogate, 213. {See New Trial.) How appeal taken, 213. Must be heard on a case containing all the evidence, 213. Code requirements, 213. In proceeding to sell decedent's realty, 215. How verdict reviewed; Code provision, 215. Order for new trial may be made by Surrogate, 215. As well as by the court empaneling the jury, 215. Practice and Proceedings on. Certain sections made applicable in Surrogates' Courts, 185. After Hearing Appeal. Proceedings required, 219. (1) Enter order with clerk of App. Div., 219. (2) Certified copy annexed to record on which appeal was heard trans- mitted to Surrogate, 219. (3) Who must enter appropriate decree, 197. Order or judgment of Appellate Court, how enforced, 219, 220. Form of order or judgment of Appellate Court, 219. Scope of order or judgment of Appellate Court, 219. Code provisions, 219, 220. Reversing in part, and aflBrming in part, 220. Remittitur must be sent down, 197. And order entered thereon, 197. Before proceeding further in court below, 197. "What Appellate Court may do, 219. May decide questions of fact, 195. And to that end may take further evidence, 195. Code provision, 195, 196. 1228 GENERAL INDEX [References are to pages.] Appeal; General Discussion — continued. After Heabing Appeai — coniinued Appoint referee, 196. Will do so only in necessary case, 196. Prescribes mode of intervention of new parties, 105, 189. Pass on application for increased security, 210. From Judgment on Reference of Claim. Practice same as in civil action, 820. Motion for a new trial, how made, 820. From Probate Decree. Limited effect discussed, 208. From Surrogate, to Surrogate, in transfer tax proceedings. See Transfer Tax. In proceedings to sell, etc., decedent's real property. See Real Pbopertt, Pro- ceedings to Sell. To Appellate Division. See that head. To Court of Appeals. Discussion, 220. When taken from Appellate Division, 219, 221, 223. Clerical practice confusing, 221. Effect of modifying affirmance, 223. What is a final order, 146, 220. What intermediate orders are reviewable, 191. What is an intermediate order, 191. Present jurisdiction of court narrowed, 197. Limited to questions of law, 197. Importance of exceptions to present such questions, 119. (See Exceptions; Findings; Case on Appeal.) Cannot review discretionary orders, 197, 661. Cannot exercise power under § 2586, 197. Though formerly possessed, 197. Calendar practice, 221. Perfected by $500 undertaking, 206. May be from affirmance or reversal, 221. Appeal from Appellate Division from reversal by it on law only, 221, 222. No appeal from reversal on both facts and law, 222. When record, however, will be searched, 222. Effect of no findings, 222. (See Findings ; Exceptions.) Remittitur, 223. (See Appellate Division; Court of Appeals; Notice op Appeal; Stat; Under- taking.) Appearance : Of party of full age, in person, 76. Unless judicially declared to be incompetent, 76. By attorney, 76. Except where personally needed, 76. e. g., in contempt proceeding, 76. Of contestant, in probate proceedings, 300. Of nonresident by attorney, 77. Proof of actual retainer, 77. Effect op. Same as that of defendant in an action, 76. But not, of itself, sufficient to give jurisdiction, if it has been lost or divested, 77. GENERAL INDEX 1229 [References are to pages.] Appearance — continued. Effect of — continued. Because Surrogate's jurisdiction is special and statutory, 77. .(See JuEiSDiCTiON.) Cannot cure certain errors, 77. But can cure defects relating merely to jurisdiction over the particular person who appears, 77. As a waiver of curable defects or irregularities, 77. e. g., in order for service by publication. Special. Proper, in Surrogates' Courts, 77. As for the purpose of objecting to jurisdiction, 77. How may become general, 78. By involving the merits, 78. ■Genebal. Gives Surrogate jurisdiction of person, 78. Cures void service, 78. Of general guardian of infant, gives jurisdiction, 78. (See Paeties.) Appellate Division: (See Appeal.) What an appeal from Surrogate's decree brings up before, 119, 195. Appeal may be taken from Surrogate's decree, 190. Or from order affecting substantial right, 190. See hereunder Appeal. Not from decree on default, 190. Nor from ex parte order, 190. Has same power to decide questions of fact that Surrogate has, 195. This by virtue of § 2586, 195, 196. And can appoint referee, 196. Discretionary power, 196, 197. May amount to a rehearing, 197. Receiving newly discovered evidence, 197. No exceptions to findings of fact necessary to secure review by, 119, 195. Alone can entertain motion to dismiss appeal, 212. Surrogate cannot, 212. His jurisdiction divested, pending appeal, 217. Over matters involved therein, 217. Can entertain motion for intervention of new parties on appeal, 105, 212. Application for increase of security, 212. Upon notice, 212. Surrogate cannot, 212. Code sections made applicable, 185. Who may appeal. See Appeal. Is first appellate tribunal, 190. Must direct trial by jury upon reversal in probate cases, 216 et seq. New trial, when granted, 217 et seq. Procedure. See Appeals; Case; Notice op Appeal. May review facts and law, 195. Extent of its power, 195. May review discretionary orders, 197. To see if discretion abused, 190. 1230 GENERAL INDEX [References are to pages.] Appellate Division — continued. Pbocedure — continued. e. g., open commission ordered, 124. What brought up by appeal to, 199. Reversal by, 199. Upon what error, 200. What error disregarded, 200. On law only, appealable, 243. Will not reverse for error in admitting or rejecting evidence, 200. Unless clearly prejudicial to exceptant, 200. Which court must determine, 200. Contrast between ''admitting" and "rejecting," 200. REMITTITtrR. Code provision, 219. Upon its receipt. Surrogate enters appropriate decree, 197, 219. This is a prerequisite to any further act by him, 197. (See Appeal.) Appointment : Effect of existence of power of, under transfer taxlaw, 879 et seq. Of representatives and their successors. See such heads as Letteks of Ad- ministration, etc. ; Guardians; Testamentary Trustees, etc. Apportionment : Of annuities, dividends, rents, 792 et seq. Code provision, 792. Changes the common-law rule, 793. Remedies to representatives, when available, 793. Meaning of " due at fixed periods," 793. Illustrative case, 793. " Declaration " of dividends, when made, effect of, 794. What is it, 794. Of commissions, 1141, 1148. Of allowances, 236. Appraisal of Assets. See Inventory of Assets. Appraisers : Appointment of, in proceedings to sell, etc., decedent's real property. See Real Property; Proceedings to Sell, etc. Appointment of, in transfer tax proceedings. See Transfer Tax. To inventory the estate, 762 et seq. (See Inventory of Assets.) Apprentice : Indenture of child, as. See Adoption. Arbitration : Disputed claims or demands may be submitted to, 830. A common-law right, not superseded by statutory reference, 830. Risky for representative, 830. Ascertaining the Debts (Part VI, eh. II, 7Q5 et seq.): (See also Payment of Debts.) GENERAL INDEX 1231 [References are to pages.] Ascertaining the Debts — continued. Advertising foe Claims. Duty of representative, to ascertain decedent's debts, 795. Before transfer tax proceeding, 795. For the gross amount is deductible, 795. Notice to claimants, to be published, 795. Code provision, 795. Vouchers and affidavit may be required, 795, 800. Agreement to refer; proceedings, 796. Judgment entered on referee's report, 796. New Summary Remedy. Section 2718a, Code, 796. (o) Notice to present claim, 796. Against estate or its representatives, 804. (6) To Surrogate for determination, 796. (c) At a date at least ninety days off, 796. (d) Based on petition and citation, 804. (e) Puts creditor to his action, 804. (/) Failing which he is barred, 804. (g) Unless he consent to Surrogate's determination, 804. (h) On return day, 804. Notice for Claims. Its importance and purpose, 797. A protection to representative, 797. See last paragraph of § 2718, 796. Not an absolute legal obligation, 797. Surrogate to designate paper, 797. Form of application for order, 798. Order of designation, 798. Publication, when to commence, 799. Form of notice, 799. Presentation and Proof of Claim. Within six months, 796. , Requisite contents, 799, 800. Form of, 800. Affidavit thereto, 800. Effect of failure to make, 101, 800. Dangerous, but not always fatal, 801. Creditor risks a distribution, 801, 802. Representative's knowledge of existence of claim, 801. Effect of presenting, in due form, 800. If interest desired must be claimed, 801. Else it is waived, 801. If claim to interest defeated creditor must pay costs, 813. Written, essential, 801. Case of insufficient presentation, 802. Rule as to costs, if claim is sued upon, 802. Representative's duty to allow or reject, 802. Effect of representative's inaction, 802. Mere silence; is not an admission, 802, 803. (See Rejection op Claim.) But by inaction he may give claim liquidated character, 802. 1232 GENERAL INDEX [References are to pages.] Ascertaining the Debts — continued. Presentation and Proof op Claim — continued. Unless on its face barred by statute, 803. For he cannot waive a limitation, 803, 817. Nor revive a barred claim, 817. Creditor must look out for the limitation, 804. Of representative; two classes stated, 805. For overpayments or advances, 805. For debt which testator owed ; scrutiny, 806 et seq. Presumption of validity if based on writing, 806. Effect of assignment, 806. Cannot pay his own claim until allowed, 805. His verification of claim incompetent, 804. Running of statute suspended, 806. JReference of Claim. Code provision, 807. In case where representative doubts its justice, 807. Agreement to refer; order thereon, 807. Not applicable to claim for funeral expenses, 809. Need not recount defenses, 807. For any is available on reference, 807, 808. Not a remedy to compel executor to pay, 809. Proceedings on ; nature of, 807 et seq. No pleadings, 807. Nature of proof admissible, 807. Powers of referee, 808. Bill of particulars cannot be required, 808. What amendments permissible, 808, 809. Since the Code, 808. To promote justice, 809. When proceedings become an action, 808, 809. Commission to take testimony may issue, 809. Change of referee, 809, 810. Form of notice of dispute and offer to refer, 810. Agreement to refer, 810. Filing of agreement, 811. With Surrogate's indorsed approval, 811. Form of order of, 811. Hearing; proceedings on, 811. Referee's duty of scrutiny, 811, 812. Object of statutory provision for, 812. Costs on, and in relation to, 812. Code provision, 812. When awardable against representative, 812. Not ag9,inst testamentary trustee, 812. Effect of unreasonable resistance or neglect, 813. When plaintiff entitled to; two conditions, 813. Effect of parol offer to refer, 813. Right to disbursements, 814. Referee's and witness's fees, 814, 815. Code and Revised Statutes compared, 814, 815. (See Rejection of Claim.) Judgment on; essentials to validity of, 818. GENERAL INDEX 1233 [References are to pages.] Ascertaining the Debts — continued. Reference op Claim — continued. What claims subject to, 818. Not disbursements of representative, 819. Proceeding is not only technical, but purely voluntary, 819. Creditor's declination to agree to, effect of, 819. Representative's declination to agree to, effect of, 819. Failure to agree on referee, effect of, 819. Referee on, "to be approved by Surrogate," 819. Counterclaim, right to recover on, qualified, 820. Appeal from judgment on; procedure, 820. Code provision, 820. Conforms to appeals in actions, 820. Report on, motion to confirm, or set aside, 821. New trial, motion for, on case and exceptions, 820, 821. Ascertaining the Estate (Part VI, ch. 1, p. 750.): (a) Discovery of assets, 750, 751. (See Discovery of Assets.) (6) Inventory and appraisal of assets, 762 et seq. See that head, post. (c) Transfer tax appraisal. See that head, and Part VI, ch. V. (See also Ascertaining the Debts; Transfer Tax.) Assets : Meaning of term, 40. Surrogate may determine what are, 9. Not as broad as "personal property," 40. On which to base jurisdiction, sufficiency of, 40, 544. "Improperly brought into State,'' 40. When already fully administered, cannot avail, .34, 35, 40. Left by husband being his wife's but unadministered, 549. When and where a debt due decedent is, 42, 43, 788. Regardless of residence of debtor, 43. Promissory note or bond, where deemed, 40, 43. Insurance policy, 40, 41, 769. Cloak, earrings, Bible, chair, etc., 40-42. Chose in action, 544. e. g., negligent killing of decedent, 545. See § 2608, 720. Savings bank account, 750. Defined, 768. (See Inventory of Assets.) Representative is accountable for, 750, 1106. As for rents and profits of realty devised to them, and sold, 1107. And must reduce to possession, 750 et seq. Unexpired estate of decedent per autre vie, is, 1107. Extraordinary dividends on stock, in which decedent had life interest, 1107. Debts, 768. Due from legatee, 955. Fixtures, 768. Lease, 768. Accrued rents, 768. Proceeds of action by successor on official bond : (a) When for benefit of statutory beneficiaries, 720. (6) When general assets of estate, 720. 78 1234 GENERAL INDJEX [References are to pages.] Assets — continued. I Code enumeration, 768. Illustrative cases, 768. Partnership property, 770. Only to extent of net balance due, 770. Proceeds of condemnation proceedings, 1107. Growing crops, 768, 1107. • Appraisal of. See Appraisal of Assets. Discovery of. See Discovbky op Assets. Inventory of. See Inventory of Assets. (See Ancillary Administration; Executor or Administkator; Public Ad- ministrator.) Assignment : Of Interest. In decedents' estates. Must be in writing, 102. Duly acknowledged, 102. How recorded, 102. How indexed, 102. Validity of, Surrogate may not try, 98, 99, 102. Unless invalidity appear on face of papers, 98. Appointment of receiver may operate as, 102. By devisee or legatee, terminates his rights as a party, 101. His assignee may not intervene, 101. Until distribution, 101. When he should be cited, 102. But may petition for an accounting, 101, 102. By executor, etc., of claim against estate, 806. Op Mortgage. By foreign representative gives good title, 609. Op Cause op Action. By foreign representative enables assignee to sue here, 609 et seq. (See Jurisdiction op Surrogates' Courts.) Assistant to Surrogate: When referee, in probate proceedings, to take testimony, 54, 55. Cannot pass upon issues involved, 55. But can rule on admissibility of evidence, 55. No consent of parties necessary to designation of assistant, 55. Object of such designation, the relief of the Surrogate, 55. Power of such assistant discussed by Ransom, Surr., 55. (See Clerks; Stenographers; Surrogate.) Association : Certain classes of, exempt from transfer tax. See Transfer Tax. Attachment. See Contempt. Attestation Clause: Appended to will, ef?ect of, as to execution, 317 et seq., 330 et seq., 341, 343 et seq. Not essential part of will, 317. (See Probate; Will; subhead Execution of.) GENERAL INDEX 1235 [References are to pages.] Attesting Witness. See Will; Witness. Attorney: When Surrogate not to act as, 26. Effect on acting as Surrogate in case in which he was attorney, 26. Who not to practice before Surrogate, 52, 54. Party may appear by, 76. But may appear in person, 76. If of full age, and not judicially declared incompetent, 76. If nonresident, written proof of retainer to be filed, 77. Power of Surrogate over, 112. Like any court of record, 112. To direct substitution, 112, 113. Terms on which substitution shall be made, 112. Lien recognized, 294. Under Rule 10 of General Rules of Practice, 113. Which apply to Surrogates' Courts, 113. Must be in a pending proceeding, 114. Lien, generally, 113 ei seq. To determine amount of lien for services, 113. By reference, if he see fit, 113. Code, § 66, applies to special proceedings, 113. How Hen enforced thereunder, 113. Must be on rem over which Surrogate has power, 113. Cases discussed, 113. Against collusive settlement, 113. When agreement champertous, 115. Lien on income of trusts, 115. Effect of suit in forma pauperis, 115. To direct executors to pay counsel fee, 8. (See Costs; subhead CotrNSEjL Fees.) Power extends to vacating decree made in fraud of attorney's right, 114. Settlement in fraud of lien, 188. Can attorney appeal from order withdrawing client's objections, he opposing, 188. Surrogate's power pending inquiry, 114. To order deposit of moneys, 114. Party bound by attorney's stipulation, 58. e. g., for stenographer's fees, 58. As draftsman of will, or legatee, 378 et seq. Right to appeal, when, 189. When competent as a witness. See Witness. Designation in Will, 113. Payment of, 113. (See Appearance; Probate of Will, Costs.) Attorney-general : Duty in case of Surrogate's disability. See Surrogate, Acting. When may contest probate, 310. When citation addressed to, 279. Attorney in Fact: As applicant for letters. See Ancillary Administration; Letters of Ad- ministration, specific subheads. 1236 GENERAL INDEX [References are to pages.] Attorney and Counsel Fees. See Attorney; Costs. Surrogate may fix, as terms of substitution, 112. Of special guardian, Surrogate cannot allow, 234. Of representative, when accounting, 235. Code provision, 235. Must be allowed to representative directly, 236. Not allowed if representative is himself lawyer, 236. Or for work he should have done, 11 03. Disbursements for, may be inserted in account, 237 et seq. Executors, etc., not precluded from incurring, 237, 1155. But must stand test of scrutiny upon accounting, 237. Surrogate discussions, 237, 238. What will not be allowed, 242 et seq. Only if reasonable, and actually paid, 242, 1155. Authentication of Foreign Wills, Letters, etc., for Use Here: Provisions of law, 587, 588. Minuteness of exemplification required, 588, 589. Bequests. See Legacies, Payment of. Bill of Costs: Form of, 243. Must be verified, 244. (See Costs.) Bills and Notes: Locus of, 43. Code provision, 43. Order of payment of, by executor, etc. See Payment op Debts, subhead Order of Priority, fourth class, 838 et seq. (See Assets.) Boarding House: Keeper of, to report to public administrator in New York, 657, 658. (See Public Administrator.) Bond: On Appeal. See Undertaking on Appeal. When prosecuted, 211. By leave of Surrogate, 211. In name of people, 211. Or of person aggrieved, 211. For the Payment of Money. Is an asset where it actually is, 43. Not where obligor resides, 43. Code provision, 43. Order of payment of, by representative of decedent. See Payment op Debts, subhead Order op Priority, fourth class, 838 et seq. (See Transfer Tax.) By Executor or other Representative. See Letters op Administration; Letters Testamentary, subhead Objections; and see Official Bond. Surety Company, Premium paid to, may be allowed to representative, 1156. GENERAL INDEX 1237 [References are to pages.] Bond — continued. Surety Company — continued. (See Bond ok Undertaking.) Of Clerks, see that heading. (See Undertaking.) Generally in Surrogate's Courts. See Official Bond. §§ 810 et seq., applicable, 710 et seq. Code provisions as to form, acknowledgment, etc., 710. Upon securing payment of legacy, 938-941. Books of Records: Surrogate to keep, 156. Code provisions, 157. Of decedent, reference to. See Advancements. (See Record; Will.) Breaking Wills: Effect of forbidden attempt at, 948. Refusal to pay legacy to contestant, 948 et seq. Burden of Proof: In probate proceedings, 304 et seq. (See Probate of Will, subhead Contested, etc.) In action on bond. Is on surety, 729. To prove compliance with decree, 729. Or lack of jurisdiction to make it, 729. For decree is conclusive if valid, 723, 725, 728. In action to establish a will, see that heading. On reference of disputed claim, 811. (See Undue Influence, Testamentary Capacity.) On apphcation to compel payment of debt, 854. On inquiry into disputed claim on accounting. See 1126 et seq. In accountings, 1106 et seq. (See Accounting for the Estate; Evidence.) Business of Decedent : Temporary administrator, when may continue, 525, 527, 1145. Compensation for, 533. Right of general representative, 1144 et seq. Not to prejudice creditors, 855. Commissions denied, 1144. (See Commissions under Accounting for the Estate.) Canon Law: Mode of reckoning lineal consanguinity, 97. (See Civil Law; Common Law.) Capacity, Testamentary. See Testamentary Capacity; Undue Influence, Will. Carlisle Table of Mortality, 1000. Case on Appeal: To be settled as where cause is tried at special term, 116. 