OJnrnpU ICam Btl^aal Slibrary 'fFW5205"j'irumve.,,, '"'•e /aiv J9t6 y Library ., \ /->-—--W\ I J.^.J i^' LltV - Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022804854 THE LAW AND PRACTICE IN THE SUEEOGATES' COUETS IN THE STATE OF NEW YORK BEING A CONSOLIDATION OF THE FIFTH EDITION OF JESSUP'S SURROGATE PRACTICE WITH THE SEVENTH EDITION OF REDFIELD'S SURR'bGjtTE PRACTICE AND ALSO , no i -nini- r mrAi.R A COMMENTARY CHIEFLY ON CHAPTER XVIH OF THE CODE OF CIVIL PROCEDURE AS RE-ENACTED IN 1914 HENRY WYNANS JESSUP, M.A.,LL.M. OP THE NEW YORK CITY BAB THE BANKS LAW PUBLISHING CO. BAKER, VOORHIS & CO. NEW YORK 1916 013 /^r CopyRiQHT, 1916 By THE BANKS LAW PUBLISHING COMPANY AND , BAKER, VOORHIS & CO. PREFACE In Mr. Amasa A. Rediield's, preface to the first edition of his work on Law and Practice in Surrogates' Courts in 1875,, he justified his work by- remarking that "Mr. Dayton's useful work on Surrogates has long been out of print, and the last edition of Mr. Justice Willard's work on e;xecutors which, to some extent, covered, the same ground, was pubHshed in 1859," He also referred to the "extensive changes which have since , then been introduced into the Statutes" (a legislative habit it has become), and his table of cases included some 1,400 decisions which h&, had collated and examined. i , , In my preface to my first edition, nearly twenty-five yeays later, it was intimated that, the citation of authoritativa and leading decisions on any given point, rather than the voluminous citation to each point of, all de- cided cases, was a feature of the new work, — but, even with ,this limita- tion, some 5,000 cases were cited in the third edition, , called for by ;the same legislative activity that had, so fortunately, aroused Mr. Redfield to write his valued treatise. Since the publication of his seventh, and of my fomrth, edition the Act of 1914 was passed reforming the practice, and renumbering the sections of Chapter XVIII of the Code. Much of the substantive law has been likewise amended. The evolution of the Court in respect to the posses- sion and exercise of powers, equitable in their nature, and rightly deemed essential to its adequate discharge of its increasingly important functions, has also called for a revision of existing works in order to properly aid practitioners willing to use text-book aids. Accordingly, but not until it developed that this need was not otherwise fully met, I consented to consolidate the work previously done by Mr. Redfield, his son, Mr. Robert L. Redfield, and myself, and to attempt to construe the new Act in its operation, and to produce, within one volmne if still practicable, a practical aid to the practitioner in the Surrogates' Courts of the State. I have taken the liberty of preserving my own textual plan and ar- rangement — differentiating quoted Statutes, from the text and from the precedents that illustrate its propositions, by appropriate type. I have con- tributed a few pages to the judicial discussion of certain questions of pres- ent moment, such as the jurisdiction of the Court, in its equitable aspect. I have registered my protest against certain legislative tendencies that I deem mischievous, notably the State law permitting the covert adoption of adults, and the Federal law, taxing inheritances. I have preserved many of Mr. Redfield's collations of cases or of propositions in tables or other- iii IV PREFACE wise, and have reprinted the bulk of his forms with the caution that they be compared with the precedents if any in the text, with the official blank, if any, of the local Surrogate, and with the appropriate Code Section as last amended. For their historical value alone they demanded preserva- tion. ? , , ,• I acknowledge gratefully t&e thorough, painstaking and accurate work of my friend, Daniel D. Sherman, in compiling the Table of Cases (over 7000) ^nd' the Taible of Code Sections; the use of which, particiMarly the latte!r, will greatly add to the helpfulness of the book. I yielded reluctantly to the request that I imdertake this task. My spare hours from January 2nd) 1916, to this date have been engrossed by the work. I offer it to my brethren of the bar in the hope it may assist their labors and I dedicate it to the Surrogates of the CoUnty of New York, a distinguished line of our judiciary, whose ability, integrity, fidelity and thoroughness have so markedly contributed to the development of the Court and have had so important and continuous a bearing on the welfare of the community. Henry W. Jesstjp. 55 Liberty Street, New York City. September 20, 1916. TABLE OF CONTENTS PAGE Preface iii Table of Code and Statute Citations xxix Table of Cases ". xliii PART I Sections 1 to 95a The Court, its History, Organization and Jurisdiction CHAPTER I, §§1-26 OBGANIZATION OF THE COURT FOR THE TRANSACTION OF ITS BUSINESS SECTION PAGE 1. Mr. Redfield's historical sum- mary 1 2. The ecclesiastical courts 1 3. The prerogative courts 2 4. Subjects of jurisdiction 2 5. The, court of probate 3 6. Colonial tribunals 3 7. The mayor's court 3 8. The duke's laws 4 9. The governor's jurisdiction — his delegate. 5 10. The delegs,tes 8 11. The deputy further considered as the original of the Surro- gate 9 12. The birth of the Surrogate; the pojvrer to probate . ......... 11 ,13. Additional powers to Surro- gates 12 14. Abolition , of court of pro- . bates 12 SECTION , PAGE 15. Surrogate's powers always spe- cial and limited 13 16. The Act of 1837 13 17. The Code 14 18. The Act of 1914.. 14 19. Summary of Mr. Redfield's his- tory 14 20. Surrogate's powers originally derived from the crown 15 21. Effect of constitutional contin- uance of court 15 22. Same subject 16 23. Same subject 17 24. Distinction between jurisdicr tion and power '.....', 18 , 25. Equitable powers concededly possessed heretofore ....... 19 25a.Some equitable powers larger than those of equity court . . 20 256.Growth of such powers 22 26. Summary 28 CHAPTER II, §§27-45 THE COURT AND 27. Statutory definitions 29 28. Enumeration of courts : terms of oflSce , 30 29. Enumeration 'of courts 31 30. The law provides for five kinds of Surrogates 32 31. Surrogates proper 33 THE SURROGATES 32. County judges 33 33. Special Surrogates 33 34. Acting Surrogates 33 35. Temporary Surrogates 36 36. Surrogate's alternate 37 37. Compensation 37 38. Formalities, jurisdictional 38 V VI TABLE OF CONTENTS SECTION PAGE 39. During disability 41 40. Retransfer of matter 41 41. Disqualification 42 42. Same; waiver 43 SECTION PAGE 43. Seal 44 44. Books and records 45 45. The court — ^terms of 46 CH^At'T^K III, §§ 4^-55 CLERKS — OFFICERS 46. Court and office clerks — -ap- pointment 47 47. Surrogate's liability 48 48. Functions and powers 48 49. Trust fund register 50 50. Disabilities of clerks 50 51. Stenographers _. , 51 52. Duties of a stenographer ..... 52 53. Charge for services, usual 'or extra 5? 54. Duties; rights 53 54a.Stipulations as to fees 53 55. Officers and attendants 55 CHAPTER IV, §§36-g5a> JURISDICTION AND POMTERS 56. Differentiation 57 57. Code, general jurisdiction; nevertheless limited 57 58. Same subject 57 59. The attitude of the courts since the Act of 1914 . . . . 60 60. Same 62 61. Historical origins often de- terminative 63 62. Conclusion 64 63. Incidental powers 64 64. Provisions of the constitution. 67 65. Powers specially conferred by statute 66. Nature of jurisdiction — the ju- risdiction of a' Sun-ogate's Court 67. Exclusive jurisdiction ; 69 68. Limits of this exclusive jurisdic- tion. .' 68a.Mode of execution .69. Same — other exceptional juris- diction ,70. Same.. .'.'."... . . .' 71. The place of execution . 73 72. Residence of testator 74 73. Locus of property willed 74 74. Other questions exclusively within Surrogate's jurisdic- tion '.'. . . 74 75. Jurisdiction, exclusive of other Surrogates' Courts. - ., .74 68 69 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 89. 90. 91. 92. '92o. 93. ' 9'4: 95. 95o, Jurisdiction of Surrogates over wills of residents, i . . :. i/. ; . :., County residence not state resi- dence the test of jurisdiction Same. . .■•.'.''..'.. ...... lO . . . ■: As to what constitutes residence Indians on reservation: .... : 1 Non-residence ■.:...■..:['. Same subject ..;■'.' . 80 Jurisdictional f acts averred. . . . 81 Location of debts as affecting jurisdiction . : : '.'. 83 Jurisdiction concurrent with other courts '. . With federal courts.-.' J J . . ... . With other state courts', i . . . . Concurrent jurisdiction of Sur- rttg^tei: .': . ; .■. >: . . . ;.• Jurisdiction of persons. ...... Miscellaneous' il'lustratioils of jurisdiction before the Act of 1914 ::.:..'..■■ Effect of change in county lines Presumption of jurisdiction. .'. Jurisdiction not lost by defect of record 95 (Con,tinuity of jurisdiction .... 96 Evidential value of records ... 96 Effect of, adoption of Code .... 96 ,As to acts of deceased predeces- sor ,...,„..., ..,,.,.. -.79 75 76 77 78 79 79 83 83- 84 89 89 90 94 95 TABLE OF CONTENTS Vll PART n Sections 96 to 272 Proceedings in Surrogates' Courts; Parties; Hearings and Trials; Decrees ; Orders ; Appeals CHAPTER I, §§96-121 1 ' ' ' ■ PROCEEDING^ lill JsijJI^OGATES' COURTS Section , ' page 96. No action in Surrogates' Court'd 98 97. Order to show cause'.;' . ...... 99 98. Proc'eedings; how commenced . 100 99. The petition; no oral pleadings 101 100. Foi^m of petition 102 lOi. Same 103 102. Anlendments; variance l04 103. Citation; or process 105 it)$a.The citation . 105 104. Contents of citation as a general rlile; and in special instances 105 i05. Same : . . . : 106 106. Precedent for citation . . ... .'.' 107 107. Service of citation — ^within the State.... ■.::■::...:'}.': '108 108. Waiver ......' tit) SECTION . ' PAG* 109. Appearances Ill 110. Same .i 118 11 1 . Non-resident — ^appearance for j 113 112. Foreigners; consuls •..■..• 113 113. Special appearance. . . . :'. .•. . . 114 114. Mode of service,'' substituted ' '■ ■ ' ' service .::.'... 114 115. Service without the State. . . . i 116 116. Applying for order. .......... 116 117! The'brder; precedent. .; 117 118. Publication; continued 119 119. Papers in which- publication should be made. ......... . 119 119a.Time and manner of service. . '. 120 120. Same — in relation to return day 121 121. Proof of service. 123 CHAPTER II, §§122-156 PARTIES 122. In general 125 123. Infants .' . . 126 124. Upon whose application special guardian may be appointed : 127 125. Simogate's power 129 126. When a'pj)Iication should be made. ': . . . 129 127. Formalities of appointment. . . l3l l'27o.Adverse interest 132 128. Qualification by nominee 132 129. The order. : . 134 130. Qu'aUfication and function of special guardian 135 131. The position of the' Special ' '"feiiardian. : .:..': .:':'. '. 136 132. Adult patties; necessary and "proper' .....::..' 137 133. Heirs , :.... 138 133a.Childreri'.' '. I .■.....'.... 138 134. Surrogate to determine status . 140 135. Survivorship .....' ..'.':. 14-1 136. Next of kill. . . . . . ! ;..;...... 141 137. Husband or wife .....:...... 141 138. Divorced husband and wife . . . 142 139i How ascertained 142 140. Persons interested 144 141. Creditors 145 142. Devisees and legatees 146 143. Assignees v ....'..' . 146 144. Interest of individuals not of a class; surviving husband or wife ....;... 148 145. Executors or administrators.*., . 149 146. Same — foreign representatives 150 147. Intervening 151 148. Mode of intervention . . ;■ 151 149. Order not necessary. .;...... 152 150. Effect of death of p^rty 153 l'5l. Where proceeding is in rem j . . 153 152. Where proceeding is'm per- sonam '..:.'.'...• 154 153. Attorneys. '. '. .' .: r. .'.: : . . 156 154. Lien of attorneys— how en- forced .;.•.......... 157 155. Protection of lien by Surrogate 158 156. Same 159 Vlll TABLE OF CONTENTS CHAPTER III, §§157-200 hearings" AJST) TRIALS SECTION ;^ PiAGJi 157. Practice similar to that in aU i . courts of record.. 161 158. Same. ..) 162 159. Same; coercive procedure. .-If.-'.' 163 160. Special provisions as to Surro- gate's proceedings 163 I. KEFBBBNCES 161. References and referees 164 162. Analysis of § 2536 165 163. Surrogate's power 165 164. Tlje referee and the hearing. . . 166 165. Findings— report ; 168 166. Requests to find. .~ 168 167. The report— filing , 169 168. Confirmation or modification of the report. 169 169. The Surrogate's duty regarding the report 170 170. Time within which report must be acted on 171 171. Filing new objections to account ' before referee 172 172. Compensation of referee 172 173. Same subject 173 174. How to collect referee's fees. . j 174 175. Compelling parties to proceed. 175 II. TRIAL BY J0Ry ,. ' ; 176. Issues triable by jury 176 177. Same 176 178. Same 177 179. Waiving the right 177 180. The jury trial 180 ISOa.The motion to set aside a verdict 181 SECTION , PAGE 181. Practical details re juries 185 182. Jury atrial in Supreme CoiJr^ or County CoUit.'. : . . .-.,.'■' . . . ' 189 183. Precedents 190 m. TRIALS BY SURROGATES 184. Non-jury trials 191 185. Eixpeiptions 192 186. S^me subject 193 187. Same subject 193 188. Exceptions must be made as prescribed in the Code ..... 195 189. Procedure defined by the court of appeals , . . 196 !1V.. EVIDENCE WITNESSES /: 190. Miscellaneous special provi- . , sions — ^uncontroverted veri- fied averments 107 191. Testimony of witnesses — -when taken , 1,98 192. Same subject .- , 199 193. Precedents suggested, ....... 199 193a.DeIegating the power to exam- ine 200 194. Beneficial interest no disquali- fication in will cases 202 195. When witnesses can take,,. I . . 204 196. Issuing commissions. ...,.,. .,. ^5 197. The order 206 198. Same 207 199. Precedents 208 200. Retum and filing of the com- mission . : 209 CHAPTER IV, §§201-237 DECREES AND ORDERS 201. Definition 210 202. Decrees 210 203. Effect of Surrogate's decree. . . 211 204. Same subject 213 205. Same; status 214 206. Special conclusiveness of certain decrees 214 207. Conclusiveness — direct and col- lateral 216 208. Same; collateral conclusive- ness 216 209. Same; effect on form of decree 217 210. Same; concluded 219 211. The decree must be a judicial act , 221 212. Docketing, etc 222 213. Enforcement of decrees before the Code 224 214. Enforcement of decrees under the Code 228 215. Discussion of §§ 2553 and 2554 229 216. And first then as tp enforcing decrees for the payment of money by execution against the property 229 217. Disobeying the decree ; 231 218. Enforcement of decrees by pun- , ishment for contempt . . .,.,.> 231 219. What judgment may be so en- forced 232 220. Limitation on the Surrogate's power 232 221. Costs as well as estate funds are covered and payment may be enforced 233 TABLE OF CONTENTS IX SECTION PAGE 222. Distinction between non-pay- ment of debt and refusal to estate moneys 234 223. The practice 234 224. Relief from undue punishment 243 225. Commitment with benefit of jail liberties 244 226. Enforcement of orders 244 227. Power to open decree. 245 227a.How to proceed 246 228. Time within which application may be made 246 SECTION PAGE 229., Same subject 249 230. Same subject 249 231. Sam&subject 249 232. Same subject 250 233. Same subject 250 234. Cases where the power has been upheld 251 235. When power will be denied. . . . 253 236. Making orders or decrees nunc pro tunc 254 237. Opening probate decree, after birth of posthumous child . . 255 CHAPTER V, §§238-272 APPEALS FROM DECREES AND ORDERS 238. Appeals, effect on enforceability of decree appealed from .... 256 239. The right of appeal . 257 240. Party "aggrieved" 258 241. Same subject 259 242. Substantial right. . 260 243. Parties to appeal 261 243a.Guardian ad litem. . . i 262 244. Appellate division, first appel- late tribunal; when and' how appeal taken 262 245. How appeal taken 263 245a.Notice of appeal; Oilman case. 264 246. Intermediate orders 265 247. Same subject; limit to right. . . 265 248. Appeal on facts, or on law; ex- ceptions 266 249. Same; case on appeal 268 249o.Making and settling case 268 250. Perfecting the appeal; stay. . . . 270 251. The undertakings 270 251a.How stay effected 272 252. When second undertaking nec- essary to effect stay 272 253. Contempt cases; different un- dertaking 273 254. Appeal by one of several parties not necessarily a stay as to all 275 255. What appeals do not stay exe- cution. . . .' 275 256. Amount and requisites of un- dertaking 276 257. Technical detail; prosecuting the bond; justification 278 258. Appeals after jury trial 280 259. Powers of appellate division . . 282 260. What the appellate court may do 284 261. Reversal 285 262. Same subject 285 263. Same subject 287 264. Judgment or order of appellate division ; 287 265. Partial reversal and partial af- firmance 288 266. After the appellate division has acted 288 267. Appeal to court of appeals. . . . 289 268. After re-hearing ordered by ap- pellate division 289 269. Practice on such appeals 290 270. Findings below 291 271. Appeal must be direct from ap- pellate division 291 272. Remittitur from court of ap- ..: 291 X TABLE Of" CONTENTS PART III Sections 273-496a Probate; of Wills CHAPTER I, §§ 273-327 WILLS WHEN AND TO WHAT EXTENT OPERATIVB SECTION PAGE 273. Function of wills 293 ■ 274. The making of a wiU; its purr pose ... 293 275. Same; mmcupative \yills 294 276. Same '1 .'.''IV. .". . . 295 277. Written, wills; factum,,,,, ... , 298 278. Law applicable; place of domi- cile..,. .,.,... 299 279. Substantial compliance yfiih the pro vi;sipns of the statute . . . , . 299 280. The subscriptiion by the testa- tor. ... '. . . ....'.,! 300 281. The Field.Case;:: , , ..,...,. ... 303 282. Physical pni,,. .',,J, .,. .,. , . 3Q4 283. Same subject; attestation clause 305 284. Same subject; effect of refer- ence to annexed paper. . . , . 306 285. Place of signature where will is executed, witjliput the Statp.. 310 286. Manner of signature 311 287. Signature by testator, person- ally. . . 311 288. Burdeiiof proof, .,..,,|. ..,;.,. ,,..,, 311 289. Signature by other than t|est£itor 312 290. Guiding testatorfs hand. 1. ... . 313 291. Signature by liegt3,f;Qr's,njar]^,!., 313 292. The second statutory require- ment/. ,., J .,,..,.. 315 293. Same subjeit . . ^ 318 294. Publicfttjon,.,, i . . ., . 318 295. jyTeaning of the, words "at the ,, time of,!',,. , .,,r,„ ,■',•■■'; 321 296. Effect of assent where there is no express declaration. .... 323 297. Re-publication 323 298. Same subject 324 299. Insufficient publication 327 300. The witnesses 327 ■'!■■ 335 336 338 340 340 340 341 342 SECTION PAGE 301. Same subject 328 302., The. request to the witnesses to _ sign: 331 303. Effect of attestation clause . . . 334 3b4.' Forgetfulness : .' 334 305. Attestation clause; effect fur- ther considered . . 306. Same subject. .... 307. Due proof 308. Valid codicil a part of5yill,;,its operation ...,..,.., 309. Lost or destroyed ,\viUs . , 3,10. Cannot proba^^ reyoked wills. 311. Will, not revoked, ., 312. E;s;pres,s words of reyocationlj. . 313. Necessity of revoking, clause in later will.. 343 314. Reviving prior will 345 315. Codicil to earlier will. ,. , , 345 316. Parol declarations inadmissible 347 317. Revoking acti must be equally solemn with act revoked .... 318. Effect of duplicate wills . ..... 319. Mutual wills 1. '..,., ;., Revoca]tion by oliliterating . or, cancelling. . .,.,..,. ., , .... ., Material alternations in will . . . Effect pf marri9,ge of woman as a revocation ,....,, 355 323. Illicit oohabitatioi;; effect pf . . . , 358 324. Revocation by marriage and birtb of child ,..,., 358 324a.Effect of agreement to cpnvey. . 360 3246.Irrevocable wills !..!.,.. 361 325. Effect" of ante-nuptial agree- ment 362 326. Effect of agreements to will. . . 363 327. Same; enforcement 364 320. 321. 322. 347 349 349 349 353 CHAPTER II, §§328-344 DEATH OF TESTATOR, PRELIMINARIES TO PROBATE 328. Death 366 329. Presumption of death 367 330. Hearsay evidence 369 331. Sea voyage — ^wrecks 370 332. Suicide; conflicting presump- tions 371 332a.Survivorship 373 333. Proof of intestacy 373 TABLE OF CONTENTS XI SECTION ' PAGE 334. Deposit of wUls 373 335. Producing and filing the will . . 374 336. Compelling production 374 337. Substituting copy of wills proved in British courts .... 375 338. Duplicate wills . . j ■ 377 339. Photographing and testing will 377 SECTION P.A.GE 339o.Who may propound the will. . . 378 340. Persons interested 378 341. Will must be propounded 379 342. Preliminary inquiries 380 343. Interference with the assets be- fore probate 381 344. Executor's possession of assets before probate 382 CHAPTER III, §§345-376 PROBATE PROCEDUEE; UNCONTESTED PROBATES 345. The petition 383 345a.Foreign, duplicate, etc., wills. . 384 346. Precedent for petition 384 347. To what Surrogate petition must be presented.. : . 389 348. Conflict of jurisdiction 390 349. Conflict with foreign court. . . . 390 ^0. Jurisdiction of wills of non-resi- ' ' dents 391 351. Waiver of citation : . . 391 352. Persons entitled to citation. . . 393 353. Section 2610 is mandatory and ''■ explicit .'. :. 395 ^4. Intervention of interested par- : , ties '. . 397 3p5. The petition must be filed. . ... 399 356. Parties in interest under will =* • Tother than that propounded. 400 367. Return day. 400 SSS. Can petition, once filed, be withdrawn 401 359. The hearing 401 360. Special guardians in probate cases 402 361. Citation only need.be served. . , 402 362. The examination of witnesses. . 402 363. What witnesses to be examined 403 364. Incompetency of witnesses; how shown 404 365. The examination 404 366. Competent subscribing wit- nesses 405 367. Same subject 406 368. Dispensing with testimony of subscribing witness 406 369. When subscribing witnesses' testimony not be dispensed with 407 370. Same 408 371. Sectiaii 2612, second half. : . . . 408 372. The proof required to establish uncontested will 409 37Sa.The deposition in uncontested ' cages. ', 411 373. Proof of lost or destroyed will.......... 412 374. Existence of will at testator's death 414 375. Due execution must be proved 415 3^6. Proof of codicil to or revocation of alleged lost or destroyed will . 416 CHAPTER IV, §§ 377-442 CONTESTED PROBATES 377. The issues in probate cases. . . . 