1238 GENERAL INDEX [References are to pages.] Case on Appeal — continued. By same rules, 116. Upon settlement, either party may request a finding of fact, 116. Or a ruling on a question of law, 116. Such settlement, only proper time to request it, 116. Exceptions to be noted, 115, 116. How made and settled, 116, 193. As is case upon appeal in an action, 116, 193. On trial of issue of fact, 117, 193. To be settled by Surrogate, 193. Before whom case was tried, 193. If dead then under § 997, C. C. P., 3. v. Time requirements — to be made and served within 30 days, 193. Of service of decree or order, 193. With notice of entry, 193. Amendments within 10 days thereafter, 193. Notice of settlement then within 4 days, 193. Giving from 4 to 10 days' notice, 193. Extending time to make and settle, 193. Must be on notice of at least 2 days, 193. Though time to appeal cannot be, 193. Notice of settlement, 193. Stipulating case proper practice, 194. On consetit, 194. When not necessary, 117. In which event, practice regulated by § 998, 117. Necessity of, 194, 199. Contents: What to be printed, 193, 194. Determined by recitals in order or decree, 193., If defective, move to amend, 193. All the evidence, 194. When appeal is from decree rendered on trial by the Surrogate of an issue of fact, it must be heard on a case, 193. Also, when appeal is from order granting or refusing new trial after jury trial, 213. Power of Surrogate over, 193. To allow omissions to be remedied, 193. To allow service of case after time has expired, 193. Where there is no case, there is nothing to review, 194, 199. Case may be remitted to Surrogate, 199. (See Appeal; Exceptions; Appellate Division.) Causa Mortis, Gifts and Deeds. See Transfer Tax. Certificate : By Surrogate, of probate of will, 400. (See Index of Precedents; Pkobate op Will.) Champerty. See Attorney, Lien of. Charitable Institution : Adoption from. See Adoption. Transfer tax appUcable to. See Transfer Tax, subhead Exemptions. GENERAL INDEX 1239 [References are to pages.] Child; Children: As heirs. See that heading. Discussed, 94. Adopted children. See Adoption; Distbibution. Illegitimate. See Illegitimate; Distbibution. As entitled to administration, 550. When not included in tenn "person interested," 99. Distribution to, 1178 ei seq. Adoption of. See Adoption. (See After-boen Child; Illegitimates; Infants; Pabtibs; Special Gtjaedian.) Citation : Definition, 63. Compared with summons, 59. Is a mandate of the court, 52, 53. Directing persons named to appear and show cause, 759. Should disclose nature and scope of proceeding, 53. Which is its object, 75. Must be attested by seal of the court, 65. And signed by Surrogate, 65. What citations clerk may sign, 52, 65. Those issuing as "of course," 52. And only such, 52, 972. Is the only foundation of the proceeding, 53. Special proceeding generally commenced by, 59, 60. When unnecessary, 60. In application for temporary administration, pending contest, 59. Where there are no heirs or next of kin, 68. When issued, is based upon presentation of petition, 60. Does not begin proceeding, if time of beginning is hmited by statute, 60. In such case, proceeding is commenced by presentation of petition, 60. And citation must be served within 60 days, 60. Or publication must be begun, 60. If citation served proves defective, supplemental citation may issue, 60. Can Surrogate extend time to serve citation, if petition is presented in time, 60, 61. Must conform to petition, 63. Variance, how cured, 62. Must describe relief asked in petition, 63. Inadvertent error may be cured, 63. Issuance of. Is issued upon presentation of petition, 63. That is, within prescribed time thereafter, 62, 63. Technically, on entry of order directing its issuance, 64. Practice in New York County, 64. Does not precede the petition, 63. Is the very act of the Surrogate, 64. But may be issued by clerk, 52. Only if party entitled to it as of course, 52, 756. Order directing issuance therefore of no practical value, 64. But usually entered, 64. Dispensed with, when, 68. May be waived, how, 275 et seq. 1240 GENERAL INDEX [References are to pages.] Citation — continued. Issuance of — continued. By duly acknowledged waiver, 78. To be filed, 275. (See Waivek.) When, 275 et seq. Contents op. Code provision, 63. Must specify estate or subject-matter in question, 63. Names of all persons to be cited, 63. Omission to be explained, 63. In probate proceedings. Code provision, 279. Name of decedent, 279. Proponent, 279. State character of property to which will relates, 279. Whether will is nuncupative, 279. When directed to attorney-general, 279. To public administrator, 279. Of supplemental form of notice to new party, 278. Practitioner's duty to see that it contains all necessary names and facts, 64, 277, 278. Practice where names are unknown, 63. Inquiry by Surrogate, 63. Power to subpoena witnesses on such inquiry, 63. Practice where party is unknown, 67. Class description, 68, 93. Must be comprehensive, 68. Under Surrogate's control, 64. Attorney has no right to insert anything without Surrogate's direc- tion, 64. Name inserted by anyone unauthorized gives no jurisdiction, 64. When addressed to infants, 65. In probate proceedings, 277 et seq. Form of. Prescribed, 63. Runs in name of people, 64. General form, 66. POWEE, TO DiBECT ISSUANCE. Of Surrogate, 6, 28. (See Tables.) To dispense with issuance, 68. Of Supreme Court, 21. Of clerk of Surrogate's Court, how limited, 52. Depends on nature of citation, 52. The test of such power, 52. Only such as issue "of course," 52, 756. Infants. Form of citation, when addressed to, 65. Notice of appointment of special guardian, 65. Service upon. See Service. Cannot waive issuance and service, 276. See Consul as to alien minor, heirs and next of kin. GENERAL INDEX 1241 [References are to pages.] Citation — continued. Infants — continued. Op Particular Persons. Persons constituting a class, 68. (See Parties.) How addressed, 68. Designation must be comprehensive, 68. Persons whose names are unknown, 63 et seq. Directed to them by general designation, 64. Effect of such citation, same as if person were named, 64. Persons who are unknown, 67 et seq. How addressed, 68. Order for. Technically requisite, 64. Form of, 65. Petition for. General form, 65. States names of parties, 66. Unless unknown, 63, 67. Also age, 68. Residence, 68. Publication of. Form of order, 72, 73. Mode of service by. See Forms, Directory Clause, and 74 et seq. Papers in which to publish, 79. Surrogate may designate additional papers, 79. How to be made, 80 et seq. Effect of personal service without the State, while publication is progressing, 80. Need not be on same day of each successive week, 80. Nor on concurrent days in both papers, 81. Provided, in either case, full forty-two days' notice is given, 80. Effect of death of petitioner, before publication complete, 81. (See Publication; Service.) Service of. See Service. Due service, when presumed, 49. How negatived, 49. When to be made eight days before return day, 68. Fifteen days before return day, 68. Power of adult to waive this time requirement, 68. , When to be made thirty days before return day, 68. Six weeks before return day, 68. How time affected by waiver, 344. How to compute time, 68. Shorter time when adult assents, 68. Assent must be in writing, 68. And issuance of, how waived, 275 et seq. When waived, 275 et seq. Mode of personal. See Service. Substituted. " " By publication. " " Who may make. " " In New York County, petition need not be served with probate citation, 69, 285. 1242 GENERAL INDEX [References are to pages,] Citation — continued. Service of — continued. What to be served with, 69, 70. (See Pttblication; Service.) Pkoop op Service of. When and how to be made, 66. Form, 67. Allegation required in New York County, 67. Citation with, in New York County, to be returned to clerk, when, 66re. Must be filed on or before return day, 66. Of substituted service, to be filed, 66. By mail, afiBdavit of, 67, 76. (See Service.) Return Day. To be fixed by Surrogate, 68, 286 et seq. When citation to be made returnable, 68. Not later than four months from date, but within statutory hmits. Sur- rogate may suit his convenience and that of parties, 68. Must be a day certain, 68. Where citation to be made returnable, 65. Before Surrogate who issues it, 65. Practice, as to, 68. In probate proceedings, 283. Probate. See 286 et seq. Supplemental. To preserve jurisdiction, when proper, 60. Issuance of, to a person intervening, 107, 282. Issuance of, on consent, 107w. And service on intervener makes order unnecessary, 107n. Civil Death: No basis for administration, 539. Civil Law: Mode of reckoning consanguinity, 97. (See Canon Law; Common Law.) Claims against Decedent's Estate. See Ascertaining the Debts ; Pay- ment of Debts; Disputed Claims. Leave to compromise. See Compromise. Surrogate's power, 30, 789. Includes power to prefer, 30. When disputed. Surrogate cannot pass on validity, 100. Unless consent filed under statute, 100, 1128. When Surrogate may pass on it at accountiiig, 100, 1127 et seq. (See Accounting for the Estate.) Presentation op. See Ascertaining the Debts; Discussion of Disputed Claims sub Accounting for the Estate. (See Creditors; Rejection op Claims.) Class : Persons included in a class, such as heirs, devisees, etc. See Parties; Service. GENERAL INDEX 1243 [References are to pages.] Clerk Hire : Paid by executor, etc., when proper, 243. Clerks in Surrogates' Courts (Part I, ch. III.): Clerk of the Court. Not the same as "Surrogates' clerks," 51. Specific po'ssrers of, enumerated, 51, 52. Code provisions, 51, 52. Surrogate liable for acts of, 54. May require security, 54. To be designated by a written order, 51. Effect of Surrogate's prohibition of exercise, by such clerk, of any such power, 52. When to conduct probate, 52. Extent of his power, 52. May administer oaths, 52. May issue citations, to which party is entitled as of course, 52. But not special citations, 52. That is, those which depend, for issuance, on Surrogate's determination, 52, 53. May not sign Surrogate's decrees, 53. In New York County may appoint deputies, 51. Also in Kings, 51. When not to act as appraiser, 54. Attorney, 54. Referee, 54. Special guardian, 54. Objection when waived, 54, 55. Clerks Employed in Surrogate's OrncB. Number of, 53. How to be paid, 53. What fees they may receive, 53. Abolition of certain fees, 54. Additional, paid by Surrogate, 56. Paid by county, 56. Code provisions, 56. Rule in New York County, 56. Clerks not to Act. As appraisers, attorney, counsel, referee, or special guardian, before the Sur- rogate, 54. When this prohibition can be obviated, 54. By written consent of all parties, 54. Special guardian may join in consent, 55. Surrogate Liable. For clerk's acts, 54. In discharge of official duty, 54. May require security, 54. New York County. Distribution of clerical force, 53. Board of aldermen's power over, abolished, 53. Surrogates now control appointment and removal of clerks in their offices, 53. Also, their number, duties and salaries, 53. Subject to board of estimate's revision, 54. (See Surrogate; Surrogate's Court.) 1244 GENERAL INDEX [References are to pages.] Codicil : Curative power of valid codicil, 263. Upon invalid will referred to, 263. When found in time, should be proved in proceedings to probate original will, 250. A duty to propound it, 250. To one of several wills, 255 et seq. Effect of, on wills, 255. On canceled will, 255. Uncertain identification of will, 256, 334. Parol evidence inadmissible, 256. Must be executed with all statutory formalities, 256, 334. Codicil and will to be construed together, 256. They may be executed simultaneously, 334 et seq. To earlier will, effect of, on later, 335. (See Reviving Will.) Containing clauses repugnant to, or inconsistent with will. See Revocation OF Wills. Properly executed, cures defects in execution of will, 256, 334, 335. As by incorporation, 335. Both become one complete instrument, 335. Speaking as of date of one last executed, 336. Effect on legacies adeemed ad interim, 336. If such will properly identified, 334. As by annexation thereto, 335. Made when sober validates will made when drunk, 360. After marriage, validates will of unmarried woman made before mar- riage, 263, 335. Proof of lost codicil; nature of, 296. Effect on lost will to which it is codicil, 296. (See Probate; Revocation; Will.) Collateral Attack: On Surrogate's decrees. See Decree; Conclusiveness. On letters, 490, 543. (See Decree; Decrees and Orders.) Collateral Inheritance Tax. See Transfer Tax. Collateral Relatives. See Next of Kin; Letters of Administration; Dis- tribution. Commission to Take Testimony: Provisions of § 888 are applicable, 122. Surrogates' power to issue, 8, 123. Abrogated in 1880, 123. Restored by § 2538, 123. Originally sought to be limited to probates, 125. Should be exercised before trial, 125. Though may issue after hearing is begun, 125. May issue in aid of reference on disputed claim, 809. Or in transfer tax proceeding, 888. Commissioner deemed an officer of the court, 125. Must be named, 125. GENERAL INDEX 1245 [References axe to pages.] Commission to Take Testimony — continued. Production of will before him equivalent to its production before the court, 125. Issuance op; How Obtained. Procedure same as in civil actions, 122. Affidavit must show that testimony sought is material, 123, 289. And that case is within statute, 123. And that witness is without the State, 123. But if his testimony cannot be speedily obtained, his handwriting may be proved, 290. Code provision, 290. Form of affidavit, 125. By whom to be made, 289. Notice must be given, 289. Obdeh Dikbcting Issuance. (Order is the Commission.) Must be under seal of court, 289. 'Unless waived, 289. Must be entered, 124. May be upon consent, 124. Surrogate may grant or refuse, 124, 125. But appeal is proper, if discretion abused, 124. Porm, of 126. Contents of; should name commissioner, 123, 125. Specifically designate each witness, 123. If not, order is irregular, 123. Unless witnesses described as of a class, 123. Or are identified, as to be called to testify to a specific fact, 123. Sufficient identification is what is required, 123. May stay trial pending execution, 126, 289. This covers probate, 289. Sta.y can be revoked, 289. Appeal. From order granting, stays issuance, 203. Refusing does not stay probate, 203. Interrogatories. Commission usually issues upon, 123. Both direct and cross, 123. Which must be material and pertinent, 123, 127. How settled, 123, 127. Remedy, where Surrogate allows improper, is by objection on the hearing, 124. Remedy, where he disallows a proper, is by appeal from the order, 124. Should be annexed to order, 124, 127. Unless open commission is allowed, 124. Open. May issue, 124. But only where necessary, 124, 289. When is improper, 124. When open, notice of time, place and names of witnesses must be given, 124, 289. Pecuniary condition on granting open commission, 124. Length of such notice, 124, 125 1246 GENERAL INDEX [References are to pages.] Commission to Take Testimony — continued. Open — continued. How affected by distance of place, 124, 125. Execution of. Must be reasonably expeditious, 125. Stay may be granted, 289. Court not bound to wait indefinitely, 125. May revoke stay, 289. And may refuse to reopen hearing, to receive conunission unreasonably de- layed, 125. Return, pursuant to Surrogate's direction, 127. Indorsed on order, 127. Commission, when executed, to be filed, with testimony, 291. But need not be recorded, 291. (See Evidence; Probate of Will; Witness.) Commissions : See Accounting foe the Estate, subhead Commissions. On sale of decedent's realty, 988, 989. May be specially allowed, 989. Or may be given on final accounting, 989. Common Law: Mode of reckoning lineal consanguinity, 97, 98. (See Canon Law; Civil Law.) Common-law Marriage: Nonceremonial marriage, 263. Fixing exact time of, 263, 266. Effect on will of the woman, 263. Presumption from decent, orderly cohabitation, 266. Compensation : See Surrogate (acting, special, temporary); Accounting for the Estate; sub- head. Commissions. Completing Purchase: Of decedent's real property, in proceedings to sell, etc., how compelled, 8, 995. (See Real Property, Proceedings to Sell, etc.) Compounding Debt: By executor or administrator. See Compromise of Claim. Compounding Payment: Of transfer tax. See Transfer Tax. Compromise of Claim: In Favor of Estate: Surrogate may authorize representative to make, 30, 789. Statutory provision, 789, 822. His authority purely statutory, 789. History of, 789. Statute confers no new power on representative, 789. GENERAL INDEX 1247 [References are to pages.] Compromise of Claim — continued. In Favor op Estate — continued. Now in § 2719, 829. Code provision, 829. Arbitration also a proper remedy, 830. Risk to representative if decision adverse, 830. i. e., may be held on accounting for devastavit, 830. Defined, 789. ' Consists in acceptance of part in lieu of whole, 789. Entering into a creditor's composition, not a, 789. Executor, etc., when in duty bound to make, 790. Effect of making, on representative's own responsibility, 790. See Matter of Thomas, 39 Misc. 223, 225. Applying to Surrogate for leave, 790. Allegations requisite, on asking leave to make, 790. Surrogate's duty, on such application, 790, 791. Which is in litigation, 791. For damages which occasioned decedent's death, 791. Form of petition for leave to make, 791. Order, 792. Against the Estate. See Ascertaining the Debts. May be done vmder § 2719, 830. Comptroller : Reappraisal, on demand of, under transfer tax law. See Transfer Tax. Of New York City, appeal by, in transfer tax proceedings. See Transfer Tax, Concealment: Of will by heirs, 402. What is such concealment, 402. Effect on purchaser of devised property, 402. Limitation of time, 402. Code provision, 402. Of assets from public administrator, remedy for. See Assets; Discovery of Assets; Executor; Executor or Administrator; Public Administra- tor. Conclusiveness. See next heading. Of decree against principal upon sureties, 723, 725, 728. (See Official Bond.) Of probate of will of personalty, 151. Of realty; limitations, 152. Of letters, as evidence of recipient's authority. See Letters op Administra- tion, different subheads. Of inventory of decedent's assets, 786. (See Ascertaining the Estate; Decree; Decrees and Orders; Inventory op Assets; Probate op Will.) Conclusiveness of Surrogates' Decrees and Orders: Discussed generally in Part II, ch. IV. See Decree, subhead. Conclusiveness. Concurrent Jurisdiction. See Jurisdiction; Surrogate; Surrogate's Court. 1248 GENERAL INDEX [References are to pages.] Consanguinity: What is, 97, 98. Lineal, how reckoned, 97, 98. Under canon law, 97, 98. Under common law, 97, 98. (See Next op Kin.) Consent : To Surrogate passing on disputed claim. See Ascertaining the Debts, sub- head RBrBEENCB OF CLAIM, 807 et seq. [See Acknowledgment; Probate (citation).] Consolidation : Of voluntary and compulsory accountings, 1089. Code provision, 1089. (See Accounting for the Estate.) Constitution : Continues Surrogates' Courts, 10. Effect of, 10. Construction of Will: Action for, under § 1866, 464. Who may bring, 464. May be had in action under § 1861. See Establishing Will by Action. Power of court of equity, 46. Surrogate's Court, limited, 8, 46. (See Construction of Will by Surrogate; Probate of Will.) Construction of Will by Surrogate (Part III, ch. VIII, pp. 435 et seq. : Surrogate's power, 8, 9. Statutory, 435. Code provision, conferring and describing power, 435. Limitations of power noted, 46, 47, 436. Incidental power discussed, 435, 437. Code has not diminished incidental power, 435. Surrogate has no general jurisdiction, 436. If exercised, fails, 436. e. g., if affecting rights of persons not parties, 436. Determining validity, construction or effect of testamentary disposition, 47, 435. Of personal property only, 9, 435, 437, 441. As incidental to probate, 435, 437. Probate decree will include his determination, 392, 394, 399n.. Cannot construe devises, 392, 437-439. Decisions, as to power under § 2624; summary, 441. Validity not of will, but of disposition, 46, 47. Presented by express terms of will, 442. e. g., is it to a debarred beneficiary, 440. But not of extraneous questions, 442. Even though all consent in presenting, 442. Must be of will executed here, 435, 441. GENEEAL INDEX 1249 [References are to pages.] Construction of "Will by Surrogate — continued. By a resident, 435, 441. Usual rules apply as to who is, 38, 441. All persons affected should be brought in, 440. Power exercised only at instance of party, 441. Having actual interest, 437, 441. Executor not such a person, 438. Issue, how presented, 441. Power denied if probate denied, 435, 440. Probate precedes construction, 391, 392, 440. Must be probated on proof of factum, though held invalid in re dis- positions, 440. As incidental to accounting; decisions, 436, 444, 445. No power, as to will of realty, 438, 439. Marcial case, 15 N. Y. Supp. 89, discussed, 438. Nor as to foreign wills, 437. On petition of one actually interested, 437. No right to raise academic issues, 437. Rule, where provisions as to realty and personalty inseparable, 439. Extent of power, 440. When exists, it is adequate, 440. Express and incidental powers distinguished, 442. Implied Power; Generally. Exercise of implied power discussed, 442 et seq. Implied power exists, where necessary to exercise of express power, 442. When exercised must be embodied in decree itself, 446. As incidental to transfer tax proceedings, 442. Generally speaking in any proceeding, 443. Cases where incidental power denied, 445. Not in proceeding to revoke probate, 441. By what principles guided and governed, 443. Same rules as govern Supreme Court, 444, 446. Difficulty of framing fixed rules, 446. Testator's intention primary guide, 447, 451. Canons of construction, 447. Fifteen rules condensed, 447 et seq. Interpretation of words and phrases, 449, 450. Rules therefor, 449. Admissibility of extrinsic evidence, 451, 452. Explication, 453. Application, 453. Evidence of intention, 451. Unattested writings and memoranda, 452. Declarations of decedent, 451, 452. (See Probate of Will; Will.) Consular Courts: Duty of U. S. consuls as to estates of citizens dying in foreign countries, 611, 612. May prove wills, 611. Right to issue letters, 612. Treaty provisions, 611. Ancillary letters thereon, 612. 