417 378. Factum of the will 418 379. Notice of probate 418 380. Burden of proof generally ...» > 419 , 381. Weight of evidence. . .' . . '. 421 382. Contest — objections ...."...,.,. 421 383. Objections; precedent 424 384. T;he hearing ., ,. ,..,..... , , 425 385. Surrogate's control of the pro- ; Deeding; writ of p^ohibitj^oP'- ; 427 386. Same; prior action by other courts 427 387. The hearing — examination of witnesses; burden 428 388. Contestants; status and rights. 429 389. Same subject; after-born child 430 390. Same subject; other persons in , J interest 431 391. Same.'.'. 431 392., The issues 432 393. Practice on trial 433 394. Order of discijssion.i. ,.,..,... 433 I. TESTAMENTARY CAPACITY 395. Presumption that everyone is compos mentis 433 396. The boundaries of the inquiry. 434 xu TABLE OF CONTENTS SECTION PAGE 397. What is testamentary capacity; age 436 398. Same subject 438 399. The qvarUum su,§. rule 438 400. Analysis of discussion 439 401. Rules of evidence 439 402. Illness and bodily infirmi- ties 439 403. Same; paresis; heredity 441 404. Same; general debility or par- alysis 441 405. Same; total breakdown 443 406. Same; nature of will 443 407. Forgetfulness and mistake .... 443 408. Eccentricities 444 409; Capacity for business 447 410. Addiction to the use of liquor, opium, etc 448 411. Idiocy, lunacy and insane delu- sions 449 412. The test of insanity . 451 413. Insane delusions 451 414. Insane delusions; spiritual- ism 452 415. Insane delusions as distin- guished from mistaken be- liefs 454 416. Erroneous belief resulting in disinheritance of heir 455 417. Insane delusions must be ef- fectual , . 457 418. Expert and opinion evidence. . 458 Mr. Redfield's cases on capac- ity 461 II. UNDITE INFLUENCE SECTION PAGE 419. Definition 464 420. Burden of proof 465 421. Mutual wills 466 422. Character of evidence required 466 423. How a presumption of undue influence will arise 466 424. Confidential relationship and fiduciary relationship 467 425. Same subject 470 426. Same subject 471 427. Same subject 473 428. Undue influence by relatives . . 474 429. Opportunity 475 430. Opportunity; draftsman bene- ficiary 476 431. Same; rebutting the charge and §835.., 476 432. Weakness of testator 477 433. Same subject 477 434. Effect, of character of the will combined with age or weak- ness of testator 480 435. Summary 481 436. Change of testamentary in- tention 481 437. Knowledge of contents 482 438. Proof of knowledge of contents 483 439. Undue influence; destroying a will 484 440. Mistake 484 441. Partial avoidance 485 442. Mr. Redfield's classified cita- tions on undue influence. . . . 485 CHAPTER V, §§443^53 THE WILL ADMITTED TO PROBATE OB GIVEN PKOBATED EFFECT 443. Admitting the will 489 444. Construing, if probate pending 490 445. Probate decrees 491 446. Contents of will 493 447. Precedent for decree after con- test 493 448. Certificate of probate 494 449. The will, after entry of decree 494 450. Prompt entry of decree 496 451. Recording will proved in other states, or abroad .- . . . 497 452. Miscellaneous provisions — non- residents' wills 499 453. Revocation of probate 499 CHAPTER VI, §§454r^57 PROBATE OP HEIRSHIP 454. Probate of heirship 500 455. The applicant — the petition. . . 501 456. The proceeding no longer nuga- tory 502 457. Cognate remedy 504 TABLE OP CONTENTS XIU CHAPTER VII, §§458-472 PROVING, OR ESTABLISHING WILL OUTSIDE THE SURROGATE'S COURT SECTION PAGE 458. How a will may be proved out- side the Surrogate's Court . . 505 459. Effect given to certain foreign wills 506 460. Establishing a will by action . . 507 461. Subdivision one 507 462. Wills retained in another juris- diction 507 463. Lost or destroyed will 509 464. Procedure in the action 510 465. Nature of proof required 510 466. Two witnesses necessary only as to contents, not factum .... 511 467. Who may bring the proceeding 513 468. Fraudulent destruction 511 469. The complaint 511 470. Judgment 515 471. Action for construction of a will relating to real property 515 472. Who may bring action 517 CHAPTER VIII, §§473^96a CONSTRUCTION OF WILLS 473. Power to construe; its nature and source 518 474; Same 519 475i Scope of inquiry 520 476. Summary 521 477. Principles governing construc- tion 522 Clerical errors 525 Statutory restrictions 525 Suspension of absolute owner- ship 526 481. Accumulations of income of per- sonal property 529 482. Effect of illegal suspension .... 530 483. Trust gifts to literary institu- tions : 531 484. Bequests to city or village cor- poration for certain purposes 531 478. 479. 480. 485. Bequests for cemetery purposes 532 486. Necessary elements of a trust . 533 487. Gifts for charitable purposes . . 534 488. Limitations on charitable be- quests 536 489. Bequests to corporations 540 490. Canons of interpretation 542 491. Extrinsic evidence in aid of in- terpretation 551 492. Reading the will 553 493. Testing the will 553 494. Applying the will 554 495. Designation of beneficiary .... 554 496. Description of subject-matter of legacy 557 496a.Incorporation of extraneous papers 557 PART IV Sections 497-687 Letters and Bonds INCLUDING A DISCUSSION OF THE OFFICE AND ESTATE OF THOSE ADMINISTER- ING FUNDS OR ESTATES CHAPTER I, §§497-591 EXECUTORS, ADMINISTRATORS, GUARDIANS, TESTAMENTARY TRUSTEES ' / ' ' 497. Introductory 560 498. Executors 560 499. Letters, 561 500. Powers of executor prior to letters.,. 561 501. Executor acting before letters cannot later set aside his act unless inequitable 564 502. Executor need not be named in will 564 503. Substitutionary appointments or imder a power 565 504. Number of executors 566 XIV TABLE OF CONTENTS- THE TITLE AND OBJECT OP THE OFFICE SECTION PAGE 505. The office of executor 566 506. He is a representative 566 THE NATURE OF THE ESTATE 507. Vesting of title, on owner's death :. 568 508. Representative's qualified title 568 "509. Merger of title 570 510. Joint tenancy of representa- tives 570 511. Suits between co-executors, etc 572 512. Survivorship 573 512o.Substituted trustees 573 THE QUANTITY OF THE ESTATE 513. In general 575 B 514. Administrators, c. t. a 576 '515. Performing the will 577 516. Right to compel accottnting. . . 579 517. Receiver pf unadministered es- tate. , .'. '. 579 518. Administrators in intestacy! . . 579 519. What is an intestate '. : . 580 D 520. Administrators de bpnis non. . . 581 521. The estate must be unadminig- tered 582 522. Right to administer de bonis non 584 523. Powers and duties 584 524. Same subject 585 E ■■p.,> 525. Ancillary executors and admin- istrators, definition . . . . : j .• ..; j 686 526. Recognition of foreign repre- l sentatives. . . 1 . . . . ■. . .•... . .-. . ' 587 527. Laws governing the estate af-, •fected '..'.. 587 528. Difference between aiucillary and principal adrdinistra- , (tion . , . ..,. ,..,......,..,,,... 589, 529. Administration in this State Xmder a foreign probate.'.'. .' 590 530. Ancillary executors, powers, title ,.'..'■.. 591 631. Prerequisites to ancillary letters' upon foreign probate ...... 592 532. What is sufficient proof of the "'■ foreign probate. . . . s : : . : . . 594 633. Minuteness of eXempUflcaitiOn 595 SECTION i ■ ; PAGE 534. Where administration in this State need not be ancillary. ^ ■ 596 535. Section 2629 further discussed 597 536. Ancillary letters upon foreign grant pf administration, . . . 697 537. Same subject. . . .■ 598 538. Granting letters to one holding power of attorney. .. ....... 599 539. Who may receive letters. . . . . . 600 640. Relation of ancillary adininis: trator to administrator in chief 601 541. Same subject. 602 542. Ancillary representative has no trustee powers 604 543. Surrogates duty to transmit. . 604 544. When ancillary letters deter- mine 604 545. How far ancillary adminstratof bound by judgment of domi- ciliary courts 605 546. Effect of § 2636. 606 547. Foreign executors and adminis- trators. 1 .'. 606 648. Same ;. 607 549. Same subject; assignee's status 608 550. The ancillary administration and the transfer'tax 611 561. Letters on estates of American citizens dying in . foreign countries i ..... . 611 552. Public administrators,. . . . . ,. ;. , Q1.3 553. The right of .the pu,bUc adminis- trator to appointment 615 554. Statute must be strictly fol- lowed; particularly as to notice 616 666. Disposition of funds where ap- pointment of public adminis- '■trntor was illegal 618 666o.The public administrator in hti- ' gation 619 556. Th^ specially constituted public administrators. . . . .'. ...... 620 ■ I. Kings Ciounty 620 II. Richmond County 622 III. Bronx County 623 IV. Erie County 623 V. Ne'w: York County 623 556a.The pubUc administrator of New York County'.'..'.'....' 623 G TEMPORARY ADMINISTRATORS 557. The object of the office---its scope. . . . .'; ......... ... . . 646 558. Power to appoint, discretionary 647 TABLE OF CONTENTS XV SECTION , , PAGE 559. Cases where appointment is proper 650 560. Not every delay warrant for appointment of temporary administrator 650 561. Effect of "for any cause" 652 562. Appointment in case of sup- posed death 652 663. Powers and duties of temporary administrator 653 564. Same subject 654 565. Must deposit all moneys 655 566. Accountability of temporary administra,tor 655 567. Same subject 656 568. Same subject; litigation 657 569. Same subject; counsel fees 657 570. Actions against temporary ad- ministrator 658 671. Power of temporary adminis- trator in re debts 658 572. The temporary administrator and the transfer tax 659 673. Temporary administrator and the real property of the estate 660 574. Providing for family of absentee 661 575. How long temporary adminis- trator may act 662 576. Accounting 663 H EXECUTORS AND ADMINISTBATOBS OP DE- CEASED EXECUTORS AND ADMINISTRA- TORS SECTION PAGE 577. Nature of their acoountabiUty 664 578. Presumption of continuity of possession 666 579. Same subject 666 580. Limitations on the Surrogate's power 669 581. Same subject 670 582. The right to the accounting. . . 670 583. When right to compulsory ac- coimting may be lost 671 584. General Uabihty 672 I LIMITED LETTERS 585. Administration under letters ad rem, or ad litem 672 586. Limited letters 673 587. Code provisions as to negligent killing 674 688. Same subject 674 589. The recovery 677 690. Distribution of recovery 677 591. Same 678 CHAPTER II, §§592-605 LETTERS, GENEKALLY 592. Requisites : 679 593. Form of letters 679 A. We append, precedents of enabling clauses. . . . 679 B. When the admjnstra- tion is cwn testamento annexe 683 C. If the administration c. t. a., is ancillary:. . . 683 D. If the administration be tempora,ry 683 E. Letters of guardianship now are in two forms . ; 684 594. Evidentiary effect of letters. . . 685 595'. Priority amOng several letters 686 696. Effect of appeal 687 697. Disability to receive letters in some cases may be removed — supplementary letters .... 687 598. Capacity or competency to re- ceiye letters 687 599. The grounds for rejecting ap- pUcalnt for letters 689 600. Same subject 695 601. Objections — -and how obviated 696 602. Same subject: Surrogate's ac^ tion 699 603. Same 701 604. Effect of testator's dispensing with security 701 605. What is adequate security? .... 702 CHAPTER III, §§606-618 PKOCEDURE ON APPLYING FOR LETTERS 606. Differentiations 703 A. LETTERS TESTAMENTARY 607. Renunciation 705 ' 608. Renunciation not a resignation 706 609. Resignation contrasted with renunciation . . 707 610. Importance of proiniptly qualify- ing ■ 708 XVI TABLE OF CONTENTS B. LETTEBS C. T. A. SECTION PAGE 611. Letters c. t. a 709 CllaRepresentative of one entitled, is entitled 717 612. Joining third party in admin- istration 720 C. GENERAL LETTERS; INTESTACY SECTION PAGE 613. Priorities 720 614. The procedure 729 615. Special provisions — ancillary ^ letters 732 616. Same — temporary letters.... 739 617. Same — administration de bonis non 744 618. Qualifying 744 CHAPTER IV, §§619-645 BEVOCATION OF LETTERS AND REMOVAL OF EXECUTORS AND ADMINISTRATORS 619. Source of power to revoke letters 751 620. Revoking letters when their continuance is unnecessary. . 751 621. Exclusive jurisdiction of the Surrogate 753 622. Direct proceedings for revoca- tion of letters 753 623. Section 2569 — ^who may apply 755 624. As to guardians and trustees . . . 758 GROUNDS FOR REMOVAL 625. Subdivision 1 of § 2569 761 626. Subdivision 2 762 627. Same subject 764 628. Subdivision 3^ 770 629. Subdivision 4 772 630. Subdivision 5 774 631. Subdivision 6 775 632. Subdivision 7 777 633. Subdivision 8 778 634. Procedure 779 635. The petition 780 636. The citation 781 637, 638. 639. 640. The decree 782 When revocation of letters does not affect testamentary trust 783 Section 2640 ; 784 Effect and contents of decree re- voking letters 785 641. Application by executor or ad- ministrator for revocation of letters 785 642. Sufficient reason to be shown . . 786 643. One who has qualified and seeks discharge must proceed under the Code 787 Revocation of letters as of course, without petition or citation 787 Effect of revoking letters of one of two or more executors or administrators 789 644. 646. CHAPTER V, §§646-687 BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 646. Representative's bond 790 647. Bond of executor 790 648. When bond required before letters 791 649. Reducing penalty of bond. . . . 792 650. The procedure; precedents. . . . 793 651. Form of bond 795 652. Approval and record of bonds . . 796 653. Effect of bond '. . 797 654. Compelling executor to give bond 799 665. Right of executor to indemnify his sureties 801 666. Bonds of administrators 801 657. Same subject 803 658. Temporary administrator 803 659. Bond of administrator with will annexed 803 660. Bond of administrator de bonis non 661. Bond of ancillary administrator 662. Bond of testamentary trustee . 663 ^ - 664 805 805 806 Bond by guardian 807 Special bond for proceeds of realty sold 809 665. Guardian of the person of the infant 809 666. Bond of testamentary guardian 810 667. General regulations respecting bonds and undertakings .... 810 668. Amount of justification of sure- ties 813 669. The Surrogate's custody of the bond 814 670. When new bond or new surety may be required 814 TABLE OF CONTENTS XVll SECTION PAGE 671. Application for new sureties may be made by the former sureties 818 672. Principal may ask to substitute new bond 820 673. When bond may be prosecuted 821 674. Death of delinquent 821 674a.Prosecuting the bond — succes- sor 822 675. Remedy on official bond 823 676. Same; prosecuting the bond. . . 823 677. Action by a person in whose favor the decree was made. . 824 678. Action by successor. . , 827 SECTION PAGE 679. Action by person aggrieved where no successor is ap- pointed 829 680. Liability of the sureties 829 681. Action against sureties 831 682. Date of devastavit, when impor- tant 832 683. Other defenses by surety 832 684. Notice of decree — when nec- essary 833 685. Rights of sureties 833 686. Discharge of bond, two classes of cases 835 687. Time Umit in bond 836 PART V Sections 688-707 Adoption CHAPTER I, §§688-707 JUKISDICTION OF THE SURROGATE 688. Jurisdiction of the Surrogate . . 837 689. ffistory of law 838 690. Definition 841 691. Consents 842 692. Proceedings before the .Surro- ■ gate 842 693. Petition 843 694. The order 846 695. Contents of the order 846 696. Adoption a, statutory proceed- iug 851 697. Effect of adoption 852 698. Effect of foreign adoption 853 699. Rights of chUd 853 700. Transfer tax 853 701. Adoption from charitable in- stitutions 854 702. Residence of foster parents. . . 855 703. Abrogation of voluntary adop- tion §57 704. Application in behalf of child for the abrogation of an adoption from a charitable institution 858 705. Application by foster parent for the abrogation of such an adoption 869 706. Indenture of child as appren- tice 859 707. Review; penal provisions 859 PART VI Sections 708-1001 Administration of the Trust CHAPTER I, §§70&-775& ASCERTAINING THE ESTATE 708. How the estate to be admin- istered is ascertained 861 709. Proceedings to discover prop- erty withheld 862 710, How to proceed to discover, 711, Intent of the Code. ....,,, 712, Discussion of § 2675 713, The petition 863 864 865 xvm TABLE OF CONTENTS SECTION PAGE 714. Object of proceedings to be kept in view : . . . 867 715. The order 870 716. Mode of service to be strictly observedi. 870 . 717. The inquiry and hearing 871 . 718. Return day — hearing 872 710. The issue . '.■ 873 720. The decree 874 721. Ascertaining the estate; invent- ory and appraisal 876 722. Precedents suggested 876 723. The. inventory 878 724. What shall be deemed assets. .. 881 725. What has been deemed assets . . 882 726. What has been deemed not assets .884 727. The duty of the representative 886' 728. Real property 886 729. Land regarded as money and ' ' ** money as land 888 730. Rents, etc., of real estate 889 730a.Taxes and municipal assess- ments • 890 731. Property in joint tenancy, partnership assets 892 732. Same; partnership real property , considered as personalty. . . . 895 733. Goodwill of business '. 895 734. Literary property. ........... 896 736. Benefit and trust funds. . .- 896 736. Pension money. . ". . '. 898 737. Damages by reason of dece- dent's death . ; ; . 898 738. Property in action , . . . 899 739. Sirrvival of rights of action on contract. 899 740. Contracts which do not survive 900 741. Wrongs to the property of de- cedent ....::... 900 742. Injuries to person of deceased. . 901 743. Suits to disaffirm wrongful iicts of deceased. ...'.'. '.'■. '. '.■ 902 744. Performance of decedent's contract of sale 903 745. Exemption for widow and children 904 746. Pecuniary equivalent of non- existing articles .'-/V;' 907 747. Widow's quarantine 009 SECTION PAGE 748. The duty of the appraisers. ... 911 749. Power of appraisers as to oaths 913 760. Return of inventory 913 751. Debts of the representative to the decedent 914 752. Compulsory fihng of inventory 916 753. By whom return can be com- pelled.'. ...... .. 917 754. The procedure 918 755. Conclusiveness of inventory. . . 922 756. The Surrogate's power 923 757. Attachment of the representa^- tive 924 758. Dealing with decedent's' debt- ors; prudent settlements. . . . 924 759. Power to compromise and com- pound debts 926 759o.This compromise may extend to claims against estate 927 760. Asking leave of Surrogate to compromise 927 ,761. Precedents 928 761a.Apportionment of rents, an- nuities and dividends 929 762. Code provision as to collecting rents 931 ' 763. Miscellaneous rights and prop- erty 931 764. Foreclosing mortgages and buy- ing in property. 932 765. Depositing funds in baiik. . . . 933 766. Duty to place temporary funds at interest.'. 935 767. Liability for personal use of* funds .■ 937 768. Making and realizing oh per- manent investments. ...... 938 769. Chai-acfter Of investment. ..... 940 770. Decedent's investments...... 943 771. Foreign investments 946 772. Trusted dealing with bene- ficiary or trust property. . . , 945 773. Liability for profits reaUzed, _etc 948 774. Unavoidable losses 950 775. Loss of debts due the estate. . . 951 775a.Continuing decedent's business 952 7756.Surrogate's power to resolve ■' -*-S disagreements or direct ad- ministration 967 CHAPTER II, ,§§776-792 ASCBKTAINING THE DEBTS 776. Duty of the executor or admin- .istrator. :• 961 777. Liquidation of .debts before tjie .revised statutes :..,.' 961 778. Liqmdation of debts under the ; - revised statutes. 963 779. Equality among creditors 964 780. Ascertaining the, debt? 964 TABLE OF CONTENTS XIX SECTION . ' , PAGE 780a.Ad-interiin restraint on cred- itors 964 781. (A) The notice of claims 965 782. (B) Presentation of claims on or before the day natned in the published notice 968 783.1(C) Effects of failure to present: 969 783. Same, failure to present danger- 1 , ous, not fatal ,. . , 970 784. Action by , the executor or adr; , ministra tor upon the claim . . 971 785. New section 2680. ; ... , 973 SECTION' ' I PAGE 786. Claims advanced by the repre- •■ ' ■' sentative personally 975 787. Mutual accounts 978 788. Claims on decedent's oral oon- , tract 979 789. Rule in adjudicating claims . . 979 789a>Costs ...,.., 980 790. ; The right to disbursements. .. 982 79,1, Action by creditor on rejected claim. :•■•.„.. 983 792. Form of claim and of rejec- tion 983 CHAPTER III, §§793-822 PAYMENT OF DEBTS 793.1 Payment of debts. 986 794. Order of priority of debts 986 795. Priority of funeral expenses, by the Code; 987 795a.Right and duty to bury ...... 987 796. Funeral expenses — general subr ject...., 988 796a:Same.i 992 796b.Same 994 797.. Funeral bill practically a lien - ■ • on proceeds of action under §1903 995 798. Mourijins for decedent's if amily 996 799.; Compromising debts 998 800. Arbitrating! claims , 999 801. Diligent payment of jjebts. . . . 999 802. Priority of debts, discussed in detail 1001 803. ' Same— Texftf,. 1001 804., Same subject. 1003 805. Priority of judgments 1004 806. Executors bo^nd to , observe, this priority;. ,, ■. 1006 807. What judgments not enjjtled to priority 1006 808. Fourth class of preferred debts 1007 809. Preference of landlord of dece- dent over debts of the fourth class.,.. 1008 810. Recouping representative money advanced to pay ■ debt ....: 1009 811,. Marshalling assets 1009 812. Personal assets primarily liable for debts , 1010 813. Where assets are insufficient. . 1011 814. Mortgage debts ••■■■• 1011 815. Copa,rtnership debts 1013 816. Sale of personal property to pay debts, 1014 817.. The right to sell 1015 818. Securing Surrogate's approval of sale.' 1016 819. Payment of decedent's debts put of personal estate 1017 820., Payment out of fund over which decedent had power of ap- pointment. ..,....,. 1021 821i; Debts contracted by the execu- ; , r tor or administrator 1021 822. Leave to a judgment creditor to issue execution 1023 CHAPTER ly, §§823-832 PHOCBEDINGS TO COMPEL PAYMENT OP DEBTS 823. How payment of debtsrsmayi be' ':, i compelled, 1026 824. The petition. ...-;.•..... :<.,'> .... 1027 825. Effect of answer by executor or administrator ._;,.- 1028 826. Right to payment . .;.,. . . . 1031 827;. The decree , . . 1034 828.. Docjjeting the de^ee 1035 829. The accounting. . 1036 830., Enforcing the decree, ,• '.>..' 1036 831. How payment should be made 1037 832. Effect of equitable conversion . 