79 1250 GENERAL INDEX [References are to pages.] Consuls, Foreign: Right under treaty to appear, 77, 276. For nonresident subjects, 77, 276. But in case of infants citation must nevertheless issue, 77, 276 (see 650). And be served, 77, 276. Necessity of alleging treaty right, 77, 276. Or "most favored nation" clause, 77, 276. Right to notice from public administrator. New York County, 650. As to estates of nonnaturalized foreigners, 650. Procedure indicated, 650. May appear for such foreigners, 650. Unless they be minors, 650. In such case must be guardian ad litem, 650. Right to distributive share, 1168. Contempt of Surrogate's Decrees and Orders: When punishable; Code provision, 159. Limitation on Surrogate's power, 163. Nevertheless very great, 159, 163. Decrees distinguished, as to whether enforceable by execution, or by proceed- ing for, 160. First resort to execution, 162, and see Execution. At least partially, 162. But in case of representative execution unnecessary, 162. Fatally defective decree may be disregarded or disobeyed, 161. Lawful decrees only enforceable, 161, 163. But merely reversible decree must be obeyed, until reversed, 161. Surrogate's extraordinary power, under § 2555, 162. Refusal to pay costs, 163, 164. Sometimes punishable, 164. Included in decree for payment of money, 164. But not if decree direct only payment of costs, 164. Want of assets as an excuse, 165. In such a case, § 15 controls, 164. Costs illegally awarded, 161. e. g., to special guardian, 162. Nor out of infant's interest, 162. Refusal to pay money directed to be paid by decree, 164, 858. If respondent is a representative, 160. Decree need not be docketed, 160. Nor need execution issue, 160. This, under § 2555, subd. 4, 160. This power only used when necessary, 162. "Personally charged with costs," only by execution, 164. Not refusal to pay debt due estate from representative, 164, 165. Refusal to obey an order. If directions unmistakeable, 175. e. g., to answer questions. Questions must be material, 175. e. g., to file account, 175. Preliminaries to proceedings for, 163. Proof of decree, 163. GENERAL INDEX 1251 [References are to pages.] Contempt of Surrogate's Decrees and Orders— contimied. e.g., (1) Directing payment of money. (2) Or performance of a duty. (3) Service on party so directed. (4) Of certified copy. (5) Willful neglect or disobedience. No preliminary citation to show cause is requisite, 163, 165. But it is customary to begin proceedings in such way, 165, 167n. The order to show cause, 166. Code provision, 166. Form of, 168. Gives notice of the application, 165. And of precise act complained of, 165. Necessary in certain specific cases, 165. Amendment of, 165. The practice, generally, 165 et seq. Affidavit to procure punishment for contempt; form, 167. May be made by either party or attorney, 167. Making of lawful decree must be shown, 163. Personal service of decree disobeyed must be shown, 163. i. e., of certified copy, 163. And original signature exhibited, 757. And actual disobedience, 163. How disobedience complained of shoved be shown, 165. Provisions of § 14 are applicable, 165. And of §§ 2266-2292, 165. Attachment for contempt, 170 et seq. Failure to perform a duty, 170. Or obey a mandate, 170. Excuses for noncompliance: Appeal to Surrogate's discretion, 173n. Invalidity of decree or order, 161, 163. Mere reversibility insufficient, 161. Insolvency of representative insufiioient, 164. Except where payment required of his own debt to estate, 164, 780. Want of estate assets, 165. Improper service, 168ra, 171, 173.* Circumstances beyond offender's control, 171. Addressed always to Surrogate's discretion, 173ra. Interrogatories proper in case excuse made, 172. Form of attachment, 171. Order must be made, 171. Form of, 172. Form of interrogatories, 172. Answer to interrogatories, 173. ' Motion to vacate, 173. If denied, order appealable, 173. Discharge, if excuse satisfy Surrogate, 173. Commitment otherwise, 173. Order for, 173. Form of, when made without notice, 168. After return day,. 169. May fine offender, 173. 1252- GENERAL INDEX [References are to pages.] Contempt of Surrogate's Decrees and Orders — continued. Penalty equivalent to sum he failed to pay, 162, 169re, 174. And impose costs, 173. Must be definite, 165. Warrant, form of, 169. Appeal from commitment : Special undertaking, 205, 210. Form of bond, 205. (See Appeal.) Other relief against: moving to vacate, 173. Physical inability, discharge, 174. On "satisfactory" proof, 174. Bankruptcy is not such, 175. (See Dbcbeb; Orders.) Contested Probate. See Probate of Will; Revocation of Probate. Effect of conditions against in will, 948. As defense to petition to compel payment of legacy, 948, 949. To be distinguished from suit for construction, 948. Contingent Remainder : Transfer tax, on. (See Transfer Tax.) Continuing Business : Of decedent, by representative, 855, 1144 et seq. by temporary administrator, 525, 527, 533, 1145. No commission allowed for, 1144. Salary paid to executor for, when proper, 1145. Contract : Held by decedent, for land purchase or sale, 997. Vendor's remedy under contract to purchase, 966. (See Real Property; Proceedings to Sell, etc.) Conversion: By deceased representative must be made good by his estate, 620, 621. Statutory provisions, 620. Conveyance : Of real property, in proceedings to sell, etc., 993. (See Deed; Real Property; Proceedings to Sell, etc.) Corporation : Note. — "As a creditor, a corporation cannot receive letters," 105 App. Div. 143. " No foreign corporation can receive letters here," 45 Misc. 529. ' (See Transfer Tax, 872 et seq.) As executor, 472. Effect of merger in another, before letters, 472. Costs and Allowances in Surrogate's Court: General discussion. Part II, ch. VI. Form of bill of, 243. Must be verified, 244. GENERAL INDEX 1253 [References are to pages.] Costs and Allowances in Surrogate's Courts — continued. Enforcing payment of, when enforced by contempt proceedings. See Con- tempt. When enforced by execution. See Execution. How AWABDED. Awarded by decree or order, 224. Subjects to rules governing orders in Supreme Court, 175, 224. As to amount and method of collection, 224. As to instances, must find statutory authority, 242. Same as to allowances and disbursements, 224. Thus, motion costs cannot be enlarged by framing order as decree, 242. Important, therefore, to distinguish orders from decrees, 242. e. g., motion to open a decree ends in an order, not in a decree, 242. And entitles only to motion costs, 242. On affidavits, 231. Specific as to details, 231. Code provision, 231. Include disbursements, 231. Rule in New York County, 232. Taxation of: Surrogate the taxing officer, 232. Notice required, 241. How Collected. (See Dbceees, Oeders, Enforcement of.) Motion costs, under § 779, C. C. P. qiuere 224. as to a stay, 224, 225. not by imprisonment if order be for costs only, 164, 225. In contests: out of objector's share in estate, 226. Securing Costs: As a condition of open commission, 124. Allowance of. Wholly regulated by Code, 233, 242. This includes costs, allowances and legal disbursements, 242. No costs allowed to unsuccessful contestant, 226. Either of probate, or revocation of probate, 226. Inapplicable to special guardian appointed by Surrogate, 228. Or to executor propounding will, naming him, 228. Mere lack of success does not subject to, 226. To special guardian, 162, 234 et seq. (See Special Guardian.) To or against formal party, 226. Unless needlessly joined or litigating, 226. When Awarded as of Right, 227 et seq. Under § 2558, subd. 1, 2, 227, 231. Code provisions, 227, 228. When applicable. Surrogate has no discretion, 228. (See Probate of Will; Probate of Heirship. When Awarded in Surrogate's Discretion. Under § 2558, subd. 3, 231. Always except in cases covered by § 2558, 230, 231. Must be fixed by Surrogate and included in decree, 231. Cannot increase statutory amovmts, 233. Under § 2561, Code, 233. 1254 GENERAL INDEX [References are to pages.] Costs and Allowances in Surrogate's Court — continued. When Awabded in Surrogate's Discretion — coniinued. Can be awarded only to parties, 231. This does not include attorneys, 231. Temporary right, under L. 1870, ch. 359, § 9, 231. To allow to counsel, 231. Number of counsel employed cannot affect the taxable costs, 231. Their charges are against their client, 231. Even if a special guardian, 235. Exercise of discretion, within statutory limit, not disturbed on appeal, 233. After passing on disputed claim on accounting, 235. On sale of decedent's realty, 235. Charged upon Fund or Estate. When payable, 225. Code provision, 225. Not if estate less than $1,000, 225. Except to extent of actual expenses, 225. , Surrogate has discretion, 225. "As justice requires," 225. Hence reviewable, 225. Not to counsel, 231. In contested will cases, 228. Never to unsuccessful contestant, 226, 228, 230. Unless he is special guardian, 228, 230. Or is executor of another will propounded by him in good faith, 228, 230. Unless he acts as his own attorney, 230, 236. But may have copy minutes at estate expense, 226, 230. Charged Personally upon Parties. Power of Surrogate, 225. Illustrative instances, 226. Attorney, guilty of bad faith, 226. Against proponent, 226. To any or all contestants, 226. Unless united in interest, 226. Not charge against mere formal party, 226. i. e., one not a necessary party, 226. Unless needlessly litigating, 226. Nor upon one litigating in good faith, 226. As contestant of will, 227. Disinherited relation, 227. Mere lack of success not the basis, 226. As a penalty for bad faith, or fishing expedition, 226. As partial indemnity to successful party, 227. Chargeable upon his share, 226. Only includes taxable costs, 291. Party not chargeable with opponent's counsel fees, imless taxable, -291. Charged Personally upon Representative. When proper, 227. See § 3246 of Code, also §§ 1816, 1835, 1836, id. In cases of dilatoriness in accounting, 227. Or wasting the estate, 227. Or causing unnecessary litigation, 227. GENERAL INlUx 1255 [References are to pages.] Costs and Allowances in Surrogate's Court—continued. Charged Personax,ly trpoN Representative — continued. " Unreasonably resisting " claim, 227, 802. See § 3246, Code Civ. Proc, also §§ 1835, 1836, 812. If demand duly presented under provided notice, 802. Code provision, 812. Not applicable to testamentary trustees, 812. What is unreasonable, 819. Or defiance of lawful order, 227. Equivalent to money judgment, 164. Enforceable by execution only, 164. On Appeal. From order granting or refusing new trial, 216. Granted by Appellate Court, 216. As if appeal were from Surrogate, 216. Directions of Appellate Court controlling on Surrogate, 228, 229. "With costs" awards disbursements "by implication," 228. In absence of such directions. Surrogate must fix, 228-230. In his own court, 228. But cannot award appeal disbursements, 228, 229. Code provisions, 227, 228. If Appellate Court refuse to award, Surrogate cannot, 229. If due to omission, move in Appellate Court to resettle order, 228. After jury trial, same as if awarded in Supreme Court, 229. Code provisions, 229. Surrogate, while he cannot award, may direct how they be paid, if Appellate Court silent, 229. But cannot modify its directions, 229, 230. Or enlarge its scope, 229. To special guardian, 284. (See Special Guardian.) ArTEH Jury Trial. Surrogate may award as incident to his power to "make a decree accordingly," 229, 232. Except as to appeal costs, 229, 232. Amount or. Code provisions, as to, 231-233. Surrogate's power, under § 2559, to fix, 232. Surrogate, not the clerk, is the taxing officer, 231. And can only give "taxable costs," 236. Surrogate's power, under § 2561, 233. Taxation, rule in New York County, 232. Extra allowance to be fixed at same time, 233. In absence of such or similar rule, ordinary practice, as to serving bill of costs, with notice, is followed, 232. Stenographer's fees to be taxed as disbursement, when proper, 232. As in Supreme Court, 242. Also referee's fees, 139, 232. On reference, nothing taxable for adjournment without hearing, 233. Rule as to specific affidavits in New York County, 232. After jury trial, 232. Same as taxable costs in Supreme Court, 232. Extra Allowance. See Action to Determine Validity op Probate. 1256 giMbral index [References are to pages.] Costs and Allowances in Surrogate's Court — continued. Extra Allowance — continued. Per diem; provisions of § 2561, 233. Affidavit to support, 232. What not included, 233. Argument to court deemed a hearing, 233. Upon accountings, under § 2562, 235, 236. Upon sale of real property, under § 2563, 235, 236, 243ra. These two allowable only to representative acting in re, 236, 237. DiSBUKSEMENTS. To be included in bill of costs, 231, 233, 241. Same as in Supreme Court, 231, 241. What usually meant, 241. Supported by affidavit, 231, 237. Which may be controverted, 232. Stenographer's minutes, 232, 242. Referee's fees, 139, 232, 814. Not taxable, if paid for adjournments without hearing, 233. Must be supported by voucher, in form of affidavit, 139, 232, 242 On reference of disputed claim, 814 et seq. Must be reasonable in amount, and supported by voucher, 232. Clerk hire, when allowed, 243. Only if estate is large or complicated, 243. Counsel Fees, Allowance of. Surrogate may direct payment, 8. Discussion of, 237 et seq. Under § 2561, 235. Per diem under § 2562, 236. Not taxable as costs, as a rule, 237. When may be, 124, 241. As when imposed as condition of a discretionary order, 124. e. g., granting "open" commission, 124. Per diem allowance cannot be claimed, if executor act as his own attorney, 236. But executor, etc., of course may employ counsel, 237. And pay reasonable fees, 237, 1155. As for counsel fees on appeal, 1156. Which Surrogate may allow upon accounting, 237 et seq., 1155 et seq. When persons interested have opportunity to object, 237, 241. Per diem allowance is the limit of taxable counsel fees, 236. But not of counsel's compensation, 237 et seq. Distinction drawn where services rendered to executor personally, not ben- eficial to estate, 238, 1155. Not chargeable upon party personally, 239. Unless form part of taxable costs, 239. History of legal rule reviewed, 237 et seq. Instances of counsel fees disallowed, 242. Allowance of, to executor, etc., 1127. Burden of proof as to reasonableness, 1127. Not allowed for services executor should render, 1102, 1156. (See Accounting for the Estate.) Of special guardian. See Special Guardian. Power of temporary administrator, to pay, 527 et seq. (See Attorney.) GENEKAL INDEX 1257 [References are to pages.] Counsel Fee. See Costs in Surrogate's Court; Attorney; Accounting for the Estate. Counterclaim : By heir or devisee in proceedings to sell real property for debts, 980. By estate on reference of disputed claim, 820. County: As the boundary of jurisdiction, 11. Effect of change in boimdaries, 48. . Erection of new county, 48. Which Surrogate to hear matter begun before change occurred, 48. JUKISDICTION OF SURROGATE. Limited by county lines (see above). How affected by erection of new county, 48. When not affected by erection of new county, 48. How affected by residence of decedent in county, 36 et seq. Location of property in county, 34, 40. (See Jurisdiction op Surrogates' Courts.) County Judge: As Surrogate, 12. Code provisions, 12. How to be designated, 13. When to act, 13. , Termination of authority, 19. Special provisions in Kings County, 13, 14. Number of counties, in which he is also Surrogate, 11. Sessions of court, as Surrogate and county judge, may be held at same time and place, 14. Power to appoint guardians ad litem, 84. County Treasurer: (See Public Administrator, subhead County Treasurer.) Payment of transfer tax to. See Transfer Tax. Court of Appeals. See Appeals. Court of Probates: In colonial times, 3. Under Revised Statutes, 3, 4. Credit: Sales of decedent's property on, when allowed, 991. Code provision, 991. Creditor : See Ascertaining the Debts; Payment op Debts, and, eo, subhead Pro- ceedings TO Compel. Not included in expression "person interested," 99. Often necessary party, 99. As one of a class, 68, 71, 93. Either as petitioner or respondent, 99. And may be brought in by supplemental citation, 107. How interest proved, 99. 1258 GENERAL INDEX [References are to pages.] Creditor — continued. By mere allegation of interest, 99. Which may be conclusive, 99. Which may be denied, 99. If denied, creditor must set forth facts showing his claim, 99. May be proponent of a will, 100. But is not to be cited on probate, 100. Thus, cannot move to revoke probate, 100. Significance of, under Code, 100. Includes everyone having a "claim or demand," such as is described in § 2514, subd. 3, 100. Provided it be against the deceased, 100. Thus, does not include creditor of a creditor, 100. Or creditor of next of kin, 100. Or creditor of a legatee, 100. His claim if disputed not triable by Surrogate, 100. Unless consent in writing filed, 100. This postpones it to accounting, 100. But may be tried in proceedings to sell realty, 977 et seq. Even claim not yet due, 977. But not if barred by statute, 977. Even though allowed by executor, 977. May appear, though not cited, when, 101. Thus, creditor of live claim may come in and object to allowance of one barred by statute, 101. Particularly, if assets insufficient to pay both, 101. This right not lost by failure to present claim, 101. But he must appear upon the "hearing," 101. Payment to, on distribution, 101. (See DiSTBiBUTioN.) Refers to undisputed claims, 101. Or one settled by consent, 101. Or one assigned, 101, 102. May prove his claim and be paid, though appeal is pending from probate de- cree, 209. May apply for letters. See Lettebs of Administration, various subheads. May apply for revocation of letters. See Part IV, ch. IX. Who is, for puipose of compelling return of inventory. See Inventory and Appraisal. Who is, for purpose of compelling payment of debt, 849. (See Payment of Debts.) Remedies of, against decedent's estate, enumerated, 977 et seq. May present claim and consent to refer, 804. Or may sue under § 1822, 804. Or stipulate its adjudication over to accoimting, 804. Or may under § 2718a consentto immediate determination by Surrogate, 804. May petition for sale, etc., of decedent's real property. See Accounting for the Estate; Real Property, Proceedings to Sell, etc. Crime: Conviction of, disqualifies from administering, 473, 558. Unless pardoned, 473. GENERAL INDEX 1259 [References axe to pages.] Crops : On decedent's land, etc., as assets. See Inventory of Assets. Curtesy. See Husband. Custody of Estate: Where there are coexecutors, 493 et seq. Cases where joint custody ordered, 495, 496. Death: Fact of not proved by offering probate decree, 156. e. g., in another action or court, 156. (See Abatement.) Of Surrogate, before settling case on appeal. See §§ 52, 997, C. C. P.; § 23, Judiciary Law. Of petitioner before service by publication is complete, 81. Of decedent basis of administration letters, 539. Must be actual, not civil, 539. Of proponent of will does not abate proceeding, 105, 109. Nor does death of contestant, or even of all parties, 105, 109. Of a party, effect of, 108 et seq. Rule in Surrogate's Court not like that in actions, 108. Entitled to appeal from a decree or order, 108. His heir, devisee or personal representative may do so, 108. Abates some proceedings, 109. Not a proceeding in rem, 105, 109. Even death of all parties, 105. His representatives should ask to come in, 109. And revive on notice to all parties, 109. (See Intekvbning.) They will be granted leave to do so, 109. If they do not, and proceeding goes to decree, it will be conclusive on the parties, 109. Representative should ask to come in on probate, 109. Unless proponent had no beneficial interest, 109. e. g., an executor, 109. When proceeding is in personam, effect is abatement, 109. e. g., accountings, 110. Proof of required on application for temporary administration, 518, 519. Of accounting party, 1087. Effect of upon his claim against the estate, 1131. For commissions, 1149. Of subscribing witness to will, effect of, 287-290, 347- (See Will, Execution of.) Of executor, etc., in proceedings to sell, etc., decedent's real property, effect of, 110, 987. Prior to entry of judgment, amount is debt of estate, 836. Not a lien on property, 836. Presumption of. See Pbesumptton. Of one of several representatives or guardians, effect on surety, 708. Of surety on official bond, effect of, 697, 714, 731. (See Abatement; Parties; Real Property, Proceedings to Sell, etc.) 1260 GENERAL INDEX [References are to pages.] Debt: As a basis for jurisdiction, 42, 43. Property at residence of debtor, when, 42. Code provision, 43. Bond, promissory note, etc., where to be deemed assets, 43. If vaHdity admitted, how paid upon distribution, 100. Owing to estate, by executor, status of, 697, 698. Owing to representative from estate, 804. Usually awaits accounting, 805, 850. But may be adjudicated on sale of decedent's realty, 979. Must prove as fully as any other creditor, 804, 806. But may assign claim, 806. (See Inventory op Assets; Compromise op Claims; Contempt; Executor, sub- head Liability; Oppioial Bond, subhead Surety.) Of decedent, ascertainment of. See Ascertaining the Debts. Payment of. See Payment op Debts; Proceedings to Compel Payment. Contracted by representative, 845 et seq. As a basis of proceedings to sell real property, 963. Collection of by sale, etc., of real property. See Real Property, Proceedings to sell, etc. Debts Due Decedent: Executor must be diligent to collect, 750, 788. Or show why he did not, 750. e. g., insolvency of debtor, 788. Not collectible under § 2707, 752, 753, 755. Power to collect implies power to settle, 758. And power to release, 758. Special power given to compromise, 788. Subject to attack on accounting, 789. May settle with partners of decedent, 8, 789. May enter into "composition" agreement, 789. How this duty of settling is to be exercised, 790. The Surrogate's duty, 790. , Form of petition, 791. Deceased Representatives. See Executor or Administrator of Deceased, etc. Decedent's Estate: Jurisdiction of Surrogate's Court over, 3. Order of application of, to payment of debts, legacies, etc. See Payment of Debts; Payment of Legacies. (See Jurisdiction op Surrogates' Courts.) Decrees and Final Orders: Definition, 146. General discussion. Part II, ch. PV. Signature by Surrogate, 53, 146. Invalid if unsigned, 53, 146. Even though filed, S3, 146. And signed by clerk, 53. Can be disregarded, 146. GENBKAL INDEX 1261 [References are to pages.] Decrees and Final Orders — continued. Is final determination, 146, 164. And hence appealable, 115, 164. If involving a substantial right, 190. May be styled a final order, 146, 220. Examples of what are or are not such, 220. e. g., order determining attorney's lien, 115. Directing executor to pay, 146. Presupposes a proceeding, 146. What its validity hinges upon, 146. Tests of finality, 146. How enforceable. (See below.) Against decedent, preference of, in paying debts, 835 et seq. Eppect op. Certain specific decrees, 146, 151. (See below Conclusiveness op Surrogates' Decrees and Orders.) Probate decrees, how far conclusive as to personalty; Code provision, 151. How far conclusive as to realty; Code provision, 152. Conclusive within limits, 153 et seq. e. g., questions actually involved, as to formal validity, unless construction necessary, upon parties only, and privies. Discussion of these Code provisions, 152 et seq. Refusing probate, limited, 154. Person not cited may propose again, 153. Distribution decree: After settling account, 152. Conclusive as a judgment, 152. On every party duly cited, 152. And his privy, 152. Decree after jury trial, 141. Contrasted, 155. Do not prove fact of testator's death, 156. e. g., in ejectment or dower, 156. Conclusiveness of. On one securing it, 146. Subject to its being opened or modified, 147. What it depends on, 147. Regularity of proceedings, 147. Citation of all necessary parties, 147. Jurisdictional validity, 49, 147. Not obtainable merely by consent of parties, 9, 147, Effect of recitals, 49, 149. Unaffected by right to appeal, 147. Conclusive until reversal, 147. Subject-matter involved, 147, 148. If jurisdictional, it is covered, 147. Even though erroneous, 147, 149. Effect of acquiescence, 149. Based on its being, generally, in rem, 147. Instances of, 147 et seq. 1262 GENERAL INDEX [References are to pages.] Decrees and Final Orders — continued. Conclusiveness of — continued. As to sufficiency of assets in representative's hands, 858. Code provision, 858. When Surrogate has jurisdiction of matter and parties, decree has same force as judgment of any competent court, 148. On whom: Parties, 147, 148. Duly cited, 148. Recital of service, effect of, 49, 149. Including infants, 148. Remainderman, unborn, 148. Sureties, 723, 725, 728. (See Official Bond.) But if it appear Surrogate had no jurisdiction of the rem, decree has no con- clusiveness, 151. Or had no jurisdiction of the person, 151. Rule as to, summarized by Court of Appeals, 150. Collateral Conclusiveness. Conditioned by special and statutory character of jurisdiction, 148. Therefore jurisdictional facts must be affirmatively shown, 148. But acts of Surrogate having jurisdiction cannot be collaterally attacked, 49, 149. Collateral attack focuses on jurisdiction to act, 149, 543. Code provision, 1,49. Effect of recitals iu decree, 49, 149, 151. As to parties being duly cited, 49, 149, 151. Recitals presumptively establish jurisdiction when drawn in question collaterally, 49, 149. Conclusively estabUsh it, in absence of fraud or collusion, 49, 149. If fraud shown, can be attacked, 151. e. g., holder of letters fraudulently procured, 151. Upon persons cited, 149. As to subject-matter involved, 149. If directly involved, 149. Not as to incidental inquiry, 149. Conclusiveness, Specially. See Effect, above. How Enforceable. Unusual powers of Surrogate, 159. Additional remedy when docketed, 159. Against everyone, against whom it is docketed, 158, 159. Practice in enforcing, and form. See Execution; Contempt. By execution, 159. Code provision, 159. (See Execution.) By punishment for contempt. See Contempt. Code provision, 159. Distinction between two remedies, 160. Enforceable until reversed, 161. Unless fatally defective, 161. By attachment, 170. When proper, 170. Forms, 171 et seq. GENERAL INDEX 1263 [References axe to pages.] Decrees and Final Orders — continued. How Enforceable — continued. Orders, how enforceable. See Order. General discussion, 175. On Default. See Default; Infants. Attack on. Collateral. See Conclusiveness, above. Error in. Must be corrected in a direct proceeding, 151. Or by appeal, 49, 151. If it be error of substance or of law, 176. Not collaterally, 151. Subsequent proceedings, standing on erroneous decree, unaffected unless decree reversed or revoked in direct proceeding, 161. (See Opening, etc., below.) Evidence. Use of decree in. See Evidence. Decree admitting to probate may be produced in evidence, 152, 155. This admits the testimony taken in Surrogate's Court, 155. Subject, however, to all objections or rebuttal, 155. Proves only factum of will, 155. No incidental fact, 155. As validity of dispositions, 155. Nor even fact of death, 156. Docketing. Purpose of, 158. How done; Code provisions, 158. For purpose of execution, 160, 161. Get transcript under § 2553, 161. And file with County Clerk, 161. Decree not merged by, 158. Docketed, therefore, enforceable in two ways, 158. Against several persons, 158. Enforceable against everyone, 158. Omission of Recitals. Of jurisdictional facts, how availed of, 49. May be cured, 49. Preservation or Perpetuation of. In books of record, 156, 157. Code provisions, 157. Appeal from. See Appeal; Stay; Undertaking. Opening, Vacating, Modifying, Setting Aside, etc. See Nunc Pro Tunc. Code provision as to Surrogate's power, 175. But power is independent of statute, 7, 176. Essential to "due administration of justice," 180. General discussion, 175 et seq. ^ Application is to Surrogate's discretion, 176, 408. If made by "party," 176. Even if in default, 176. When asked by non party, 176. Time to apply, 177. When hmitation inapplicable, 177. Reason given, 177 et seq. 1264 GENERAL INDEX [References are to pages. j Decrees and Final Orders — continued. Opening, Vacating, Modifying, Setting Aside — continued. Not after decree made final on appeal, 176. Rule as to minor, 177. Power before the Code, 7, 180. Instances where power upheld, 180, 181. False suggestion of material fact, 7. Fraud, 181, 510. Where denied, 182. Not for error of substance or of law, 176, 183. Nor "error of fact arising on trial," 179. Laches, effect of, 183. Nor when order has been made final on appeal, 176. Power assimilated to that of courts of record and of general jurisdiction, 177. Acting in "like case," 177. In "same manner," 177. But, not in "all respect," 177. Thus time limitation may be different, 177. By virtue of statutes, 177. Power not a substitute for appeal, 49, 151. By which to correct error of "substance" or of "law," 176, 180, 183. {See Error, above.) Setting aside for irregularity or error in fact, 175. Clerical error, 177. Inadvertent mistake, 179. Not of attorney, 183. Time within which to apply, 177. § 1291, when applicable, 177. Must be in order to make an order he could originally have made, 180. Newly discovered evidence, 175, 179. Must be likely to change result, 179. Material, 179. Not cumulative, 179. Not previously obtainable by due diligence, 179. §§ 1282 and 1290, how applicable, 177. "Other sufficient cause," 175, 180. Covers cases where relief by appeal or by setting aside unavailing, 178, 180. Power to vacate that which was done without jurisdiction, 180. Time to act runs from entry of decree, 177. (See Time; Index op Precedents; Decrees and Orders.) Final, on Judicial Settlement. Its provisions and form. See Accounting for the Estate; Distribution. Decrees and Orders: Not signed by Surrogate, have no validity, 53. Even though signed and filed by his clerk, 53. Clerk of court has nj power to sign, 53. Signing letters or, in blank, invalid, 53. Signing impHes exercise first of judicial power, 53. Entry of, does not terminate power of special guardian, to act, 92. For he may appeal therefrom, 92. For purpose of exceptions and appeal, regarded as a judgment, 118. For purpose of execution. See Docketing, above. (See Index of Precedents; Probate of Will.) GENERAL INDEX 1265 [References are to pages.] Deed: By executors who qualify gives good title, 479. Guardian by. See Guabdian. Made in contemplation of grantor's death, tax affecting. See Tkansfek Tax. (See Conveyance; Real Propebty, Proceedings to Sell.) Default: Surrogate may open, 8. None against infant parties to accountings, in New York County, 88. Failure to comply with order for written pleading may be treated as, 61. Effect on right to appeal, 186. What is such default, 186. Defect : Power of Surrogate, to cure, 63. §§ 721-730, 796-809 applied to Surrogates' Courts, 63. (See Mistake.) Definitions : Of expressions used in Code Civ. Proc, ch. 18, 1, 2. Abatement, 950. Account, 1074. Accounting, 1075. Acting Surrogate, 13. Ademption, 947. Administrator, c. t. a., 497. Administrator, de bonis non, 575. Adoption, 734. Ancillary administrator, 581. Assets, 1, 768. Citation, 53, 63. Creditor, 1, 100, 662. Creditor, for purpose of compelling return of inventory, 781. Debt, 1, 963. Decree, 146. Devisee, 101. Executor, 467. Final account, 1075. Foreign executors, 584. Funeral expenses, 963. Guardian, 1035. Heir, 94. Infamous crime, 558. Inheritance, 2. Intermediate account, 2, 1075, 1084. Intestate, 1, 538. Judicial settlement, 2, 1075. Lapsed legacy, 957. Legacy, 926. Legatee, 101, 926. Letters of administration, 1, 538. Next of kin, 2, 94. Nuncupative will, 297. 80 1266 GENERAL INDEX [References are to pages.] Definitions — continued. Person interested, 2, 93, 662. Personal property, 2. Petition, 61. Public administrator, 622. Real property, 2. Residence, 38, 745. Return of citation, 1. Special proceeding, 59. Special Surrogate, 13. Surrogate, 1. Surrogate, proper, 12. Acting, 13. Surrogate's Court, 3. Temporary administrator, 515. Temporary Surrogate, 21. Testamentary trustee, 1, 1007. Transfer tax, 862. Undue influence, 371. Will, 1. Degree of Consanguinity: Or kinship, how reckoned, 97, 98. (See Next or Kin.) Delivery of Assets: Compulsory. See Discovery op Assets. Demonstrative Legacy: Effect on ademption, 947. Payment of. See Payment op Legacies. Definition of, 928. Deposit : Of money, by temporary administrator, 524. Of funds, under § 813 to protect sureties, 701. Code provision, 711, 712. Of a fund, pending determination of attorney's lien on it, 114. By any representative, 692, 693. The depositary becomes a trustee pro hac vice, 524, 693. Must honor only drafts by order of coxirt, 524, 692. Of seciurities, to reduce penalty of official bond, 692. Procedure, 693 et seq. Petition, form, 693. Order, form, 694. Clause as to collecting income, 695n. Depositaries : In New York County, list of, 692. Depositions : (See Commission to Take Testimony.) Practice same as in other courts, 122. GENERAL INDEX 1267 [References are to pagea.j] Descent, Statute of: Embodied in real property law, 1165 et seq. (See Distribution.) Destroyed Will: Probate of. See Probate of Will. (See Lost or Destroyed Will.) Determining Validity of Wills, et seq. See Establishing Will. Determining Validity of Disposition in a Will. See Construction of Will BY Surrogate. ^ Devastavit : Defense to imputation of, 729, 732, 750. Refunding legacy after, 952. Warrants denial of commissions, 1140. (See Accounting for the Estate, subhead Commissions.) Devise : Of property. Effect on purchaser from heir, 402. Code provision, 402. Limitation of time in which will must be recorded or "established," 402. Devisee : Definition, of, 101. Surrogate may pass on status, 9. When included under "legatee," 101. When to be cited, 101. As one of a class, 68, 71, 93. How served, 71. Is person interested, 101 . When may intervene, 101. May be proponent of a will, 101. Under prior will, may contest alleged later will, 101, 310. Loses right to be a party by assignment of interest, 101. His assignee may come in, upon distribution, 101. And should then be cited, 102. Though not before, 101. And may petition for accounting, 101. Under will prior to that propounded, status of. See Probate op Will. Diligence : Required in reducing estate to possession, 750 et seq. Required in paying decedent's debts, 822. (See Payment of Debts.) Disability of Surrogate. See Surrogate, Acting. Disagreement : Among executors, 493. Code provision, 493. Interference by Surrogate with administrative functions, 494, 495 . (See Executors.) 1268 GENERAL INDEX [Referisnces are to pages.] Disagreement — continued. Among testamentary trustees, Smrogate's power in case of, 1032. Disbursements. See Accounting for the Estate ; Costs. Discontinuance : Surrogate's power to authorize, 8. Of probate proceedings, not proper so long as anyone interested in proving will, 248. Discount : On early payment of transfer tax. See Tkansper Tax. Discovery of Assets : First duty of representative is to ascertain quantum, 750. Three proceedings provided, 750. (a) to discover property withheld, 750. (6) Inventory and appraisal, 750. See that head. (c) transfer tax appraisal, 750. See that head. If he know of assets he must reduce to possession, 750. What are assets? See Assets, and see pp. 768, 769, 770. Wherever they be found, 750. Proceedings to Discover Propekty Withheld, 751 et seq. Unauthorized possessor liable to account, 751. Code provision, 751. Petition for, executor, etc., may present, 751. Contents, 751. May be accompanied with evidence, 751. Allegations may be on information and belief, 751. Sources of information, etc., need not be stated, 753. Form of, 753. Is not a means of collecting debts, 752, 753, 755. But involves the question of possession, 755. Citation, when must issue, 751, 755, 756. Requisites discussed, 756. Does not issue as of course, 756. Clerk cannot issue, 756. Order to attend to be indorsed on, 756. Disobedience to, a contempt, 757. If properly served, 757. Code provisions, 751, 756. Scope and intent of the statutory provisions for, 752 et seq. Is a summary method of identifying property, 752. Not a means for collection of debts, 752, 753, 755. Reasonable grounds for proceeding must exist, 753. Gives possession of property, or information for inventory, 755 Not a substitute for accounting, or action, 755. Surrogate confined to question of right of possession, 755. If one in possession asserts title. Surrogate bound, 755. Unless as a matter of law claim is without foundation, 755. Order to attend; form, 756. How served, 757. Contempt of, 757. GENERAL INDEX 1269 [References are to pages.] Discovery of Assets — continued. Pkoceedings to Discover Property Withheld — continued. Compliance with, 759. Adjourned hearings, 759. Hearing; examination of citee, 757, 759. Answer, alleging title, or right of possession, 757. Surrogate may dismiss or proceed, 757. Amendments of 1903, 757. See waiver of § 829, 757. Extends to all other proceedings, 757, 758. Affecting that property or transaction, 758. Formality of answer, 758. Amendable, 758. Form of, 759. Issues raised by, not triable, 760. Save by consent of parties, 760. Decree for delivery of possession, 761, 762. Code provision, 760. Form of, 761. Decree where sufficient answer filed, 762. Costs allowable, 762«. Warrant for delivery, when to issue, 762. Must be specific, 762. Discretion of Surrogate: Reviewable on appeal, 190, 197-661. But not by Court of Appeals, 197, 661. Dishonesty : Revocation of letters, for. See Revocation of Letters. Dismissal. See Discovery of Assets; Payment of Debts; Payment of Legacy. Disobedience : Willful, to decree, etc., revocation of letters for. See Contempt; Revoca- tion of Letters. Dispensing with Evidence: Of subscribing witness, 289 et seq. (See Probate; Witness.) Disposition of Real Property: Of decedent, to pay debts, etc. See Real Property, Proceedings to Sell, ETC. Disputed Claim: (See Claims Against Decedent's Estate; Ascertaining the Debts, subhead Reference of Claim.) Against decedent's estate; reference of, 807 et seq. Status of, in proceedings to sell, etc., real property, 977, 978. Surrogate's right to pass upon, on accounting, 1126 et seq. In proceeding to sell realty, 977, 978. (See Accounting for the Estate.) 1270 GENERAL INDEX [References are to pages.] Disputed Claim — continued. Before Accounting. Under new § 2718a, 795. Code provision, 796. Executor can expedite adjudication, 796, 804. By petition as soon as notice has been completely published, 804. On claim against estate, 804. Or the representative, 804. Creditor put to his action, 796, 804. By notice pursuant to citation, 796, 804. Or barred, unless he consent to Surrogate's determination, 796, 804. Such consent due on return day, 804. Disqualification : To serve as executor, 471. As administrator, 555. (See Letters of Administration; Letters Testamentary.) Disqualification of Surrogate: Code provision, as to what constitutes, 24. Cases where not disqualified, 24. Causes of. Being interested, as heir, 24. As next of kin, 24. As devisee or legatee, 24. As attorney, 23, 24. By kinship to party ia interest, 23. As witness to will propounded, 24. As executor of will, 24. Effect op. Cannot sit, in judicial capacity, 24. His acts are void, 24. As to infants' rights, 24. Necessitates designation of acting Surrogate, 14 et seq. In New York County, throws proceedings into Supreme Court, 14. Objection of. When to be urged, 24. When deemed waived, 24. When can be waived, 24. Infant cannot waive, 24. Nor special guardian, for infant, 24. (See Surrogate; Surrogate's Court.) Distribution : Of proceeds of property, sold, etc., to pay debts, 988. Of surplus, on judicial settlement of account of representative, 1159. When to be made, 1158, 1163. Governed by law of decedent's domicile, 1163. Statute of, 1163 et seq. Decree of, its provisions, 1168. May direct representative to make partial, 1163, 1168. Must direct withholding of assets, when, 1168. Code provision, 1168. For decedent's debts — enforceable, 1168. GENERAL INDEX 1271 [References are to pages.] Distribution — continued. Conclusiveness of, 152, 1171. Code provision, 1171. As a judgment, 1172. Applies to guardian's account, 1172. Limits to effect of discharge, 1172. " As to all matters embraced on this accounting," 1172. Of course reviewable on appeal, 1172. May be opened, 176. At instance of creditor who had no notice, 176, 181. Who may then establish claim, 176. And assert it against representative, 177. Even after distribution made, 177. May be amended, 179. To insert credit, 179. Or direct a payment, 179. To omitted distributee, 181. May order specific property delivered, 1169. Code provision, 1169. When legatee is unknown or cannot be found, 1170. Code provision, 1170. When legacy not paid within two years, 1170. Code provision, 1170. Double character of decree, 1171. Directions as to payment to creditors, 100. Infant's share, 1169. And legal distributees, 100. Code provision, 100. Payment to foreigners, 1168. Through consul general, 1168. In case of partial intestacy, 1168, 1171. Precedent for a decree, 1172, 1173. Applies only to personal property, 1175. Estates of Married Women, 1175. Dec. Est. Law, 1175. Effect of Jure Mariti, 1176. Proceeds of action for negligent killing, 828, 1183. Degree of kinship, how computed, 1176. By ecclesiastical law in cases not covered by the statute, 97, 1176. Representation Among Collaterals, 1176. Never changes or advances degree of nearness, 1177. Scheme op the Statute, 1177 et seq. The subdivisions considered and diagrammed, 1177 et seq. Subdivision 1, 1177. Classes of "children," 1178. Adopted, 1178. After-bom, 1178. Illegitimate, 1179. Next of kin not include husband or wife, 1178. Acceptance by v/idow of devise in lieu of dower, 1178. Subdivisions 2 and 3, 1180. Subdivisions 4 and 5, 1180. Discussion of amendments, 1180. 