1037 XX TABUE OF CONTBNTS CHAPTER V, §§833-915 THE TRANSFER TAX PROCEDURE SECTION PAGE 833. Cognizable by Surrogates 1039 834. Nature of the tax 1039 835. Basis of the tax 1040 835o.Conditions of taxation 1040 836. The law in the courts 1042 837. Recent changes 1042 838. Procedure and liability con- trasted, as to tetroaction of statute 1043 839. Taxable transfers 1044 839a.Non-residents' estates further discussed : . . 1045 840. Effect of Laws of 1911 1048 841. Effect of Act of 1915 1049 841o.EfTect of Acts of 1916 1049 842. Exceptions and limitations. . . . 1050 843. Exemptions 1050 843a.Analysis of changes effected. . . 1052 844. The former scheme '. . . . 1053 845. The new graduated scheme . . . 1054 846. Figuring the tax 1054 847. Marshalling the estate 1056 848. The exemption, as conditioned, by the nature of the succes- sor, or his relationship 1056 849. Where relatives unknown 1057 850. Mutually acknowledged rela- tion of parent 1057 851. Child — ■ stepchild — adopted chUd 1059 852. Widow; son-in-law7 (Jaughter- in-law 1060 853. "Exemption" further analyzed 1060 854. Exemption of certain corpora- tions 1060 855. What institutions exempt 1062 856. Charter exemptions 1064 857. Tax on every devolution 1064 858. Joint property 1066 859. Gifts inter vivos and causa mor- tis 1066 860. Effects of foreign law and of de- cedent's contracts 1072 861. When anteniiptial agreement may obviate tax 1073 862. Powers 1073 863. Certainty of execution 1075 864. Failure to exercise power 1075 865. From what fund tax is paid. . . 1076 866. The procedure; jurisdiction of the Surrogate 1077 867. The Surrogate's jurisdiction conditioned by the remedial provisions of the statute — notice to persons interested . 1079 868. Double nature of Surrogate's functions 1080 SECTION PAGE 869. Appointment of appraisers. . . . 1080 870. What may or must be done be- fore appraiser is designated. . 1081 871. The petition 1081 872. Designation of appraisers 1083 873. When to appoint the appraiser 1083 873a.The appraiser, his duty and power 1083 874. Special guardian 1086 875. The schedules 1086 876. Fair market value of property; how and when ascertained . . 1094 877. Same subject 1098 878. The appraiser's report 1098 879. Deducting the debts, taxes, etc. 1099 880. Deducting funeral expenses. . . 1102 881. Debts must be established 1102 882. Bequests on consideration .... 1103 883. Deducting dower and curtesy interests 1103 884. Deducting taxes 1104' 885. Appraiser's duty when in doubt 1104 886. Are mortgage incumbrances to , be deducted? IIOS' Debts of non-resident 1105 Appraisal by Surrogate 1109 Report of the appraiser 1109 Proceedings on the coming in of the report 1109 891. Computations by state super- intendent 1110 Appeal from Surrogate's deci- sion 1111 Reopening or vacating 1112 The first appeal 1114 Power to construe will 1116 896. Reappraisal at the instance of the state comptroller; 1117 897. Appraisals "whenever occasion may require" 1118 898. Correction of tax erroneously assessed — time limit 1118 899. The liability of the executor, administrator or trustee. . . . 1120 900. When tax is due and payable. . . 1120 901. Discount for prompt payment; penalty for delay 1120 902. Reducing tax on non-residents' estates 1123 903. Compounding payment on fu- ' toreestates 1124 904. Collection of the tax 1124 905. Lien of the tax. :...... 1126 906. Collection by district attorney. 1126 907. Refunding tax 1126 908. Temporary payments and re- fund. ;.,.., 1128 887. 888. 889. 890. 892. 893. 894. 895. TABLE OP CONTENTS XXI Section page 908a.Surrogate's power to tax amount of debts erroneously, deducted 1128 909. Postponement of payment 1128 910. Reaching the property 1128 911. The foreign transfer tax 1130 912. The receipt 1130 SECTION PAGE 913. Expectant interests 1131 914. Same— full value taxed 1132 914a.Rate of taxation as value for taxation 1133 915. Tax on trusts, life estates, an- nuities, etc 1135 CHAPTER VI, §§ 916-965 LEGACIES AND THEIR PAYMENT 916. Carrying out the will 1137 916o.Payment of legacies 1137 917. .What is a legacy? 1138 918. The legatee 1138 919. Specific arid general legacies . . 1138 920. Importance of distinction .... 1140 921. Specific and demonstrative leg- acies 1141 922. Legacy based on consideration 1144 923. Legacy by implication 1144 924. Legacy to a class 1144 925. Legacies — when charged on realty — how paid : . . . 1145 926. General and residuary legacies 1148 927. Annuities 1148 927a.Status and rights of annuitants 1149 928. Xegacy for life 1149 928a.Legacy for life, with remainder over 1150 929. Vested and contingent legacies 1154 930. Vested right to a contingent estate 1156 931. Conditional legacies 1157 931a.Validity of conditions 1158 932. Legacy to executor 1169 933. Cumulative legacies 1160 934. Legacy in lieu of dower 1160 935. To executor in lieu of commis- sions 1162 936. Legacies to creditors 1162 937. Legacies to debtors 1164 938. Legacy to subscribing witness 1165 939. Abatement of legacy 1165 939o.Denu3nstrative legacies 1168 940. Ademption of legacies 1168 941. Same— devises 1169 942. Advancements 1170 PAYMENT OP LEGACIES SECTION PAGE 942a.PetitioiI for payment 1173 943. Legatee's remedies. 1173 944. Same — ^proceedings under §2687 1174 945. Same — ^petition 1176 946. Who may petition 1177 947. The executor's answer 1178 948. The order or decree 1179 949. Payment of legacy while pro- ceedings pending to revoke , probate. . 1180 950. Payment of legacies by tempo- rary administrator 1181 951. Payment on account of legacy for support of indigent leg- atee 1181 952. The bond under § 2691 1183 953. Interest on legacies 1184 954. Interest from testator's death . 1187 955. Interest on legacies in lieu of dower. 1187 956. Interest on income or annuity 1188 956a.Payment within the year 1189 957. Testator's intention 1189 958. Same — ^legacy charged on land 1190 959. Refunding the legacies 1191 960. The procedure to secure re- funding of legacy 1192 961. Offsets, legacies to debtors. . . 1194 962. Payment and investment of legacies to minors 1196 963. Applying principal of fund . . . 1198 964. Lapsed legacies .....-, 1199 965. Effect of void or lapsed leg- acies .:. 1200 CHAPTER VII, §§ 966-1001 DISPOSITION OF decedent's REALTY FOR THE PAYMENT OF DEBTS, AND OF FUNERAL AND AI)MINISTRATIVE EXPENSES 966. Scope of the revision 1201 967. Dealing with rents 1201 968. When decedent's real estate may be resorted to by cred- itors 1203 969. This remedy available unless will provides one as effectual 1205 970. For what debts or expenses property may be sold 1207 971. Limitation of relief 1209 xxn TABLE OF CONTENTS SECTION PAGE 972. Avoiding sale, etc., at outset. . 1209 973. Who may start the machinery? 1210 974. The Statute of Limitations and the 18 months' limitation . . 1212 975. "May allege and show by proof" 1213 976. How to allege 1215 977. Same subject, and the citation 1217 977a.Effect of §§ 1837-1849. 1218 978. Technicality of the old' proceed- ing 1219 979. Rights of infant parties '.'. 1220 980. Hearing and determination . . . 1221 981. Judgment debts 1225 982. What proof necessary for the order 1226 983. Same subject 1230 984.. Executing the order. 1230 984a.Same subject 1232 9846.The representative in relation to the order 1233 985. Disposing of the property and of the proceeds. 1233 986. The sale 1234 987. Who may not be purchasers upon the sale 1235 988. Conclusiveness of sale. 1236 SECTION PAGE 989. Grounds of relief 1237 990. Confirming the Sale 1238 991. Compelliug purchaser to com- plete purchase. 1239 992.- Sale of decedent's interests ~ under contracts. 1240 993. Decedent's contract to pur- chase lands; how enforced. 1241 994. Infant?' interests 1241 995. Disposition of proceeds of dis- position 1242 996. Miscellaneous provisions of title — dower, etc 1242 Carlisle Table of Mortality. . 1243 997. The effect of foreclosure pro- _ ceedings on lands being dis- posed of to pay decedent's- debts 1244 998. Paying. of surplus, arising on judicial sales in other courts, , in to the Surrogate 1245 999. Distribution of surplus. ..... 1247 1000. Restitution, for assets subse-, quently discovered 1248 1001. Conveyance by representative pursuant to decedent's con- tract 1248 PART vn Sections 1002-1069 Testamentary Trustees and Guardians CHAPTER I, §§ 1002-1019 TESTAMENTARY TRUSTEES 1002. AVhat is- a testamentary trustee? 1250 1003. Differentiation between trustee and executorial functions . . 1250 1004. Surrogate's jurisdiction over testamentary trustees 1254 1005. Death or renunciation no longer divests the Surro- gate's power :' r ■ .•■•■ 1255 1006. .Surrogate's additional general power. . . . , 1257 1007. The estate of a testamentary .trustee 1257 1008. CompelUng testamentary trustee to carry out provi- sions of a will., ■. 1258 1009. Same— ^proceedings upon re- turn of citation .,.,....,. 1361 1010. Bringing all parties, likely to be affected- by^ the decree prayed - for, before the court '.-.' 1262 1011. Resignation of trust 1262 1012. Petition for security from testamentary trustee 1263 1013. Trustee investments 1266 "I. If will, contain directions 1014. II. When will silent, or merely general. ,. 1269 1015. Erecting separate trusts 1270 1016. Sinking fund 1271 1017. Application of the Code, 1272 1018. General observations as to administration of the trust 1272 1019. The trustee's bookkeep- ing ■ 1273 TABLE OF CONTENTS XXIU CHAPTER II, §§1020-1059 GUARDIANS SECTION PAGE 1020. Definitions !!,.... j. .. . 1277 1020a.The Supreme Court's powers 1277 1021. The parents' rights o£ guari- ianship 1280 1022. Guardians in socage 1281 1023. General guardians 1281 1024. Jurisdiction 1281 10251 Supreme Court's power fur- ther considered 1283 1026. Parent's appointment • when binding . ,, 1284 1027. Appointment by Surrogate. . 1285 1028. The petition 1285 1029. Citation. 1288 1030. The inquiry 1288 1031. Who should be appointed; ; decree 1290 1032. Where infant is under fourteen 1292 1033. Inquiry into the facts as to minor's property i 1292 1034. The appointment 1292 1035. Qualification by a general > guardian . .„.> . ^ ;. 1293 1036. Receiving infant's legacy or share 1294 1037. Parental right not a substitute for letters.;. .:.. 1295 1038. Ancillary guardianship. ..... 1295 1039. Same subject — the procedure 1297 SECTION PAGE 1040. Effect of ancillary letters 1298 1041. Revocation of letters of guard- jianship 1299 1042. Appointment of successor . . . 1300 1043. Supervision and control of a general guardian 1301 1044. Annual inventory — account . , 1301 1045. Piling the inventory and ac- . count — the affidavit 1302 1046. Powers and duties of guardian 1303 1047. Application of infant's prop- erty 1305 1048. Surrogates may direct as to infant's maintenance 1307 1049. Disbursements before ap- pointment . 1308 1050. General maintenance of ward 1309 1051. Limitations on the general guardian 1311 1052. Personal relation to ward. . . 1314 1053. Guardians appointed by wiU or deed 1314 1054. The appointment 1315 1055. Qualifying. ..!......., 1^17 1056. Control of the guardian 1317 1057. Removal , of a guardian ap- pointed by will or deed. . . 1317 1058. Resignation 1318 1059. Expenses and compensation. . 1318 PART VIII Sections 1060-1082 CHAPTER I, §§ 1060-1082 COSTS AND ALLOWANCES 1060. Before the Code. 1320 1061. Costs in contested cases .... 1320 1062. Costs in uncontested eases. . . 1321 1063. Costs in New York County. . 1322 COSTS UNDER THE CODE the 1064. General provisions of Code, inapplicable. . ji.'. . . . 1064a.The Code regulations 1065. 'Costs in Siirixjgates' Courts'... ' 1066. Collecting costs . . ■: 1067.' Analysis of discussion 1068. Costs, how made payable. . . 1069. Costs against an executor, ad-' ministrator, guardian = or trustee personally, v . . .'. . . ' 1322 1323 1324 1324 1325 1325 1.3271 1070. When costs are awarded 1328 1071. Same; on appeal : . . . . 1330 1072. Costs when discretionary". .. . 1332 1073. Amount of costs v- . . . 1333 1074. Same subject 1333 1075. Costs to special guardians. . . 1334 1076. Allowances in Surrogates' -Courts 1337 1077. Same subject 1337 1078. Counsel fees. ..... . .... .' . 1338 1079. Taxable disbursements in Siir- rogates' Courts 1342 1080. Counsel fees as disburse- ' ■ ments 1343 1081. Miscellaneous provisions. -. '. . 1344 1082. Preeedeiit for bill of costs.. . 1345 XXIV TABLE OP CONTENTS PART IX Sections 1083-1212 Accountings and Distribution CHAPTER I, §§ 1083-1116 * ACCOUNTING FOR THE ESTATE — ANALYSIS OF TREATMENT A. DISCUSSION OP ACCOUNTING GENERALLY SBCTION PAGE 1083. The obligation to account . . . 1347 1084. What is an accounting ?..... 1348 1085. Kinds of accounts 1348 1086. The Surrogate's jurisdic- tion 1349 1086a.Same 1351 1087. Settlements by act of parties —effect ^ 1352 1088. Recoveries for negligent killing of decedent 1353 B. INTERMEDIATE AND INPORMATORY AC- COUNTS 1089. Voluntary, intermediate ac- count, with judicial settle- ment. 1353 1090. These settlements how far res jvdicaia 1354 1091. Informatory accounts and vouchers 1354 1092. Compulsory intermediate ac- count, with judicial settle- ment. 1356 1093. Accounting, if primary ac- countant die , . 1357 1094. Same subject — pending ac- counting at time of death ;.'.....•>; 1358 1095. Intermediate account — Surro- gate's control 1359 ^096. Samp, subject — cases when. proper 1361 1097. Same— objections to inter- mediate accounts . ,, 1363 C. COMPULSORY ACCOUNTINGS WITH JUDI- CIAL SETTLEMENT SECTION PAGE 1098. The Code scheme 1365 1098a. Who may initiate the proceed- ing. . ; . . . 1366 1099. Executors and administrators 1366 1100. Compulsory account by guard- ian 1367 1101. Accounting at the ward's in- stance, after majority 1368 1102. The suret5^s right 1369 , 1103. The guardian of the person; . 1369 1104. Deceased guardians 1369 1105. Limitation 1369 1106. Compelling judicial settlement of account of testamentary trustee. . . 1370 1107. At whose instance 1370 1108. Authority of Surrogate pend- • ing accounting in Supreme Court....'..". 1371 1109. Proceeding barred by Statute " of Limitations 1372 D. VOLUNTARY ACCOUNTINGS WITH JUDI- CIAL SETTLEMENT 1110. The Code provisions 1375 ml. Increased opportunity for voluntary accountings .... 1376 1112. Object pf the interval before final accounting permitted 1376 1113. General guardians 1378 1114. Guardian by will or deed. . . . 1379 1115. Persons whose letter^ have . , been revoked , ,1379 1116. Persons holding ancillary let- •, . ters 1379 CHAPTER n, §§ 1117-1132 E. PREPARING THE ACCOXnSTT 1117. Order of discussion 1380 1118. Form and contents of the ac- ' i count 1380 1119. The account is the account-- ant's record of his acts .... 1380 1120. The debtor side of the account 1382 1120a.The credit side of the account 1382 1 121 . . Facts additional to the pecun- , ■, iary items. . 1384 1121a.Separate account for each of several trusts 1384 1122. Same subject— skeleton out- line ,..:,;,..\ 1385 1122a. Verification of, the account. . 1387 TABLE OP CONTENTS XXV SECTION PAGE 1123. Same — expenses of adminis- tration 1387 1124. What is to be accounted for. . 1388 1125. Inventory conclusiveness — the assets mentioned in the in- ventory 1390 1126. Impeaching inventory 1392 1127. Assets not in inventory 1392 SECTION , PAGE 1128. Same — profit or loss 1393 1129. Same — assets of the estate — savings bank accounts .... 1394 1130. Vouchers 1395 1131. Neglect to set apairt exempt property 1398 1132. The schedules of the ac- count 1399 CHAPTER III, §§ 1133-1153 p. THE PROCEDURE ON ACCOUNTINGS 1133. Initiating the proceedings . . . 1401 1134. The petition 1401 1135. Same 1402 1136. Same — general discussion. . . . 1403 1137. Time when accounting may be had.' 1404 1138. Parties — citation. 1405 1139. Resisting the proceeding to account ....'. 1407 1140. The issue presented. 1409 1141. Objections 1409 1141a.Examination of account 1411 1142. Reference to try issues raised by objection 1411 1143. Same — ^kinds of claims and^ disputes 1413 1144. Issues triable on accountings 14fI3'' 1145. 1146. 1147. 1148. 1149. 1150. 1151. 1151a 1152. 1153. "All the estate" 1414 Claims determinable further discussed 1416 Claims or payments already adjusted and contested upon accounting 1416 Claims of unpaM creditors. . 1417 Representatives' claims against estate. 1418 Claims of estate against rep- resentative 1420 Claims of estate against debtor 1421 Classes f and g^ — disputed title, and offset 1423 Other questions adjudicable 1424 Same 1424 CHAPTER IV, §§ 1154-1 178a G. COMMISSIONS AND COMPENSATION 115(4. Allowance ' for commissions , , and expenses in administer- ing the estate. , . , . . ...... 1426 1155. History of assimilation of compensation ............. 142{7 ll46. The right to remiiijeratioB , . 1429 1157. Renouncing specific compen- sation 1429 1158. Copipensation, when denied. . 1430 1159. Change of rule as to commis- sion on income 1431 1160. The basis of remuneration. . . 1432 1161. Same subject 1435 1162. Same — continuing busidess or ' 3tock venture 1436 1163. Extra compensatidii.'. ....;. 1437 1164. Commissions where estate. is $100,000,' or over! 1438 1165. Mode of computation. . . : 1440 1166. Apportioning the full commis- sions , . 1441 1167. Double commissions 1442 1168. Same rule as to guardians — trustees , . . 1444 1169. Actual conversion into cash. . 1444 1170. When commissions are payable 1444 1171. Successive letters to same person , . 144l6 1172. What fund chargeable with the comiriissiohs 1446 lt73. Expenses allowable 1447 1174. Counsel fees 1447 1175. Expenses incident to dece- dent's realty 1449 1176. Miscellaneous expenses 1450 1177. Premium paid, on official bond 1450 1178. Surcharging. 1450 1178a.FaJlure to sell, timely 1452 scxvi table; OF CONTENTS CHAPTER \f, §§ 1179-1^12 ■ ■ I ^ ■ I. ■ .. DISTRIiBTJTION SECTION ' PAGE 1179. "Marked for decree". ;:-. . . . 1453 1180. Section 2734 1453 1181. Advancements.' .....;....■.. 1458 1182. Same subject— "Hotchpot". 1461 1183. When distributee is an in- fant 1462 1184. When distributee is an ''un-' ;' known person" 1462 1185. Payment into court;. .^ ■,■,■■■■ 1.46,3 1186. Decree of distribution 1464 1186a.Survivorship ..:...... 1465 1187. . Time of distribution 1466 -1188. Law governing distribution. . 1467 1189. Partial intestacy : . . . . 1467 1190. Statute of distribution . '.H . . . 1468 1191. Statute of descent 1470 1192. The form and provisions ."of.. ' : the decree . . . i ..;... . ,:.'. . . 1472 1193. The double character. of the decree. ;.. 1473 1193a.Power to construe will. ..... 1475 1194. Other statutes may apply. . .. 1476 1196. Precedent for a decree. .... . 1476 SECTION ' ■ i PAGE 1 196. Representative deals only with ' ■' personal property ....;... 1479 1197. Estates of married women .. . 1479 11'98. Jure mariti. , vr. .-^v.. ;■'. . 1480 1199. Computing degree of kinship 1481 1200. Distributing under the statute 1481 1201. ! The 'scheme of the statute 1482 Paradigm of consanguinity. . 1484 Table, iUfistrating distribution 1485 1202. Adopted chiliiren 1491 1203. Afterbom children 1492 1204. Effect of annulling marriage. . 1492 ■1205. Illegitimate children 1493 .1206. Subdivision3;2;and 3. ... 1494 1207. Subdivisions 4 and 5— no widow. ........... u ... . 1495 1208. Subdivision 6 ..i . : . . 1497 1209. Subdivisions 7 and 8,;. ... . . . 1497 1210. Subdivisions 9-15 . . „, ...... 1498 1211. Distribution: I under i section 1903 ,..,.1.1.. 1498 1211o.Effect of decree. ;. ;.; . . 1499 1212.' Limits of discharge. 1499 PART X Sections 1213-1233 CHAPTER I, §§ 1213-1233 1213. 1214. 1215. i216. 1217. 1218. 1219. 1220. 1221. 1222. 1223. 1224. Value of time-table. 1501 Thirty years ...'.'.. 1501 Twenty-five years 1501 Twenty years ....'.......... 1501 Ten years. '. . : . .'. . '. . 1502 Six years 1502 Five years . '. '. 1503 Four years '.^. .,. ,.'. 15P4 Three years 1504 ,Two years 150^ Eighteen months 1504 One year '. . . . . 1505 1225. Six months 1505 1226. Three nibnths. .... .' . . . . 1505 1227. Sixty days.' ''! ............... 1506 1228. Four weeks. . . ; . . . . 1506 J.m Thirty days .:..'.. 1506 I2J3O. Twenty days 1506 1231. Fifteen days. 1506 1,232. Ten days. ....:. 1506 1233. Eight days 1508 Siipplemehtal notes as to effect on ' estate 6f sundry conditions 1506-1507 CHAPTER . II, §§ 1234^1246 T^E NEW PEDEEAIi [ESTATE TAX; , . Analysis of Co/tsecutive Tretftmerji, with Section References 1234. Referende' to act of 1898 printed in Jessup's 1st Ed. at p. 1048 '. 1508 1235. Definitions in §200 of the Act 1508 1236.- The sliding scale- rate Of the ^ i tax, § 201 of the Act 1508 1237. How value of gross estate determined, §202 of the Act 1509 SECTION 1238. Value of the "net estate," un- der § 203 1510 Table showing operation of tax. . . . 1512 1239. Time, when tax payable, un- der §204 1512 1240. The representative's duty, under §205 1512 1241. Penalty for no return, under §206 1513 TABLE OF CONTENTS PAGE xxvu SECTION PAGE 1242. PajTnent of the tax, under §207 1514 1243. Collection by court proceed- ings, under § 208 1515 1244. Lien of the tax, under § 209. . 1516 1245. Penal provisions, under §210 1516 1246. Additional provisions, §§211- 212 1517 Mr. Redfield's forms 1519 Index to precedents 1627 Index to Redfield's forms 1627 Analytical index 1637 TABLE OF SECTIONS CODE OF CIVIL PROCEDURE QUOTED AND CITED IN THIS BOOK The references are to the pages. Where the section is quoted, in pull or 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 of Civil Procedure Quoted or cited on page: 14 235, 1325. 17 156, 167. 62 97. 66 157, 158, 159. 73 159. 74 169. 90 50. 190 284, 289. 191 '.89. 194 289. 196 289. 376 1501. 382 1501, 1502, 1503. 383 1504. 386 978. 388 1502. 390 1506. 391 1504, 1507. 392 1603, 1506. 396 1000. 396 1506. 399 99. 401 1506. 402 1507. 403 1212, 1507. 406 1212. 414 585, 1502. 416 1507. 416 98, 99. 424 113. 427 109, 402. 436 109, 115. 437 109, 115. 440 117, 119, 121, 122, 123. 441 122. 444 119, 123. 46*-477 89, 130. 474 808. 476 808. 476 808. 623 389. 624 103, 389. xxrx XXX TABLE OF SECTIONS Sections of the Code of Civil Procedure Quoted or cited on page: 626 102, 389. 626 102,389. 721 105. 722 105. 723 724 )\m, im 105, M 726 105. 726 105. 727 105. 728 105. 7^9 f ^Iflfil. 730 los! 747 1198 765 155. 756 155. 757 155, 1324. 758' 155. 769 155. 760 155. 761 , 155. 762 155. 763 155, 1005. 