1272 GENERAL INDEX [References are to pages.] Distribution — continued. Scheme of the Statute — continued. In connection with subd. 12, 1180. Effect of equal degree clause, 1181. Brothers' and sisters' descendants, 1180. No longer reads "children," 1180. Subdivision 6, 1182. Subdivisions 7 and 8, 1182. Subdivisions 9 to 15, 1183. (See Accounting for the Estate.) Distribution, Statute of. See Distribution; Next of Kin. Distributive Share: Payment of. See Payment of Legacies. May be sued for in another court, 160. By representative of deceased party, 160. Payment of, to general guardian. See Accounting for the Estate; Distbi- BUTION. District Attorney: As acting Surrogate, 13. Code provisions, 13. In Kings County, 14. Proof of authority to act, 15 et seq. May apply for the designating order, 16. Forms, 16 et seq. Duties of, under transfer tax law. (See Tbansfee Tax.) Dividends : What is a " declaration " of, 794. (See Appoktionment.) When added to " principal " of trust, 1033. to "income'" fimd, 1033. Divorce and Dissolution of Marriage: Validity, Surrogate may pass on, 7, 96, 510, 548, 676. Effect of, on right of surviving husband or wife, 103, 548. Wife may thus acqiure new domicile, 39. As conditioned by guilt, 103. May destroy right to be guardian, 1044. On child, 39. Destroys right of woman to administer as " widow," 95, 103, 510, 548, 676. Provided it be a divorce valid in New York, 510, 548. Right to remarry, 104. " Legitimatization " rule, 104. Avoids need of citing the one divorced on probate. See Probate. Prevents right of dower attaching to after-acquired property, 103. Effect on dower rights, 103. Of dissolution decree, 103. On right to child to inherit, 1179. Code provision, 1179. (See Letters of Administration; Marriage; Wife.) GENERAL INDEX 1273 [References are to pages.] Docketing. See Decree. Domestic Corporation: Bonds of. See Transfer Tax. Serving. See Service, Citation. Debt due from, where an asset, 43. Domicile of, in county where principal office is, 43. Stock. See Transfer Tax. Domestic Relations Law. See Adoption; Infant; Guardian. Domicile. See Inhabitants; Nonresidents; Residence; Residents. Change of, effect on will, 31. Donatio Causa Mortis. See Transfer Tax. Dower, Right of: How affected by divorce, 103. If woman was guilty, 103. If blameless, yet she can have no dower in after-acquired property, 103. Value of, how computed, in proceedings to sell, etc., decedent's land, to pav debts, 999. Mortality table, 1000. How to use, 999. Express words or necessary implication alone exclude, 1099. Legacy in Lieu of. Based on consideration, 930. Priority over general legacies, 930. Interest upon, when accrues, 943. Depends on form of provision, 943. Whether testator left realty, 943. Express language of will, 943. Effect on distributive right, 1178. Provisions in lieu of, construed by Surrogate, 1099. When exclude dower, 1099. What compels election, 1099. Draftsman : Of will. See Witness; Undue Influence. Drtmkard, Habitual: Mode of service on, 74. May not administer, 471, 555. May make will, 359. (See Testamentary Capacity; Undue Influence.) Drtmkenness : Disqualifies for executorship and administration, 471, 555. Revocation of letters for, 672. (See Letters Testamentary; Letters of Administration; Revocation op Letters; Testamentary Capacity.) Due Execution. See Probate; Will. Duplicate Wills: Both to be filed on probate, 248. 1274 GENERAL INDEX [References are to pages.] Duplicate Wills — continued. Effect of revoking one, 248. Manner of revocation, effect of, 257. Omission of probate decree to mention immaterial, 408. No gromid for revoking probate, 408. Eccentricity : As bearing on testamentary capacity. Right to administer. See Probate of Will; Testamentary Capacity. and Letters op Administration. Enforcing Decrees and Orders: General discussion, 159 et seq. Orders. General discussion, 175. (See Contempt; Decrees and Orders; Execution.) Entitling Proceedings: Mode of, when transferred from Surrogate's Court, 20. Mode of, when boimdaries of county are changed, 48. (See Proceedings in Surrogates' Courts.) Entry of Decree: Starts time running in which execution can issue without leave of court, 161. Means its record in Surrogate's book of record, 193. Service of copy decree, with notice of filing, does not start time limiting right to appeal, 192, 193. (See Decree; Decrees and Orders.) Equitable Conversion: How it is accomplished, 860. By unequivocal intent, 860. Three ways in which intention may appear, 860. No imperative power, no conversion, 1142, 1143. When does not make debt payable out of land, 860. How affects right to commission, 1142, 1143, 1147, 1148. (See Commissions.) Effect of, on realty without the State. See Transfer Tax. Equity Jurisdiction: Over accounting, 45, 1075, 1076. When exercised, 45, 46, 1076. Not if Surrogate's Court can give ample relief, 45, 1076. Over administration, 45. Is auxiliary only, 45. Over probate, 44. (See Action; Lost or Destroyed Will; Supreme Court.) Error : How corrected. See Decree. Escheat : State's rights to, preserved on probate, 279. By citation to attorney-general or public administrator, 279. Code provision, 279. GENERAL INDEX 1275 t [References are to pages.] Establishing Will. See Action to Establish Will; and Action to deter- mine Validity of Probate. Establishing Validity of Testamentary Provision. See Construction of Will by Surrogate. Evidence. See Burden of Proof; Expert Evidence; Construction of Wills by Surrogate; Hearings and Trials; Witness. General rules obtain in Surrogates' Courts, 111, 112, 313. e. g., age of testator, 313. Sections outside ch. XVIII, which are applicable, 122. On Probate. Where witness dead, incompetent, unable to testify, without the State, forgets the occurrence, or testifies against it 290 et seq. Code provision, 290, 291. On proof of handwriting, 290. Common-law evidence of execution, 292. Declaration of testator, 290. As evidence as to his capacity, 355. But not of external facts, 255. (See Probate.) Limits, within which applicable, 122. Thus, admissions may bind party in interest, 352. Physician when forbidden to testify, 353. Necessary to establish nuncupative will. See Nuncupative Will. Effect of inventory as, 786. Experts. See that head. Cannot use medical books, 370. Value of, generally, 369 et seq. Hearsay. Admission as to fact of death, 540. How limited, 540. But not as to place of death, 540. Producing Surrogates' Decrees in. Probate decree, 152, 155. Makes testimony on which it is based admissible, 152, 155. Subject to legal objections and rebuttal, 155. Presumptive value only, 155. Producing Will or Record in. How done, 155, 403. By exemplified copy, 403. Code provisions, 152, 155. Thirty years after probate proves due probate, 403. Presumptive evidence only, 155. Of due execution and mental competency, 155. Not of validity of devises, 155. Object of statute and code, 155, 156. Age of testator in probate proceedings, 311, 312. Improper Admission or Rejection of. , Not reversible error, unless necessarily prejudicial, 200. 1276 GENERAL INDEX [References are to pages.] Evidence — continued. Impropek Admission or Rejection of — continued. To exceptant, 200. Appellate Court must determine if it was prejudicial, 200. And if in doubt, appellant should have benefit, 201. Difference between error in admitting and error in rejecting, 200. If improperly received. Appellate Court must find it had no influence on re- sult, 200. If improperly rejected, it is necessarily prejudicial, 200, 201. If competent and material, 200. Does not necessarily defeat proceedings to sell real property, 979. Inadmissible under § 829. Effect of admitting, 201. Ground for reversal, 201. Unless clearly without influence or result, 201. Effect of rejecting, on theory that it is inadmissible, 201. " Offer " unnecessary in such case, 201 . Waiver of, 248, 287, 288. Not applicable as to validity of claim in proceedings to sell real property, 979. (See Commission; Deposition; Probate of Will; Presumption.) Examination of Will: Should be allowed, when propounded, 247. Under restrictions, 247. For purposes of photographing, 248. Or of impeaching signature, 248. Examination of Witness. See Witness. Exception : To sureties in oflBoial bond. See Official Bond; Sttreties, subhead Justifi- cation. Exceptions : Upon trial of issue by Surrogate, 115 ei seq. Code provision, 115. May be taken to ruling by Surrogate, 115. This includes finding or refusal of finding of fact, 115. Subject to rules for taking exceptions at special term, 115, 116. Both as to manner and effect of taking, 116. Also as to settlement of case containing exceptions, 116. Practice substantially assimilated, 116. To Supreme Court practice, 116. Except as specially limited, 116. Amendment to Supreme Court rules not necessarily operative in Surrogate's Court, 116. How taken, 115, 118. Notice of, to be filed, 115. Essential to review by Appellate Court, 116, 195. i. e., of questions of law. Facts are open to review at appellate division, without exceptions, 119, 195. But not without findings and a case, 243. When defect is deemed waived, 243. GENERAL INDEX 1277 [References are to pages.] Exceptions — continued. General, may be useless, 118, 195. As it indicates no specific error, 118, 195. Exception to this rule, 118, 195. Effect of § 1022, 112. To referee's report. See Referee. (See Appeal; Case on Appeal.) Exclusive Jurisdiction. See Jurisdiction; Probate. Execution : As a Remedy to Enforce Decree or Order. Decree must be docketed, 158, 159. Against anyone bound to obey it, 158. Must direct payment of money, 159, 160. Valid decree only, 163. Not fatally defective, 163. But though reversible must be obeyed, 163. Execution issued by Surrogate, 160. Or clerk of court, 160. Under seal of court, 160. Returnable to that court, 160. Otherwise usual practice controls, 160. Execution when the proper remedy, 160. As against contempt proceeding, 160. (See Contempt.) Or preliminary thereto, 160. Against representative, 160. Leave of Surrogate unnecessary, 160. Issues of course, 160. § 1825 inapplicable, 160. Notice may be given if Surrogate directs, 160. TJnder Judgment in Another Court. Surrogate must authorize, 30, 161, 163. Must relate to estate under his jurisdiction, 163. Or against his representative, 30. Notice necessary, 160. Leave to issue must be obtained from Surrogate, 847. Who thus protects estates, 847. Judgment creditor m.ust show that representative has sufficient assets, 847, 848. For order directing payment is conclusive on this, 847. Except on appeal, 847. Procedure on appUcation for, 847 et seq. This procedure exclusive in case judgment is against representative, 847. Code provision, 847. Judgment treated as conclusive, 848. Unless statute has run, 848. Extent of creditor's remedy, 848. Special rule in action for legacy, 933. SxuTogate may authorize execution, 933. Upon refunding bond, 933. 1278 GENERAL INDEX [References are to pages.] Execution — continued. Under Judgment in Another Court — continued. And judgment is not evidence of assets, 933. The execution creditor only entitled to ratable satisfaction, 933. Execution of Decree: To sell, etc., decedent's real property, to pay debts, 988 et seq. How enforced. See Decrees. Execution of Will. See Will. Executor : Definition, 467. Distinguished from testamentary trustee, 685, 1007-1011, 1150-1152. Also from administrator c. t. a., 499-501. As to execution of powers, 500, 1009. Omission to name, does not affect validity of will, 467. May be designated to act upon a contingency, 470. Surrogate's duty in such case, 470. For court may appoint administrator c. t. a., 467. Word "executor'' unessential, 473. Even definite individual unnecessary, 474. But must be identifiable, 474. Effect of different designation in codicil, 474. Will may give power of appointing, 480. How selection made thereunder, 480. Code provision, 480. Selectee may be objected to, 480. Will valid which only nominates, 467. Who May be. See Letters Testamentary subhead Who Entitled to. Corporation, 472. Merger of, effect, 472. Who cannot be. See 471 et seq. When several are appointed, 104. Those only who qualify may act, 479^ Deed by one or more who qualify gives good title, 479. (See below. Control op.) As A Party. Treated as one, although several named, 104, 495. Only, if they have qualified, 104. i. e., in this State, 104. One named, but not receiving letters is not a "necessary" party, 104. All who have qualified must be joined, 104. To probate proceedings: Named in will other than that propounded, 280. Code provisions, 280. In case of contest, all executors may be cited, 280. Code provisions, 280. To accountings, 1100, 1101. (See Table.) As A Witness. May testify on probate of the will naming him, 121. Effect of Appointment in Will. As the source of his authority, 467. GENERAL INDEX 1279 [References are to pages.] Executor — continued. Effect of Appointment in Will — contirated. Upon debts due by him to testator, 765, 1132. Does not discharge, 765. Code provision, 765. But must be inventoried as assets, 765, 779. And accounted for, 1132. Peculiar footing of such debts, 1132. Surrogate's power to pass upon, 1132. Effect of Poweb in Will to Select. Code provision, 480. Commissions op. See Accounting foe the Estate; Commissions. Control of by Surrogate. Code provision, 5, 27, 492. To what extent authorized, 492 et seq. In respect to executorial functions only, 493. To compel his doing whatever law requires, 494. Protecting executors in their rights, 492. Directing litigation, 492. Preserving estate, 492. Prohibiting litigation, 493, 494. Cases of disagreement between coexecutors, 493 et seq. Code provision, 493. In respect of common property, 494. Joint custody, 496. Remedy summary, 494. On affidavit and order to show cause, 494. Examples illustrating power, 495. Approval of investments, 8. Accounting. See Accounting fob the Estate. Direct performance of a duty, 492. Imposed by statute, 492, 494. Or by court under authority of statute, 492. On executor subject to its jurisdiction, 492. Sundry illustrations, 7] 8, 492. Refusal to satisfy a mortgage, 494. How control exercised, 492, 493. By removal for disobedience, 492. (See Revocation of Letters; Contempt.) Death of. See Death. Necessitates appointment of administrator c. t. a., 497. Pending execution of decree to sell real property, effect of, 110, 987. Effect of, upon his claim against estate, 1131. Upon accounting, 1087. Person named in will before letters issue, 471. Debt Contracted by. Status of, 845. Debt Dub Decedent by. See Ascertaining the Estate. Surrogate may pass upon, 1132. Reason for this, 1132. Not discharged by bequest, 765. Limited enforcement of, 1132. How specified in decree on accounting, 1132. 1280 GENERAL INDEX [References are to pages.] ExecutoT— continued. Debt Due to, by Decedent. See Ascehtaininq the Debts. When Surrogate may determine, 1129. Only if executor qualified, 1131. Code provision, 1130. Time for such determination, 1130. Effect of death of executor upon, 1131. Shall not be satisfied until proved, etc., 1131. Must be presented with proper voucher, 1131. Not to be determined in a separate proceeding, 1131. Clearest legal proof required, 1130, 1131. But executor entitled to usual presumptions, 806. May be assigned, 806. Duties of. General. Before Probate: What exercise of right will be sustained, 467, 468. No dispositive power over estate, 467. Except to pay funeral expenses, 467. Effect of his partnership with deceased, 467. Has full power to possession of assets, 469. What acts can later be disavowed, 470. Relation to insurance and proofs of loss, 475. To propound the will, 249. But need not push probate, 249. Effect of negative stand, 249, 250. Cannot block the proceedings, 250. To qualify, 475. Time specified, 475, 488. In case of appeal : Limitation on powers pending appeal from probate decree, 208 et seq. Provided Surrogate makes order under § 2582, 208. What he may not do, 209. Effect of reversal on appeals, 210. (See Letters Tbstamentaet, subhead Appeal.) To get temporary administrator appointed pending contest, 475. To execute the will, 467, 469. To record will of real property, 403, 404. Within 20 days after letters issue, 404. Pending proceedings to revoke probate, 414-416. To execute decree directing his own decedent to sell former decedent's real property, 110. To prepare his account, 1101. Cannot be credited attorney fee for doing it, 1103. To account for every act or neglect to act, 1075, 1106. For his own debt to estate, see below, subhead Liability. As to unbequeathed residuum, 538. (See Accounting for the Estate.) To ascertain the estate, 750. Proceedings to that end discussed, 750 et seq. (See Appraisal op Assets; Discovery of Assets; Inventory of Assets; Trans- fer Tax.) To ascertain the debts, 795 et seq. GENERAL INDEX 1281 [References are to pages.] Executor — continued . Duties op — continued. (See Ascertaining the Debts.) To collect in debts. See Debts Due Decedent. To pay decedent's debts. See Payment of Debts; Real Property, Pro- ceedings TO Sell. Funeral expenses, 823 et seq. (See Funeral Expenses.) Legacies. See Payment op Legacies. To plead statute of limitations as a defense, 803, 831. To file proofs of loss under fire insurance policy, 475. To pay the transfer tax. See Transfer Tax. To revive a proceeding in which decedent was "actor." e. g., a probate, 109 and context. Execution Against. See Contempt; Accounting for the Estate; Execution. Functions of. Contrasted to those of trustee, 1007 et seq. How commissions affected, 1150. Kinds of. Ancillary. See Ancillary Administration. De son tort, abolished, 468. Of deceased executor, etc. See Executor, etc., op Deceased Executor. Surviving, 1088. May complete administration, 1090. Accounting by, 1090. Letters to. See Letters Testamentary. Revocation of. See Revocation of Letters. Liability op. See Revocation op Letters. For his own debt to estate, 779. Failure not a contempt if unable, 164, 165. Liability of sureties, when, 697, 698. For conveying assets to his siu'ety, 667, 700. For improper loans, 667, 668. Refusal to realize on assets, 667. Improper investments, 667, 668. Speculating, 669. Delivery to life tenant without security, 669. Profiting personally by trust, 672. For acts done in good faith pending revocation of letters, 685. (See Discovery op Assets.) For acts or defaults of coexecutor, 732. ' To pay value of exempt property negUgently omitted to be set apart, 1113. Must be actually set apart, to avoid, 1113. To account, a general obligation, 1074. (See Executors, etc., of Deceased Executor, etc.) Is limited to assets of estate, 1106. To pay transfer tax. See Transfer Tax. His own debt to estate, 765, 1132. Costs, awarding against him personally, or in action against him. See Costs. Burial expenses. See Payment of Debts, subhead Funeral Expenses. Misconduct op. Effect on right to commissions, 1140. 81 1282 GENERAL INDEX [References are to pages.l Executor — continued. Misconduct of — continued. Friction with coexecutor. See Revocation op Letters. Objections to Issuance of Letters to. See Letters Testamentary, subhead Who May Object To. Powers and Rights op. Are derived from the will, 467. May become "consenting creditor," when, 29, 492. Prefer certain debts, 30. Receive surplus moneys, 30. Right to receive hmited letters pending appeal from probate decree, 208. In order to the preservation of the estate, 208. Code provisions, 208. What expenditures he may in such case make, 208. Surrogate should make order, 208, 209. How long limited powers endure, 209. Three respects in which powers limited, 209. Payment of debts pending appeal, 209, 210. Before receiving letters. See Duties of. Before Probate, above. To offset debt against legacy, 1168. To commissions. (See Accounting For The Estate.) To have his account judicially settled (see same). To have his costs (see same). To refrain from pushing contested will, 249. But he cannot stop the proceeding, 249. Which anyone else may then prosecute, 249. Pending proceedings to revoke probate, 510. Cannot bind estate by contract, 845 et seq. Qualifying by. What it means, 474. Effect of failure to, 475. Oath required, 474. Form of, 475. Time for, 475, 488. Should be done promptly, 475. So as to protect contract rights, 475. e. g., in case of loss by fire, 475. When security required, thirty days, 488. Code provisions, 488. Bond: Testator may dispense with, 486. But Surrogate may require, when, 485. Given to obviate objections to issuance of letters, 485. Details of bond and procedure, 486. (See Official Bond.) Disability, when may be removed, 491. Whereupon supplementary letters issue, 491. Code provision, 491. Renunciation of Appointment by. Code provision, 476. Must be written and acknowledged, 476. Form of, 477. Oral, in open court, valid, 476. GENERAL INDEX 1283 [References are to pages.] Executor — continued. Renunciation of Appointment by — continued. But cannot be orally recalled, 476. Only recalled by retraction, 476. By leave of Surrogate, 476. (See Retraction.) Executed with same formality, 476. Form of, 477. Must precede issuance of letters, 476. After that, resignation alone available, 476. Resignation in contrast discussed, 478 et seq. May necessitate appointment of administrator c. t. a., 497. Executor or Administrator of Deceased Executor or Administrator, Guardian, or Testamentary Trustee. Double status of, 613. In respect of estate of his immediate decedent, 613. And of that lately represented by decedent, 613. Cannot administer estate of first decedent, 613. Though no express statutory denial of right, 613. Is a temporary custodian, if it come to his hands, 613. Protection of beneficiaries of first decedent's estate, 613. Code provision (§ 2606), 613, 614. May account, or be compelled to account, for property come into his decedent's hands, 614. And " for his acts and doings" 614. Section must be timely availed of, 614. Successors of deceased representative may apply immediately for ac- counting, 614. Or may revive accounting by decedent pending at his death, 614. No reason to account if decedent not compellable to, 615. Presumption of continuity of possession, 615. Case of a general guardian, 615. Presumption against commingling of trust funds, 615. Inventory of predecessor not conclusive against, 779. Court of equity will not call to account, 616. Surrogate's plenary power, 616 et seq. Effect of § 2616, since amendment of 1884, 615, 617-619. Since amendments of 1901 and 1902, 617. Limitations on Surrogate's power over, 618. To whom may be compelled to pay and deliver money and other property, 614. The Surrogate's court, 618. The successor in office, 618. Person "authorized by law to-receive," 618. Surcharging the decedent's estate, 618. Execution under decree made before he died, 618. Voluntary accounting, can account for decedent's entire estate, when, 619. Since 1891, can only be called to account once, 619. When right to compulsory accounting by, may be lost, 620. Effect of advertising for claim, 620. Accounting by, 1089, table, 1100. Decedent's estate hable for his waste or conversion, 620, 621. 