764 155. ,( 765 153, 156.' 766 155, 156. 768 1324. 779 1324, 1325. 785 153, 155. , 787 122. 796 105, 119, 1217. 797 105, 119,877, 911, 1217. 798 105, 119, 877, 911. 799 105, 119. 800 105, 119. 801 105, 119. 801a 105, 119. 802 105, 119. , 803 105, 743. ' 803-809 377. 804 105. 805 105. 806 105. 807 105. 808 105. 809 105, 743. 810 97, 810. 810-816 812. 811 97, 809, 811, 1294. 812 97, 796, 797, 811, 814, 818, 835, 836. ' 813 97, 801, 812, 8l3, 814. 813a 812. 814 97, 813. 815 97, 813, 816. 816 97, 813. 823' 189. 828-841a 162. 829 203, 269, 287, 406, 476, 867, 871, ^B, 995, 1223, 1224, 834 . 1417,. 141j9,, 1420. 269,441, 459. 835 405, 410, 415, 476. 836 405, 410, 441. 841 367, 369, 653. 842-850 162. 852-869 162. 856 167. 870-886 198, 199, 407. TABL3 OF 'SECTIONS XXXI Sections of the Cp4e of Civil Procedure ' ivi:U,\!' > Quoted or cited 6n page; 873 699, 700.' 887-913 198, 407. 888 205, 208; 889 407. 891 209. 891 et seq. 206. 892 209. 893 207, 407. 894 207. 896 206. 896 207. 899 207. 901 209, 407. 902 209, 407. 921-962 162. 966 96. , 962 49. 'i: 970 183* 185. 973 1370: 977 425. 992 268.- 992-1007 193, 194, 267, 268.. 994 193, 267. 997 97. \ 998 179, 194. 1009 177. 1018 168. 1019 166,167,174^1342. 1022 168. 1023 171. 1024 166. 1171 186. 1172 ,186. 1186 180. 1210 1005 1233 179. 1234. 180. 1241 L 132S 1246-1272 222. 1269 2461 1282 99,246,247, 1113.:, 1283 99, 246, 247, 249, 251, 1113 1284- 247, 1113. 1286 247, 1113. 1286 247, 1113. 1287 247, 1113. 1288 247, 1113. 1289 247, 1113. 1290^ 247, 1113. 1291 247, 1113. 1292 1113. 1294 259. 1296 257. 1296 257, S58, 261, 263. 1297 257. 1298 257. 1299 ,257.1 1300 257,264,290.^ 1301 257, 264, 265. 1302 257. . 1303' 281, 269, 1304 263. 1306 2OT- 1306-1309 270. 1306 257, 271. 1307 257. "'.'1 XXXll TABLE OP SECTIONS Sections of the Code of Civil Procedure Quoted or cited oh paige: 1308 257,278,279. 1309 257. 1310 272, 274, 276. 1316 281. 1317 281, 288. 1319 287. 1320 287, 288. 1326 274: 1337 290. 1338 290. 1361 290. 1366 1037. 1369 1037. 1371 230. 1377 230. 1378 230. 1380 69, 1029, 1504. 1381 69, 1029, 1356, 1362. 1447 900. 1638 1248. 1696 1501. 1696-1626 69. 1627 1013. 1633 1245, 1246, 1247, 1248. 1662 900. 1666 1305. 1749 1492. 1769 142J l/fS. 1760 142, 149. 1814 1023. 1817 150. 1818 150. 1819 219, 1173, 1174, 1603, 1505. 1822 974, 1412, 1417, 1422. 1823 568. 1824 963,1024,1174. 1826 68, 229, 230, 270, '964, 1023, 1024;^ 1037, 1174. 1826 230, 964, 1024, 1025, 1174, 1362.i,!v 1827 1174. 1832 921, 1390, 1391, 1392. 1836 971,980,981, 1334. 1836 971, 980, 981, 983, 1334. 1836a 150, 506, 687, 590, 591, 606, 608, 610, 733, 1257. 1837-1849 1218. 1837 1191. 1837-1860 1020, 1218, 1229. 1841 1191. 1843 1219, 1502. 1844 1020, 1209, 1212, 1219, 1502, 150*,i 1507. 1846 1020, 1203, 1218, 1502. 1846 1502. 1847 1502. 1848 1502. 1849 1502. 1860 1502. 1868 1504. 1861 70, 376, 409, 412, SOfT, 508, 513, 514, 515. • 1862 70, 515. 1863 70,515... 1864 7Q,SQ&,6U. , t 1866 70, 85, 343, 412, 413, 414, 415, 4^, 505, 506, 509, 510, 511. 1866 70, 87, 221, 516, 517, 518, 521. 1867 517. 1869 579. ' , 1870 677, 1498, 1499. TABLE OF SECTIONS XXXUl Sections of the Code of Civil Procediire Quoted or cited on page: 1884 1505. 1902 587, e7& 678, 882, 898, 902, 1353, 1498, 1504. 1903 677, 678, 882;' 898, 899, 995, 996, 1353, 1498. 1904 er?, 1498. 1906 err, i498. 1913 863. 2008 163. 2266-2292 235 [see Judiciary Law]. 2286 915. 2346 900. 2348 1310. 2361 809. 2472 33. 01da472a see new § 2510, see 1422-1423. 2473 U- 2474 4S, 156. 2476 4S. 2476 1 38,. 39^^. 2477 ;^, 1380. 2478 3»,39,40. 2479 34, 38, 39. 2480 34, 36, 39, 41, 44. 2481 35,39. 2482 ■ 35, 36, 39, 40. 2483 36, 42. 2484 36, Sr, 38. 2486 37, 38. 2486 45, 50,' 147, 223, 263, 1352. 2487 45, 263. 2488 45, 1503. 2489 46, 499, 1506; 2490 17, 60^66, 68, 104, 161, ^45, 246, 247,::248, 250, 253, 282, 374, 394, 520, 751, 770, 1113, 1325, .1424, 1463. 2491 47. •: 2492 "47. 2493 66. 2494 55. 2496 51. 2496 61, 52. 2497 6a. 2498 54. 2499 64, 270. 2600 52, 64. 2601 66, 198. 2602 48, 49, 50, 51, 107, 108, 156, 165, 4Q3, 408. 2603 m, 60,201. 2604 4B. 2606 37, 4B. 2606 32, 46. 2607 41, U. 2608 41. 2609 4^. 2610 22, 27, 67, 58, 59, 62, 66, 68, 104^14©, 145, 147, 176, 179 2611 2612 2613 2614 2616 2616 2617 2618 2619 5/& 519, S20i 521, 733, 751,. 7,7% 1239, 1257, 1281, 1282, 1307, 1317, 1351, 1352, 1357, 1405, 1408, 1412, 1424, 14S5. 67, 89, 90, 99j 100, 101, 110, 112,i 125, 151, 152, 153, 215, 217, 391, 392, 397, 1499. 96, 216, 380, 800, 1220. 77, 96, 119, 215, 216, 217, 220, 221. 75,76,1401. 74, 75, 76, 79, 80, 81, 89, 385, 3«S,„391, 593, 1352. 75,55,96,390. ;; 80, 83. 96, 99, 109^ lot, 106, 401, 1506. , Wi, 102, H)4,i389,.424, 697, 1297, 1409. XXXIV TABLE OF ! SECTIONS Sections of the Code of Civil Procedure '' Quoted or cited 6n pa'ge': 2620 ioa, 389, 1297. i;, 1 2621 81, 103-, JOftj 107, 109, 111, 116, 14^^25, 383, 385, 386, ' 501,v6Q^, '729, 1401, 1402, 1463?i. > 2622 49, 100, 102, J05, 107, 125, 161. . , 2623 105, 106, 107,108, 110, 111, 395, 401i 2624 lOS, 107, 125, 395, 431, 711. ; ..■ 2626 108, 114, 115, 116,; 402, l217, 150(S;^ ; 2626 lie, 117,,i402, 1217. •: i ;.{. 2627 116,117,402. ..!i 2628 116, /;r, 121, 122,. «I2, 1505. 2629 114, 117, 720, 4O0j 1402, 1506. 2630 107, i09, 110, 402,:^■^^ 2631 119, 1S3, 402. 2632 ISO.. ,.',-•. 2633 lis, 163. 2634 89, ISe, 127, 128, 163, 1305. 2636 les, 1349. 1 ! . 2636 51, 164, 165, 166, 168., 170, 171, 4fl3,i;1411, 1506. 2637 165, 177, 178^ 421,, 502, 864, 122^7^:25. 2638 67, 177, 178, 179, 183, 190, 280, 3816:425. 2639 178, 182, 183, . 199, 282, 425. f. ifi 2640 186..H r ,.. ,:■ , <.; 2641 168, 191, 192, 193, 194, ^66, 267,. a6§, 782. 2642 192, 193, 194, 266, 267, 268, 284.v, , . 2643 198, 199, 201, 407. 2644 198, 200, 201; 202,, 407, 408. 2646 202, 203, 204, 406., ; 2646 197; 411^420, 1033. 2647 209. ■■■: , 2648 210, 244, 1239j 1324, ' , , . 2649 214, 215, 821,.822,,a023 1035, 1349. 2660 182,ig:/J,'213, 221, 504, 1425, UmHi 2661 221, ^«2;r223, 224; 230, 237, 824, 825, 1036. 2662 223. 2663 228, 229, 230, 232,, 237, 824, lOaeiiydv. 2664 228, 229, 231, 232, 234, 904, 1037>..J805, 1325. 2666 214, 215, 221, 667,. 668, 771, 7S5,tl3J8. 2666 215,m7,78S. : f jr 2667 256, 272, 275, 276, 277, 649, 662^.687, 771, 1305. 2668 675, 679, 703. 2669 672,679. ..,„ 2660 215,-256, 649„!675, 679, 685, 686t^§§f . 2661 675, 679, 6S5, 686. 2662 675, 687, 1404!' 2663 < 1 -■' S82;f 584!, . 665, 667, 789. 2664 649, 688, 690;; 691, .693, 696, 697, ,§9% 700, 701, 702, 716, 746, 761, 768, 1256. 2666 649, 688, 689, 764. «,, 565, 649, 696, 698, 699, 703, 711, ^6, 776, 791, 1256, 1317. ., ! ,,^ , ,,a:- 688, 691, 696, 697,.6&8, 699, 701, 7m, 746, 776, 791, 792, 2666 2667 1256, 1317. e- . 2668 < 675,704,746, 125Q. Oigi; 2569 615, 649, 662, 693, 707, 711, 751, 754, 755, 758, 759, 760, 761i 762, .7685.770, 7tl, 772, 774, 775, 777, 778, 779,' 786, 800, 1256i ' 2670 .e49,.751, 778, 779, 780. ,tss 2671 731, 777, 77&, 780, 783, 791, 801, 1250. 2672 573,'r07,.751,.ra5, 1256, 1262, 1863^' 1318. 2673 75% 786. ' '■■ ;, p'v. 2674 649, 751,1775, 781, 7Sa, 794, 815^18, 934, 935, 1256. 2676 796, 797, 814. ,1. 2676-2687 278. .-. - ,■ 2676 676, 792,815, 821, 1256. 2577 ■<•■' 1 775, 797, 812, 5^4,815,: 818. 2578 ' 775,M2,81i,<81S,^1506. TABLiE OF SECTIONS XXXV Sections of the Code of Civil Procedure Quoted or cited on page: 2679 2680 2681 2682 2683 2684 2686 2686 2687 2688 2689 2690 2691 2692 2693 2694 2696 2696 2697 2698 2699 2600 2601 2602 2603 2604 2606 2606 2607 2608 2609 2610 2611 2612 2613 2614 2616 2616 2617 2618 2619 2620 2621 2622 2623 2624 2626 2626 2627 2628 2629 2630 2631 2632 2633 2634 2636 2636 2637 2638 2639 2640 2641 2642 814, 818, 835. 819, 835, 1506. 815, am, 821. 797, 799, 809, 826, 1313. 8U, 824. 822, 824, 827, 828, 1349. m, 823, 824, 829, 1256. 8S6. 790. 197, 613, 615, 622, 636, 690, 710, 716, .717, 718, 720, 721, 723, 724, 725, 726, 727, 728, 729, 730. 197, 729. 728, 729, 730. 647, 713, 741, 747, 748, 792, 802, 803, 804, 1506. 650, 672, 674, 675, 747, 802, 803. eiS, 748. 614, 620. 614, 623. 99, 197, 615, 647, 650, 652, 739, 740, 741, 742, 743, 748. 803, 1506. 633, 654, 656, 658, 663, 903, 1181. 654, 658, 659, 661, 1505. 654, 658, 659, 1505. 657, 660, 661, 663, 664, 1505. 660, 661, 662, 664. 739, 740. 197, 561, 615, 709, 711, 713, 715, 717, 718, 720, 726. 709, 713, 715. 576, 713, 746, 748, 792, 800, 803, 804. 197, 582, 583, 584, 586, 744, 748, 789,, 804, 805. 375, 703. 72, 375, 391, 505. 1^7, 378, 380, 383, 385. 137, SS3, 395,, 1263. 203, 402, 403, 404, 405, 428. 203, 334, 335, 337, 338, 4P4, 406, 407, 408, 409. 71, 85, 343, 376, 4t2,.'^\Z, 431, 505, 506, 509. 180, 182, 185, 379, 403, 41-0, 429, 432,489, 490, 491. 62, 87, 88, 92, 418, 491, 518, 519, 521. 393, 397, 398, 4^8, 419, 421, 423, 494, 703. 152, 178, 398, 4^1, 424, 429, 431. 397, 398, 419, 4^2, 423, 429, 494. 4^6. 215, 494, 507, 1505. 48, 215, 434- 495. 215, 435, 1501. m, 751, 752, 753. 565, 703, 704, 710. 687, mo. 708, 711, 1506. 705, 706, 707, 711. 391, 586, 591, 594, 597, 733. 197, 586, 597, 598, 599, 733, 734. 598, ew, 716, 734. 732, 733. 495, 733, 735, 738, 748, 805. 601, 606, 739, 1379. eo;, 603, 605, 606, 739. 592, 602, 606, 1353, 1365, 1366, 1379. 746,-747. 197, 573, 1255, 1256, 1262, 1263. 387, 746, 791, 806, 1.265, 1256, 1263. 751, rs.^,. 1250. 1272, 1280, 1364, 1366. XXXVl TABLE OF SECTIONS Sections of the GqdejOf Civil Procedure Quoted or cited on page: 2643 2644 2646 2646 2647 2648 2649 2660 2661 2662 2663 2664 2666 2666 2667 2668 2669 2660 2661 2662 2663 2664 2664a 2666 2666 2667 2668 2669 2670 2671 2672 2673 2674 2676 2676 2677 2678 2679 2680 2681 2682 2683 2684 2686 2686 2687 2688 2690 2691 2692 2693 2694 2696 2696 2697 2698 2699 2700 2701 2702 2703 1283, 1285, 1286. 1284, 1286, 1293re. 1S8B,\2&&. ■ 1286, 1288, 1289, 1292. 808, i^SS, 1289, 1292. 1^90 'V2Q\ 1292. 684, 745, 750, 808, 1292, 1293, 1294, 1378. 749, 1293. 760; 810, 1293. 750; 753, 1283. 197, 1286, 1295, 1296, 1297, 1298, 1299. 750,1297, 1299. 750^ 1298, 1299. 1281, ISI4, 1316. 197, 750, 810, 1317. 1300. 1301, 1302, 1317, 1354. 1301, 1302. 1301, 1302, 1354, 1363. 751, 1301, 1303, 1354, 1364, 1401. 1301, 1307, 130S, 1309, 1311, 1462. 789, 933, 934, 933, 939, 1303, 1501. - 870 877, 878, 911, 919, 1376, 1506. 877, 913, 920. 879, 912. 878, 913, 914, 916. 771, 879, 916, 917, 918, 919, 920, 921, 924, 1307. 881, 882, 885, 904, 905, 909, 910, 911, 1398, 1399. 69, 906, 1398. 881, 889, 912. 799, 914; Pi5, 1138, 1160, 1164, 1195, 1196, l/,20, 1421, 889, 890, 929, 1149. 563,864,865,870. 640, 863, 864, 866, 867, 874, 876. 965, 966, 967, 968, 981, 1376; 1505. , 965, 966, 971, 981, 1376, 1605. 952, 975, 976, 1307, 1412, 1J,18, 1420. 146, 164, 973, 974, 1000, 1033, 1418, 1422. 146, 164, 966, 971, 974, 981, 982, 983, 984, 985, 1376, 1412, 1417, 1505. 69, 570, 975, 986, 999, 1001, 1002, 1004, 1005, 1006, 1007, 1008, 1033, 1163, 1307, 1420. 69, 925, 927, 928, 998, 1017, 1307: 1014, 1017, 1018, 1137, 1505. 1015, 1016, 1017, 1217. 987, 988,' 990, 992, 1027, 1505. 197, 663, ;0«6, 1027, 1028, 1034, 1134, 1173, 1174, 1175, 1176/1, 1177, 1178, 1260, 1262, 1362, 1467, 1506. 663, 1137, 1175, 1180, 1183, 1184,1189, 1467, 1505. 197, 1175, 1177, 1258, 1259. 1175i 1176, 1261. 1176, 1177, 1178, 1181, ll82, 1183»; 1319, 1388, 1450. 382, 56!g, 705, 899. 572, 1207. 574, 576, 576, 577. 904, 1248, 1249. 232, 957, 959, 1257, t273. 69, \19%, 1247,1m, 1478. ^S9, 1464. 140, 198, 890, 931, 932, 1201, 1202, 1434, 1449. 1201, 12&S, 1209j 1230, 1416, 1504. 141, 931, 995, 1202, 1203, 1204, 1206, 1207, 1209, 1211, 1220, 1228, 1415. TABLE OF SECTIONS XXXVll Sections of the Code of Civil Procedure Quoted or cited on page: 2704 1W9. 2705 504, 1201, 1202, 1210, Vin, 1214, 1223, 1227, 1416. 2706 ISm, 1222, 1223, 1224, 1225, 1226, 1227, 1416. 2707 867, 1220, 1222, 1223, 1226, 1227, 1227, 1229, 1232, 1234, 1242, 1245, 1248, 1415. 2708 746, 12S0, 1232, 1233. 2709 1230, 1232, 1234, 1236, 1239. 2710 156, 1232. 2711 504, 519, 809, 1233, 1424, 1434. 2712 ' 1234. 2713 1242. 2714 1240, 1504. 2715 1240. 2716 1242, 1501. 2717 1242. 2718 1248. 2719 1352. 2720 198, 1353, 1413. ' ^ 2721 1036, 1175, 1177, 1349, 1355, 1356, 1360, 1361, 1363, 1413, 1414. 2722 1355, 1356, 1357, 1363, 1377, 1413, 1414. 2723 1353, 1354, 1356, 1363, 1445, 1505. 2724 1356, 1357, 1361, 1364, 1505. 2726 154, 155, 579, 584, 585, 664, 665, 667,;668, 669, 670, 671, 822, 1023, 1349, 1357, 1358, 1366,, 1369, 1377, 1419, 1454, 1502, 1503. 2726 585, 663, 829, 888, 1032, 1365, 1367, 1372, 1378, 1401, 1402,. 1404, 1405, 1505. 2727 585, 822, 833, 1032, 1034, 1366, 1367, 1369, 1370. 2728 833, 1370, 1404, 1405, 1499. 2729 146,' 577, 1355, iS7A, 1376, 1377, 1378, 1401, 1405. 2730 138, 213, 822, 825, 833, 1375, 1376, 1379, 1405, 1499. 2731 1349, 1395, I4O6, 1409, 1411. . f; 2732 1349, 1387. 2733 950, 1015, 1272, 1349, 1393, 1412, 1414, 1415, 1451. 2734 685, 603, 1349, 1453, 1454. 2735 69, 147, 663, 1398, 1412, 1413, I424, 1453, 1464, 1467, 1473. 2736 1017, 1424, 1453, I454, 1455, 1478ra. 2737 775, 1453, 1456, 1478. 2738 580, 1453, 1458, 1461. 2739 750, 809, 1197, 1294, 1305, 1453, 1457, 1462, 1479. 2740 1453, 1462. 2741 1453, 1462, 1463, 1478. 2742 24, 1413, 1453, 1499. 2743 1323, 1324, 1329, 1331, 1332, 1333, 1342. 2744 1323, 1325, 1329, 1336. 2745 1323, 1324, 1329. 2746 52, 379, 904, 1328, 1331, 1333, 1334, 1335, 1336, 1338, 1381, 1447, 1448, 1453, 1478. 2747 197, 1337, 1338, 1381, 1427, 1447, 1453. 2748 62, 1335, 1336, 1453, 1505. 2749 1102, 1337, 1345. 2750 1323, 1344. 2751 1329, 1330. 27B2 172, 1345. 2753 496, 664, 1162, 1202, 1318, 1319, 1331, 1354, 1388, 1426, 1429, 1430, 1432, 1433, 1434, 1435, 1438, 1440, 1441, 1444, 1445, 1446, 1447, 1448, 1453. 2754 152, 257, 259, 262, 1118. 2756 136, 151, 152, 261, 262, 264. 2756 262, 263, 264, 267, 1506. 2757 194, 265, 266, 268, 269, 282, 284, 286. 2758 192, 194, 257, 263, 264, 269, 270, 279. 2759 270, 272, 273, 275, 277. 2760 231, mo, 272, 273, 275, 276, 277, 1305. xxxvm TABLE OF SECTIONS Sections of the Code of Civil Procedure Quoted or cited on page: 2761 256, 272, 273, 274, 275, 276, 277. 2762 270, 272, 275, 276, 278. 2763 196, 245, 264, 267,268, 272, 282, 283, 287. 2764 288. 2766 198, 500, 501. 2766 500, 502, 503. 2767 500. 2768 29, 119, 123, 125, 138, 142, 144, 145, 148, 394, 400, 402, 710, 726, 756,757, 758,786, 806,»877, 917, 1207, 1210, 1250, 1348, 1351, 1370, 1403, 1408, 1428. 2769 96, 97. 2770 96, 104, 105, 128, .161, 198, 205, 407, 699. 2771 60, 96, 1324. 3017 1501. 3228 21. 3229 982. 3230 1448. 3240 1329. > 3251 1324, 1329. 3263 1448. 3264 1448. 3266 1329, 1333, 1342. 3296 172. 3307 1342. J311 52, 54. 3320 813, 1427, 1428, 1429, 1439, 1450. 3333 98, 585. 3334 98, 585. 3339 98. 3343 33, 49, 98. 3347 97, 104, 130, 153, 155, 156, 161, 162, 163, 168, 812, 835, 1323, 1325. 3366 50. TABLE OF LAWS CITED References are to pages TEAR PAGE Bradford's Laws (1694) 1278 Dongan's Laws 1278 The Duke's Laws, 16, 1683 4 1692, L. N. y. (Smith &L.ed.) 1,15 6 1*743, L. N. y . (Smith A; L. ed.) J, 316 9 1778, L. N. y. (Jones & V. ed.) 1, 23 10, 15, 16 1785, c. 71 23 1786, Greenleaf 's Laws, 238 1 1 1787, c: 38 11,15,16,23 1797, 3 Greenleaf's Laws, 391 12 1799, 2 Greenleaf's Laws, 420 9 1799, L. N. Y. (Andrew's ed.) 724 . 12 1801, 1 Webster's Laws, 317, 325 12, 16 1802, 3 Webster's Laws, 158 12 1806, 3 Webster's L9,ws, 316 12 1807, 5 Webstpjs's Laws, 138 12 SESSION LAWS 13, 397, 1786, c. 27 1813, c. 86 1813, c. 139 1819, c. 244 1822, 1823 Act of March 21, 1828, c. 136 1830, 5 Edmunds 1830, c. 320 1837, c. 460 223, 227, ,1419., 1837, p. 530 1840) c. 318 1840, c. 386 1841, c. 261 1842, c. 157 1844, c. 104 1846, c. 74 1847, c. 80 1847, c. 47d> 1848, c. 319 1849, c. 160 1849, c. 306 1849, c. 375 1850, c. 272 1850, c. 292 ■ 1851, c. 108 1853, c. 648 1854, c. 197 1855, c. 427 1855, c. 432 1204 1002 12, 16, 23 12, 838 23 12 1823 12, 15 12 Stat. 622 13, 23 36, 83, 226, 227 19, 64, 90, 91, 205, 207, 519, 772, 823, 1320, 778 532 1321 532 682 223, 227, 823 532 925, 927, 998 112 539 1340 33 356 27 1254 33 33 119 1004 632 TEAR 1855, 1858! I860: 1863! 1863! 1863! 1864: 1866: 1867: 1867 1867: 1867: 1869: 1870; 1870, 1870, 211 1870, 1871 1871 1872; 1873 1875 1875: 1876: t877: 1880: 1880; 1881 1882: 1882 1882: 1884: 1884: 1884: 1885 1887: 1887: 1887: 1887: 1888; 1888, 1889, 1890: 1890: 1891 1892 1892, lS92, 1892 1892; PAGE c. 547 139 c. 314 902, 903 c. 360 537, 539 c. 362 725, 1322, 1337, 1338 c. 403 596 c. 466 579 c. 71 655 c. 115 1254 c. 194 31 c. 658 887, 1245, 1246 c. 722 1321 c. 782 35fr, 682, 722, 725, 778 c. 22 357 c. 59 1286 c. 170 1246 u. 359 13. 20, 71, 85, 95, 112, 217, , 417, 519, 647, 654, 1264, 1322, 1332 c. 394 868 c. 335 614 c. 834 1245 c. 680 498 c. 830 838, 841, 846, 851 ^ 1286 c. 442 c. 542 889, 930, 1149 c. 118 73 c. 206 1317 c. 36 351 c. 245 112, 202, 205, 313, 664, 824, 982, 983, 1318 c. 641 639 c. 124 614 c. 185 674 c. 410 625 c. 133 119, 120 c. 438 839, 841 c. 530 ' 47 c. 262 119 c. 372 814 c. 416 157 c. 703 839, 841 c. 713 1121 c. 555 351 ^;. 571 925i 998 c. 487 902 c. 160 532 c. 367 814 c. 34 911 c. 25 532 c. 399 1053, 1083 c. 465 1450 c. 642 32 c. 679 79 XXXIX xl TABLE OF LAWS CITED References are to pages YEAR PAGE YEAR PAGE 1892 c. 686 32,' 532 1909, 0. 144 535 1893 c- 9 32 1909, 0. 218 532, 535 1893 c. 100 925, 998 1909, c. 240 901, 902 1893 c. 295 405 1910, c. 244 87 1893 c. 686 614, 925, 982, 1419 1910, 0. 412 614, 622 1893 C-. 701 i r ■ .; 534, 536/541 1910,,: c. 576 • 25, 26, 95, 1138 1893 c. 711 ' 1004 1910, 0. 600 1042 1894 c. 136 542 1910, 0. 706 1042, 1043, 1044, 1056 1894 c. 731 72, 391, 498, 505, 507 1911, c. 160 1043 1894 c. 740 902 1911, b. 216 1428 1895 c. 426 1405 1911, c. 217 1428 1895 0.531 139, 1493 1911, 0. 539 1448 1895 c. 595 26 1911, 0. 569 68 1895 c. 723 532 1911, c. 631 150, 587 1895 c. 827 614,-624 1911, c. 681 1043 4S95 c. 891 149 1911, c. 687 ' 561, 710, 765, 776 1895 c, 946 37 1911, c. 732 1042, 1043, 1044, 1056, 1059 1896 0. , 90 172 1911, c. 744 1043 1896 c. 272' 68, 138, 139, 546, 1304 1911, c. 775 ^l-J:t 1896 c. 547 902, 1163 1911, c. 800 1043 1,896 c. 570 391 1911, c. 803 ' 1043 1896 c. 908 68, 611, 1076 19tS,c. 45 1043 1897 c. 37 1493 1912, 0. 206 1043 1897 c. 284 1073, 1133 1912, c. 214 1043 1897 c. 378 628 1912, c. 384 ' 1145, 1199 1897 c. 417 526, 529^, 545, 575, 902, 903, 1912, c. 548 614 943, 1197 1913, 0. 356 1043 1897 c. 420 S96 1913, c. 639 1043 1898 c. 88 1059 1913, 0. 795 1043 1898 0.230 113, 614, 623,,627etseq. ipi3, c. 825 614 1898 c. 264 ; ■ 856, 857 1914, c. 369 1269 1898 c. 311 941 1914, 0. 443, The Act of 1914 ' 132 1899 c. 61 157 1915, c. 352^ 138, 837, 841, 842 1899 c. 65 943 • 1915, 0. 383 1043 1899 c. 76 ,1076, ,1133 1915, c. 515 1269 1899 c. 486 614, 622 lfll.5, c. 641 996, 1499 1899 c. 672 1087 1915, c. 644 983 1899 c. 725 139 1915, c. 664 1039,1043,1045, 1066, 1094 1899 c. 737 1507 1916, c. 363 1269 1900 c. 382 1064 1916, 0. 447 , , 119, 123, 877 '842, 847, 8.52, 855 1900 c. 501 614 1916, c. 453 1900 c. 510 68 1916, 0. 548 1043, 1049, 1050, 1054 1900 c. 554 1294 1916, c. 549 1043, 1049 1900 c. 658 1076 1916, 0, 550 1043, 1049 1901 c. 20 652 1916,0.551 1043,1045,1046,1050,1051, 1901 c. 141 710 1056, 1095 1901 c. 291 ., 534, 541 1916, c. 588 788, 933, 934, 1043, 1501 1901 c. 493 1133 1902 c. 150 574, 1428 ,, CONSOLIDATED LAWS QF 1909 1902 c. 151 574 .31902 c. 295, 943 BANKING LAW il903 c. 369 1304 SECTION PAGE 1903 0.526 871 52, 201 1162 1903 ■0. 623 539 62, 202 1162 1904 ...692 147 186 661, 710, 765 1904 0.742 943 239 1269 1904 C.750 1214 1604 0.755 1428 CIVIL RIGHTS LAW , 1905 1905 0.368 0.388 ,1063,, 1086 ; 532 20 233 il906 1907 0.362 c. 204 532 ' COUNTY LAW 1907 0. 669 943 152 582 ;1908 0.310 1099 903 1145 167 373 1908 '1909 c. 502 0. 18 DEBTOR AND CREDITOR LAW 1909 ,c. 45, § 317 1197 54 68, 926 TABLE OF LAWS CITED xli References are to pages DECEDENT ESTATE LAW SECTION 2 10 12 14 15 16 17 18 19 20 21 22 23 PAGE 340, 373 490 540 545 162, 490 295, 296 637, 538 539 539 537 298 298, 314 24 71, S98, 299, 391, 490, 505, 507, 508, 596, 611 71, 490, 505, 507, 508, 596, 611 25 "71, 73, 490, 505, 507, 508, 596, 611 26 1478 27 ^ 162, 1165 28 29 30 et ^eq. 31 32 33 34 35 36 37 38 39 40 41 42 44 45 46 47 80-95 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 99 100 101 102 103 111 112 113 430 1199 373 373 374 374 341, 343, 352 '342, 359, 363 342, 355 342, 360, 362, 1170 342, 361, 1170 342, 343, 361, 1170 342, 343, 360, 361, 1170 324; 327, 343, 345 495, 498 497, 506, 596 497, 507, 587, 594, 613 496, 1S04 87, 88, 588, 605, 1467 1465 1470 1470 1470 1470 1470 mo 1470 1470 147t 1471, 1494 1471 1471 1471 1472 1472 139, 1472, 1494 1468, 1470 1458 141, 142, 393, 724, 1465, I468, 1479, 1480. [See Table, pp. 1485 et seq.] 1458 723, 1479 1020, 1191, 1211, 1219, 1504, 1505 1020 721, 722, 723 943, 1269 381, 562, 567 1021 SECTION PAGE 114 578, 672 115 753 116 672, 862, 899 117 -., ■ 680, 672, 862 118 672, 862, 901 119 901 120 901, 1095 121 665, 666, 667, 901 122 911 DOMESTIC RELATIONS LAW 18 i 139 22 93 50 1065 52 882 80 1277, 1281, 1291 81 778, 1280, 1281, 1284, 1288, 1291, 1295, 1315 82 1315 83 1280, 1304 84, , , 1280 110 837; '841, 847, 851, 855 111 838, 842, 843, 846, 847, 851 112 842, 843, 846, 847 113 , I.H..- 846, 847, 856 114 841, 852 115 855 116 857 117 • . ■' 858 118 858 120-127 859 GENERAL CONSTRUCTION LAW 93 1043 94 1044 4 subd. 8 FINANCE LAW 1198 GENERAL CORPORATION LAW 21 542 JUDICIARY LAW 2 15 et seq. 198 251 382-385 388 471 472 474 475 527 528 750-781 753 755 756 757 760-765 763 764 766 769 775 57 42, 43 66 50 66 56 113 112 157 167 18(5 186 236 235 235 235 235, 237 230 239 230 240 241 234, 243, 244 xlii TABLE OF LAWS CITED References' are to pag^s PARTNERSHIP LAW SECTION PAGE 37 PENAL LAW 1107 2 691 274 159 482 1309 1250 859 1254 859 1626 102 PERSONAL PROPERTY LAW 11 526, 534 12 1257 13 531, 532 13a 532, 535 15 1261 16 529 18 545 19 568, 902, 903 20 1253, 1265, 1266, 1428 21 943 32 148 66 84 67 POOR LAW PUBLIC OFFICERS' LAW 855 53 REAL PROPERTY LAW 10 11 34 48 61 63 66 96 100 103 105 111 113 114 114a 116 157 166 174 180 181 ?01 202 204 1494 316 886 546 529 530 571 526 1257 1261 941 574, 1428 535 531, 532 632, 635 943, 1304 1204 571 671 1188 1188 1162 1162 909 SECTION 245 249 250 268 274 PAGE 545 1011 1012 902, 903 148 RELIGIOUS CORPORATIONS LAW 7 632 STATE FINANCE LAW 4 1090, 1219 TAX LAW 4 1060, 1061, 1064 7 1136 37 923 220 1040, 1042, 1043, 1044, 1045, 1046, 1049, 1056, 1065, 1066, 1070, 1078, 1094, 1095, 1096, 1099, 1124 221 1042, 1043, 1049, 1050, 1051, 1052, 1053, 1054, 1056, 1059, 1061, 1062, 1063, 1073, 1075 221a 1042, 1043, 1049, 1051, 1052, 1054, 1056, 1060 221b 1043 222 1118, IIW, 1128, 1132, 1133, 1135 223 1081, 1120, 1121, n23n 224 1076, 1120, 1124, 1131, 1135 225 1042, 11^7, 1128 226 1100 227 1129, 1130 228 611, 1039, 1077, 1078, 1121 229 1042, 1043, 1049, 1080, 1084 230 1043, 1049, 1075, 1081, 1083, 1084, 1095, 1098, 1118, 1131, 1132, 1133, 1134, 1136 231 1043, 1049, 1080, 1087, 1095, 1098, 1109, 1110 232 1043, 1080, 1109, 1111, 1112, 1114, 1117, 1118, 1132 233 IIH, 1132 234 1043 235 1124, 1126 236 1098, 1120, 1130, 1131 239 1066 240 1043 241 1043 243 1042, 1043, 1044, 1046, 1046, 1048, 1050, 1063, 1060, 1065, 1066, 1094, 1095, 1099, 1104 244 1061, 1064 270 874, 1067 278 874, 1067 295 VILLAGE LAW 532 TABLE OF CASES CITED References are to pages Aaron, Est. of, 7 N. Y. Supp. 735; 158. Aaa-on, Matter of, 5 Dem. 362; 657. .^bett. Matter of, 29 Misc. 566; 1048. Abbey v. Aymar, 3 Dem. 400; 544. Atibott V. Curran, 98 N. Y. 665 (aff'g 20 Week. Dig. 334); 686. Abbott, Matter of, 3 Redf. 303; 530. Abel, Matter of, 136 App. Div. 788; 334, 337 416. Abell 'v. Bradner, 15 N. Y. Supp. 4; 570. A.ljercombie v. Holder, 63 N. Y. 628; 172. Abercrombie, Matter of, 24 App.Div. 407; 317. Abernethy v. Catlin, 2 Dem. 341; 1168, 1169. Ablowich, Matter of, 118 App. Div. 626; 798, 1421. Aborn v. Janis, 62 Misc. 95; 1314. Achelis, Matter of, N. Y. L. J., March 9, 1912; 1097. Ackels, Matter of, 23 Misc. 321; 352. Acker v. Ledyard, 8 Barb. 514; 3'53. Acker, Matter of, 5 Dem. 19; 305. Ackerman v. Ackerman, 63 App. Div. 370; 548. Ackerman v. Emott, 4 Barb. 626; 939, 946, 1313. Ackerman, Matter of, 116 N. Y. 654; 1306. Ackerman, Matter of, 2 Redf. 521; 366, 371. Ackerman, Matter of, 129 App. Div. 584; 353. Ackerman, Matter of, 36 Misc. 752; 527. Ackley v. Dygert, 33 Barb. 176; 1219, i 1220. Ackley, Matter of, N. Y. L. J., Dec. 12, 1911; 806. Adair V. Brimmer, 74 N. Y. 539; 765, 829, 1383. Adams V. Beekman, 1 Paige, 631; 547. Adams v. Butts, 16 Pick. 343; 989. Adams V. Cowen, 177 U. S. 472; 1460. Adams v. Fassett, 149 N. Y. 61; 1507. Adams v. Massey, 184 N. Y. 62; 543. Adams, Matter of, 73 Misc. 325; 1493. Adams, Matter of, 30 Misc. 184; 835. Adams v. Olin, 78 Hun, 309; 980. Adams v. Olin, 21 Civ. Proc. Rep. 227; 1162. Adams v. Perry, 43 N. Y. 487; 533* 537. Adams v. Swift, 169 App. Div. 802; 91, 362. Adams v. Van Vleck, 4 Dem. 343; 944. Adams v. Winne. 7 Paige, 97; 341, 360. Adee v. Campbell, 79 N. Y. 52; 727* 1482, 1483, 1488. Adee v. Campbell, 14 Hun, 551; 1488. Adler, Matter of, 60 Hun, 481; 959, 1273. Adsit V. Adsit, 2 Johns. Ch. 451; 1161. Ague V. Schwab, 123 App. Div. 746; 569. Ahrens v. Jones, 169 N. Y. 555; 567. Aiken v. Dunlap, 16 Johns. 85; 1001. Ainslee v. Radcliffe, 7 Paige, 440; 1004, 1005. Ainsworth v. Aldrich, 15 Week. Dig. 199; 1304. Aker, Matter of, 74 App. Div.- 461 (aff'd 173 N. Y. 620); 341. Akers, Est. of, N. Y. L. J., Mar. 19, 1903; 1330. Akers, Matter of, 173 N. Y. 620 (aff'g 74 App. Div. 461); 351. Albert, Matter of, 38 Misc. 61; 303. Albertson, Matter of, 113 N. Y. 434; 1275. Albrecht v. Canfield, 92 Hun, 240; 129. Albrecht, Matter of, 32 St. Rep. 193; 893. Aldinger v. Pugh, 132 N. Y. 403; 33. Aldrich v. Moore, 26 N. Y. St. Rep. 964; 1310. Alexander, Matter of, 16 Abb. Pr. (N. S.) 9; 565. Alexander, Matter of, 83 Hun, 147; 1031. Alexander, Matter of, N. Y. L. J., Jan. 7, 1893' 370 Alexander, Matter of, 70 N. Y. St. Rep. 431; 1284. Alexander v. Bennett, 60 N. Y. 204; 24. ' Alfson V. Bush Co., 182 N. Y. 393; 898, 996. Alger, Matter of, 38 Misc. 143; 351. Alleman, Matter of, 1 Connoly, 441; 51, 403. Allen V. Bishop, 25 Wend. 414; 963, 1006. Allen V. Kelly; 55 App. Div. 454; 809, 821, 822 Allen 'v. Kelly, 171 N. Y. 1 (rev'g 66 App. Div. 623, and 30 Misc. 377); 809, 1309, 1310. Allen v. Ketcham, 5 N. Y. Supp. 566; 373. Allen v. Ketcham, 24 St. Rep. 251; 366. Allen V. Malcolm, 12 Abb. (N. S.) 335; 114. Allen, Matter of, 2 Dem. 203; 665, 690, 715, 717. Allen, Matter of, 3 Dem. 524; 996. Allen, Matter of, 7 Civ. Proc. Rep. 159; 577, 804. Allen, Matter of, 24 N. Y. St. Rep. 251; 371. Allen, Matter of, 81 Hun, 91; 258. Allen, Matter of, 36 Misc. 398; 906. Allen, Matter of, 96 N. Y. 327; 1264, 1429, 1431, 1432. . Allen V. McPherson. Ho. of Lords, 1 CI. & Fin. 207; 69. xliii xliv TABLE OP CASES CITED References are to pages Allen V. Public Administrator, 1 Bradf. 378; 462, 487. Allen V. Stevens, 161 N. Y. 122; 185, 535, 537. Allison, Matter of, 53 Misc. 222; 525, 546. Allison, Matter of, 122 App. Div. 898; 525, 546. .- , r ' I ■, ' - - Allison, Matter of,'' 190 N': Y. 567'; 525. Alston V. Jones, 17 Barb. 276; 461. Alston, In re, 1892, P, 142; 1466., - Althaus, Matter of, 94 Misc. 43; 1187. Althause,' Matter of, 63 App. Div. 252; 1048. t- Altman v. H'ofeller, 152 N. Y. 498; 288, 825, 1499. Americisto Bible Society v. Oakley, 4 Dem. 450; 663. American Church, etc., Soc. v. Gris*old College, 27 Misc. 42;-1157. American S. F. Society v. Hopper, 33 N. Y. 629;. 463,, 488; American Surety Co., Matter of, 61 Misc. .542; 818.. ■'' ■ Amerman, Matter of, 3 St. Rep. 356; 244. Amesiv. Downing, 1 Bradf. 321; 922, 953. Ametrano v. Downs, 33 Misc. 180 (aff'd 170 N. Y. 388); 360,: 1170. Amherst College v. Riteh, 151 N. Y. 282; 1117. Ammarell, Matter of, 38 Misc: 399; 93. Amrheim, Matter of, N. Y. L. J., Nov. 27, 1911; 1117.. . Anderson v. Anderson, 112 N. Y. 104; 61, ■ e9,.70, 88, 513, 517. Anderson v. Daley, 159 N. Y. 146; 567. Aiderson v. Daley, 38 App. Div. 505; 567. Anderson v. Fry, 194 N. Y. 516; 947. Anderson v. Fry, 116 App. Div. 740; 947, , 1138.-: • . " Anderson, Matter of, 84 App. Div. 268; 206. •" Anderson, Matter; of, 122 App. Div. 453; 1374, 1507. Andersonj Matter of, 78 Misc. 713; 299. Anderson v. Thompson, 38 Hun, 394; 885, 896. Andrake v. Cohen, 32 Hun, 225; 1369. Ahdress, Matter of Henry W., Surr. Dec. 1898, 396; 53. Andrewes v. Haas, '214 N.iY. 255; 158. ' Andrews, In re, 1 Johns. Ch. 99; 1255, 1279, 1282, 1283. Andrews, Matter of, 43 App. Div. 401 ; 375. Andrews, Matter of, 162 N. Y. 1 '.(aff'g 43 .'App. Div. 394); 303, 307, 489. ' Andrews, Matter of, N. Y. L. J., Feb. 21, 1912; 1065. Andrews V. N. Y. Bible Society, 4 Sandf. ■ 156; 1155. - , Andrews v. Townshend, 21 J. & S. 522; ■• •1'286. ,.: Angevine's Est., 1 Tucker, 245; 771. Angevine v. Jackson, 103 N. Y.' 470; 195, 266,268,269,284. Ann^t v. Terry, 35 N. Y. 256; 836. Anon V. Gelpcke, 5 Hun, 245; 1251. Anonymous, 4 HuHr 414; 1294'. Anonymous, 14 N. Y. St. Rep. 490; 1360. llilz Ansonia Brass & Copper Co. v. Connor, 98 N. Y. 574; 291. Anthony v. Harrison, 14 Hun, 198; 1008. Anthony, Matter of, 40 Misc. 497; 1048. Arbuckle, Matter of, N. Y. L. J., June 17, 1912; 616, 621. Archer, Matter of, 51 Misc. 260; 1420. Archer, Matter of, 23 N. Y. Supp. 1041; 1384. Arcularius v. Geisenheiner, 3 Bradf. 64 (aff'd 25 Barb. 408); 542, 543. Arcularius v. Sweet, 25 Barb. 406; 526, Arden, Matter of; 1 Connoly, 159; 1474, Arensbui-g, Matter of, 120 App. Div. 463; 443, 886. Argus Co., Matter of the, 138 N. Y. 557; 1456. Arkenburgh v. Arkenburgh, 27 Misc. 760; 958. Arkenburgh, Matter of (No. 1), 11 App. Div. 44 (aff'g 17 Misc. 543); 273, 277. Arkenburgh,' Matter of (No. 2), 11 App. Div. 193; 1349. Arkenburgh, Matter of, 17 Misc. 543; 273. Arkenburgh, -Matter of, 38 App. Div. 473; 250, 117«, 1417, 1430. Arkenburgh, Matter of, 13 Misc. 744; 1414, 1430, 1448, 1449. Arkenbui-gh, Matter of, 58 App. Div. 583; 977, 1419. Arkenburgh v. Wiggins, 13 App. Div. 96; 1350. Arkenburgh v. Wiggins, . 162 N. Y. -596; 1350. Armstrong v. Galusha, 43 App. Divi 248; 141. Armstrong v. Lear, 12 Wheat. 175; 220. Armstrong, Matter of, 72 App. Div. 286; 155, 253. Armstrong, Matter of, N. Y. L. J., Feb. 20, 1912; 1048. Armstrong, Matter of, 55 Misc. 487; 445, 462. Arnold v. Haronn, 43 Hun, 278; 1173, 1461. Arnold, Matter of, 114 App. Div. 244; 80, 1078, 1297. Arnold, Matter of, 14 Hun, 525; 460. Al-nold V. Sanford, 14 Johns. 417; 288. Arnot V. Arnot, 75 App. Div. 230; 546. Arnot, Matter of, 203 N. Y. 627; 1062. Arnot, Matter of, 71 Misc. 390; 1063. Arnton, Matter ofj 106 App. Div. 326; 1163, 1441. Arthur v. Arthur, 10 Barb. 9; 360. Arthur v. Dalton, 14 App. Div. 108; 1147. Arthur v. Griswiold, 60 N. Y. 143; 272,' Arthur v. Nelson, 1 Dem. 337; 1430i Ascheim, Matter of, 75 Misc. 434; 412, 413, 511. Ashheim, Matter of, 185 N. Y. 609 (aff'g 111 App. Div. 176); 1374,. 1507. Ashley v. Lamb, 50 Hun, 568; 253. Ashmore, Matter of, 48 Misc. 312; 648, 740, 741. Asinari v. Bkngs, 3 Dem. 385; 349, 384. Astor, John Jacob, Matter of Will of, Un- reported, 255, ' TABLE OF CASES CITED xlv References are to pages Astor, Matter of, 6 Dem. 402; 1083, 1084. Astor, Matter of, 20 Abb. N. C. 405 1109. Astor, Matter of, 17 N. Y. St. Rep. 737 1109. Astor, Matter of, 137 App. Div. 922 1112, 1116. Atkins V. Kinnan, 20 Wend. 241; 1219. Atkinson v. Striker, 2 Dem. 261; 780. Atlantic Trust Co. v. Powell, 23 Misc. 289; 941. Attorney General v. Continental Life Ins. Co., 93 N. Y. 45; 175. Attorney General v. Cont. Life Ins. Co., 32 Hun, 223 (aff'd 99 N. Y. 674); 1429. Attorney General v. Reformed D. Church, 33 Barb. 303; 555. . . Attorney General v. The Minister, etc., 36 N. Y. 452; 555. : Attoi-ney, Maitter of an, 83 N. Y. 164; 205. Auburn Theological Seminary v. Cole, 20 Barb. 321; 1151.- . . Auliurn Theological Seminary v. Kellogg, 16 N. Y. 83: 1151. Augsburg V. Shurtliff, 180 N. Y. 138; 1067. Austin, Matter of, 13 App. Div. 247; 855. Aiistin, Matter of, 50 Hun, 604; 1182. Austin V. Metropolitan St. Ry. Co., 108 'A)pp. Div. 249;:i498. Austin V. Munro, 47 N. Y. 360; 173, 990, 1021, 1022, 1338. Avery v. Everett, 110 N. Y. 317; 366., Avery, Matter of, 45 Misc. 529; 382, 561, 765. ■ , Ayrault, Matter of, 81 Hun, 107; 1371. Ayres v. Trustees, etc., 3 Sandf. 351; 541. Azzeli's Est., Matter of, 4 N. Y. Supp. 462; 170. B. S. Inst. V. Pelham, 148 N. Y. 737; 1330. Baboock v. Booth, 2 Hill, 181; 381, 568, 899. Baboock, Matter of, 115 N. Y. 450; 1003, 1397. Babcock, Matter of, 29 St. Rep. 947; 936. Babcock, Matter of, 86 App. Div. 563; 1329. Babcock, Matter of, 85 Misc. 256; 869, 1480. Babcock, Matter of, 37 Misc. 445 (aff'd 81 App. Div. 645,. 177 N. Y. 593); 1135. Babcock, Matter of, 42 Misc. 235; 490. Babcock, Matter of, 42 Misc. 90; 1104. Babcock v. Stoddard, 3 T. & C. 207; 1161, 1167. Bach, Matter- of, N. Y. L. J., Nov. 21, 11911; 1097. Backes," Matter of, 9 Misc. 504; '534. Backhouse, Matter of, 110 App. Div. 737 (aff'd 185 N. Y. 544); 1044, 1075, 1085, 1113, 1128. Ba;bkus, Matter of, 49 App. Div. 410 (rev'g 29 Misc. 448); 347. Bacon v. Bacon, 4 Dem. 5; 1258, 1443. Badger v. Badger, 88 N. Y. 646; 358. Badger, Matter of, 3 Law Bulletin, 71; 657, 658. Baer, Matter of, 147 N. Y. 348; 548, 549. Baggott v. Boulger, 2 Duer, 160; 227, 228, 799 831 971 Baier'v. Baier, 4 Dem. 162; 787, 1264. Bailey v. Briggs, 56 N. Y. 407; 518. Bailey v. Buffalo L. T. & S. D. Co., 213 N. Y 525' 1155 Bailey v. Hilton, 14 Hun, 3; 251, 392. Bailey, In re, 14 N. Y. St. Rep. 325; 91. Bailey, Matter of, 47 Hun, 477; 1320, 1340. Bailey v. Stewart, 2 Redf. 212; 70, 119, 251 392 Bain v. Matteson, 54 N. Y. 663; 1253. Bainbridge v. McCuUough, 1 Hun, 488; 1036, 1410. Baird, Matter of, 126 App. Div. 439; 909, 1398 1399. Baird, Matter of, 74 Misc. 34; 97. Baker v. Baker, 23 Hun, 356; 244. Baker v. Disbrow, 18 Hun, 29; 948. Baker v. Disbrow, 79 N. Y. 631; 948. Baker v. Kingsland, 10 Paige, ,366; 1225. Baker, Matter of, 42 App. Div. 370; 1414. Baker, Matter of, 38 Misc. 151 (aff'd 83 App. Div. 530); 1071, 1072. Baker, Matter of, 35 Hun, 272; 1264. Baker, Matter of, N. Y. L. J., May 28, 1902; 1101. Baker, Matter of, 67 Misc. 360; 1045. Baker, Matter of, 83 App. Div. 530; 1066, 1072,1073. Baker, Matter of, 178 N. Y. 575; 1073. ' Baker's Will, Matter of, 2 Redf. 179; 467, 486. , , : , , , , Baldasaro, Matter of, 92 Misc. 627; 754. Baldwin, Matter of, 158 N. Y. 713; 99, 284, 289. ■; . Baldwin, Matter of, 30 Misc. 169; 1330. Baldwin, Matter of, 27 App. Div. 506; 705, 707. Baldv/in, Matter of, 74 Misc. 341; 1274. Baldwin, Matter of, 67 Misc. 329 (aff'd 142 App. Div. 904, 202 N. Y, 548); 322. Baldwin, Matter of, 67 Misc. 353; 886, 908, 990: Ba,ldwin v. Palen, 24 Misc. 170; 760. Baldwin v. Rice, 183 N. Y. 55 (aff'g 100 App. Div. 241; 44 Misc., 64); 591, 598,; 600, 735. , , Baldwin v. Smith, 91 Hun, 230; 212, 213. Baldwin v. Smith, 3 App. Div. 350; 92j 1476. Baldwin v. Spriggs, 65 Md. 373; 360. Ball V. Dey, 7 Wend. 513;;407. BaU V. Dixon, 83 Hun, 344; 1139. Ball, Matter of, 11 Misc. 233; 1155. Ball, Matter of, 55 App. Div. 284; 952. Ball v. Miller, 17 How. Pr. 300; 212, 1208, 1209-, 1226. Ball V. Slaften, 98 N. Y. 622; 902. Ballard v. Charlesworth, 1 Dem. 501 ; 696, 701, 702. Balleis, Matter of.i 144, N. Y., 132; 1062. Ballou V. Ballou, 78 N. Y. 325; 884. Ballou v.! Ballou, 8 Week. Dig. 362; 1390. xlvi TABLE OF CASES CITED References are to pages Balmforth, Matter of, 60 Misc. 492; 337. Balmforth, Matter of, 133 App. Div. 521 (rev'geOMiso. 492);318. Bamberger v. Amer. Surety Co., 48 Misc. 221; 821, 825. Banes v. Finney, "209 Penn. St. 191; 1472. Bank of Niagara v. Talbot, 110 App. Div. 519; 1149, 1137. Bank of Niagara v. Talbot, 184 N. Y. 576; 1149, 1187. Bank of Poughkeepsie v. Hasbrouck, 6 N. Y. 216; 216. Bankard, Matter of, 19 Week. Dig. 452; 648, 649, 658.- Bankers' Surety Co. v. Meyer, 146 App. Div. 867 (aff'd 205 N. Y. 219); 8686, ( 1254, 1456. Bankers Trust Co. v. Dietz, 54 Misc. 459' 1146. ' Banks', Matter of, 108 App. Div. 181; 249. Banks, Matter of, unreported; 1433. Banks v. Phelan, 4 Barb. 80; 556, 1148. Banks v. Taylor, 10 Abb. Pr. 199; 892, 1304. Banning v. Gunn, 4 Dem. 337; 958, 1198. Banning, Matter of, 108 App. Div. 12; 233 Banta v. Willets, 6 Dem. 84; 486. Banzer v. Banzer, 156 N. Y. 429; 543. Barandon, Mattel of, 41 Misc. 380; 589, 1158. Barber v. Case, 12 How. Pr. 351; 157. Barber, Matter of, 92 Hun, 489; 353. Barbey, Matter of, 114 N. Y. Supp'. 725, N. Y. L. J., March 2, 1908 (rev'd 138 App. Div. 281); 1104. Barbineau, Matter of, 27 Misc. 417; 438, 462. Barbour v. De Forest, 95 N. Y. 13; 531. Barclay v. Maskelyne, H. R. V. Johns. 126; 543. 1 Barefield, Matter of, 177 N. Y. 387 (rev'g 82 App. Div. 463); 170, 171, 195, 290, 897 1392 1394, Barker v. Barkei:, 166 App. Div. 863; 178. Barker v. Lauey, 90 Hun, 1081; 1474. Barker, Matter of,' 4 Misc. 40; 1370. Barker y. Smith, 1 Dem. 290; 942, 944. Barlow, Matter of, unreported, March 31, 1916; 179, 182, 183. Barlow, Matter of, IS St. Rep. 721; 948. Barnes v. Barnes, 13 Hun, 233; 1183, 1184.- "^ ' Barnes, Matter of, 25 Misc. 279; 1372, 1374. Barnes, Matter of, 70 App. Div. 523; 332, 343, 416. Barnes, Matter of, 1 Civ. Pro. Rep. 59; 922. ■ Barnes, Matter of, 7 App. Div. 13 (aff'd 154 N. Y. r37; 993, 1187, 1188, 1189. Barnes, Matter of, 140 N, Y. 468; 934, 939 Barnes v. Underwood, 47 N. Y. 351; 722, 1065. Barhett v. Kincaidj 2 Lansing, 320; 1223, 1231. Barney v. Pike, 94 App. Div. 199; 895. Barney v. Saunders, 16 How. (U. S.) 535; 939. Barnum, Matter of, 129 App: Div. 418; 1043, 1113. Barr, Matter of, 38 Misc. 365; 366, 368. Barrard v. Burro\\es, 2 Robertson, 213; 114. Barras v. Barras, 4 Redf. 263; 976, 1418. Barre, In re, 5 Redf. 64; 1283, 1291. Barrett, Matter of, 132 App. Div. 134; 548; 1144, 1148. Barrett, Matter of, 63 Misc. 484; 1144. Barringer, Matter of, 29 Misc. 457,; 139. Barrow v. Barrow, 29 N. Y. St. Rep.- 240; 1189. Barry v. Boyle, 1 T. & C. 422; 319. Barry v. Brown, 2 Dem. 309; 316, 322, 344. Barry v. ButUn, 2 Moo. P. C. 1 Curt. 637; 479. Barry v. Lambert, 98 N. Y. 300; 940, 1022. Barry, Matter of, 62 Misc. 456:; 1496. Bareon v. Mulligan, 191 N. Y. 306; 373, 652. Barstow v. Goodwin, 2 Bradf. 413; 360. Bartholic, Matter of, 141 N. Y. 166; 265, 432. Bartholic, Matter of, 1 Connoly, 373; 488. Bartlett, Ex parte, 4 Bradf. 221; 1289; 1305. Bartlett, Matter of, 4 Misc. 380; 1098, 1172. Bartlett v. Mayor, 5 Sandf . 44; 855. Barton v. Govan, 116 N. Y. 658; 461. Barton, Matter of, 64 Misc. 242; 1185. Bartow, Matter of, 30 Misc. 27; 1071. Bartsch, Matter of, 60 Misc. 272; 1311, 1378 I Baruth, Matter of, 62 Misc. 596; 927. Bascom v. Albertson, 34 N. Y. 584; 537, 541, 1474. Bascom v. Weed, 53 Misc. 499; 571. Baekin v. Baskin, 36 N. Y. 416; 316, 327. Ba^km v. Baskin, 4 Lansing, 90; 666, 935. Bass, Matter of, 57 Misc. 531; 1076. Bassett, Matter of, 84 Misc. 656; 321, 33&. Bassett v. Wells, 66 Misc. 81; 547. , Batchelor v. Batchelor, 1 Dem. 209; 715. Bate V. Graham, 11 N. Y. 237; 902. Bates V. Hillman, 43 Barb. 645; 544. Bates V. Underbill, 3 Redf. 372; 892, 1003. Battel V. Torrey, 65 N. Y. 294; 1219. Battelle, Matter of, 24 Misc. 61; 1156, 1156. . Battle, Matter of; 5 Dem. 447; 1035. Baucus V. Barr, 45 Hun, 582 (aff'd 107 N. Y. 624);.798j 834, 1421. . Baucus V. Stover, 89 N. Y. 1 (rev'g 24 Hun, 109); 192, 234, 667, 798, 834, 908, 909, 916, U21, 1434. Bauer v. Kastnfer, 1 Dem. 136; 1460. Baum, Matter of, 121 App. Div. 496; §86. Baumann, Matter of, 85 Misc. 656; 313, 316. Baumgras v. Baumgras, 5 Misc. 8; 1151. Bayeaux v. Bayeaux, 8 Paige, 333; 564. TABLE OF CASES CITED xlvii References are to pages Bayer, Matter of, 54 Hun, 189; 170, 171. Bayer v. Phillips, 17 Abb. N. C. 429; 1304, 1312. Bayley v. Beekman, 62 Misc. 567; 546. Baylies v. Hamilton, 36 App. Div. 133 (aff'dl65 N. Y. 641V523. Baylies, Matter of, 148 N. Y. Supp. 912; 1109. Baylis v. Baylis, 207 N. Y. 446; 1493. Baylis v. Swartwout, 5 Redf. 395; 1178. Beach, Matter of, 3 Misc. 393; 250, 252, 253. Beach, Matter of, 1 Misc. 27; 993. Beach, Matter of, 19 App. Div. 630; 154 N. Y. 242; 1058, 1059. Beardsley v. Hotchkiss, 96 N. Y. 201; 1306. Beadleston v. Beadleston, 2 N. Y. Supp. 814; 206. Beakes, Matter of, 5 Dem. 128; 707, 718, 787. Beakes Dairy Co. v. Berns, 128 App. 137; ' 897. Beard v. Beard, 140 N. Y. 260; 1432, 1436, 1445. Beard v. Beard, 51 N. Y. St. Rep. 735; 1445. Beard, Matter of, 77 Hun, 111; 1443. Beardslee v. Dolge, 143 N. Y. 160; 92. Beams, Matter of, 89 xMisc. 712 (aff'd 170 App. Div. 911; aff'd 216 N. Y. 90); 324. Beaufort v. Berty, 1 P. Wms. 704; 1279. Beaver, Matter of, 62 Misc. 155; 535, 537, 539, 1101, 1102. Beck V. MoGillis, 9 Barb. 35; 360, 544, 1168. Beck, Matter of, 6 App. Div. 211 (aff'd 154 N. Y. 750); 283, 306, 490. Beck, Matter of, 26 Misc. 179 (aff'd 6 App. Div. 211 and 154 N. Y. 750); 204. Becker v. Lawton, 4 Dem. 341; 786. Becker, Matter of, 28 Hun, 207; 253. Becker, Matter of, 26 Misc. 633; 1100, 1515. Becker, Matter of, 39 Misc. 756; 1160. Becker, Matter of, 59 Misc. 135; 528, 1154. Beckett, Matter of Application of, 103 N. Y. 167; 299, 309, 319, 322, 333, 340. Beckham v. Drake, 8 Mees. & W. 846; 901. Beddoe v. Wadsworth, 21 Wend. 120; 900. Bedell v. Guion, 12 Hun, 396; 1155. Bedell, Matter of, 32 N. Y. St. Rep. 1022; 486. Bedell, Matter of, 2 Connoly, 328; 475. Bedell, Matter of, 107 App. Div. 284; 473. BedeU, Matter of, 32 N. Y. St. Rep. 1022; 486. BedeU's Will, 12 N. Y. Supp. 96; 329. Bedford, Matter of, 30 Hun, 551; 170, 171. Bedford, Matter of, 130 App. Div. 642; 712. Bedlow, Matter of, 67 Hun, 408; 468, 475, 485. Beebe v. Estabrook, 11 Hun, 523 (aff'd 79 N. Y. 246); 1292, 1461. Beebe v. Griffing, 14 N. Y. 235; 1472. Beebe, Matter of, 20 Hun, 462; 868. Beecher v. Barber, 6 Dem. 129; 898, 1204. Beecher v. Yale, 45 N. Y. Supp. 622; 534. Beeker v. Lynch, 1 Bradf. 458; 395. Beeker, Matter of, 28 Hun, 207; 126. Beekman v. Bonsor, 23 N. Y. 298; 541, 554, 574, 1148, 1200. Beekman Street, Matter of, 4 Bradf. 503; 988. Beekman v. Vanderveer, 3 Dem. 221, 619; 1167, 1179. Beers, Ex parte, 2 Bradf. 163; 320. Beers v. Shannon, 73 N. Y. 292; 80, 83, 608. Beers v. Strong, 128 App. Div. 20; 1173. Beggs v. McCrea, 62 App. Div. 39; 776. Beider v. Steinhauer, 15 Abb. N. C. 428; 826. Belcher,, Matter of, 149 N. Y. Supp. 429; 1493. Belcher, Matter of, N. Y. L. J., Dec. 11, 1909* 1493 Belden'v. Belden, 118 App. Div. 296; 752 753 Belden v. Meeker, 2 Lans. 473; 47 N. Y. 307; 218, 686. Belknap v. Waters, 11 N. Y. 477; 98. Bell V. Warn, 4 Hun, 406; 1150. Bellesheim, Est. of, 1 N. Y. Supp. 276; 1240. Bellesheim, Matter of, 17 N. Y. St. Rep. 10; 1237. Bellinger v. Ford, 21 Barb. 311; 381. Bellinger v. Potter, 36 N. Y. St. Repi 601; 915. Bellinger v. Roatstone, 6 Wkly. Dig. 69; 1313. Belmont v. O'Brien, 12 N. Y. 394; 573. Belotti, Matter of, 87 Misc. 81; 672, 673, 675. ' Bender, Matter of, 44 Misc. 79; 549. Bender, Matter of^ 86 ,Hun, 570; 1324, 1333, 1342. Bender v. Terwilliger, 48 App. Div. 371; 1404. Benedict v. Cooper, 3 Dem. 362; 50, 51, 254. Benedict v. Dunning, 110 App. Div. 30§; 574. Benedict v. Ferguson, 15 App. Div. 96; 989 991. Bened'ict, Matter of, 32 St. Rep. 139; 539. Benedict, Matter of, 13 Abb. N. C. 67; 594 ' Benedict, Matter of, 15 St. Rep. 746; 890. Beneventano, Matter of, 38 Misc. 272; 314, 316. Benioif, Matter of, 73 Misc. 493; 871, Benjamin v. Dimmick, 4 Redf. 7; 1169, 1171, 1172, 1460. Benjamin, Matter of, 155 App. Div. 233, rev'g 77 Misc. 434; 368. Benjamin v. Ver ISTooy, 168 N. Y. 578 (mdf"g 36 App. Div. 581); 981. Benjamin v. Welsh, 73 Hun, 371; 523. Bennet v. Bennett, 40 L. T. (N. S.) 379; 1173. xlviii TABLE OF CASES CITED References are to pages Bennett v. Byrne, 2 Bradf. Ch. 216; 1288. Bennett v. Grain, 41 Hun, 185; 224. Bennett v. Ciilver, 97 N. Y. 250; 1158. Bennett v. Lyndon, 8 App. Div. 387; 564. Bennett, Matter of, 21 Abb. N. C. 238; 166. Bennett, Matter of, 60 Misc. 28; 700. Bennett, Matter of, Surr. Dec. 1906, p. 620 (aff'd 120 App. Div. 904); 1106, ' 1107. Bennett v. McLaughlin, 125 App. Div. 172; 543. Bennett V. Pitman, 48 Hub, 612; 166. Bensen v. Manhattan R. Co., 14- App. Div. 442; 217, 218. Benson v. Corbin, 145 N. Y. 351; 547. •Benson, In re, 96 N. Y. 499: 1148, 1200, 1476. V • Benson v. LeRoy, 4 Johns. Ch. 651; 1013. Benson v. Siemons, 92 Misc. 509; 1277, 1293. Bentley, Matter of, 31 Misc. 656; 1048. Benton, Matter of,, 71 App. Div. 522; 286. Berdell v. Schell, 2 Dem.' 292; 646, 654. Berg V. Rottek, Daily Register, Dec. 28, 1899* 173 Bergdorf, Matter of, 149 App. Div. 529 (aff'd 206 N. Y. 309); 689. Bergen, Matter of, 56 Misc. 92; 1018. Bergen v. Valentine, 63 How. Pr. 221; 950. Bernard, Matter of, 89 Misc. 705; 373. Bernes v. Weiss^r, 2 Bradf. 