1284 GENERAL INDEX [References axe to pages.] Executor and Administrator of Deceased Executor or Administrator, Guardian, or Testamentary Trustee — continued. Dec. Est. Law provisions, 620. Liability of sureties, 720. (See Official Bond of Decedent.) Exemplified Copy of Will: Rule as to use as evidence, 403. Code provisions, 403. Record of, 403. Exemption : Of realty from disposition to pay debts, etc., 960. (1) Must be "exempt from levy and sale," 960. Hence proceeds of pension money not "exempt," 960. For that exemption ends at death, 960. Exemption must be promptly asserted, 960. Or is waived, 960. (2) Or "charged expressly" to pay debts or funeral expenses, 961 et seq. Of property, in favor of widow, etc., of a man dying, leaving a family, 771. Code provision, 771. Representative has only temporary right of possession, 772. To include in inventory, without appraisal, 771. If he withhold it, may be sued in conversion, 772. Not affected by separation agreement, 773. Pecuniary equivalent allowed in lieu of specified, 773 et seq. Conflict of courts reviewed, 774. Summary statement, 774. Right to, is absolute right, 1113. Neglect to set apart property subject to, 1113. Code provision, 1113. Citation and decree in proceedings thereunder, 1113. (See Inventory op Assets.) From transfer tax. See Teansper Tax. (See Quarantine.) Expectant Estate: Appraisal of, under transfer tax law. See Transfer Tax. Expenses of Administration. See Accounting for the Estate, 1154 et seq.; Funeral Expenses ; Payment of Debts ; Transfer Tax. Of will contest when paid by temporary administrator, 524, 526. Experts : Forgery of signature to will, 324. To liolographic wiU, may be "too good," 324. Fees of, not payable by temporary administrator, 526. Testing ink, 248. Photographing will, 248. Practice covered by §§ 803-809, Code, 248. Inadmissible as to signature of will by "mark," 326. When can be used, 328. May testify to opinion from Tacts proven, 324, 357, 369 et seq. GENERAL INDEX 1285 [References are to pages.] Experts — continued. Or from facts observed by them, 357. On matters on which they are experts, 357, 370. If they qualify as such, 370. Which the court decides, 370. Evidence, how given, 352, 369, 370. Opinion, by observation or inference as to nature or effect of disease, 355, 369, 370. Nonexpert only testifies to acts and symptoms, 355. Actually observed, 355, 369. Which he may "characterize" as rational or the contrary, 357, 369. But may not give opinion as to general competency, 357. Medical books inadmissible, 370. Of sanity or insanity of alleged testator, 352. Hypothetical questions, 358, 370. Must assume facts proven only, 357. May be overborne by lay testimony, 352, 369. As subscribing witnesses, 370, 371. (See Evidence; Probate op Will; Witness.) Extraneous Paper: Reference to in will, 319 et seq. False Suggestion: Of material fact; revocation of letters, for. See Revocation of Letters. Family Tree: Helpfulness of, in probate proceedings, 69. (See Consanquinity; Descent; Next of Kin.) Father: As guardian in socage, see 1035 et seq. Right to administer, 550. Code provision, 547. Distributive rights. See Accounting for the Estate. Federal Courts: Jurisdiction concurrent with Surrogates' Courts, 43. Over construction of wills, 44. To enforce probate decrees, 44. But not over probate proceedings, 44. Federal Succession Tax: Repealed. Fees, in Surrogate's Office: Power of New York aldermen over, abolished, 53. What, abolished by act of 1884, 53. Of stenographers. See Stenographers. Of clerks, for copies of record. See Clerk. Of referee, appointed to determine disputed claim. See Referee. Payable to person ordered to attend, in discovery proceedings, 756. Of witnesses, on reference of disputed claim, 814. (See Costs.) 1286 GENERAL INDEX [References are to pages.] Fiduciary Relationship: To testator, effect of, in probate proceedings. See Probate oe Will; Undue Influence; Will. Files: What papers to be filed in Surrogate's oiEce, 158. Cannot be removed from oflBce, 158. (See Record.) Final Decree or Order: Means one that determines a proceeding. 111. And, therefore, appealable, 220. e. g., determining attorney's hen, 115. Illustrated by cases, 220, 221. Final Accounting. See Accounting for the Estate. Findings of Fact and Conclusions of Law: Practice assimilated to General Practice, 111, 112. Must be separately stated, 115. This, by virtue of § 2545, 115. Which is mandatory, 115. How affected by § 1022, 112. Must be requested, at settlement of case, 115, 116. And exception taken to refusal to find, 115. Surrogate must always make, 117, 195. Upon trial of issue of fact, 117. § 998 controls otherwise, 116. If he do not, case may be remitted, 118. And unless appellant requested and excepted to refusal, omission will not avail, 118. Rule where referee's report comes in, 117. Exceptions may be taken to both, 115. And to refusals to find, 115. If no exceptions, no question is presented for review, 119, 195. Except in Appellate Division, 119. Importance of exceptions stated, 119, 195. Surrogate should note assent or refusal to each finding, 119. By referee, 117. (See Referee.) Fixtures : When assets. See Inventory of Assets. Foreclosure : Of mortgage on decedent's land; effect of, on proceedings to sell, etc., 1000. Order for stay, because of, 1000. Distribution of surplus on, paid into Surrogate's Court, 1002. Foreign Consul. See Consul. Foreign Corporation: Service of citation on, by publication, or without the State, 71. Stocks of. See Transfer Tax. Bonds of. See Transfer Tax. GENERAL INDEX 1287 [References are to pages.] Foreign Executor or Administrator. See Ancillary Administration. Cannot be made to account here, 606. Relation to transfer tax, 884, 915. Safeguard as to stocks registered here, 918- May reduce to possession assets here, 41. And so defeat local administration, 41. But not if local representative is already acting, 41. Effect of remitting administered assets into this State, 40. Has no representative status here, 584, 606. When may sue or be sued here, 584, 606. Only where individually entitled or liable, 584, 607. Mere form of action, or pleadings not conclusive, 607. How foreign will of personalty recorded here, 584. Code provision, 584. Letters thereunder, 584. Holder then has representative status here, 585. Policy of our courts is to assist, not embarrass foreign forum, 608. Will act to prevent failure of justice, 608. What is such failure, 608. Assignee of, may sue when assignor could not, 607, 608, 609. Acts of, apart from character as suitor, when valid, 609. Right of, to collect and receipt for debts due within this State, 609. To assign a New York mortgage, 609. To collect a bank account, 609. How affected by existence of a domestic administrator, 609. Distinguished from nonresident representative who has received letters here, 610. (See Ancillary Administration; Foreign Probate.) Foreign Guardian. See Guardian, Ancillary. Foreign Letters. See Ancillary Administration. Foreign Probate: Of Will op Reai/tt: Code provision, 404. Evidential value of record thereunder, 405. Equivalent to probate here, 405. But no letters issue, 405. Procedure, 405. Contrast this with recording foreign will of personalty only, 584, 589. Under which letters issue, 585. And holder has representative status, 585. Or probate may be directly here, 589 el seq. Administration in this State under, what suffi9ient proof of, 584 (See Ancillary Administration.) Foreign Will. See Ancillary Administration. When provable here. See Probate op Will. Authentication of, for use here, 587 et seq. Letters under. See Ancillary Administration. Forgery : Proof of, by contestant of will, 324. (See Expert Evidence.) 1288 GENERAL INDEX [References are to pages.i Forgery — continued. Misspelling testator's name raises no presumption of, 327. Forgetf ulness : Of witness to will not fatal, 343. Of testator, if "total," effect of, 355. Forms. See Index of Precedents. Foster Parent. See Adoption. Fraud : Surrogate cannot set aside for, 9. But may pass on, as to factum of will, 34. This right exclusive, 34. In destruction of will, 295. Mere motive or opportunity insufficient, 295. By representative in securing releases, 1122, 1123. (See Undue Influence.) Obtaining letters by " false suggestion " of fact. See Revocation op Letters. In obtaining decree discharging executor, 729. Continuing liability of sureties on bond, 730. Freeholder. See Real Property; Proceeedings to Sell. Not to be interested in sale, 992. Funeral Benefits: When not assets, 770 Funeral Expenses: Duty of decedent's representative, to pay, 823, 1109. Not adjudicable under § 2718, 809. Priority of claim for, 823. Code procedure, 823. A charge against estate, 824—826. Also a lien on proceeds of action for negligent killing, 827. But cannot proceed under § 2722, 850. Nature of the liability, 824, 825. Effect of refusal to pay though assets available, 824. Effect of payment by third party, 825. If "officious" may relieve estate, 825. Relative's agreement, 826. Claimant may lose priority, 826. e. g., by presenting claim under published notice to creditors, 826. In such case, if rejected, must sue in time or be barred, 826. What the term includes: Reasonable charge for suitable headstone, 827, 963. What held excessive for monument, 827, 963. Buying burial plot, 827. Considering decedent's "station in life," 827. Mourning, 828. Bonnet, dress, gloves, veil, cloak, etc., 828. Buying burial robe, 829. Wakes, 828. GENERAL INDEX 1289 [References are to pages.] Funeral Expenses — continued. Religious ceremonies, " orisons funfebres," 829. As a basis for selling realty of decedent, 963. (See Expenses.) Sale, etc., of real property of decedent to pay. See Payment of Debts; Real Property, Proceedings to Sell, etc. Protected at time of accounting, 1109. Code provision, 1109. Future Estate: Appraisal of, under transfer tax law. See Transfer Tax. Gambler, Professional: When denied right to administer. See Letters, etc. General Guardian. See Guardian. General Legacy. See Legacy. Gift Causa Mortis. See Transfer Tax. Gift Inter Vivos. See Transfer Tax. Good Will: Where an asset, 770. Guardian (Part VII, ch. II, 1035.): Surrogate's power to appoint, 3. to control, 3. Defined, 1035. Kinds of, enumerated, 1035. Ad litem. See Special Guardian. Is a trustee, but only in a general sense, 1011. In Socage. When infant deemed to have, 1035. Who entitled to office, 1035. Supersession of authority of, 1035, 1036. Parents equalized as to rights, 1042. But must ask letters, 1049. Before receiving property, 1049. i. e., legacy or distributive share, 1049. Duties of, prescribed, 1035. Statutory provision, 1035. Penalty, for devastavit by, 1036. Is judicially recognized, 1036. Infant must have real property, 1036. Powers and disabilities of, 1036. May be distributor for general guardian, 1065. In maintenance of ward, 1065. Though general guardian's liability would continue, 1065. i. e., in case of misappropriation, 1065. General. Cannot waive issuance of citation, 78. Though he can appear, after actual service, 78. And so give jurisdiction, 78. 1290 GENERAL INDEX [References are to pages.] Guardian— cowimued. General — continued. When may appear for ward, 78, 82. He is primarily entitled so to do, 82. If he is actually and legally general guardian, 85. But parent, or guardian in socage, has not this right, 85. If he does not appear, special guardian must be appointed, 82. Notice of apphcation, however, to be served on general guardian, 83. If he appear, must show by affidavit, that he has no interest adverse to in- fant, 82. Official bond of. See Official Bond; Probate op Will. Modes of appointment of, enumerated, 1036. Payment of legacy; or distributive share to, 1048. Code provision, 1048. Special bond, running to infant, 1048. Guardian's duty; accounting, 1048. May use it for support and education, 1048. If less than $50.00 may be paid to parent, 1048. Of income of trust by the trustee, 1049. Parent must hold letters in order to demand, 1049. Unless, as above, amount less than $50.00, 1048. Must demand it of trustee, 1064. Revocation of letters of. See Revocation op Letters. General maintenance of ward. See subhead General, Appointed by Surro- gate, below. Power of, to deal with ward's property, limited, 1066. May lease the realty, 1036, 1066. For he must account for the "issues and profits," 1036. No inherent power of conversion, in, 1067. May be permitted to purchase land for ward, 1067. Limitations on power of conversion, 1067. Election by ward, at majority, 1067. Cannot profit by dealings with egtate, 1067. His investments, 1067, 1068. Rule, where is also administrator, etc., 1068. Right to incur reasonable expenses in administration, 1068. Personal relation to ward: Cannot insist on residing with, 1066, 1068. Religious diversity, 1055. Not entitled to services of, 1068. Cannot contract ward's services to another, 1069. General, Appointed by Surrogate. Power to appoint, 3, 1037. Code provision, 1037. How exercised, 1037. How defeated, 1037. Conditions annexed to exercise of, 1037. Terminates right of socage guardian, 1035, 1036. Parent's appointment when binding, 1037, 1038. Must not ignore surviving parent, 1038. Practice on application for, 1038. Appointment, when infant over fourteen, 1038. Code provision, 1038. GENERAL INDEX 1291 [References are to pages.] Guardian — continued. Genebal, Appointed by Surrogate — continued. Petition; when and by whom presented, 1038. If infant neglects, Surrogate may act, 1939. Under amendment of 1909, 1039. Contents of; Code provision, 1039. Presented to which Surrogate, 1038. Where infant nonresident, 1038, 1040. By infant, form of, 1040. Affidavit, to accompany, 1041. Consent of guardian, to accompany, 1041. Oath of guardian, to accompany, 1041. General rules of practice applicable, 1039, 1040. Citation; mode of service of, 1039. Where petitioner is married female, 1039. Code provision, 1039. General rules of practice, governing, 1039. Waiver of issuance and service of, 1042. Surrogate's duty on return of, 1042. Code provision, 1042. Facts, to be shown to Surrogate's satisfaction, 1042. As to residence of infant, 1042. Amount, character, etc., of property, 1043. As to living relatives, 1043. Who to be appointed, 1043. Infant may nominate, 1043. Is discretionary with Surrogate, 1043. Wish of parent a preponderating influence, 1038. Fitness of parent, as appointee, 1038, 1043. Near of kin, preferred to strangers, 1044. Provision for parental access, 1044. Status of remarried mother, 1044. Review of Surrogate's discretion, 1044. Religion of guardian, 1055. Appointment, when infant under fourteen, 1044. Surrogate nominates, 1044. Only temporary, 1044. When term of office expires, 1045. Code provisions, 1044, 1045. Of property; inquiry by Surrogate, before appointment, 1045. Code provision, 1045. Decree appointing; when rendered, 1045. Form of, 1046. Limitations in, as to letter, 1046. Qualification by appointee, 1047. Bond; its condition, 1047. With limited liability, 1047. (See Official Bond.) See General Rules of Practice, 52, 54, 1047. Rule as to sureties, 1048. Of person; oath required, 1047. Bond may be required, 1047. Code provision, 1047. 1292 GENERAL INDEX [References are to pages.] Gxiardian — continued. Genebai, Appointed by Subrogate — continued. Rule, in New York, as to bond and sureties, 1047. Sufficiency and deficiency of sureties, 1048. Compulsory judicial settlement of account of. See AccouNTiifG for the Es- tate. Supervision and control of, by Surrogate, 3, 1000. Inventory and account; to be filed annually, 1060. Code provision, 1060. Service on sureties proper, 1060. Section directory only, 1061. Surrogate may compel, 1061. Effect of disobedience, 1061. Affidavit to, 1061. Contents of, 1061. Code provision, 1061. Account; to be annually examined, 1061. By special appointee, when, 1061. Proceedings, where defective, 1062. Code provisions, 1061, 1062. Final judicially settled. See Accounting for the Estate. Maintenance of infant; Surrogate's power, 1062, 1065. Code provision, 1062. Will not make " omnibus " orders, 1065. Guardian's primary duty, 1064. Must demand it of trustee, 1064. Proceeds of sale of infant's realty, 1064. Using income primarily, 1064. Not conditioned on ward's residing with him, 1066. Reimbursement for expense of securing appointment not author- ized, 1063. Services rendered prior to appointment, 1063. Disbursements through natural guardian, 1064. Personal liability on contracts, 1065, 1068. Functions, as disburser of special fund, 1065, 1066. Weighing propriety of particular, payments, 1065. If principal encroached on guardian must show necessity, 1066. Ancillary; Appointment, etc., of, 1049 et seq. Code provisions, 1050. Petition; requisites of, 1050. To be accompanied with what, 1050. Foreign letters only enable foreign guardian to present, 10^0. What foreign guardian must show, 1051. What verification sufficient, 1051. Form of, 1052. Decree appointing, 1051. When and how made, 1051. Code provision, 1051. What security foreign guardian must have given, to procure, 1060-1052. Effect of letters to, 1053. Code provision, 1053. If appointed in foreign country can only claim personalty, 1052. In another State or Territory can claim realty also, 1052. GENERAL INDEX 1293 [References are to pages.] Guardian — continued. Ancillaby; Appointment, etc., of — contirmed. Additional security not exigible from, 1053, 1054. May be revoked, 1054. (See Revocation op Letters, 1054 et seq.); Accounting for the Estate. By Will or Deed. i. e., Testamentary Guardian, etc. No authority, unless will proved, or deed recorded, 1036, 1037, 1069. Code provision, 1069. Implied renunciation, where deed not recorded within three months after grantor's death, 1069. Rights, powers, duties and liabilities of, 1069. Not to waive bond of representative, 699. Appointment; implies death of parent 1069, 1070. Permitted only by parents, residents of State, 1070. , Supersedes socage rights, 1036. Continuation of office of, 1070. Grandparent not within statute, 1070. Must qualify within thirty days, 475, 1071. May run from date of contingency fixed by will, 475. Code provision, 1071. Fihng affidavit of objections to issuing of letters, 1071. Renunciation, before qualification of, 1071. When letters to issue to, 1071. Supervision and control of, by Surrogate, 1071. Code provision, 1071. Inventory and intermediate account may be required of, 1071. Annual repetition, 1071. Removal of; Surrogate has power to revoke letters, 1054 et seq. (See Revocation of Letters.) Resignation of; may be allowed, 1073. Code provision, 1073. Decree revoking letters; on removal or resignation, 1073. Appointment of successor to, 1073. Code provision, 1073. Judicial settlement of account of, 1073. (See Accounting fob the Estate.) Guardian ad Litem. See Special Guardian. Habeas Corpus: Surrogate's power to issue, 112. Habitual Drunkenness. See Letters Testamentary; Letters of Admin- istration of Executor Administrator, etc. ; Revocation of Letters, • 671 et seq. Half Blood: Relatives of, take equally with whole blood, 1165, 1167. Are postponed to whole blood, in right to administer, 553. Handwriting : Of testator, when to be proved, 290, 347. How to be proved, 292, 293. Of subscribing witness, when to be proved, 290, 347. Code provision, 290. 1294 GENERAL INDEX [References are to pages.] Handwriting — continued. To lost will, 296. Must be absent from the State, 290. Under circumstances which satisfy the Surrogate that his testimony can- not, with due diUgence, be had by commission, 290. Meaning of " due diligence," in this connection, 291. Absence procured by contestant sufficient, 291. Dead, proof of, 292. (See Evidence; Probate of Will.) Headstone for Decedent's Grave: A proper item of funeral expense, 827, 963. If reasonable in amount, 827, 963. Health Officer. See Public Administrator. Hearings and Trials. See Practice; Trial by Jury; Proceedings. General discussion. Part II, ch. III. In Surrogates' Courts, similar to other courts of record, 111. Practice in, described. 