212; 1005. Berney, Est. of, 2 McCarthy, 455; 144. Bernhardt, Matter of, 16 N. Y. St. Rep. 240; 210, 244. Berns, Matter of, 52 Misc. 426: 908, 990. Bernsee, Matter of Will of, 141 N. Y. 389; 321, 323, 328, 336. Bernsee, Matter of, 45 N. Y. St. Rep. 11; 486., ■ Bernstein, Matter of, 58 Misc. 115;- 888, 1248. Berrien's Est.,i6 Abb. Pr. (N. S.) 23; 928. Berrien, Matter of, 3 Dem. 263; 696. Berry, Matter of, 5 Dem. 458; 1197. Berry, Matter of, 23 Misc. 330; 1105. "Ber'tine v. Hubbell, 1 Dem. 335; 1331. Beste v. Burger, 110 N. Y. 644; 894. Bethune, Matter of, 4 Dem. 392; 430. Betsinger v. Chapman, 24 Hun, 15 (aff'd 88 N. Y: 487)-; 148. ' Bettels, Matter of, 4 N. Y. Supp. 393; 810. Bettison, Re, L. R. 4 Ad. & Ecc. 294, 12 Moak, 656; 988. Bettman, Matter of, -65 App. Div. 229; 195. ' ■ : Bettsv. Betts, 4 Abb. N. C. 317; 550, 1155 1391 1446. Betts V. Jacksoii, 6 Wend. 173; 413, 414, 415,512.' ' Betts V. Krindell, 20 Abb. N; C. 1; 102. Bevan v. Cooper, 7 Hun, 117; 1167. Bevan v. Cooper, 72 N. Y. 317; 22, 23, 92, 417, 1145, 1146, 1147, 1167, 1337, 1368, 1415. Peyea, Matter of, 10 Misc. 198; 1151, ■ 1374, 1406'. Bible Society v. Oakley, 4 Dem. 450; 786. Bick V. Murphy, 2 Dera. 251; 818. Bidwell V. Greenshield, 2 Abb. N. C. 427; 891. Biggairs, Matter of, 39 Misc. 426; 1394, 14501 Biggs V. Angus, 3 Dem. 93; 349, 384. Billar v. Loundes, 2 Dem. 590; J151. Billings V. Carver, 54 Barb. 40; 871. Bingham v. Burlingame, 33 Hun, 211; 230. Bingham, Matter of, 127 N. Y. 296; 43, 93, 151, 1205, 1213, 1220. : Binghaimton Trust Co., Matter of, 87 App. Div; 26; 1310, 1380. Binne v. Johnson, 60 Barb. 72; 435. Bidlley, Matter of, 1 Tuck. 422; 1296. Bird V. Marklee, 144 N. Y. 544; 540. Birdsall v. Patterson^ 51 N. Y-. 43; 181. BirdsaU, Matter of, 34 N. Y. St. Rep. 626; 486: ! . Birdsall's Will, Matter of, 13 N. Y. 421; 441,442. > Birdseye, Matter of, 165 App. Div. 898; 158. Bischoff V. Engel, 10 App. Div. 240; 609, 826. Bishop V. Bishop, 4 Hill, 138; 299. Bishop V. Grand Lodge, 112 N. Y. 627; 885 Bishop, Matter of, 82 App. Div. 112; 1084, 1091. Bishop; Matter of, 111 App. Div. 545, 166 N. Y. 635; 166, 1116. Bishop, Matter of, 31 N. Y. St. Rep. 314; 468, 488. , li.. '- ' . Bishop, Matter of, 10 N. Y. Supp. 217; 474'. . Bissell V. Saxtoh, 66 N. Y. 55; 799. Bisson v.; West Shore R. Co., 143 N. Y. 125* 549. Bittleston v. Clark, 1 Cas. Temp., § 250; 394. • Bla'ck; Matteri6f,,6 Dem. 331; 936. Black, Matter of, 1 Conn. 477; 1062. Black v. Woodman, 5 Redf. 363; 590. Black^one, Matter of, 47 Misc. 538; 544. Blackstone, Matter of, 171 N. Y. 682; 188 U. S. 187; 69 App. Div. 127; 1048. Blackstone v. Miller, 188 N. Y. 189; 1048. Blackwood v. Damef, 2 Phillim. 458; 484. Blair v. Keese, 59 Misc. 107; 1459. Blair, Ma;tter jsf, 49 App. Div. 417v379. Blair, Matter of, 34 Misc. 444; 379. Blairj Matter of, 99 App. Div. 81; 1419. BlaSr, Matter of, 28 Misc. 611; 259, 379. Blair, Matter of, 16 N. Y. Supp. 875; 318. Blair, Matter of, 16 Daly, 547; 466. Blair, Matter of, 60 Hun, 523; 280, 650. Blair, Matter of, 67 App. Div. 116; 1448, 1449. Blair, Matter, of Lewis R., 152 N. Y. 645 (aff'g 84 Hun, 581); 302. Blaisdell v. Raymond, 9 Abb. 178n.; 206. Blake v. Blake, 30 Hun, 469; 1270. Blake, Matter of, 60 Misc. 627; 616, 639, 726, 727. Blakeney, Matter of, 1 Conn. 128; 1438, 1440. TABLE OF CASES CITED xlix References are ta pages , Blakeney, Matter of, 23 Abb. N. C. 32: 1441. Blancan, Matter of, 4 Redf. 151; 565. Blanchard v. Lambert, 43 Iowa, 228; 372. Blan'chard v. Nestle, 3 Denio, 37; 437, 463 488. Blanck v. Morrison, 4 Dem. 297; 718, 769. Blank, Matter of, 2 Redf. 443; 616. Blatchford v. Paine, 24 App. Div. 140; 510. Blauvelt, Matter of, 60 Hun, 393; 942, 950, 1272. Blauvelt, Matter of, 131 N. Y. 249; 899, 950, 1272. Blauvelt, Matter of, 72 Misc. 287; 710. Bleakney, Matter of, N. Y. L. J., Oct. 19, 1911; 818. Bleeker v. Lynch, 1 Bradf. 458; 438, 444, 461, 462, 463, 486. Bliss V. Fosdick, 76 Hun, 508; 259. Bliss, Matter of, 6 App. Div. 192; 1053, 1054. ■ Bliss v. Olmstead, 3 Dem. 273; 1187. Bliven v. Seymour, 88 N. Y. 469; 544, 1149, 1166. Blood v. Kane, 130 N. Y. 514; 569, 666, 990, 1141, 1143, 1254, 1347. Bloodgood V. Bruen, 8 N. Y. 362; 888, 972, 1000, 1372. Bloodgood V. Bruen, 2 Bradf. 8; 1475. Bloodgood V. Lewis, 209 N. Y. 45; 340. Bloodgood V. Mass. Benefit Life Assn., 19 Misc. 460; 1257. Bloom V. Burdick, 1 Hill, 130; 22. Blow, Matter of, 2 Connoly, 360; 578, 890. Board v. Board, 4 Abb. Pr. 295; 113. Board v. Heyman, 3 Abb. Prac. (N. S;) 396; 121. Board of Education, Matter of, 173 N. Y. 321; 368. Board of Missions v. Scovell, 3 Dem. 516; 556, 1474, 1476. Board of Underwriters v. Nat. Bank, 146 ' N. Y. 64; 288. Boardman, Matter of, 20 N. Y. Supp. 60; 534. Bodine v.-Brown, 154 N. Y. 778; 546. • Bodine, Matter of, 119 App. Div. 493; 253, 825 Bodine v. Williamson, 134 App. Div. 688; 825 Boell V. Schwartz, 4 Bradf. 12; 484. Boerum v. Betts, 1 Dem. 471; 106, 107, 113, 154. Bo^ardus v. Clark, 4 Paige, 623; 16, 220. Boglardus v. Clarke, 1 Edw. Ch. 266; 16. Bogart, Est. of, 67 How. Pr. 313; 335. Bogart, Matter of, 46 App. Div. 240; 1331. Bogart, Matter of, 28 Hun, 468; 1155, 1165, 1195. Bogart V. Van Velsor, 4 Edw. Ch. 718; 942, 1270, 1313. Boger, Matter of, 41 Misc.- 598; 1165. Bdgert v. Furman, 10 Paige Ch. 496; 1489. Bogert V. Kartell, 4 Hill, 492; 9 Paige, 52; ^571. Bogert, Matter of, 41 Misc. 598; 1195. Bohde V. Bruneri 2. Redf. 333; 940, 1266, 1344. Bolin, Matter of, 136 N. Y. 177; 1394. BoUentin v. BoUeiitin, 57 Misc. 250; 543. Bollerma,n v. Blake, 11 Wkly. Digj 555; 139. BoUes, Matter of,, 37 Misc. 562; 437, 464. BoUes, Matter of, 67 Misc. 401; 1434. Boiling V. Coughlin; 5 Redf. 116; 778. Bolt V. Murray, 2 N. Y. St, Rep. 232; 461. Bolton V, Brewster, 32 Barb. 389; 686. Bolton V. De Peyster, 25 Barb. 539; 554. Bolton V. Jones, 6 Robt. 166; 888. Bolton, Matter of, 141 N. Y. 554; 266. Bolton, Matter of, 20 Misc. 532; 1279, 1312, 1313. Bolton, Matter of, 146 N. Y. 257; 1011, 1037. .Boltpn, Matter of, 35 Misc. 688; 1110, 1121. Bolton, Matter of, 159 N. Y. 129; 20, 26, 89, 722, 1198, 1279, 1282, 1304, 1313, 1420, 1480. Bolton V. Sehriever, 26 Abb. N. C. 230; 92. Bolton v. Sehriever, 58 Super. Ct. 520 (aff'dl35N. Y. 65);77. . Bolton V. Sehriever, 135 N. Y. 65; 75, 79, 219 686 888 Bomar, Matter of, 18 N. Y. Supp. 214; 74, 485, 493. Bonard's Will, 16 Abb. Pr. (N. S.) 128; 454, 458, 463, 530, 541. Bonfanti v. Deguerre; 3 Bradf. 429; 144, 1423. Bonilla v. Mestre, 34 Hun, 551; 604. Bonriell v. Ranney, 2 Dtem. 327; 671. Bonnemort v. GiU, 167 Mass. 338; 391. Bonner, Matter of, 33 Misc. 9; 468. Bonner, Matter of, 30 Misc. 31; 1466. Bonnett, Matter of, 1 Connoly, 294; 101. Bonnette v. MoUoy, 209 N. Y.' 167; 288. Booth V. Baptist Church; 126 N. Y. 215; 558, 1143. Booth V. Kitchen, 7 Hun, 255; 151, 397. Booth V. Kitchin, 3 Redf. 52; 486. Booth, Matter of, 127 N. Y. 109; 300, 310, 318 Booth V. Timoney, 3 DW. 416; 73, 80, 81. Borell V. Haigh, 2 Jur. 229; 543. Borrowe v. Corbin, 165 N. Y. 634; 1350. Borrowe v. Corbin, 31 App. Div. 172; 1349, 1350. Bosch, Matter of, N. Y. Daily Reg. July 12 1883 * 487 Bossie V. Edelson, 76 Misc. 234; 298. Bostwick v. Atkins, 3 N. Y. 53; 1304. Bostwick v. Carr, 165: App. Div. 55; 587, 589, 591, 608. Bostwick, Matter of, 160 N. Y. 489; 1067, 1070, 1071. Bostwick, Matter of, 4 Johns. Ch. 102; 1306, 1308, 1311. Bostwick, Matter of, 119 App. Div. 455; 363, 1186. Bostwick, Matter of, 49 Misc. 186; 91, " 1185. Botsford v.. Ktake, 1 Abb. Pr. N. S. 112; 295. TABLE OF CASES CITED References are to pages ■Bbtefdj-a, Matter 6i, 37 App. Div. 73; 534, 1200. Botsford, Matter of, 23 Misc. 388; 543: Bottiime v. Alberst, 47 Misc. 665; 53. Bottome v. Neeley, 124 Appj Div. 600 (aff' d 194 N. Y. 575, and aff'd 54 Misc. 258); 53, 167, 173, 174, 1342." Bouchoux, Matter of, 89 Misc. 47; 62, 517. BougKton V. Flint, 74 N. Y. 476; 92, 172, 253, 260, 976, 1163, 1308, 1396, 1418. Boulle V. Tompkins, 5 Redf. 472; 953. Bovee v. King, 11 Hun, 250; 231. Bowditch V. Ayrault, 138 N. Y. 222; 24, 1156, 1354. Bowen v. Idley, 11 Wend. 227; 6 Paige, 46; 85. Bowers v. Emerson^ 14 Barb. 652; 576, 578 Bowers v. Smith, 10 Paige, 193; 86, 516, 517. Bowman v. Domestic & F. M. Soc, 100 App. Div. 29; 556. . Bowman v. Domestic & F. M. Soc, 182 N. Y. 494; 536, 556. Bown V. Supreme Council, etc., 33 Hun,^ 263; 896.. Bowne v. Lange, 4 Dem. 350; 985, 1418. Bowne, Matter of, 19 Sh. Rep. 895; 126. Bowne, Matter of, 6 Dem. 51; 129, 131, 394. Bowron v. Kent, 190 N. Y. 422 (rev'g 120 App. Div. 74); 1172, 1459, 1460. Bowron v. Kent, 51 Mise. 136; 1461. Boyce v. City of St. Louis, 29 Barb. 650; 5411 Boyotei Matter of, 37 Misc. 146; 544. Boyd v. Bigelow, 14 How. Pr. 511; 980. Boyd, Matter of, 4 Redf. 154; 890. Boyer v. East, 161 N. Y. 580; 1305. Boyer, Matter of, 54 Misc. 182; 946, 957. Boyer, Matter of, 68 Misc. 6; 785, 1266. Bbylaii, Matter of, 25 Misc. 281; 1374, 1503. Boyle, Matter of, 166 Appi Div. 504; 760, 763. Boyle V. St. John, 28 Hun, 454; 828, 835. Boynton v. Hoyt, 1 Dem. 53; 529. Bbynton v. Laddy, 20 N. Y. St. Rep. 148; 379. Brackett v. Ostrander, 126 App. .Div. 529; 1023. Bradhurst v. Bradhurst, 1 Paige, 331; 544. Bradhurst v; Field, 135 N. Y. 664; 524, 1144. Bradley v. Bradley, 3 Redf. 512; 584. Bradley v. Burwell, 3 Den. 61; 834. Bradley v. Krudep, 128 App. Div. 202; 497. Bradley, Matter of, 70 Hun, 104; 101, 394, 401, 1209, 1218. Bradley, ]Vlatt6r of, 25 Misc. 261; 1503. Bradley, Matter of, 1 Connoly 106; 936. Bradley v. Palmer, 193111. 15; 84. Bradley, Matter" of, 17 N. Y. St. Rep. 836; 170. • Bradner v. Faulkner, 12 N. Y. 472; 1185. Bradner v. Faulknet-, 34 N. Y. 347; 884, 959, 1390. Bradshaw v. Mut. Life, 187 N. Y. 347; 883 Bradstfeet v. Clarke, 12 Wend. 602; 542. Bradway, Matter ofj 74 Hun, 630; 286. Brady, Matter of, 58 Misc. 108; 574. Brady v. McCosker, 1 N. Y. 214; 61, 220, 517. Brady v. M'Crosson, 5 Redf. 431; 331. Brainard v. GooiJer, 10 N. Y. 356; 1215. Brainerd v. Birdsall, 2 Dem. 331; 914, 917. Brainerd v. DeGraef, 29 Misc. 660; 980. Bramhall v. Ferris, 14 N. Y. 46; 550. Bramley v. Forman,' 15 Hun, 144; 223, 831. Brand, Matter of, 68 App. Div. 226; 309. Brandreth v. Brandreth, 54 Misc. 158; 1010, 1169. Brandreth, Matter of, 169 N. Y. 437; 1067, 1070, 1071, 1073. Brandeth, Matter of, 28 Misc. 468; 1069, 1096. Brandt v. Brandt, 13 Misc. 431; 529. Brant, Matter of, 30 Misc. 14; 79. Brantingham v. Huff, 43 App. Div. 414; 365, 431, 853. Brantingham v. Huff, 174 N. Y. 53 (rev'g 43 App. Div. 414); 83ff, 840, 852, 853. Bratt, Matter of, 10 Misc. 491; 1198. Braunsdorf v. Braunsdorf, 23 App. Div. 722; 889. Braunsdorf, Matter of, 13 Misc. 666; 2 App. Div. 73; 664, 891, 1010; 1038, 1438. Breese, Matter of, 92 Misc. 650; 1296. Brehm V. Mayor, 104 N. Y. 186; 1212. Bremer v. Ring, 146 App. Div. 724; 977. Brennan v. Lane, 4 Dem. 322; 571, 959. Brennan, Matter of, 160 App. Div. 401; 678. Brennan, Matter of, 92 Migc. 423; 1071. Brennan v. Wilson, 71 N. Y. 502; 787. Breslin v. Smyth, 3 Dem. 251; 585, 829. Brevoort v. M'Jimary, 1 Edw. 561; 887, 1244, 1245. Brewster, Matter of, 1 Connoly, 172; 1177. Brewster, Matter of, 5 Dem. 259; 625, 634, 637. Brewster, Matter of, 92 Misc. 340; 21. Brewster, Matter of 27, App. Div. 687; 326. Brez, Matter of, 172 N. Y. 609; 1133, 1134, 1136. Briasco, Matter of, 69 Misc. 278; 727. Brick V. Brick, 66 N. Y. 144; 151, 164, 286, 378, 447, 461, 466, 468, 486. Brick, Est. of, 9 Civ. Proc. Rep. 397; 1265. Brick's'Est., 15 Abb. Pr. 12; 3, 15, 64, 65, 69, 89, 129, 164, 250, 252 263. .Brick Presbyterian Church, Matter of, 3 Edw. 155; 886. Bridger v. Pierson, 45 N. Y. 601; 523. Brigg,, Matter of, 39 App. Div. 486; 1159, 1316, 1430.V Briggs V. Carrol, 117 N. Y. 288; 1145. Briggs, Matter of, 47 App. Div. 47; 409. Briggs, Matter of, 171 App. Div. 52; 693. Brinckerhoff v. Faraas, 52 App. Div. 256; 1335. Brinckmann, Matter of, 89 Mipc. 41; 696. TABLE OF CASES CITED References are to pages Brink V. Layton 2 Redf. 79; 574. Brink v. Masterson, 4 Dem. 524; 1167. Brinkerhoff v. Remsen, 8 Paige, 499; 332. Brinkley v. Brinkley, 56 N. Y. 192; 189. Brintnall, Matter of, 40 Misc. 68; 381, 564, 570. Brisbane v. -Peabody, 3 How. 109; 119. Brissell, Matter of, 16 App. Div. 137; 336. Bristed v. Weeks, 5 Redf. 629; 205, 461, 487. Bristol, Matter of 16 Abb. 397; 260. Bristow, Matter of, 63 Misc. 637; 114, 126. Broderick, Matter of, Surr. Decs. 1899j 189" 233 Broderick's WiU, 21 Wall, 503; 74, 84. Bromley v. Miller, 2 T. & C. 575; 498. Bronner, Matter of, 30 Misc. 31; 1377. Bronson.'s Estate, 1 Tuck. 464; 565. Bronson, Matter of, 69 App. Div. 487; 926. Bronson, Matter of, 150 N. Y. 1; 80, 1047, 1048, 1077, 1125. Brooklyn Trust Co. (Webb Est.), 92 Misc. 695; 538. Brookman, Matter of, 11 Misc. 675; 344, 351 352 Brooks, Est. of, 4 Law Bull: 8; 713. Brooks, Matter of, 30 St. Rep. 941; 1161. Brooks, Matter of, 2 Connoly, 172; 1167. Brooks, Matter of, 65 Misc. 439; 980, 1505. Brooks, Matter of, 5 Dem. 326; 896. Brooks, Matter of, 71 Misc. 102; 126, 1506. Broome v. Van Vook, 1 Redf. 444; 890, 946, 1396. Brough, Matter of, 41 Misc. 263; 473, 370. Broughton v. Randall, Cro. Eliz. 503: 1465, Brower v. Bowers, 1 Abb. Ct. App. Dec. 214; 554, 1372. Brower, Matter of, 112 App. Div. 370; 438. Brower, Matter of, 71 Misc. 398; 1415. Brown, Accounting of, 72 Hun 160; 1294. Brown's Accounting, 16 Abb. (N. S.) 457; 1381. Brown v. Atkins, 2 Lee, 1 ; 22. Brown v. Brown, 64 App. Div. 544; 44. Brown v. Brown, 122 App. Div. 576; 1153. Brown v. Brown, 83 Hun, 160; 1375. Brown v. Brown, 1 Barb. Ch. 189; 381, 586, 608, 609. . Brown v. Brown, 16 Barb. 569; 360, 361. Brown v. Brown, 117 App. Div. 199; 363. Brown v. Brown, 41 N. Y. 507; 1275. ' Brown v. Campbell, 1 Hopk. Ch. 233; 1267. Brown v. Catholic Mutual, etc., 33 Hun, 263; 884. Brown v. Chesterman, 9 N. Y. Supp. 187; 941, 949. Brown v. Chesterman, 30 N. Y. St: Rep. 537; 1268. Brown v. City Nat. Bank, 72 Misc. 201; 995. . Brown v. Clark, 77 N. Y. 369 (aff'g 16 Hun, 559, rev'd Proctor v. Clarke, 3 Redf. 445); 307, 308, 325, 326, 336, 338, 340, 341, 342, 346, 355, 376, 420. Brown v. Doherty, 185 N. Y. 383; 572. Brown v. Harris, 25 Barb, 134; 526. Brown v. DeSelding, 4 Sandf. 10; 334. Brown v. Knapp, 17 Hun, 160; 1174. Brown v. Knapp, 79 N. Y. 136; 1185, 1186, 1187. Brown v. Landon, 30 Hun, 57 (aff'd 98 N. Y. 634); 217, 686. Brown v. Lawrence Park Realty Co., 133 App. Div. 753; 1126. Brown v. Lyon, 6 N. Y. 420; 524, 544. Brown, Matter of, 31 Hun, 166; 203, 204. Brown, Matter of, 65 How. 461; 204, 1332. Brown, Matter of, 47 Hun, 360; 357, 432. Brown, Matter of, 2 Connoly, 386; 690, 717. Brown, Matter of, 5 Dem. 223; 1382, 1389, 1434, 1435. Brown, Matter of, 3 Civ. Proc. Rep. 39; 1425. Brown, Matter of, 60 Misc. 35; 970, 973, 1416, 1418, 1420. Brown, Matter of, 60 Misc. 628; 138, 710, 711. Brown, Matter of, 87 Misc. 541 ; 159. Brown, Matter of, 154 N. Y. 313; 522, 524. Brown, Matter of, 42 Misc. 444; 1166, 1167. Brown, Matter of, 76 App. Div. 185; 1417. Brown, Matter of, N. Y. L. J., Oct. 18, 1911; 1048. Brown, Matter of, 127 App. Div. 941; 1048. Brown v. Nicholson, 8 Hun, 464; 1155. Brown v. Public Administrator, 2 Bradf. 103; 1007. Brown v. Quintard, 177 N. Y. 75; 550, 1144, 1468. Brown v. Torrey, 24 Barb. 583; 463. Brown v. Wheeler, 53 App. Div. 6; 212, 1425. Brown v. WindmuUer, 4 J. & S. 75; 173. Browne v. Bedford, 4 Dem. 304; 1306, 1310, 1389. Browne, Matter of, 35 Misc. 362; 1422. Browne, Matter of, 127 App. Div. 941 (aff'dl95N. Y. 522); 1100. ' - Browne v. Murdock, 12 Abb. N. C. 360; 181. Brownell, Matter of, 15 N. Y. Supp. 475; 952. Brownell, Matter of, 60 Misc. 52; 1275. Browning, Matter of, 80 Misc. 619; 443. Browning v. Vanderhaven, 4 Abb. N. C. 166; 55 How. Pr. 97; 1322. Bruce v. Griscom, 70 N. Y. 612; 1172. Bruce v. Griscom, 9 Hun, 280; 1172, 1460. Bruce v. Bruce,, 62 Hun, 416; 1435. Bruce, Matter of, 6 Dem. 278; 430. Bruce, Matter of, 59 N. Y. Sujpp. 1083; 1118. Bruchaeser, Matter of, 49 Misc. 194; 527. ~ Bruen v. Gillet, 115 N. Y. 10; 829. Bruin v. Knott, 9 Jur. 979; 1306. Brunaman, Matter of, 67 N. Y. St. Rep. 44; 1312. Brundage v. Brundage, 65 Barb. 397; 521. lii TABLE OF CASES CITED References are to pages Brundage v. Brundage, 60 N. Y. 544, 1139, 1274. Brundage, Matter of, 31 App. Div. 348; 1059, 1104. Brunor, Matter of, 21 App. Div. 259; 285, 486. Brush V. HoUand, 3 Bradf. 461; 462, 486. Brush, Matter of, 35 Misc. 689; 453, 463, 539 Brush' V. Wilkins, 4 Johns. Ch. 506; 342, 359. Bryant v. Bryant, 2 Robt. 612; 902. Bryant, Matter of, 148 N. Y. Supp. 917; 319. Bryant v. Thompson, 59 Hun, 545; 137. Bryant v. Thompson, 128 N. Y. 426; 258, 259. Bryar v. Willcocks, 3 Cow. 159; 915. Bryon v. Bryon, 134 App. Div. 320; 1494. Buchan, Matter of, 16 Misc. 404; 463. Buohan v. Rintoul, 70 N. Y. 1; 1363. Buchner, Matter of, 60 Misc. 287; 524. Buck's Est., 15 Abb. 12; 1086. Buckhout V. Hunt, 16 How. Pr. 407; 964, 965. Buckland v. Gallup, 105 N. Y. 453; 1021. Buckler, Matter of, 96 App. Div. 397; 1291. Buckley v. Doig, 188 N. Y. 238; 895. Buckley, Matter of, 16 N. Y. St. Rep. 983; 486, 487. Buckley, Matter of, 2 N. Y. Supp. 24; 340, 440, 447. Buckley, Matter of, 41 Hun, 106; 75, 76. Buckley v. Redmond, 2 Bradf. 281 ; 85. Buckley v. Statts, 4 Redf. 524; 1023. Bucklin v. Bucklin, 1 Keyes, 141; 526. Bucklin v. Chapin, Administratrix, 1 Lans. 433; 822. Budd V. Walker, 113 N. Y. 637; 1503. Budlong V. Clemens, 3 Dem. 145; 1030. Budlong, Matter of, 100 N. Y. 203; 1335. Budlong, Matter of, 126 N. Y. 423; 265, 443, 466, 481. Buel, Matter of, 44 App. Div. 4; 320, 322, 336. Buffalo Trust Co. v. Leonard; 154 N. Y. 141; 1191, 1192. Bulkey v. Van Wyck, 5 Paige, 536; 1255. Bulkley v. Redmond, 2 Bradf. 281; 71, 413, 581. Bull V. Kendrick, 4 Dem. 330; 205, 206. Bull, Matter of, 1 Connoly, 395; 1329, 1342. Bull, Matter of, 51 St. Rep. 558; 1153. Bull, Matter of, 6 N. Y. Supp. 565; 1336. Bull V. Wheeler, 6 Dem. 213; 456. Bullard v. Benson, 1 Dem. 486; 1161, 1188, 1384. Bullard, Matter of, 37 Misc. 663 (aff'd 76 App. Div. 207); 1068, 1072. Bullock V. Bogardus, 1 Denio, 276; 966, 969. Bullock V. Downs, 9 H. of L. Cas. 24; 544. BuUowa V. Provident Life, etc., 125 App. Div. 545; 99, 162. Bulwinkle, Matter of, 107 App. Div. 331; 897. Bumstead v. Read, 31 Barb. 661; 76, 77, 95 Bumstead v. Sanders, 39 N. Y. St. Rep. 618; 1314. Bunce v. Bunce, 20 Civ. Proc. Rep. 332; 220. Bunce, Matter of, 6 Dem. 278; 359. Bundy v. Bundy, 38 N. Y. 410; 545, 1151. Bunker, Matter of, N. Y: L. J., June 3, 1912; 1274. Bunn V. Vaughan, 1 Abb; Ch. App. Dec. 253; 574. Bunnell v. Ranney, 2 Dem. 327; 668, 1407. Bunner v. Storm, 1 Sandf. Ch. 357; 572. Bunting, Matter of, 98 App. Div. 122 (appeal dismissed, 182 N. Y. 552); 18, 19 27 93 903 Burb'ank' Matter of, 104 App. Div. 312; 347, 410. Burden, Matter of, 47 Misc. 329; 1099, 1105, 1108. Burdick, Matter of, 98 App. Div. 560; 1475. Burdick, Matter of, 47 Misc. 28; 1284. Burdick, Matter of, 41 Misc. 346; 1288. Burdsall, Matter of, 64 App. Div. 346.; 1171, 1195. Burger v. Burger, 111 N. Y. 523; 196, 266, 269 283 284 Burger v. Hill, 1 Bradf. 360; 69, 74, 220, 418, 461, 488. Burgess, Matter of, 146 App. Div. 348; 204 N. Y. 265; 1075, 1134, 1136. Burgis V. Burgis, 1 Lee's Ecc. Rep. 121 ; 91. Burke, Matter of, 86 Misc. 151; 465. Burke's Will, 2 Redf. 239; 487. Burke v. Nolan, 1 Dem. 436; 327, 332. Burke v. Valentine, 52 Barb. 422; 1065. Burkhalter v. Norton, 3 Dem. 610; 914, 915 916 952 Burling, Matter of, 5 Dem. 47; 577, 1404. Burmester v. Orth, 5 Redf. 259; 1290. Burnett, Matter of, 15 N. Y. St. Rep. 116; . 260, 261. Burnett v. Noble, 5 Redf. 69; 993. Burnham v. Comfort, 108 N. Y. 535; 341, 361, 1169, 1170. Burnham v. Comfort, 37 Hun, 216; 1169. Burnham, Est. of, Surr. Dec; 1896, 437; 1295. Burnham v. Harrison, 3 Redf. 345; 1208. Burr, Matter of, 16 Misc. 89; 1047, 1048, 1100. Burr, Matter of, 48 Misc. 56; 926, 943, 945, 1000, 1150, 1250. Burr, Matter of, 116 App. Div. 618; 264, 283 Burr, Matter of, 118 App. Div. 482; 762, 779, 780, 943, 945. Burras v. Looker, 2 Edwards' Ch. 499; 619. BurHll V. Boardman, 43 N. Y. 254; 542. BurrUl v. Shell, 2 Barb. 457; 1156. Burritt- v. Silliman, 16 Barb. 198; 420, 462, 487. Burritt V. Silliman, 13 N. Y. 93; 203, 572. Burt V. Burt, 41 N. Y. 46; 573* 959. Burtis V. -Brush, 1 Redf. 448, 1304. TABLE OP CASES CITED liii References are to pages Burtis V. Dodge, 1 Barb. Ch. 77; 936, 1187, 1190, 1320, 1321, 1337, 1338, 1340, 1341. Burtis, Matter of, 107 App. Div. 51; 410. Burtis, Matter of, 43 Misc. 437; 311. Burton v. Burton, 45 Hun, 68; 115, 825. Burton, Matter of, 4 Misc. 512-342. Burwell v. Cayw^ood, 2 How. U. S. 560; 1437. Burwell v. Shaw, 2 Bradf. 322; 145, 697, 1408. Busch, Matter of, 87 Misc. 239; 305. Bush V. Whitaker, 45 Misc. 74; 364. Bushbey, Matter of, 59 Misc. 317; 1480. Bushe V. Wright, 118 App. Div. 320; 670, 671, 1349, 1373, 1374. Biish Co. V. Gibbons, 87 App. Div. 576; 894. Bushnell v. Carpenter, 92 N. Y. 270; 528. Bushnell v. Drinker, 5 Redf. 581; 212. Bushnell, Matter of, 17 N. Y. St. Rep. 813; 4 N. Y. Supp. 472; 1301, 1310, 1313 1318 Bushnell, Matter of, 73 App. Div. 325; 1135. Bushnell, Matter of, 172 N. Y. 649; 1135. Busse v. Schenck, 12 Daly, 12; 1251. Butcher v. Geissenhaimer, 125 App. Div. 272 ' 979 Butler V. Benson, 1 Barb. 526; 313, 314, 337, 461, 487. Butler V. Butler, 3 Barb. Ch. 304; 544. Butler V. Emmet, 8 Paige, 12; 91, 250, 1239. Butler,' Est. of, 39 N. Y. St. Rep. 851; 1396. Butler's Est., In re, 9 N. Y. Supp. 641; 667, 1438. Butler V. Jarvis, 51 Hun, 248; 656. Butler V. Johnson, 111 N. Y. 204; 972, 1000, 1208, 1373, 1602, 1503. Butler, Matter of, 58 Hun, 400 (aff'd 136 N. Y. 649); 853, 854, 1057, 1058. Butler, Matter of, 1 Connoly, 58; 932 938, 939, 940, 945, 992, 1445. Butler, Matter of the Est. of, 38 N. Y 397; 150, 609, 912, 913. Butler, Matter of, 66 Misc. 409; 1429 Butler V. Perrott, 1 Dem. 9; 634, 725, 727 Butler V. Townsend, 84 Hun, 100; 886. Butler V. Trustees, etc., 92 Hun, 96; 534, 535 Butler V. Walsh, 48 App. Div. 459; 570 Butraan, Matter of, 130 App. Div. 156 793. Butterfield, Matter of, 161 App. Div. 506" 1496. Butterfield, Matter of, 211 N. Y. 396 1496. Butterfield v. Cowing, 112 N. Y. 486; 946. Button V. Hemmons, 92 App. Div. 40 573 Button V. Monroe, 22 Week. Dig. 407 948. Byrne v. Byrne, 109 App. Div. 476; 443 Byrne v. Van Holsen, 5 Johns. 66; 1281 Byrnes V. Baer, 86 N. Y. 218; 525, 550 Byrnes, Est. of, 26 Abb. N. C. 380; 1258, Byrnes, Matter of, 114 App. Div. 532, . 100 N. Y. Supp. 12; 167, 1411. Byrnes, Matter of, 2 Connoly, 522; 1254. Byron, Matter of, 61 Hun, 278; 268. Cabbie v. Cabbie, 111 App. Div. 426; 1303. Cadman, Matter of, 159 N. Y. 169; 897. Cadmus v. Oakley, 2 Dem. 298; 205. Cadmus v. Oakley, 3 Dem. 321; 406. Cady, Matter of, 36 Hun, 122 (aff'd 103 N. Y. 678); 700, 701, 702, 769. Cady, Matter of, 103 N. Y. 678, 1 Silv. 220; 760. Cager, In re. 111 N. Y. 343; 1042, 1059. Cagger v. Lansing, 64 N. Y. 417; 181. Cahan, Matter of, 3 Redf. 31; 555. Cahill V. Russell, 140 N. Y. 402; 1037, 1205. Cahill V. Seitz, 93 App. Div. 105; 1305. Cairns v. Chaubert, 9 Paige, 160; 1151, 1344, 1435. Caldwell, Matter of, 188 N. Y. 115; 26, 157, 550, 993, 995, 1343. Calhoun v. Jones, 2 Redf. 34; 480, 481. Callahan, Matter of, N. Y. L. J. June 8, 1916; 866, 869. Callaghan, Matter of, 69 Hun, 161; 1247. Callahan, Matter of, 152 N. Y. 320; 26, 93, 972, 1028, 1031, 1396, 1417. Callahan, Matter of, 1 Tucker, 62; 231. Callahan, Matter of, 139 N. Y. 51, 289. Callan, Matter of, N. Y. L. J. Dec. 8, 1891; 240. Calligan v. Haskell, 143 App. Div. 574; 435, 444. Calkins v. Calkins, 1 Redf. 337; 1150. Camardella v. Schwartz, 126 App. Div. 334; 1160, 1161. Cambrelling v. Purton, 125 N. Y. 610; 367. Cameron, Matter of, 76 Hun, 429; 1155. Cameron, Matter of, 97 App. Div. 436 (aff'd 181 N. Y. 560); 1113, 1114, 1-127, 1128. Cameron, Matter "of, 47 App. Div. 120 (aff'd 166 N. Y. 610); 307, 376, 507, 580. Cameron, Matter of, N. Y. Daily Reg. Jan. 27, 1881; 1159. Cammann v. Whittlesey, 70 App. Div. 598; 1191. Camp V. Camp, 18 Hun, 217; 1172, 1460, 1461. Camp V. Frazer, 4 Dem. 212; 869, 894, 911. Camp, Matter of, 126 N. Y. 377; 16, 63, 1279, 1282, 1369, 1374. Camp, Matter of, 81 Hun, 387; 153, 155, 156. Camp, Matter of, 91 Hun, 204; 1369. Camp, Matter of, 50 Hun, 388; 1374, 1507. Campbell v. Gallagher, 18 Civ. Proc. 90; 260. Campbell v. Campbell, 16 N. Y. Supp. 165; 883. Campbell v. Cowdrey, 31 How. Pr. 172; 1184, 1186. Campbell v. Foster, 35 N. Y. 363; 821. liv TABLE OF CASES CITED References are to pages Campbell v. French, 3 Ves. 321; 485. Campbell v. Harding, 2 Russ & M. 409:. 543. Campbell v. Logan, 2 Bradf. 90; 65, 90, 154, 216, 313, 395. Campbell v. Mackie, 1 Dem. 185; 1159. Campbell, Matter of, 48 Hun, 417; 1331. Campbell, Matter of, 170 N. Y. 84 (aff'g 67 App. Div. 627); 324, 326, 341, 346, 347. Campbell, Matter of, 35 Misc. 572; 325. Campbell, Matter of, 66 App. Div. 478; 1224. Campbell, Matter of, 21 Misc. 133; 943, 1373 Campbell, Matter of, 1 Tucker, 240; 1237, 1238 Campbell, Matter of, 77 N. Y. 84; 376. Campbell, Matter of, 50 Misc. 485; 249, 1126. Campbell, Matter of, 192 N. Y. 312 (aff'g 123 App. Div. 212, rev'g 56 Misc. 229); 621, 691, 761, 773. Campbell, Matter of, 48 Misc. 278; 908. Campbell, Matter of, 96 App. Div. 561; 1399. Campbell, Matter of, N. Y. L. J., March 2, 1912; 434, 440, 451, 465, 469, 478, 479, 482. Campbell v. Purdy, 5 Redf. 434; 993. CampbeU v. Rawdon, 18 N. Y. 412; 542, 544, 548. Campbell v. Thatcher, 54 Barb. 382; 64., 154 249 250. Canady v.'Oeorgej 6 Rich Eq. S. C. 103; 372 Canfield v. FaUon, 26 Misc. 345; 545. Cant, Matter of, 5 Dem. 269; 765, 942, 943. Capria, Matter of, 89 Misc. 101; 868. Carberry v. Ennis, 72 App. Div. 489; 1146. Card, Matter of, 28 St. Rep. 528; 463. Carey, Matter of, 24 App. Div. 531; 252, 385, 336. Carey, Matter of, 14 Misc. 486; 299, 316, 329, 437. Carey, Matter of, 11 App. Div. 289; 864, 865, 866. Carey, Matter of, 63 Misc. 489; 1152, 1274. Carey, Matter of, 77 Misc. 602; 93, 140. Carhart, Matter of, 2 Dem. 627; 121.- Garland, Matter of, 15 Misc. 355; 487. Carle v. Underbill, 3 Bradf. 101; 101, 299, 380, 400. Carll, Matter of, 38 Misc. Rep. 471; 376, Carman v. Brown, 4 Dem. 96; 890, 1208 Carman v. Cowles, 2 Redf. 414; 1304. Carman, Matter of, 4 N. Y. Supp. 690 1318, 1319. Carpenter v. Bonner, 26 App. Div. 462 550; Carpenter V. Buffalo G. E. Co., 213 N. Y 101; 852. Carpenter v. Carpenter, 131 N. Y. 101 1449. Carpenter v. Carpenter, 12 N. Y. Supp. 189; 933. Carpenter v. Historical Society, 1 Dem. 606; 432, 542. Carpenter v. Historical Society, 2 Dem. 574" 541. Carpenter, Matter of, 74 Misc. 127; 843. Carpenter, Matter of, 145 N. Y. Supp. 365; 436, 437, 438, 440, 443, 451, 458. Carpenter v. Newland, 92 Misc. 596, 983, 1417. Carpenter v. Soule, 88 N. Y. 251; 871. Carpenter v. Taylor, 164 N. Y. 171; 770. Carr, Matter of, 19 N. Y. Supp. 647; 253. Carr, Matter of, 66 Misc. HI; 807, 1264. Garr v. Bennett, 3 Dem. 459; 1185, 1188. Carr, Matter of, 24 Misc. 143; 1168. Carr v. Smith, 25 App. Div. 214 (affU161 N. Y. 636); 1156. Carr v. Tompkins, Matter of, 46 N. Y. St. Rep. 585; 250. Carroll v. CarroU, 60 N. Y. 121; 655. Carroll v. Collins, 6 App. Div. 106; 837, 838, 840, 841, 851. Carroll v. Hughes, 5 Redf. 337; 589, 590, 1338, 1341, 1396. CarroU v. Norton, 3 Bradf. 291; 329, 436, 461, 486. Carter V. Beckwith, 128 N. Y. 312; 450. Carter v. Board of Education, 68 Hun, 435; 540. Carter v. Hunt, 40 Barb. 89; 542. Carter, Matter of, N. Y. Law J., Oct. 23, 1911; 74 Misc. 1; 16, 17, 69, 581. Carter, Matter of, 24 Misc. 1; 672. Carter, Matter of, 71 Misc. 406; 1142. Cartwright v. Cartwright, 1 Phill. Ecc. 90; 489. Carver, Matter of, 3 Misc. 567; 353, 438, 487. Carver's Will, In re, 23 N. Y. Supp. 753; 436, 473. Cary, Matter of, N. Y. L. J., Jan. 20, 1914; 1062. Cary, Matter of, 31 Misc. 72; 1068. Cary, Matter of, 77 Misc. 602; 25. Case V. Abeel, J Paige, 393; 934. Case, Matter of, 4 Dem. 124; 329. Case, Matter of, 1 N. Y. St. Rep. 152; 303. Case, Matter of, 122 App. Div. 343; 895. Case v. Spencer, 86 App. Div. 454; 93, 897. Casey's Est., In re, 6 N. Y. Supp. 608; 1396, 1417. Casey v. Gardner, 4 Bradf. 13; 707. Casey v. MoGowan, 50 Misc. 426; 1162. Cashman, Matter of, 62 Misc. 598; 1505, 1506. Casoni v. Jerome, 58 N. Y. 315; 576, 583, 828, 1379. Cassidy v. McFarland, 139 N. Y. 209: '>1329. Castles's Will, Matter of, 2 N. Y. Supp. 638; 1326. Catchside v. Ovington, Bur. Mans. 1922; 22. Catlin, Matter of, 89 Misc. 93; 62. Caton V. Caton, 2 H. L. 127; 310. Catt V. Catt, 118 App. Div. 742; 535, 541. Caujolle's Appeal, 9 Abb. 393; 284. TABLE OF CASES CITED References are to pages Iv CaujoUe v. Ferrie, 23 N. Y. 90; 284, 358. Caulfield v. Sullivan, 85 N. Y. 153: 306, 307, 326, 346, 384, 507, 508, 588, 1163. Cavanagh, Matter of, 72 Misc. 584; 753. Cavanaugh v. O'Neill, 20 Misc. 233; 53. Cavin, Matter of, 1 Connoly, 117; 597. Caw V. Robertson, 5 N. Y. 125; 204, 1157. Central Trust Co. v. Eggleston, 185 N. Y. 29; 522, 531. Cerf V. Diener, 148 App. Div. 150; 368. Chadeagne, Matter of, 10 Hun, 97; 1407. Chadwick, Matter of, unreported, 198; 448, 477. Chaffee v. Baptist Miss. Conv., 10 Paige, 85; 135, 305, 312, 314, 316, 318, 335, 1336. Chalker v. Chalker, 5 Redf. 480; 993. Chamberlain v. Chamberlain, 43 N. Y. 424, 537, 538, 542, 1476. Chamberlain v. Gleason, 163 N. Y. 214 , 891, 1275. Chamberlain, Matter of, 140 N. Y. 390 884, 885. Chamberlain v. Taylor, 105 N. Y. 185 1205. Chamberlain v. WilUamson, 2 Maule &. S ' 408; 901. Chambers v. Chambers, 61 App. Div^ 299 443, 466, 467, 468, 486. Chambers v. Cruikshank, 5 Dem. 414; 959 Chambers, Matter of, N. Y. L. J., Jan 31, 1912; 1097. Champion v. Brown, 6 Johns. Ch. 398 1389 Champlin v. Champlin, 68 N. Y. 620, 1 Sheld. 355; 554. Champney v. Blanchard, 39 N. Y. Ill; 1066.' Chanler v. Kelsey, 205 U. S. 466; 1074. Chapman v. Fish, 6 Hill, 554; 586. Chapman v. Fonda, 24 Hun, 130; 1212, 1213. Chapman, Matter of, 32 Misc. 187; 958. Chapman, Matter of, 59 App. Div. 624; 953. Chapman, Matter of, 167 N. Y. 619; -953. Chapman, Matter of, 162 N. Y. 456; 290. Chapman v. Moulton, 8 App. Div. 64; 547. Chapman v. Rodgers, 12 Hun, 342; 405, 416. Chapman v. Tibbitts, 33 N. Y. 289; 1304, 1305. Charlick's Est., 11 Abb. N. C. 56; U78. Chase, Matter of, 41 Hun, 203; 204, 416. Chase, Matter of, 32 Hun, 318, 647, 754. Chase, Matter of, 40 Misc. 616; 574. Chatfield v. Hewlett, 2 Dem. 191; 156, 1341. Chauncey, Matter of, 119 N. Y. 77; 1149, 1166. Chauncey, Matter of, 32 Hun, 430; 192, 193. Cheeney v. Arnold, 18 Barb. 434; 330. Chegary v. Jenkins, 5 N. Y. 376; 231. Chemical Nat. Bk. v. Colwell, 132 N. Y. 250, 1456. Chemung Canal Bank v. Judson, 8 N. Y. 254; 92. Cheney v. Price, 90 Hun, 238; 442, 462. Chester v. Buffalo Car Mfg. Co., 70 App. Div. 443; 1152. Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425; 24, 211. Chesterman, Matter of, 75 App. Div. 573; 801, 951. Children's Aid Society v. Loveridge, 70 N. Y. 387; 151, 203, ^04, 397, 406, 444, 461, 463, 469. Childs v. Childs, 68 Misc. 472; 86. Childs, Matter of, 26 N. Y. Supp. 721; 922' 951 1390. Childs, Matter of, 5 Misc. 260; 936. Chipman, Matter of, 82 Hun, 108; 995. Chipman v. Montgomery, 63 N. Y. 221; 20, 61, 86, 517, 518, 521, 1349. Chisolm V. Hamersley, 114 App. Div. 565; 1428, 1439. Chittenden, Matter of, 1 Tuck. 251; 1305. Chittenden, Matter of, 76 Misc. 92; 651, 652, 740. Choate, Matter of, 105 App. Div. 356; 662, 753. Choate, Matter of, 110 App. Div. 874; 433. Chorrmann v. Bachmann, 119 App. Div. 146; 946, 947. Choteau v. Suydam, 21 N. Y. 179; 926, 1021, 1022. Christianson v. King Co., 239 U. S. 356; 391. Christman v. Roesch, 132 App. Div. 22; 1160. Christy v. Libby, 2 Daly, 418; 1371. Chrystie v. Phyfe, 19 N. Y. 348; 524, 544. Church V. Olendorf , 19 N. Y. St. Rep. 700; 585, 1502. Church V. Olendorf, 49 Hun, 439; 1212, 1213. Churchill v. Carter, 15 Hun, 385; 407. Churchill v. Prescott, 2 Bradf. 304; 696, 718. Church of St. Monica v. Mayer, 119 N. Y. 91; 1063. Chwatal v. Schreiner, 148 N. Y. 683; 546. Cjnn. H. & D. R. R. v. Ives, 20 N. Y. St. Rep. 67; 855. Giotto, Matter of, 105 App. Div. 143; 618, 773. Citizens' Cent. Nat. Bank v. Toplitz, 113 App. Div. 73; 1351. y City of New York, Matter of, 62 Misc. 61; 1330. City of New York, Matter of, 129 App. Div. 929; 1330. City Equity Co. v. Bodine, 141 App. Div. 907; 15^. City of Johnstown v. Wade, 157 N. Y. 50; 289. City of New York v. Goss, 124 N. Y. 680; 892, 1002. City of New York, Matter of, 200 N. Y. 138; 1464. City of N. Y. V. U. S. Trust Co., 35 Misc. 639 (aff'd 78 App. Div. 366; 178 N. Y. 551); 1254. Ivi TABLE OF CASES CITED References are to pages City of Rochester, Matter of, 110 N. Y. 159; 1019, 1204. Clapp V. Brown, 4 Redf. 200; 888. Clapp V. Byrnes, 3 App. Div. 284; 534. Clapp V. Ciapp, 14 Hun, 45; 954. Clapp V. FuUerton, 34 N. Y. 190; 440, 445, 446, 454, 455, 457, 485, 488. ^ , Clapp, Matter of, 30 Misc. 395; 1411. Clapp V. Meserole, 1 Abb. Ct. App. Dec. 362; 576, 579. Clare v. Mut. Life Ins. Co., 201 N. Y. 492; 1311, 1378. Clark V. Bogardus, 2 Edw. 387; 1164. Clark V. Butler, 4 Dem. 378; 1185, 1190, Clark V. Clark, 8 Paige, 152; 23, 888, 932, 975, 1151, 1252, 1305, 1311. Clark V. Clark, 23 Misc. 272; 531, 940. Clark V. Clark, 84 Hun, 362; 1149. Clark V. Davis, 1 Redf. 249; 438, 461, 463, 485, 488. Clark, Est. of, 12 Civ. Pro. Rep. 383; 1036. Clark V. Fisher, 1 Paige, 171; 74, 436, 437, 488. Clark V. Ford, 1 Abb. Ct. App. Dec. 359; 1372. Clark V. Goodridge, 51 Misc. 140; 524, 557, 1012. Clark V. Kittenplan, 63 Misc. 122; 547. Clark, Matter of, 15 N. Y. Supp. 370; 79. Clark, Matter of, 168 N. Y. 427 (rev'g 61 App. Div. '337); 170, 171. Clark, Matter of, 40 Hun, 233; 443, 486. Clark, Matter of, 5 Misc. 68; 486. Clark, Matter of, 34 N. Y. St. Rep. 523; 269, 284, 884, 952. Clark, Matter of, 16 Misc. 405; 936. Clark, Matter of, 82 Hun, 344; 285. Clark, Matter of, 36 Hun, 301; 1306, 1334. Clark, Matter of, 1 Tucker, 445; 351. Clark, Matter of, 57 App. Div. 5; 450. Clark, Matter of, 5 Dem. 377; 1005. Clark, Matter of, 2 Abb. N. C. 208; 1024, 1362. Clark, Matter of, 9 N. Y. Supp. 444; 1047. Clark, Matter of, 5 Redf. 466; 250, 1252, Clark, Matter of, 119 N. Y. 427; 167, 579, 666, 667, 669. Clark, Matter of, 69 Misc. 527; 655. Clark, Matter of, N. Y. L. J., Feb. 9, 1912; 1047, 1107. Clark v. Montgomery, 23 Barb. 464; 1305, ' 1310. Clark v. Owens, 18 N. Y. 434; 369. Clark v. Poor, 73 Hun, 143; 509. Clark V. Scovill, 191 N. Y. 8 (aff'g 116 App. Div. 923); 974. Clark V. Smith, 34 Barb. 140;. 352. Clark V. Sullivan, 8 N. Y. Supp. 565; 206. Clark v. Van Amburgh, 14 Hun, 557; 915. Clarke v. Bogardus, 12 Wend. 69; 1163, 1164, 1165, 1195. Clarke v. Clarke, 145 N. Y. 476; 892, 1076. Clarke v. Cummings, 5 Barb. 339; 366. Clarke V. Leupp, 88 N. Y. 228; 643, 1151. Clarke, Matter of, 5 Redf. 225; 1232. Clarke, Matter of, 40 N. Y. St. Rep. 12; 76. , . Clarke v. Sawyer, 2 N. Y. 498; 462. Clarke v. Schell, 84 Hun, 28; 476, 479, 487. Clarkson v. Clarkson, 18 Barb. 646; 950. Clarkson v. De Peyster, Hopk. 424; 939. Clarkson, Matter of, N. Y. L. J., Apr. 3, 1912; 1113. Clary v. Fitzgerald, 155 App. Div. 659; 185. Clason v. Lawrence, 3 Edw. 48; 1146. Clausman, In re, 9 N. Y. St. Rep. 182; 466. Clauss, Matter of, 16 App. Div. 34; 1033, 1034. Clay V. Wood, 153 N. Y. 134, 524, 543, 1138. Clayton v. Lord Nugent, 13 Misc. & Wels. ; 2.00; 553. Clayton, Matter of, 1 Connely, 444; 1373. Clayton v. Wardell, 2 Bradf . 1, 964; 999. Clayton v. Wardell, 4 M. Y. 230; 372, 976. Clemans, Matter of, 2 Connoly, 237; 885. Clemants, Matter of, N. Y.; Daily Reg., Sept. 1, 1883; 1306. Clements v. Babcock, 26 Misc. 90; .632, 539, 540, 1160, 1182. Clements, In re, 17 W. Dig. 431; 1311. Cleveland, Matter of, 28 Misc 369; 464, 469. Cleveland v. Whiton, 31 Barb. 544; 1254. Clifford V. Morrell, 22 App. Div. 470; 574. Clift V. Moses, 116 N. Y. 144; 1204, 1205. Clinch, Matter of, 180 N. Y. 300; 1048, 1107. Cline V. Sherman, 78 Hun, 298; 247. Clinton V. Hope Ins. Co., 51 Barb., 653; 932 Clinton, Matter of, 16 Misc. 199; 1432, 1433, 1440, 1444. Clock V. Chadeagne, 10 Hun, 97; 91, 1372^ Close V. Eldert, 30 App. Div. 388; 1161. Close V. Farmers' L. & T. Co., 195 N. Y. 92; 823. , Close V. Van Husen, 19 Barb. 509; 1196. Close V. Shute, 4 Dem. 546; 1367. Clowes V. Van Antwerp, 6 N. Y. 466 (aff'g 4 Barb. 416); 1308, 1309. Cluff V. Day, 14 N. Y. St. Rep. 729; 797. Cluff V. Day, 124 N. Y. 195; 830, 1253. Cluff y. Tower, 3 Dem. 243; 99, 161, 246. Clute, Matter of, 37 Misc. 710; 144, 707, 708. ■ Clute, Matter of, 37 Misc. 586; 316. Clyne, Matter of, 72 Misc. 593; 58, 60, 177, 285, 1423. Coakley v. Mahar, 36 Hun, 157; 1305. Coann v. Culver, 188 N. Y. 9; 889, 890. Coates v. Cheever, IGow. 463; 157. Cobb V. Beardsley, 37 Barb. 192; 584. Cobb V. Hanford, 88 Hun, 21; 89, Cochrane v. Hawver, 54 Hun, 556; 1012. Cochrane's Exr. v. Ingersoll, 73 N. Y. 613: 234. Cochrane v. Schell, 140 N. Y. 516; 1261, 1476. TABLE OF CASES CITED Ivil References are to pages Cockey, Matter of, N. Y. L. J., March 21, 1893; 1135. CWckrane v. Libby, 18 Me. 39; 272. Cocks V. Barlow, 5 Redf. 406; 104. Codding v. Newman, 63 N. Y. 639; 707. Coe V. Kniffen, 2 Johns. 31; 347. Coe, Matter of, 55 App. Div. 270; 259. Coe, Matter of, 47 App. Div. 177; 450, 463. Coffin V. Coffin, 34 N. Y. 9; 299. Coffin V. Coffin, 23 N. Y. 1; 320, 321, 331, 479, 487, '488. Cogan V. McCabe, 23 Misc. 739; 546. Coggshall V. Green, 9 Hun, 471; 688, 692, 693, 761,- 769, 770. Coggswell, Matter of, 4 Dem. 248; 1042. Cogswell V. Cogswell, 2 Edw. 231; 1010. Cogswell's Est., 4 Redf. 241; 654. Cohen's Est., 58 How. Pr. 496; 252. Cohen, Matter of, Law Bull., March 26, 1891; 653. Cohen, Will of, 1 Tucker, 286; 304. Cohn, Matter of, 78 N. Y. 248; 760, 902. Goit V. Patchen, 77 N. Y. 533; 442, 458. Cole V. Andrews, 83 App. Div. 285; 1172. Cole V. Andrews, 176 N. Y. 374; 1171, 1172, 1459. Cole V. Gourley, 79 N. Y. 527; 496. Cole, Matter of, 85 Misc. 630; 977, 1419. Cole V. Mordaunt, 4 Vesey, 196; 295. Cole V. Wade, 16 Ves. 27; 543. Colebrook, Matter of, 26 Misc. 139; 79. Colegrove v. Horton, ,11 Page, 261; 800. Coleman v. Coleman, 5 Redf. 524; 1002, 1003. Coleman, Matter of, 111 N. Y. 220; 405. Coleman v. Van Rensselaer, 44 How. Pr. 368; 1011. Coley V. Tallman, 107 App. Div. 445 (aff'd 186 N. Y. 569); 1305. Colhoun V. Jones, 2 Redf. 34, 486. Cblgan V. Dunne, 50 Hun, 443; 1191. Collier V. Idley's Executors, 1 Bradf. 94; 220, 420, 421. Collier v. Munn, 41 N. Y. 143; 1438, 1450. CoUigan v. M'Kernan, 2 Dem. 421; 416. Collin V. Collin, 1 Barb. Ch. 630; 548. Collin V. Wilcox, 47 St. Rep. 917; 1142. CoUins V. Beebe, 54 Hun, 318; 1025. Collins, Ex parte, 5 Redf. 20; 321. Collins V. Hoxie, 9 Paige, 81; 549, 1340. Collins, Matter of, N. Y. L. J., Dec. 5, 1911; 992. Collins, Matter of, 144 N. Y. 522; 888, 889, 1149, 1389. Collins, Matter of, 104 App. Div. 184; 1080. Cbllins, Matter of, 131 App. Div. 834; 549. Collins; JIatter of, 39 Misc. 753; 244. CoUins, Matter of, 70 Hun, 273; 888. Collins V. Stewart, 2 App. Div. 271; 607, 609. Collins V. Waydell, 3 Dem. 30, 6 Civ. Proc. Rep. 85; 1373. CoUister v. Fassett, 7 App. Div. 20; 1158. CoUyer Case; 1 Connoly, 546; 1343; 1450. Collyer v. CoUyer, 4 Dem. 53; 85, 414, 416, 511, 512, 1326. Collyer v. CoUyer, 6 St. Rep. 693; 936. Collyer v. Collyer, 110 N. Y. 481; 351, 413, 414, 415, 1327. Collyer, Matter of, 4 Dem. 24; 519, 885, 897, 1425. Collyer, Matter of, 113 App. Div. 468; 670. Collyer, Matter of, 124 App. Div. 16; 670. Colon's Est., 1 Tuck. 244; 1378, 1407. Colson V. Brainard, 1 Redf. 324; 1225. Colt V. O'Connor, 59 Misc. 83; 362. Colton V. Ross, 2 Paige, 398; 74, 220, 418. Colvin V. Young, 81 Hun, 116; 1156. Colwell, Matter of, 15 N. Y. St. Rep. 742; 1195, 1422. Comer, Matter of, 72 Misc. 321; 579. Comey v. Clark, 23 N. Y. St. Rep. 402; 1246. Comins, Matter of, 9 App. Div. 492; 854, 860, 923. Comparetto, Matter of, 88 Misc. 369; 623, 1473. Conant v. Wright, 162 N. Y. 635; 1256. Conant v. Wright, 22 App. Div. 216; 1256, 1370. Conaty, Matter of, 26 Misc. 104; 439. Cone V. Kent, 128 App. Div. 409; 547. Conger v. Conger, 105 App. Div. 589 (aff'd 185 N. Y. 554); 1431, 1432, 1445. Conger, Matter of, 81 App. Div. 493; 531, 1154. Congregational, etc., Soc. v. Hale, 29 App. Div. 396; 542. Congregation S. L. A. Sakoler v. Sindrack, 15 App. Div. 82; 991, 994. Cong. Unit. Society, Matter of, 34 App. Div. 387; 1024, 1362. Conkie v. Griswold, 24 Misc. 115; 547. Conklin, Matter of, 39 Misc. 771; 1053. Conklin v. Weatherwax, 173 N. Y. 43; 977, 1147. Conkling, Matter of, 15 St. Rep. 748; 604. ConneU, Matter of, 75 Misc. 574 (N. Y. L. J., Feb. 2, 1912); 69, 427. ConneU, Matter of, 92 Misc. 324; 587, 592 Connelly, Matter of , N. Y. Law J., July 26, 1902; 38 Misc. 466; 1114, 1119. Conner, Matter of, 44 Hun, 424; 539. Conner v. Watson, 14 App. Div. 54; 1162. Connolly, Matter of, 71 Misc. 388; 1261, 1295. Connor, Matter of, 29 Misc. 391; 458, 161. Connor, Matter of, 27 N. Y. St. Rep. 905; 486. Connor, Matter of, 7 N. Y. Supp. 855, 447. Conoly V. Pardon, 1 Paige, 291; 550, 555. Conover v. Hoffman, 1 Bosw. 214; 572. Consalus, Matter of, 95 N. Y. 340; 914, 1409. Constantino, Est. of, 22 N. Y. St. Rep. 883; 1317. Content v. Vanner, 184 N. Y. 121; 1106. Continental Nat. Bank v. Thurber, 74 Hun, 632; 115, 825. Iviii TABLE OF CASES CITED References are to pages Converse v. Kellogg, 7 Barb. 590; 527. Conway, Matter of,. 5 Dem. 290; 1027. Conway, Matter of, 124 N. Y. 455; 302, 307, 308, 310, 346, 376. Coogan, Matter of, 27 Misc. 563 (45 App. Div. 628; 162 N. Y. 613); 1114, 1119, 1128. Coogan V. Ockerhausen, 18 N. Y. St. Rep. 366; 1206. Cook V. Lee, 6 Paige, 158; 1305. Cook V. Lowry, 95 N. Y. 103; 531, 1430. Cook V. Lowry, 29 Hum. 20; 531. Cook, Matter of, 194 N. Y. 400; 1116, 1117. Cook, Matter of, 22 N. Y. Supp. 969; 254. Cook, Matter of, 114 App. Div. 718 (rev'd 187 N. Y. 253); 1040. Cook, Matter of, 187 N. Y. 253; 853, 1057, 1060. Cook, Matter of, 125 App. Div. 114 (aff'd 194 N. Y. 400); 288. Cook V. Munn, 12 Abb. N. C. 344; 1199. Cook V. Ryan, 29 Sun, 249; 932. Cook v. White, 43 App. Div. 388 (aff'd 167 N. Y. 588) 307, 325, 376, 398, 448, 449, 483. Cooke v. Meeker, 36 N. Y. 15; 1185, 11^9. Cooke v. Piatt, 98 N. Y. 35:. 578. Cookman v. Stoddard, 132 A^p. Div. 485 {aff'd 200 N. Y. 563); 825, 833. Cooksey, Matter of, 182. N. Y. 92; 1075, 1076. Cooley V. Lobdell, 153 N. Y. 596; 363. Cooley, Matter of, 186 N. Y. 220; 1096, 1133. Cooley,. Matter of, 6 Dem. 77; 898. Coolidge, Matter of, 85 App. Div. 295;"546. Goolidge, Matter of, 177 N. Y. 541; .546. Coombs, Matter of, 62 Misc. 597; 1275. Coon V. Coon, 38 Misc. 693; 544. Coon V. Knapp, 8 N. Y. 402; 1368. Cooney, Matter of, 112 App. Div; 657; 537. Coonley, Matter of, 38 Misc. 219; 1334. Coop, Matter of, 6 N. Y. Supp. 664; 440. Coop, Matter of, 24 St. Rep. 417; 462. Coope V. Lowerre, 1 Barb. Ch. 45; 689, 692, 693, 695, 701, 769. Coope, Matter of, 53 Misc. 509; 497. Cooper V. Benedict, 3 Dem. 136; 320, 420, 429, 434. ' Cooper V. Bocketi, 4 Moore's P.C. C. 419; 353. Cooper V. Felter, 6 Lansing, 485; 1007, 1009. Cooper V. Heatherton, 65 App. Div. 561; 527. Cooper V. Illinois Cent. R. R. Co. 38 App. Div. 22; 569, 571. Cooper, Matter of, 51 Misc. 381; 126, 1178, 1503. Cooper, Matter of, 2 Paige 34; 778. Cooper, Matter of, 6 Misc. 501;. 1389, 1419, 1420. Cooper V. Rensen, 3 Johns. Ch. 382, id. 521; 5 id. 459; 1157. Cooper V. Weston, 16 St. Rep. 937; 569. Copeland; Matter of, 38 Misc. 402; 524,> 1138. Copland v. Van Alst, 9 Week. Dig. 407; ' 286. Coffley V. Oiteil, 1 Lans. 214; 1304. Corbett, Matter of, 90 Hun, 182; 1029, 1031, 1229. Corbett, Matter of, 171 N,. Y. 516; 1053, 1054. Corbin v. Baker, 167 N. Y. 128; 946. Oorbin v. Casina Land Co., 26 App. Div. 410; 837. Corbin, Matter of, 101 App. Div. 25; ,891,044,953,956, 1326. Corbin v. Westoott, 2 Dem. 559; 247. Corcoran, Matter of, 145 App. Div. 129; 314, 320. Corey v. The People, 45 Barb. 262; 910. Corley v. McEmeel, 31 Abb. N. C. 113; '221 Corley v. McEmeel, 149 N. Y. 228 (aff'g 87 Hun, 13); 61, 491, 496. Corn V. .Com, 4 Dem. 394; 772, 777. Cornell v. Cfild, 170 App. Div, 240; 1471, 1472. Cornelius, Matter of, 23 Misc. 434; 463, 540. CorneE,- Matter of, 17 Misc. 468; 705. Cornell, Matter of, 110 N. Y.' 351; 902. Cornell, Matter of, 75 Misc. 574; 94. Cornell, Matter of, 43 App. Div. 241 (aiffi'd 163 N. Y. 608); 466, 478, 486. CorneU, Matter of,.75 iS. Y. St. Rep. 664; 707. Cornell, Matter of, 66 App. Div. 162; 1068, 1111. CorneU, Matter of, 170 N. Y. 423; 1067, 1070, 1071. Cornell, Matter of, 89 App. Div. 412; 339. Comes V. Wilkins, 14 Hun, 428 (aff'd 79 N. Y. 129); 834. Cornish v. Cornish, 1 Lee's Eoc. Rep. ,14; '92. i. Cornwall's Est., 1 Tucker, 250; 1208, 1209. , Cornwell v. Clement, 10 App. Div. 446; 1374. Cornwell v. Cornwell, 1 Dem. 1; 648. Cornwell v. Deck, 2 Redf. 87; 890, 932, 951, 1398, 1452. Cornwell v, Riker, 2 Dem. 354; 436, 444, 445, 446. Cornwell v. Wooiey,,.43 How. 475; 204. Cornwell v. Wooley, 1 Abb. Ct. App. 441; 204. Corrigan v. Kierman, 1 Bradf. 