111. Applied to special topics. See Practice. On proceeding to revoke probate, 511 et seq. Hearsay. See Evidence. Heir: Definition, 94. As one of class, 68, 71, 93. How cited, 71. What term includes, 94. Surrogate may determine who is, 95. Proof of pedigree, 95. Implies death of ancestor, 94. Nemo est hceres viventis, 94. When may mean next of kin, 95, 96. Acquires rights not by his own act, 94. But by operation of law, 94. i. e., statute of descent, 94. Therefore, murderer cannot inherit from one whom he murders, 94. Neither by act of testator, 94. Is either hneal or collateral, 94. (See Child.) Lineal includes adopted child, 94. Illegitimates, 94. Under certain Umitations, 95. Surrogate not to pass on rights, 96. When may distribute to, 96. Heirship : Probate of. See Probate op JIeirship. (See Devisee; Next op Kin.) Holographic Will. See Will. Interlineation in, 261, 262. GENERAL INDEX 1295 [References are to pages.] Holographic Will — continued. Due execution must now be proved as clearly as any other. e. g., as to publication, 331. But made abroad, under local law, provable, 33. As to personalty, 33. e. g., French will, no witnesses, 33, 312. But only if there provable, 312. And with same effect, no greater, 312. Against attack of "forgery" no presumption of genuineness, 324. Signature may be "too good," 324. Against objection "no publication," attack on credibility of witness denying publication does not affirmatively prove contrary, 331. Presumption as to testator's acts, 344, 348. At least he knew he was making a will, 344. When made by lawyer, 347. With full attestation clause, 347. Though all witnesses dead, 347. At common law, 314. Same rule if "lost or destroyed," 296. Effect on claim of undue influence, 380. Hotchpot : Hotel: Term explained, 1161. Rule as to, 1161, 1162. Keeper of, in New York, to report to public administrator. See Public Ad- ministrator. Bills, vouchers. See Accounting for the Estate. Husband : Rights imder statute of distribution, 97. , Is not one of next of kin, 97, 102. But may be included, if intent of testator is clear, 102. Is a "person interested," 102. May petition for probate of wife's will, 102, Rights of, how affected by divorce, 103. Jure mariti considered, 549. Her assets unadministered become his estate's, 549. And pass to his executors, 549. Without letters in her estate, 549. Transfer tax on property passing by. See Transfer Tax. Of decedent, entitled to letters of administration. See Letters op Adminis- tration; Marriage; Wife. Hypothetical Questions. See Experts; Testamentary Capacity. Idiots, Imbeciles, Incompetent and Insane. Service on, how made, 74, 75. (See Service of Citation; Publication.) Idiot cannot be testator, 311. (See Testamentary Capacity.) Imbecile is neither a lunatic nor an idiot, 360, et seq. 1296 GENERAL INDEX [References are to pages.] Illegitimates : When deemed lineal "heirs," 94. Modified right of inheritance, 94, 1179. In mother's property, 94. In default of lawful issue, 94. Under domestic relations law, 94. How far retroactive, 94, 95. Vested interests protected, 94, 95. This does not affect right of next of kin, to administer, 94, 550. Rights on distribution, 1179. Surrogate can determine who is, 95, 550. Legitimatized by subsequent marriage, 95. Right to administer discussed, 550. When can have no " next of kin," 1179. Birth of, does not revoke mother's will, 266. If she be unmarried, 266. As himself an intestate, 550, 566. (See Next op Kin.) Illicit Cohabitation: Not marriage, 263. May become so, 263. How will of woman affected by, 263, 266. Of man affected by, 266. (See Divorce ; Common Law; Mabriage.) Illiterate : May be refused letters of administration. See Letters op Administration. Imbeciles. See Idiots. Improvidence : Disqijp.lifies for executorship, 473. Disqualifies from administering, 555 et seq. Revocation of letters for, 671 . (See Revocation op Letters.) Income : Of securities deposited to reduce penalty of oflBcial bond, 695ra. Of trust estate, 1033. What increments belong to, 1033. What disbursements it must bear, 1034. Surplus, Surrogate cannot direct payment to creditor, 27. Resort must be had to equity, 27. Incompetent. See Idiots. Indenttire : Of child, as apprentice. See Adoption. Indians : Surrogate's jurisdiction. Reservation not "in county," 39. When tribal law has "custom of distribution," 39. If it has not he may grant letters, 39. GENERAL INDEX 1297 [References are to pages.] Indigent Person: Legatee, advance of legacy to. See Payment op Legacies. Infamous Crime: Disqualifies to administer, 473, 558. What is, 558. Effect of pardon on right to letters, 473, 558. (See Letters or Administration; Letters Testamentary.) Infant: Surrogate's power regarding, 3. Not exclusive, 3. As a party. See Parties. Cannot devise, 312. Male over 18 can will personally, 311. Female over 16 also, 311. Cannot receive letters, 38. If issued to him, they are void, 38. Guardian of, entitled to letters of administration, 553. Adoption of. See Adoption. Child of decedent, exemption in favor of, 771 et seq. (See Inventory of Assets.) Investment of share of, in proceeds of sale, etc., of decedent's real property 1005. General guardianship of. See Guardian. Domicile. See Residence. Is that of parent, 38. Sometimes that of general guardian, 38. Who can effect change of domicile, 38. But cannot compel ward to reside with him, 1066. As A Party. How citation addressed to, 65. Notice of necessity, of special guardian, 65. How service made upon. See Service. Code provision, infant over, 74, 75. Under, 74, 75. Rule as to summons applies, 75. Appears by general guardian, 82. If not special guardian must be appointed, 82. Exception in transfer tax cases, 83. Also if general guardian has adverse interest, 82. Represented usually by special guardian {q. v.), 84. Otherwise not fully a party, 84. Foreigner can be represented by consul, 77, 276. (See Consuls.) To accounting, in New York County, 88. No default against, 88. May petition in person, 84. On return day, special guardian will be appointed, 84. No default against him, 88, 93. Intervening, should at once petition for special guardian, 107ra. Or Surrogate will appoint, 108. Rights of. Cannot waive citation, 78. 82 1298 GENERAL INDEX [References are to pages.] Infant — continued. Rights of — continued. Protection, in special proceeding. See Pakties; Special Guardian. Code provisions as to status in actions, not applicable in Surrogate's Court, 85. Unaffected by acts of disqualified Surrogate, 24. Appearance, for him, of parent, or anyone other than general guardian, 85. (See Adoption.) Infirmity: Effect of, on testamentary capacity. See Testamentary Capacity. Inhabitancy. See Jurisdiction; Nonresidents; Residence. Inheritance : Right of in adopted children. See Adoption. Inheritance Tax. See Transfer Tax. Injunction : In action under § 2653a, 419. Temporary may issue, 425. Final judgment may direct, 419. Amendment of former judgments so as to contain, 419. Insane Person. See Idiot. Insane. 1 Insane Delusion. V See Testamentary Capacity, Insanity. j Insurance Policy: When a basis for Surrogate's jurisdiction, 41. Is an asset, 769. Effect of assignment, 769. Of its whereabouts, 769. Of § 52, Dom. Rel. Law, giving widow rights, 769. So far as $500 annual premiums paid for it, 769. Under benefit association, when not assets, 770. Proofs of loss under, 475. Pending letters, 475. Pending long contest, 475. Duty of temporary administrator, 526. Duty of executor, 475. May furnish proof of loss pending probate or letters, 475. Rights of adopted children in, 743. Intemperance. See Letters Testamentary, etc. To work disability must amoxmt to "habitual drunkenness," 473. Interest : On claim against estate: Should be asked in claim filed, 801. Or may be waived, 801. GENERAL INDEX 1299 [References are to pages.] Interest — continued. But if creditor defeated as to interest, may have to pay costs, 813. On funds of estate. See Lettees of Administeation. In temporary administration, 525. On legacy. See Payment of Legacy, subhead Interest. On impaid transfer tax. See Tbansper Tax. Interlineation in Wills: Effect of, discussed, 261 et seq., 322. In one of duplicate wills, 262. Proponent must show making before execution, 261. In pencil, not permanent part of will, 262. (See Revocation of Will; Will.) Intermediate Account. See Accounting for the Estate. Intermediate Order: Reviewing same; wisdom of direct appeal. See Appeal, subhead Mode of Review. Interrogatories. See Commission. Intervening : Power of Surrogate to bring in necessary party, 104, 108. Practice favorable to interested parties, 277-278. Probate. Who may intervene upon probate, 104, 278, 280. By appearing, becomes a party, 104. On filing sworn claim, 105. Devisee or legatee, 278, 280. In will propounded, 278, 280. Executor, trustee, devisee or legatee in other will, 280. Or who is interested in sustaining or defeating will propounded, 280. This means actual, or pecuniary, interest, 280. Interest must be affirmatively shown, 280 et seq. May support or oppose, 104, 280. Notice to be given in will contests, 280, 281. In ant Proceeding, 104. If possessed of necessary interest, 104. Infant, 107n. If let in, should at once apply for special guardian, 107n. Or Surrogate will appoint, 107. Petition necessary, when, 104. Or sworn claim of interest, 105. For leave to come in, 104. Which should state facts constituting petitioner's right, 104. 106. Form of, 106. One intending to intervene cannot move, or take any step imtil he is actually a party, 104. Supplemental citation to issue, 107. May issue on consent, 107. Proceeding suspended until intervention complete, 343. Effect of death. See Death; Abatement. Of representative of deceased party, 105, 108. 1300 GENERAL INDEX [References are to pages.l Intervening — continued. In any Pkoceeding — corUinued. Has an essential right to come in, 105. Regardless of statute of limitations, 104. Of proponent, ought to come in, and go on with probate, 109. In preference to any other party, 109. Unless proponent had no beneficial interest, 109. e. g., when he was merely executor, 109. On appeal, 105. By contestant's counsel granted allowance by decree refusing pro- bate, 105. Mode of, may be prescribed by Appellate Court, 105. Order granting leave, 107. Form of, 107. Not indispensable, 108. Issuance and service of citation serves same purpose, 108. Mode of; by order of Surrogate, on petition, 105. On Surrogate's motion, 108. No matter how he learns of party's interest, 108. Or on appearance in open court, and filing sworn claim of in- terest, 105. On appeal, 105. Not under Surrogate's control, 105. In order to appeal, 105. (See Parties.) Intestacy : As to estate necessitates general administration, 499. As to specific property administration c. t. a., 499. Effect on decree of distribution, 1168. Under foreign law, may not be so here, 32. Here, though testate abroad, 33. Defined, 538. (See Letters of Administration; Will.) Inventory and Appraisal of Assets: Duty of executor or administrator to make, 764. Should be made in a reasonable time from quaUfication, 764. Accuracy of, not directly impeachable, 764. Disputes concerning, await accounting, 764, 768. Appraisal. Two disinterested appraisers to be appointed, 762. Code provision, 762. Compensation of appraisers, 762. Oath of appraisers, 762, 764, 765re. Duty of appraisers, 763. Form of order appointing appraisers, 762. Application for appointment, 763. Notice of, required ; must be actual, 763. Who entitled to, 762, 764. How to be performed, 763, 776. Surrogate cannot direct manner of, 776. Where decedent was a partner, 776. GENERAL INDEX 1301 [References are to pages.] Inventory and Appraisal of Assets — continued. Appraisal — continued. Required only of existing assets, 777. Property exhibited, 763, 776. Assets in another state, 777, 778. How to appraise stocks and bonds, 776. Partnership interests, 776. Administration of oaths not an incident of appraiser's power, 778. Fair, a protection to representative, 779. For purposes of transfer tax law. See Tbansfek Tax. The Inventory. Contents of, prescribed, 764 et seq. Code provision, 764, 765. What to be included in, without appraisal, 771. (See Exemption; Widow.) Supplementary, on discovering more assets, 765. What deemed "assets," for purposes of inventory, 768. Code provision, 768 et seq. Illustrative cases, 769 et seq. Form of, including oath, 765 et seq. Omission of representative to file, 779. RETtTBN OF, 778 et seq. Duplicate to be filed with Surrogate, 778. ^ Within three months, 778, 780. One representative, on neglect of others, may return, 778. Thus ousting others from administration, 778, 780. Code provision, 778. Presumptive evidence of amount and value of estate, 779. Dispensing with by will against public policy, 779. Should include representative's debts to estate, 779. Code provision, 765. Set-off to such debt should be stated, 779. So as to statute of limitation, 780. Or he may be estopped by the omission, 779, 780. Rule where executor, etc., insolvent, 780. CoMPTiLSORY Filing of, 780. Who may apply to compel filing, 781. Right to, lost by laches, 778, 782. Order on such application, 781. Warrant of attachment, 781. Code provision, 781. . When costs refused applicant, in New York, 781. Proof of interest of "persons interested," 781. Status of alleged creditor, as applicant, 781. Only the statutory inventory demandable, 782. Motive of applicant immaterial, 782. Form of affidavit, on application, 782. Granting application discretionary, 783. Form of order to return, or show cause, 784. Such order to be personally served, 784. Calls for statutory inventory, 784. Not an unverified Hst of assets, 784. Application must be timely, 782, 784. 1302 GENERAL INDEX [References are to pages.] Inventory and Appraisal of Assets — continued. CoMPtTLSORY Filing op — continued. Effect of executor, etc., answering "no assets," 777. "Estate administered," 784, 786. Form of such answer, 785. Conclusiveness of, 786. As to joint custody of assets, 780. Impeachable only on the accounting, 764, 786. Prima facie evidence of what, 786. Executor, etc., bound to show alleged depreciation, 786. Surrogate's power, in proceedings relating to, 787. He cannot try title to property, 787. May pass on status of applicant, 787. Case of alleged adopted child, 787. May construe will, when, 787. When to issue warrant of attachment, 788. To be furnished by public administrator. See Public Administrator. Effect of, as evidence, in proceedings to compel payment of debt, 854. Effect of, in proceedings to sell, etc., decedent's real property, 984. Annual, of general guardian. Of guardian by will or deed. See Guakdian, subhead Accounting for the Estate. Investments : Supervision by Surrogate, 8. Revocation of letters, for unauthorized, 667. Temporary administrator cannot make, 525. (See Revocation of Letters.) By testamentary trustee, 1023 et seq. Acting under directions given by will, 1023, 1025. By county treasurer, of moneys paid into court, 1049. Surrogate's control, 1049. Irregularity : Power of Surrogate to obviate, 63. Omission to appoint special guardian does not divest jurisdiction over proceed- ing, 84. How cured, 84. Effect of nunc pro tunc order, on infant's rights, 84. Error in entitling proceeding in county court, when county judge acts, will not invalidate appointment of special guardian, 84. (See Defect; Mistake.) Irrevocable Will: Wills ambulatory, 250, 267. So far as Surrogate is concerned, there can be none, 267. Such wills must be enforced in equity, 267. Remedy of beneficiary, 267. Surrogate cannot, on this ground merely, deny probate, 267. Probate transfers legal title, 269. Which may be impressed with trust, 268, 269. In favor of party with whom testator contracted, 268, 269. Who need not contest probate, 269, 270. No estoppel wrought by failure to object, 269, 270. GENERAL INDEX 1303 [References are to pages.] Irrevocable Will — continued. Made in pursuance of antenuptial agreement, 268. Possible when one of two mutual testators dies, 268. Sucli wills must be treated as contracts, 268. And enforced as such, 269. If based on good consideration, 269. Examples of such consideration, 269. How enforced, 269 et seq. (See Will.) Issue : Birth of, effect on parent's will. See Afteb-born Child. Joinder : Of outsider, in administration. See Letters op Administration. Judgment : On reference of claim against decedent's estate, 818. Against estate, not barred by statute relative to actions by creditors, 816. Debt; preference in payment of. See Payment of Debts; Order op Priority, third class. Status of, in proceedings to sell, etc., decedent's real property, 980 et seq. Creditor. See Creditor; Parties. Judgment Creditor. See Execution. Judgment of Supreme Court: Establishing a will, must be recorded in Surrogate's office, 30, 420, 464. Must be carried into effect by Surrogate, 30, 464. Letters thereunder issuable only by Surrogate, 464. Surrogate, however, must issue such letters, 464. Can Surrogate disregard, 662. Where right in. status of "party" depends thereon, 662. (See Action to Establish Will; Wipe, Divorce, etc.) Execution under, against executors, only by leave of Surrogate, 38, 196. (See Execution.) Of Appellate Courts, ho^ enforced, 269. (See Appeal.) Judicial Settlement: Of accounts in Surrogates' Courts. See Accounting por the Estate. Jure Mariti : Taking by virtue of, does not avoid transfer tax, 874. Effect on administration and distribution, 1176. Jurisdiction of Surrogates' Courts: Definition of, 3. Code provisions, 5-7, 27-29. General powers, 27. Incidental powers, 28, 29. Constitutional provision, 29. Special statutory powers, 29. General discussion; Part I, ch. II, 27 et seq. 1304 GENERAL INDEX [References are to pages.] Jurisdiction of Surrogates' Courts — continued. Table showing development of, 5-7. Before Revised Statutes, 5-7. Under Revised Statutes, 5-7. Under § 2472, C. C. P., 5-7. Illustrations of its powers, 7-10. (See Surrogate, Powers.) How obtained, 35. Never by mere consent, 9, 36, 442. By parties or attorneys, 9, 442. Once assumed is exclusive, 35, 275. But if lost, that of another Surrogate may revive, 275. How lost, 49. Not by defect of record, 49. May be lost by failure to serve citation, or present petition within time limited by statute, 60. Effect, where citation, though served in time, proves defective, 60. Effect of death of party. See Abatement; Death. How affected by change of county Unes, 48. Case of Westchester County, 48. Time change occurs, effect of, 48. Formal order necessary, 49. No notice required, 49. Order transfers matter to proper county, 49. Code provision, 49. Effect of adoption of Code, 50. Miscellaneous cases where sustained, 7-9. Denied, 9-10. Under transfer tax law, 3, 862. Nature of. Special and limited, 3, 4. So must be affirmatively shown, 4. In moving papers, 4. Extends over: Probate of wills, 3. Administration, 3. Accountings, 5. Distribution, 3. Infant's interests, 3. In this respect not exclusive, 3. Guardians, 3. Appointment, 3. Control, 3. Transfer tax, 3. Originally limited to express statutory powers, 4. Extent of, before Revised Statutes, 4. Historical sketch referred to, 30. Limited, even when exclusive, 4. So, must be affirmatively shown, 4. And facts alleged to show it, 4. Effect of defective allegation, 4. Not only as a Surrogate's Court, but as such court in a particular county, 37, 275. GENERAL INDEX 1305 [References are to pages.] Jtirisdictvon of Surrogates' Courts — continued Natdee op — continued. Depends on special facts, known as jurisdictional, 4. Implied powers asserted, 5. Denied in Revised Statutes of 1830, 5. Statutory, 5-7. (See Tables.) Growth of, 5-7. Prerequisites must exist, or jurisdiction will be denied, 4. Basis of. Stated, 31 et seq. Recital of jurisdictional facts, 49. Citation and appearance of parties, 49. Residence as, 36 et seq. (See Probate op Wills.) Property as, 36 et seq. (See Probate op Wills.) Defect op. Based on nonrecital of jurisdictional facts available only on appeal, 49. Such a defect, how cured, 50. By voluntary general appearance, 77. Provided jurisdiction of rem meanwhile is kept, 77. Over Specific Subjects. See Surrogate, Powers. Adoption, 29. (See Adoption.) Concurrent with county courts, 29. Administration; concurrent with state courts, 45. Accovmtings ; concurrent with state courts, 45. Guardians; concurrent with state courts, 47. Infant's interests, 4. Probate, how exclusive, 30. (See Probate op Will.) Upon what dependent, 31. Four conditions of, 31. Discussion of conditions, 31 ef seq. Concurrent. See Concurrent, this heading. Revocation of probate, 34. Reformation of wills; exclusive, 34. Testamentary trustees, 1029. Transfer tax, 29. (See Transfer Tax.) Concurrent, 30. With Federal courts, 43. Over naturalization, it seems, 8. Over construction of wills, 43, 44. But not over probate, 44. Which is in rem, 4:4:. Hence not removable, 43. U. S. Supreme Court decision, 44. With state courts, 30, 44. To establish lost will, 44 et seq. (See Lost Will.) Formerly only in Supreme Court, 44. 1306 GENERAL INDEX [References axe to pages.] Jurisdiction of Surrogates' Courts — continued. CoNCtTRRBNT^conimued. Now Surrogates also, 44. Over administration, 45. Accountings, 45. Adoption, 29. Preventing probate, 47. Guardians, 47. Establishing validity, etc., 46. Distinction drawn, 46. Construction of wills (g. v.), 46. To appoint successor-trustee, 1029. With other Surrogates' Courts; Code provision, 47. Court first acting has exclusive rights, 47, 275. While those of the other are in abeyance, 275. Effect of change in county Unes, 48. Exclusive. Of other Surrogates' Courts; Code provisions, 30, 543. Over probate, 30. See Probate op Will. Exception as to action to establish will, 30. Over issuing letters, 30. Once rightly assumed, is exclusive, 35, 42. Code provision, 34, 274. What it depends on, 34. Effect of testator's residence, 35 et seq. (See Residents; Nonresidents.) Location of property willed, 34. Change of county boundaries, 48. Amount of property immaterial, 40, 41. Japanese folding chair sufficient, 40. Fatally Bible, 40. Insurance policy, 40. Debts due decedent, 40, 43. Promissory note actually in county, 43. Code provision, 43. Of all other courts, 30. Leave to issue execution against representative, 30. Over reformation of a will, 34. Over probate, to what extent, 30. Questions relating to factum of will, 34. Such as fraud, undue influence, etc., 34. Over issuance of letters, 30. Action to establish a will, an exception, 30. But terminates in office of Surrogate, 30, 31. Who alone can issue letters, 30, 31. And who must record the judgment, 30. f of Wills, Part III, ch. II.) A widow is immarried, 263. (See Woman.) United States: Preference of debts owing to, 832. Unsound Mind: Person of, cannot be testator. See Tbstamentaky Capacity; Will. Vacancy : In office of executor will may provide for, 470, 480. (See Administration with Will Annexed.) In office of Surrogate. See Acting Subrogate. Vacating Decrees and Orders. See Decrees ; Orders. Vacation : Of Surrogate, usually in August, 25. GENERAL INDEX 1419 [References are to pages.] Vacation — continued. Designation of another time, 25. Requires instrument in writing, 25. Acts during, 25. Depend on his being within the State, 25. Validity: Of will actually probated. Whether of realty or personalty, 155. (See Dbcbee, Effect op.) Of will, passing on, in probate. See Construction of Will. Of will, action to determine. See Action to Construe Will; Construction OF Will; Action to Determine Validity. Of legacy, Surrogate's jurisdiction to determine. See Construction of Wills. Variance : Between citation and petition, how cured, 62. Verdict : Of Jury in Probate Cases. Code provision, 173. How reviewed, 213. By motion for new trial, 213. Before judge, 213. Within 10 days, 213. On what granted, 213. Conclusiveness of, 141. Appeal to be taken from order granting or refusing new trial, 213. To be heard on a case, 213. Op Jury in Proceedings to Sell Realty. Code provision, 141. How reviewed, 215. By motion for new trial, 215. Before judge or Surrogate, 215. Certification to Surrogate's Court, 142, 215. In Action Under § 2653a. Form of, 419 et seq. Conclusiveness, 424. Should be on specific questions, 429. Verification of Papers in Surrogate's Court: Of Petition. When Surrogate may require, 61. Effect of failure to comply, 61. Rules, same as for pleadings in civil action, 61, 62, 681. Code provisions, 61, 62, 274. Examples of sufficient verification, 62, By attorney, 62. How made, 62, 681. Op Account. Required; form, 1108-1110. See various headings for specific petitions, e. g., Probate, etc. 1420 GENERAL INDEX [References are to pages.] Vouchers : In support of claim against decedent's estate, may be required, 799, 800. Unless attested by testator's books, 1112. Filing of, on settlement of account, 1110. Need not be required for amounts under $20.00, 1110. Provided aggregate of such payments does not exceed $500, 1110. But if executor has them, he must file them, 1110. Even though very numerous, 1110. How items proved, when no vouchers, 1110. May be impeached by contestant, 1111. Who has burden of proof, 1111. What evidence required to impeach, 1111. Grounds tor impeaching, 1111. Legahty of disbursements, 1112. Objections to, 1111. Preliminary examination of accountant, 1112. Waiver : Of Defects or Ieregularities. Competent party, of full age, may make, 77. If jurisdiction has not been lost, 77, 78. Of DiSQUAIilFICATION OF SURROGATE. Adult party can waive, 24. Except certain disqualification, 24. Infant cannot, 24. Of Issuance and Service of Citation. May be executed by competent parties, 78, 275 et seq., 1042. Waiver of service, alone, insufficient, 78, 276. And does not dispense with issuance, 78, 276. Waiver of full time of service, 79, 283. Infant cannot waive, 78, 276. Appearance of general guardian gives jurisdiction, 78. Provided service has been made on infant, 78. How accomplished, 275 et seq. By properly acknowledged instrument in writing, 78, 275. Not antedating the petition, 78. To be acknowledged and filed, 275. Personal appearance in some cases, 275. By attorney duly authorized, 275. Foreign consul, 276, 560. Cannot as to infants, 560. In probate proceedings, 275 et seq., 395. (See Probate of Will.) On application to appoint general guardian, 1042. Of interest on claim by creditor's not demanding, 801. Of statute of limitations, representative cannot effect, 803, 831. e. g., by inaction on presented claim, 803. Distinction between acknowledging a claim and reviving it, 831. Want of Understanding: Revocation of letters, for. See Revocation of Letters. Ward. See Guardian. GENERAL INDEX 1421 [References are to pages.] Warrant: For delivery of property. See Discovert of Assets. Warrant of Attachment. See Attachment. Warrant of Commitment. See Contempt. Waste : By deceased representative chargeable on his estate, 620, 621. (See Revocation of Letters; Statutory Provisions, 620.) Petition of public administrator, to prevent. See Public Administrator. Widow. See Wife; Quarantine. Wife: Is not, as such, one of next of kin, 97, 102. May be included with them, if intent of testator be clear, 102. Is a "person interested," 102. But not wife or heir at law, 311. May petition for probate of husband's will, 102. When entitled to be a party, is so de jure svo, 102. Surrogate may pass on validity of claim to be wife, or "widow," 309, 662. This is a legal question, 309. May examine decree of another court, 309, 662. And hold it to be defective, 309. Or valid and binding, 662. May be held included under "any next of kin entitled to share in distribution," 103. After dower assigned, need not be notified of sale of realty, 974. Divorce of, rights how affected by, 103, 548. , Effect on inchoate right of dower, 103. Where she is guilty, 103. Residence, 39. Leaves her not legally "widow," 103, 662. So cannot administer, 103, 548. Dissolution of marriage, 103, 263. Effect on her will, 263. Remarriage of husband, 104. Last wife is his widow, at his death, 104. For a man has but one "widow," 104. Residence, when that of husband, 39. Effect of divorce in new domicile, 39. Of decedent, entitled to letters of administration, 548. (See Common-law Marriage; Divorce; Dower, Husband; Illicit Cohabita- tion.) Will. See Probate, subhead Exclusive Jurisdiction. Action to Establish. Cases where proper, 46, 455 et seq. Regulated and discussed, 455 et seq. (See Action to Establish Will.) See action under § 2653a, 419 et seq. Deposit op. For safe-keeping, 245. Delivery restricted, 245. Surrogate's duty, after depositor's death, 245. 1422 GENERAL INDEX [References axe to pages.] Will — continued. ExEctJTiON or. Who can make: Under Dec. Est. Law, 311, 349. Males eighteen years and over, 311, 349. Females sixteen and over, 311, 349. If "of sound mind and memory," 311, 312, 349. Wills of real property, 311. Of personal property, 311. Age a material inquiry, 312, 349. How proved, 313. Mode of; as a condition of jurisdiction, 31. Of personal property, when provable. If executed under law of residence, 31 et seq., 311, 312. Of real property, when provable. If executed pursuant to New York Law, 31 et seq., 311, 312. By residents, when provable. If executed pursuant to New York Law, 31 et seq., 311, 312. By nonresidents, when provable. If executed under law of residence, 31 et seq., 311, 312. Place of, as a condition of jurisdiction, 33. Locits of property willed, 34. (See JuBisDicTioN.) Residence of testator, effect of. See Jukisdiction; Residents; Nonhesi- DENTS. Formalities required by consolidated laws, 313. Four enumerated, 313. See subds., 1, 2, 3 and 4, below. One additional, 313. As to address of each witness, 313. Only pecuniary penalty if this not complied with, 313. Recoverable by action, 313. Limitation, how runs, 314. Substantial compliance enough, 314. But essential, 314. Seal not required, 327. On holographic will at common law, 3W. 1. Subscription, by testator, at end, 314 et seq. Unsigned holographic will, at common law, 314. Object of this requirement, 315. Cases involving question discussed, 315 et seq. Witnesses, also, to sign at end, 315-317. How near body of will, end is, 317. Effect of blanks in body of will, 315. No disposing clause should follow signature, 317-319. Attestation clause not part of will, 317. Not essential to its validity, 318. Position of attestation clause, 317, 318. Extraneous paper, effect of reference to, 319, 322. Character of such paper, 319. GENERAL INDEX 1423 [References are to pages.] Will — continued. Execution of Extraneous paper — continued. (a) Must have existed when will executed, 319. (6) Must be identified as very paper referred to, 319. (c) Must not contain dispositive provisions, 319. Summary of rules, 320. Effect of reference thereto in attestation clause, 322. Annexing papers to will proper, 322. Effect, in fixing end of will, 322. Effect of interlineation, 261 et seq., 322. Place of signature of will executed without the State, 322 et seq. Depends on local law, 312. But compliance therewith to be clearly shown, 312, 323. Four modes of subscription by testator, 323. (1) Personally, 323. Illegibility, 323, 325. Genuineness, how proved, 323. Burden on proponent, 323. Expert evidence of forgery, 324. Testing ink, etc., 248. JIust proceed under §§ 803, 809, Code, 248. Immaterial who signed if proof given that testator " adopted " signature, 324. Intent to execute paper as a will, 330. (2) By another person, 324. Requisites, to make valid, 324. At testator's desire, 324. He being unable, 324. e. g., adoption of signature, 324. Person signing for him, must also sign his name, 325. Penalty for not doing so, 325. No longer in Dec. Est. Law, 325. (3) By guiding testator's hand, 325. Only when testator is infirm or illiterate, 325. Knowledge of contents to be in such case proved, 325. Was act "assistance" or "control," 325. (4) By mark, 325. Illegible signature may be so deemed, 323, 325. Peculiar proof required of, 326. Effect of attestation clause, when proof lacking, 345. The "fact" is who made the "mark," 326. Not who wrote the identifying name, 326. As subject of expert testimony, 325, 326. 0. K., insufficient, when, 326. Witness must see mark made, 326, 328. 2. Subscription in presence of, acknowledgment to, each subscribing witness, 313, 327. Each witness must see testator sign, 328. Or hear visible signature acknowledged, 328. i. e., if signature is "adopted," 324. So they can identify the signature, 328, 329. Folded paper, concealing signature, 328, 329. Testator acknowledges subscription not the instrument, 329. 1424 GENERAL INDEX [References are to pages.'] Will — continued. Execution of — cotdinued. Therefore he cannot "acknowledge" duly, if witnesses sign &st, 330, 337. Testator must sign hefure witnesses do, 329. May. sign in presence of either and acknowledge to other, 327, 332. Or sign in presence of neither and acknowledge to both, 324, 327. Or acknowledge to each adoption of signature made by another, 324. 3. Publication by testator, at time of execution, 313, 330 et seq. Not by his messenger who summons the witnesses, 337. Of will signed per alium, must also "adopt" signature, 324. Object of this requirement, 330. As to knowledge of contents, 406. Meaning of "declare," 330, 331. By sign, 331, 332. Deaf and dumb testator, 331. Must be to both witnesses, 331. But may be separately made to each, 332, 337. Meaning of "at the time of," 330, 332. While witnesses are signing, 132. Effect of assent, where no express declaration, 331, 333. Effect of attestation clause, 330. Request by testator to read it, effect of, 332. Unequivocal declaration, however made, 330. Of testamentary nature of instrument, 330. "This instrument" not sufficient, 333. Or "document," 333, 348. Even though it be holographic, 333. Republication, effect of, 334. When sane if will made when non compos, 335. Publication of subsequent instrument, effect of, 334. Two instruments simultaneously executed, 334. Rule, where later instrument executed on separate occasion, 334. Codicil need not be affixed to will, 334, 335. Publication of codicil generally operates as republication of will, 336. When will and codicil treated as the will of testator, 336. Insufficient publication; illustrative cases, 336 et seg. 4. Two witnesses must sign, at end, 315, 316, 317, 337. Position of attestation clause, 337. At testator's request, 313, 337. Object of subscribing witnesses: Identify signature, 328, 329. Due execution, 337. Must know it was a "will," 330, 333, 337. What these witnesses must see or hear, 337. Witnesses must sign after testator, 330, 337. Need not sign in each other's presence, 337 et seq., 343. Provided all formalities in respect of each, 338. Nor in testator's, 343. Presumed to see, if where they could see, 338. Blind witness is no witness, 339. Notary taking acknowledgment of will not per se wit- ness, 328. GENERAL INDEX 1425 [References are to pages.] Will — continued. Execution of — continued. Subsequent blindness immaterial, 339. Must sign at end of will, 315, 317, 337. Must sign on one occasion, 338. And before testator's death, 338. May sign by mark, 339. If illiterate, 339. If infirm, may sign per alium, 339. Cases of defective eyesight in witnesses, 339. Must be requested by testator, 340. Facts from which request is implied, 340 et seq. No precise form of words, 340. "Continuance of desire" previously expressed, 340. Testator may request by third person, 341. Who is in his presence, 341. And hearing, 341. Whereupon "assent" of testator is enough, 341-343. Effect of reading attestation clause aloud, 341, 342. Request by deaf and dumb testator, 342. Request may be combined with publication, 342. Forgetfuhiess of witness, 343-346, 348. Evidence needed in such case, 343-348. Value of attestation clause, 343. Especially if proved to have been read, 345. Attestation clause, effect of, 331, 343, 344. Reading aloud, 334, 345. Request to witnesses to read it, 342. Equivalent to publication, 331. Or to request to sign, 343. Importance stated, 343, 345. Aids proof of due execution, 343. Where signature by "mark" and no proof available, 345. Is no part of the will, 317, 345. Presumption arising from this clause, rebuttable, 345. Effect of proved falsity of recitals, 345. Due proof of execution : Where witnesses dead, 347. Proof of handwriting of subscribing witnesses, 343-347. Allowed where witnesses are dead, 347. How testator identified, where subscribing witnesses were unacquainted, 347. Weight of testimony of one, not a subscribing witness, who was present at execution, 348. Presumption in favor of holographic will, 348. Also, where testator shown to have been familiar with requirements, 348. Peodtjction of, on Probate. Who should produce and file it, 246, 271, 281. Proponent, 246. How effected, 246. If probated, must remain, 291. 90 1426 GENERAL INDEX [References are to pages.] Will — continued. Production op, on Peobatb — continued. When removable, 291. Can Surrogate compel custodian, by order, to produce, 246. Use of subpoena duces tecum, 246. Which Surrogate can enforce, 246. Where will is foreign will, incapable of production, 246. Certified copy admissible, ch. 731, L. 1894, 246. Provided will is in custody of court, 246. Not where held by a notary, 246. If produced before commission, it will be equivalent to production in court, ' 246. For commissioner tp take testimony represents court, 246. Foreign will; when copy sufficient, 246. If not in custody of a court, must be produced, 246. Probated elsewhere; statutory provisions, 247. Duplicate or triplicate, 248. , Purpose is inspection by contestant, 247. Or photographing signature, 247, 248. Or testing ink, 248. Probated. Evidential value, 155. How indorsed and authenticated, 155. Presumptive evidence, 155. 01 factum, 155. Probate of. See Probate. Construction of. See Construction of Will, etc. Lost. See Lost Will; Probate. Nuncupative. See Nuncupative; Probate. Guardian by. See Guardian. Revocation op. See Revocation op Wills. Alteration or Interlineation in. Principles governing. See Revoca!tion of Wills. Irrevocable. See Irrevocable Will. Probate of Will; Revocation of Will. Witches. See Testamentary Capacity. Witness. See Commission to Take Testimony. Effect of Surrogate's being, 24. Power of Surrogate to compel attendance of, 6, 112, 287. Residing anywhere in the State, 6. Or being anywhere in the State, 6. By subpoena, 6. Or subpoena duces tecum, 6. Examination of; rules same as in Supreine Court, 112 Before referee, subject to referee's control, 134. Whose mandates Surrogate will enforce, 134. Competency of; rules same as in Supreme Court, 112. Not disqualified, by provision in will, from testifying as to its execution, 120. Wtether such provision is beneficial or otherwise, 120. Code provision, § 2554, 120. This is a substitute for former sections of the Revised Statutes, 120. But limited to Surrogates' Courts, 120. GENERAL INDEX 1427 [References are to pages.] Witness — continued. And intended to enlarge the exceptions, 120. Reason for the rule, 120, 121. That wills may not fail of probate, 121. But exception must not be. carried beyond express terms of § 2544, 121. i. e., limited to evidence touching execution of will, 121. Executor competent to testify, 121. Legatee competent to testify, 120, 121. But his legacy will be avoided, 121. If his testimony is necessary, 121. And he can be compelled to' testify, 121. And cannot withdraw it to save legacy, 122. When can take, 121, 122. ' . Nonresident witness, 122. Where there are more than tiii^Oj 122. Illustrative case, 122. To will. See Will, Execution op; Probate, subhead Heabing, etc. Aged, Sick or Infirm. Testimony of, how secured, 127 et seq. Code provisions, 127. Practice differs according to character of proceedings, 128. , When Surrogate must examine, 128. , ^ In probate, 128. When referee may be appointed, 128. Not in probate, 128. Affidavit to procure order to examine; form, 129. ^ . Physician's certificate of disability may, be. required, 129.. \ Order directing examination; form, 129. Notice of examination, form, 130. , . , When witness in another county, 129. Surrogate of that county may be designated by order, 129. Contents of order 129. ... Practice indicated, Code provision, 127. How examination recorded, 130.-, , , Witness must subscribe the testimony, 131. Surrogate presiding must certify it, 131. Form for certificate, 131. Code provision as to authenticating, 131. Minutes to be bound in volumes, 131. In New York and Kings Counties, 131. Elsewhere, if supervisors direct, 131. On Probate. Number to be examined, 286. Two, if within State and competent, 286. Cannot be dispensed with, if resident, 287. Except in certain cases, 287, 289. How proof then supplied, 287, 289, 290. Should be produced by proponent, 286. This includes not only subscribing witnesses, 286. But also those called for, under § 2618, 286. Or proponent should satisfy Surrogate of their sickness, death, absence from State, lunacy or other incompetency, 287. 1428 GENERAL INDEX [References are to pages.] Witness — continued. On Probate — continued. This must be done in way required by § 2619, 287. Code provisions, 287. Proof of handwriting, 347. No order of Surrogate necessary to require their attendance, 287. But, if needed, he has full power to compel attendance, 287. Meaning of "competent," 287. Attorney when competent, 287, 296. Request to witness will is waiver of privilege, 287, 296. Amendment to § 836, 288. Person beneficially interested, 288. Executor, 288. Commissions not a beneficial interest, 289. Testimony limited to factum of will, 288. § 829 still applicable, 288. Save as to subscribing witnesses, 288. Forgetting occurrence, as to execution of will, 290. Or testifying against it, 290. Examination of, procurement of, 305. Commission to Examine. Taking testimony on. See Commission. Expert. See Expert Evidence. Fees of, taxable only under statutory authority. See Costs, subhead Dis- bursements. Woman : May propound will, 249. Husband need not join, 249. Will of. Unmarried, revoked by marriage, 252. Widow deemed, 252. Nonresident under ch. 731, L. 1894, 246. Revocation of, operates eo instanti, 263. Effect of dissolution of a marriage, 263. Married, not revoked by birth of child, 264, 266. Unmarried, not revoked by birth of bastard, 266. (See Illicit Cohabitation; Marriage; Widow; Wipe.) Writ: Of Habeas Corpus, 112. Of Prohibition, 303. i! is r 1: ! ^iiii «'' ■iilii II