208; 545. Corse V. Chapman, 153 N. Y. 466; 544. Corwin v. Merritt, 3 Barb. 341; 216. , Cosgrove, Matter pf, 31 Misc. 422; 414. Costello, Matter of, 117 App. Div. 807 (m«d 189 N. Y. 288); 1054, 108Q, 1115, 1117. ' Costello V. Costello, 152 App. Div. 280: 91, 248. Coster V. Coster, 125 App. Div. 516; 1265. Cotheal v. Cotheal, 40 N. Y. 405; 356, 359. , Cotter V. Quinlan, 2 Dem. 29; 971, TABLE OF CASES CITED References are to pages Cotterell v. Brock, 1 Bradf. 149; 145, 758, 800, 917, 1408, 1423. Cottle V. Van Hayden, 56 Barb. 622:, 728. Cottman v. Grace, 112 N. Y. 299; 541. Cottrell, Matter of, 95 N. Y. 323; 299, 300, 321, 335, 336, 429, 434. Coudert, Matter of, 152 App. Div. 196; 565. Gbughlin V. Pay, 68 Hun, 521; 1305. Counrod, Matter of, 27 Misc. 475; 536. Coutant, Matter of, 24 Misc. 350; 1247. Covenhoven v. Shuler, 2 Paige Ch. 123; 542, 544, 1151, 1154. Cowdrey, Matter of, 5 Dem. 453; 1030, 1035. CbWenhoveii v. Bull, 118' N. Y. 231; 267. Cowley V. People, 65 N. Y. 464; 461. Cox, Matter of, N. Y. L. J., Jan. 10, 1912; 1106. Cox V. Pearce, 112 N. Y. 637; 984. Cox V. Schermerhorn, 12 Hun, 411; 258, 261. Cox V. SchertnerHorn, 18 Hun, 16; 1434, 1435. Cox V. Wisner, 43 App. Div. 591; 549. Cox V. Wisner, 167 N. Y. 579; 549. Cozine v. Horn, 1 Bradf. 143; 1288, 1290. Cozine, Matter of, 104 App. Div. 182; 1416. Crabbe v. Young, 92 N. Y. 56; 940, 941, 1266. Cragg V. Riggs; 26 Hun, 90, 5 Redf. 82; 1153. Craig V. Craig, 3 Barb. Ch. 76; 530, 1188, 1189, 1255, 1264. Cramer v. Cramer, 35 Misc. 17; 1139, 1148. Cramer, Matter of, 170 N. Y. 271; 548. Cramer, Matter of, 43 Misc. 494; 1460. Crandall v. Shaw, 2 Redf. 100; 648, 740. Crane v. Decker, 22 Hun, 452, 571. Crane, Matter of, 164 N. Y. 71; 1156. Crane,- Matter of, 159 N. Y. 557; 532. Crane, Matter of, 12 App. Div. 271; 531, 537 541. Crane, Matter of, 68 App. Div. 355; 285, 338, 1337. Crary, Matter of, 31 Misc. 72; 1071, 1096. Craver v. Jermain, 17 Misc. 244; 886. Crawford V. Crawford, 5 Dem. 37; 670, 671. Crawford, Matter of, 80 Misc. 615; 354. Crawford, Matter of, 85 Misc. 283; 1098. Crawford, Matter of, 113 N. Y. 560; 1170; 1443. Crawford v. McCarthy, 159 N. Y. 514; 1139, 1141, 1146. Crawford v. Nassoy, 173 N. Y. 163; 883, 906. Creamer v. Waller, 2 Dem. 351; 145, 379, 1408, rt23. Creeley v. Ostrander, 3 Bradf. 107, 462, 485, 488. Grerar, Matter of, 31 Misc. 481; 1078. Grerar, Matter of, 56 App. Div. 479; 1112, 1114, 1117, 1118, 1119. Cricfcard, Matter of, 52 Misc. 63; 778. lix Crippen v. Dexter, 13 Gray (Mass.) 330; 391 CrispeU v. DuBois, 4 Barb. 393; 420, 470, 476, 479, 486. Crittenden, Will of Lucius, 1 Tucker, 135; 431. Grocheron v. Jaques, 3 Edw. 207; 1157. Crockett, Matter of, 86 Misc. 631; 437, 438, 467. Croft V. WiUiams, 88 N. Y. 184; 829. CroUus V. Stark, 64 Barb. 112; 437, 442, 463. Cromer v. Pickney, 3 Barb. Ch. 466; 544, 549, 554, 1173. Cromwell v. Cromwell, 55 App. Div. 103; 548. Cromwell V. Kirk, 1 Dem. 599; 93, 1303. Cromwell v. Phipps, 6 Dem. 60; 367, 369, 1239 Groner'v. Cowdrey, 139 N. Y. 471; 342. Cronkite v. Gronkite, 1 Sup. Ct. (T. & C.) 266; 1159. GrosbiB V. McDonald, 4 Vesey, 616; 346. Crosby, Matter of, 46 St. Rep. 442; 934. Crosby v. Wendell, 6 Paige, 548; 544. Crosier v. Cornell Steamboat Co., 27 Hun, 215 (aff'd 92 N. Y. 626); 686. Gross V. Long Island Loan Co., 75 Hun, 533" 1152. Cross,' Matter of, 92 Misc. 89; 1289. Gross V. U. S. Trust Co., 131 N. Y. 342; 540, 589: Grossman v. Grossman, 2 Dem. 69; 113, 114. Grossman v. Grossman, 95 N. Y. 145; 353, 354, 377, 384. Grossman, Matter of, 3 Civ. Proc. Rep. 65, aff'd 30 Hun, 385, 95 N. Y. 145; 384. Grouse v. Wilson, 73 Hun, 353; 92, 140. Crouter v. Crouter, 133 N. Y. 56; 111. Crowe V. Brady, 5 Redf. 1; 885, 897. Crowley, Est. of, N. Y. Law J., January 16, 1901; 1404. Crowley, Matter of, 33 Misc. 624; 1373, 1377. Growther, Matter of, L. R. (1895), 2 Ch. D. 56; 1266. Cruger v. Halliday, 11 Paige, 314; 673, 1264. Cruger, Matter of, 36 Misc. 477; 73, 78, 462. Cruger, Matter of, 36 Misc. 272; 468. Cruger, Matter of, 34 N. Y. Supp. 191; 1396, 1486. Cruger, Matter of^ 54 App. Div. 405 (aff'd 166 N. Y. 602); 1067. Cruger v. Phelps, 21 Misc. 252; 1158. Cruger v. Ring, 11 Barb. 364; 1235. Cruikshank v. Gruikshank, 9 How. Pr. 350; 970, 984. Gruikshank v. Gruikshank, 39 Misc. 401 1155. Cruikshank v. Home, etc., 113 N. Y. 337 542, 1199. Cruikshank, Matter of, 40 Misc. 325 1373, 1502. Crumb, ex parte, 2 Johns. Ch. 439; 1279, 1283. Lx TABLE OF CASES CITED References are to pages Crumb, Will of, 6 Dem. 478; 394, 482. Cudney v. Cudney, 68 N. Y. 148; 461, 465, 475, 483, 486. Cuff V. Cuff, 120 App. Div. 225; 897. Cullen V. Miller, 9 N. Y. Leg. Obs. 62; 157. Cumberland v. Codrington, 3 Johns. Ch. 229; 1012, 1018. Cummings v. Banks, 2 Barb. 602; 591, 1007. Cummings, Matter of, 63 Misc. 621 (rev'd 142 App. Div. 377); 1045, 1073, 1079, 1120,1515. Cunard,- Matter of, 6 N. Y. Supp. 883; 2 Connoly, 16 (afi,'d 27 N. Y. St. Rep. 128); 864, 867, 872. Cunningham v. Hewitt, 84 App. Div. 114; 347. Cunningham, Matter of, 87 Misc. 172; 61, 1324. Cunningham v. Parker, 146 N. Y. 29; 1157. Cunningham v. Souza, 1 Redf . 462; 757. Cunnion, Matter of, 61 Misc. 546- (aff'd' 135 App. Div. 864, aff'd 201 N. Y. 123); 343, 405, 410, 413, 414. Curren v. Sears, 2 Redf. 526, 13 Hun, 458; 538. Currin v. Fanning, 13 Hun, 458; 537, 538, 539. Curry's Est., 19 N. Y. Supp. 728; 1327. Curry v. Keil, 19 App. Div. 375; 1305, 1312. Curry, Matter of, 25 Hun, 321; 864, 868. Curser, Matter of, 89 N. Y. 401 (reVg 29 Hun 579); 728. Curtice, Matter of. 111 App. Div. 230 (aff'd 185 N. Y. 543)-; 1096, 1097. Curtin, Matter of, 93 Misc. 394; 1289. Curtis, Matter of, 31 Misc. 83; 1053, 1100, 1515. Curtis, Matter of, 29 N. Y. St. Rep. 469; 1274. Curtis, Matter of, 142 N. Y. 219; 1133. Curtis, Matter of, 135 App. Div. 745; 350. Curtis V. Williams, 3 Dem. 63; 218, 803, 804. -Curtiss, Matter of, 142 N. Y. 219; 1075. Curtiss, Matter of, 9 App. Div. 285 (aff'g '15 Misc. 545); 707, 1431, 1434, 1435, 1436, 1444. Cushing, Matter of, 40 Misc. 505; 1047. Cushman v. Cushman, 102 App. Div. 377; 572. CuBhman v. Cushman, 116 App. Div. 763; 1155, 1156, 1157. Cushman v. Cushman, 191 N. Y. 505; 1155, 1156, 1157. Cushman v. Horton, 59 N. Y. 149; 545, 1155, 1474. Cushman, Matter of, 62 Misc. 598; 980. Cuthbert v. Babcock, 2 Dem.- 96; 565. Cuthbert V. Jacobson, 2 Dem. 134; 1031, 1377, 1404. Cutter, Matter of, 89 Misc. 663; 439. Cutter V. Mayor, 92 N. Y. 166; 1188. Cutting, Matter of, N. Y. Daily Reg., Nov. 18, 1885; 1393. Cutting; Matter of, 5 Dem. 456; 688, 695, 696, 769. CSiech V. Bean, 35 Misc. 729; 366, 369, 652, 653. Dack V. Dacik, 19 Hun, 630; 313. Dack V. Daek, 84 N. Y. 663: 320. D'Adamo, Ma,tter.of, 212 N. Y. 214; 625, 802, 1473. D'Adamo; Matter of, 159 App. Div. 40; 802, U72. D'Adamo, Matter of, 94 Misc. 1; 160. D'Agostino, Matter of, 88 Misc. 371; 566, 623, 1473. D'Arschot, Matter of, 82 Misc. 16; 468. Daggett, Matter of, 1 Misc. 248; 915. Daggett V. Mead, 11 Abb. N. C. 116; 981. Dake, Matter of, .75 App. Div. 403; 303, 353. ... Dakin v. Demming, 6 Paige, 95; 92, 154, 216, 668' 1318, Dakin v. Hudson, 6 Cow. 221; 12, 217. Dale, Matter of, 56 Hun, 169 (aff'd 134 N. Y. 614); 320, 322, 340. Dale V. Roosevelt, 8 Cowen, 333; 585. Dahymple v. Arnold, 21 Hun, 110; 994. Daly V. Greenbergi 69 Hun, 228; 545. Daly, Matter of, 34 Misc. 148; 249, 1111. Daly, Matter, of, 100 App. Div. 373 (aff'd 182 N. Y. 524); 1048, 1100, 1515. Damarell v." Walker, 2 Redf; 198; 759, 1318. Dammert v. Osborn, 65 Hun, 585; 534. Dammert v. Osborn, 140 N. Y. 30; 541, 589. , .. . ■, Dammert v. Osborn, 141 N. Y. 564; 589. Dan V. Brown,; 4 Cow. 483; 347, 362, 416, 509. Daniels, Matter of, 71 Hun, 195; 1289. Dannat v. Jones, 2 Dem. 602; 955. Darcy v. Presbyterian Hospital, 202 N. Y 259" 988 Darde v.'Conklin, 73 App. Div. 590; 981.' Darley v. Darley, 3 Redf. 481; 462. Darling V. Arthur, 22 Hun, 84; 321. Darling v. Pierce, 15 Hun, 542; 43, 44, 156. Darling v. Rogers, 22 Wend. 489; 523. Darrow v. Calkings, 154 N. Y. 603; 130j 895. Dates, Matter of, 35 N. Y. St. Rep. 338, 221 Dates, Matter of, 12 N. Y. Supp. 205; 409. Davenport, Matter of, 37 Misc. 179; 91, DavfenpMt, Matter of, 37 Misc. 455; 367, 372, 373. Daven]f)ort, Matter of, 67 App. Div. 191 (aff'd 172 N. Y. 454); 1496, 1496. Davenport, Matter of, 43 Misc. 573; 114, 1473. Davenport, Matter of, 142 App. Div. 41; 621. David,. Matter of, 44 Misc. 337; 234. David, Matter of, 182 N. Y. 468; 183. Davids, Matter of, 5 Dem. 14; 1206, 1217. Davidson v. Jones, 112 App. Div. 254: 1155, 1166. Davidson, Matter of, 6 Dem. 224; 234, TABLE OF CASES CITED References are to pages Ixi Davidson v. Rightmeyer, 38 Misc. 493; 1146. Davidson v. Witthaus, 106 App. Div. 182; 1044. DaVies v. Davies, 129 App. Div. 379; 549. Davis V. CrandaU, 101 N. Y. 311: 111, 130, 1086, 1139, 1143. Davis V. Culver, 13 How. Pr. 62; 463. Davis V. Davis, 27 Misc. 455; 430. Davis v. Davis, 39 Misc. 90; 543. Davis v. Davis, 86 App^ Div. 401; 543. Davis v. Kerr, 3 App. Div. 322; 554, 571, 673. Davis, Matter of, 1 Tuck. 107; 519. Davis, Matter of, 91 Hun, 209; 442, 463. Davis, Matter of, 91 Hun, 53 (aflF'd 149 N. Y. 539); 1109, 1110, 1115, 1117. Davis, Matter of, 37 Misc. 326; 1421. Davis, Matter of, 45 Misc. 306; 561. Davis, Matter of, 48 Misc. 489; 710, 716, 718. DaVis, Matter of, 59 Misc. 310; 1150, 1151. Davis, Matter of, 60 Misc. 297; 1331. Davis, Matter of, 43 App. Div. 331; 1389, 1395. Davis, Matter of, 119 App. Div. 35; 1394. Davis, Matter of, 149 N. Y. 539; 1044, 1080, 1116, 1117, 1136. Davis, Matter of, 182 N. Y. 468 (aff'g 105 App. Div. 221 and 45 Misc. 306, 554); 150, 341, 397, 432, 490, 519, 561, 1326. Davis, Matter of, 184 N. Y. 299; 98 App. Div. 546-; 1057, 1059. Davis V. Myers, 86 Hun, 236; 981. Davis V. Tremain, 205 N. Y. 236; 517, 518. Davoue v. Fanning, 2 Johns. Ch. 252; . 476, 572, 1235. Dawson, Matter of, 3 Bradf . 130; 78, 1288, 1296, 1305, 1309. Day, Ex parte, 1 Bradf. 476; 362, 363, 364, 365. Day, Matter of, 86 Misc. 131; 1120. Dayger,. Matter of, 110 N. Y. 660 (aff'g 47 Hun, 127); 328. Dayger, Matter of, 47 Hun, 127; 306. Dayton v. Johnson, 69 N. Y. 419; 620, 803 832 Dean,' Matter of, 86 N. Y. 99; 902. Dearing, Matter of, 4 Dem. 81; 708. Deas V. Wandell, 1 Hun, 120; 488. DeBaum, Matter of, 32 N. Y. St. Rep. 279; 486. DeBaum, Matter of, 2 Connoly, 304; 475. De Carricarti v. Blanco, 121 N. Y. 250; 970. DeCastro, Matter of, 32 Misc. 193; 319. De ■ Caters v. LeRay De Chaumont, 3 Paige's Ch. 179; 1235. Decker v. Elwood, 3 Sup. Ct. (T. & C.) 48; 245. Decker, Matter of, 37 Misc. 527; 1304, 1312, 1327, 1340, 1432. Decker' V. Miller, 2 Paige, 150; 573, 1319. Decker v. Newton, 1 Redf. 477; 1368. Decker v. Vreeland, 170 App. Decj 234, 638. Decouche v. Savetier, 3 Johns. Ch. 190; 1374. Dedrich, Matter of, 68 Hun, 396; 947. Deery v. Byrne. 120 App. Div. 6; 206. Deegan v. Wade, 144 N. Y. 673; 527. DeForest, Matter of, 86 Hun, 300; 1406. DeForest, Matter of, 119 App. Div. 782; 1027, 1029. Degen, Matter of, 89 Hun, 143; 287. De Graaf, Matter of, 24 Misc. 147; 1053, 1105, 1121. De Groff v. Terpenning, 14 Hun, 301; 1171, 1172, 1173, 1460. De Groot, Matter of, 9 N. Y. Supp. 471; 415, 510. De Groot, Matter of, 2 Connoly, 210; 513. DeHaas, Matter of, 9 App. Div. 561 (19 App. Div. 266); 317. DeHart, Matter of, 67 Misc. 13; 306. DeHierapolis v. Reilly, 44 App. Div. 22 (aff'd 168 N. Y. 585); 363. DeKay v. Erving, 6 Dem.' 646; 545. Delabarre v. McAlpine, 71 App. Div. 591; 69, 88, 1350. Delafield v. Barlow, 107 N. Y. 535; 531. Delafield v. Parish, 42 Barb. 274; 259. Delafield v. Parish, 1 Redf. 1 (aff'd 25 N. Y. 9); 348, 419, 420, 428, 429, 434, 435, 437, 438, 441, 442, 444, 485, 486. Delafield v. Parish, 4 Bradf. 24; 657. Delafield v. Shipman, 103 N. Y. 463; 531. Delamater v. M'Caskie, 6 Dem. 8; 875. Delamater v. M'Caskie, 4 Dem. 549; 874. Delaney, Matter of, 133 App. Div. 409 (aff'd 196 N. Y. 530); 1140, 1143. Delaney v. Van Aulen, 84 N. Y. 16; 522, 1149. Delano, Matter of, 176 N. Y. 486 (rev'g 82 App. Div. 147); 1073, 1074. Delaplaine v. Lawrence, 10 Paige, 602 162, Delaplaine v. Lawrence, 3 N. Y. 301; 1238 Delaplaine, Matter of, 5 Dem. 398; 91. Delaplaine, Matter of, 45 Hxm, 225; 73 207, 376, 508. Delavergne v. Dean, 45 How. Pr. 206 1155. Delgade, Matter of, 79 Misc. 590; 93, 140 Del Genovere, Matter of, 169 App. Div 140; 359, 363. Delmar v. Delmar, 65 App. Div. 582; 257, Delprat, Matter of, 27 Misc. 366; 320, 322, 336. De Marcellin, Ex parte, 24 Hun, 207 1290. Demarest, Est. of, 1 Civ. Proc. Rep. 302 776. Demarest V. Smith, 143 App. Div. 104; 971 Demarest v. Wynkoop, 2 Johns. Ch. 461 900. Deming, Matter of, 10 Johns. 232; 691. Demmert v. Schnell, 4 Redf. 409; 469, 478. Demott v.. Field, 7 Cow. 58; 1022. Den ex dem. Delaplaine v. Searing, 3 Halst. [8 N. J. L.] 340; 1472. Denham v. Cornell, 67 N. Y. 556; 1170. Denike v. Harris, 84 N. Y. 89; 1266. Denise v. Denise, 110 N. Y. 562 (aff'g 41 Hun, 9); 981. Ixii TABLE OF CASES CITED References are to pages Denison v. Denison; 96 Ap'p. Div. 418; 1155. Denison v. Denison, 103 App. Div. 523; 524, 530. Denison v. Denison, 185 N. Y. 438; 524, 530. Dennin v. Duffy, 83 Misc. 623; 116. Dennis v. Jones, 1 Dem. 80; 1219. De Notteback v. Astor, 13 N. Y. 98; 544. Dteton, Matter of, 86 App. Div. 358 (aff'g. 40 Misc. 326); 121, 122. DfentoB, Matter of, 137 N. Y. 428; 547 Denton v. Sanford, 103 N. Y. 607; 945 1150. Denyse, Matter of, 62 Misc. 595; 126. Deobold v. Oppermann, 111 N. Y. 531 246, 814, 832, 937. De Pau's Estate, 1 Tuck. 290; 579. De Peyster v. Clarkson, 2 Wend. 78; 936, 1304. De Peyster v. Clarkson, Hopk. 424; 1304 De Peyster v. Clendinning, 8 Paige, 296, 26'Wendl 21; 299; 548, 573, 1154. De Peyster, Matter of, 4 Sandf. Ch. 511 1433, 1435. De PierriSi Matter of, 79 Hun, 279; 144, 1350, 1-371, 1409. De Pierris, 110 App. Div. 421; 548. Depuy, Matter of, 8 N. Y. 229; 1029 Depuy, Matter of, 9 N. Y. Supp. 121 1030. DepuyV. Wurtz, 53 N. Y. 556; 76. DeraisAies v. Deraismes, 72 N. Y. 154 892. Deraismes v. Dunham, 22 Hun, 86; 759 760; 762, 783, 784. Derickson v. Derickson, 4 Dem. 295; 1291 De Russy, Matter of, 14 N. Y. Supp. 177 (aff'd 128 N. Y. 619); 1361. Despard v. ChurchiU, 53 N. Y. 192; 83 566, 590, 602, 603, 605, 736. DeVany, Matter of, 147 App. Div. 494 769, 770. De Vaagrigneuse, Matter of, 46 Misc. 49 468. De Veaux College v. Highlands Co., 63 63 App. Div. 461; 1158. Devin v. Patchen, 26 N. Y. 441; 91, 1320, 1320, 1332, 1338. Devoe, Matter of, 66 App. Div. 1 (aff'd 171N. Y. 281); 142. DeVoe, Matter of, 171 N. Y. 281; 1491. DeVoe, Matter of, 107 App. Div. 245; 1495. , Dewey v. Goodenough, 56 Barb. 54; 142. Dewey, Matter of,- 153' N. Y. 63; 1149, 1447. Dewey v. Moyer, 72 JJ. Y. 70; 902. DeWitt v. Barley, 17 N. Y. 340; 446. DeWitt V. Barley, 9 N. Y. 371; 459. DeWitt V. Chandler, 11 Abb. Pr. 459; 432 542 555. DeWitt, Matter of, 113 App. Div. 790; 70, 528. DeWittj Matter of, 188 N. Y. 567; 528. DeWitt V. Yates, 10 Johns. 156; 1160. Dexter v. Watsoh, 54 Misc. 484; 941, 950, 1153, 1268. Dfey&, MaftOT'of, 36 Hun, 512 (aff'd 102 N. Y. 724); 253. Deyo V. Morss, 30 Appi^Div. 56;, 1019. Dickie v. Adams, 40 Misc. 88; 897. Dickie v. Van Vleck, 5 Redf. 284; 419, 451,461. Dickin's Goods, 3 Curt. Ecol. Rep. 60; 558 Dickins, Matter of, 56 Misc. 232; 554, 555, ,556. Dickinson v. Bush, 17 Wkly. Dig. 17; 206. Dickinson v. Col. Trust Co., 33 Misc. 668; 85. Didion, Matter of, 54 Misc. 201;, 1062. Diefenthaler, Matter of, 39 Misc. 765; 316 ,328 Diez, 'will' of, 50 N. Y. 88, 315. Diez's Wm, 56 Barb. 591; 376. DiM, Matter of. 199 N. Y. 155; 1499. Dill, Matter of, 60 Misg. 294; 1433. Dimon, Matter of, 82 App. Div. 107; 1105. Dimmick v. Patterson, 66 Hun, 492; 1156. Dinkelspiel, Matter of, N. Y. Surr. Dec. 1891,. p. 169; 1198. Difflsmore, Est. of, 2' Law Bulletin, 28; 656, 953. Dippel, Matter of, 71 App. Div. 598; 1156. Disbrow v. Disbrow, 46 App. Div. Ill; 891 932 Disbrow v." Disbrow, 167 N. Y. 606; 891, 932. Disbrow v. Henshaw, 8 Cow. 349; 1279, 1283. Disosway v. Haywardj 1 Dem. 175; 1037. Dissosway, Matter of, 91 N. Y. 235; 230, 1325., Dittrictf, Matter of, 53 Misc. 511; 1395. Dittrich, Matter of, 52 Misc. 277; 277. Dittrich, Matter of, 120 App. Div. 504; 782 Dixon, Matter of, 42 App. Div. 481; 439, 462, 476. Dixon v. People, 18 Mich. 84; 372. Dixon V. Storm, 5 Redf. 419; 1155. D. L. W. R. Co. V. Gilbert, 44 Hun, 201; 954. D. L.'& W. R. Co. V. Gilbert, 112 N. Y. 673; 954. Doane, Matter of,, N. Y. L. J., Mar. 12, 1903; 1108. Doand V. Mercantile Trust Co., 160 N. Y. 494; 1467, 1473. Doane v. Mercantile Trust Co., 39 App. Div. 639; 1467. Dobie V. Armstrong, 160 N. Y. 584; 181, .439, 455, 457, 465. Dobke V. MeClaaran, 41 Barb. 491; 64, 252. Dobson V. Central R. R. of N. J., 38 Misc. 582; 999. Dobson, Matter of, 73 Misc. 170; 1067. Dockstader, Matter of, 6 Dem. 106; 314. Dodd V. Anderson, 197 N. Y. 466 (rev'g 131 App. Div. 224); 379, 1022, 133L 1448. TABLE OF CASES CITED kiii References are to pages Dodge V. Cornellms, 168 N. Y. 242 (rev'g 40 App. Div. 18); 298. Dodge V. Manning, 1 N. Y. 298; 1020, 1146. Dodge, Matter of, 105 N. Y. 585 (aff'g 40 Hun, 443); 193, 1334. Dodge, Matter of, April, 1911; 621. Dodge V. Pond, 23 N. Y. 69; 530, 531. Dodin V. Dodin, 116 App. Div. 327; 1151. Dodin V. Dodin, 191 N. Y. 530; 1151. Dodin V. Dodin, 162 N. Y. 636; 656. Dodin V. Dodin, 17 Misc. 35; 839, 851, 1492. Dodin V. Dodin, 16 App. Div. 42; 565, 839, 851. Dodsworth v. Dam, 38 Misc. 684; 629. Dodworth v. Crow, 1 Dem. 256; 327. Doe v. Griffin, 15 East, 293; 373. Doe V. Jesson, 6 East, 80; 367. Doe V. Provoost, 4 Johns. 61; 662, 564. Doe V. Roe, 1 Wend. 541; 557. Doe V. Roe, 2 Barb. 200; 332, 334. Doheny, Matter of, 70 App. Div. 370 213, 664. Doig, Matter of, 125 App. Div. 746; 246 260, 1029, 1418. Dolan, Matter of, 4 Redf. 511; 1161, 1167 Dolan, Matter of, 88 N. Y. 309 (rev'g 26 Hun, 46; rev'g 2 Dem. 611); 1214, 1220, 1231, 1236, 1239. Dole v. Irish, 2 Barb. 639; 79. Dole, Matter of, 168 App. Div. 253; 979 DoUard, Matter of, 74 Misc. 312; 1408, 1423, 1425. DoUard, Matter of, 149 App. Div." 926 1408. Domuiick v. Michael, 4 Sandf. 374; 574 Donlon, Matter of, 66 Hun, 199; 261 252 Donnelly, Matter of, 70 Misc. 584; 862, Donner, Matter of, 37 Misc. 57; 303. Donohue, Matter of, 97 App. Div. 205 443. Donohue, Matter of, 109 App. Div. 168 542, 551. Donovan v. Twist, 105 App. Div. 171 367. Dooley, Matter of, 3 Law Bulletin, 18 661. Doohttle V. Lewis, 7 Johns. Ch. 46; 586 590, 888. Doppman v. Muller, 137 App. Div. 82 840. Doran v. DempSey, 1 Bradf. 490; 231. Doran, Matter of, 38 N. Y. Supp. 544 973. Doran, Matter of, 73 N. Y. St. Rep. 593 1034. Doritz V. Doritz, 40 App. Div. 236; 1251 1403. Dorman, Matter of, 5 Dem. 112; 456 468. Dorsey, Matter of, N. Y. L. J., Mar. 6, 1916; 179, 181, 186. Doscher, Matter of, 165 App. Div. 193 764. Doty V. Hendrix, 16 N. Y. Supp. ;284 540. Doty V. Willson, 47 N. Y. 680, 1392. Doubleday v. Newton; 27 Barb. 431; 299, 548, 649. Dougherty, Matter of, 64 Misc. 230; 1167. Dougherty v. MilUken, 163 N. Y. 527; 440. Doughty V. StillweU, 1 Bradf. 300; 1152, 1168, 1483, 1485. Douglas V. Hazen, 8 App. Div. 25; 1164. Douglas, Matter of, 52 App. Div. 303; 249, 260, 1113. Douglas, Matter of, 60 App. Div. 64; 1429, 1431. Douglas, Matter of, 38 Misc. 609; 324. Douglas V. Mayor, 2 Duer, 110; 855. Douglass V. Douglass, 70 Misc. 412; 1470, 1472, 1494. Douglas^ V. Ferris, 138 N. Y. 192; 1379. Douglass V. Satterlee, 11 Johns. 16; 671, 580, 958, 959. Douglass V. Yost, 64 Hun, 156; 1448. Down V. McGourkey, 15 Hun, 444; 1322. Downing, Est. of Thomas, N. Y. L. J., Mar. 12, 1903;, 1274. Downing v. MarshaU, 23 N. Y. 366; 1148, 1199. Downing v. Marshall, 37 N. Y. 380; 1320. Downing v. Marshall, 1 Abb. Ct. App. Dec. 525; 1011. Downing v. Smith, 4 Redf. 310; 1368. Downs, Matter of, 39 Misc. 621; 938, 1166, 1194. Dows, Matter of, 167 N. Y. 227 (aff'd 183 U. S. 278); 1040, 1074. Dox V. Backenstose, 12 Wend. 542; 568. Doyle V. Mayor, 26 Misc. 61; 166. Drake v. Drake, 134 N. Y. 220; 545. Drake, Matter of, 46 App. Div. 206; 284, 462, 466, 468. Drake v. Pechin, 58 Misc. 449; 217. Drake v. Pell, 3 Edw. Ch. 261; 148, 646. Drake v. Price, 5 N. Y. 430; 1443. Drake v. Wilkie, 30 Hun, 537; 1373. Draper v. Anderson, 37 Barb. 168; 1302. Draper, Matter of, 74 Misc. 335; 979. Draper v. Montgomery, 108 App. Div. 63; 672, 708. Drexel v. Berney, 1 Dem. 163; 767. Driscoll V. Hewlett, 132 App. Div. 126; 532 536. *■ Drowne, Matter of, 1 Connoly, 163; 728. Drowne, Matter of, 66 Misc. 417; 1288, 1291. Du Bois v. Brown, 1 Dem. 317; 273, 519, 1320, 1324, 1332, 1333, 1334, 1338, 1342. Dubois V. Ray, 7 Bosw. 244, 1155. Dubois V. Ray, 35 N. Y. 162; 525, 544. Dubois V. Sands, 43 Barb. 412; 958. Duclos V. Benner, 136 N. Y. 660; 1188. Dudley v. Mayhew, 3 N. Y. 9; 216. Dudley v. N. Y. FUter Mfg. Co., 80 App. Div. 164; 699. Duell V. Glynn; 66 Misc. 41; 1080. Dueser v. Meyer, 129 App. Div. 598; 979. Duffie, Est.; of, 3 Law.Bull. 49; 77. Duffy, Est. of, 1 Dem. 202; 80. DuffylsiEst., Matter of, 18 N. Y. Supp. 924; 1206. Ixiv TABLE OF CASES CITED References are to pages Duffyy Matter of, 90 Misc. 251; 1155. Duffy; Matter of, 127 App. Div. 74; 897, 1395. Duffy V. Smith, 1 Dem. 202; 82, 603, 1352. , Dugaft V. DeJiyse, 13 App. Div. 214; 1305, 1313. Duhrkop v. White, 13 App. Div. 293; 176. Dummett, Matter of, 38 Misc. 477; 893, 1438. Duncan v. Duncan, 4 Abb. N. C. 275; 521. Duncan v. Guest, 5 Redf. 440; 146, 1406, 1425. Duncklee v. Butler, 30 Misc. 58; 943, 1162, 1267, 1268. DunfOrd v. Weaver, 84 N. Y. 445; 21 Hun, 349, 224, 233, 235, 1321. Dunham v. Deraismes, 165 N. Y. 65; 1145, 1147. Dunham v. Dunham, 63 App. Div. 264; 462. Dunham, Matter of, 1 Connoly, 323; 1373, 1409. Dunham, Matter of, 165 App. Div. 165; 706, 707. Dunham, Matter of, 22 Abb. N. C. 479; 1373. Dunkel, Matter of, 10 N. Y. St. Rep. 213; 1445. Dunkel, Matter of, 5 Dem. 188; 1432, 1433. Dunn, "Matter of, 1 Dem. 294; 152, 261. Dunn, Matter of, 39 App. Div. 510; 1379. Dunn, Matter of, 5 Redf. 27; 1005. Dunn, Matter of, 63 Misc. 180; 754. Dunn, Matter of, 63 Misc. 179; 1351. Dunn V. New Amsterdam Casualty Co., 63 Misc. 225; 547. Dunn V. Travis, 56 App. Div. 317; 369. Dunne v. Amer. Surety Co., 34 Misc. 584; 823. Dunne v. Amer. Surety Co., 43 App. Div. 91; 823, 824, 829, 831. Dunning v. Dunning, 82 Hun, 462; 1144. Dunning v. Ocean National Bank, 61 N. Y. 497; 6 Lans. 296; 574, 887, 1253. Dunphy V. Callahan, 126 App. Div. 11; 562. Dunscomb v. Dunsijofflb, 1 Johns. Ch. 508, 940. Dunscombe, Matter of, 10 N. Y. Supp. 247; 1027. Duntan v. Carter, 3 Dem. 149; 1185. Dupre V. Thompson, 30 Barb. 537; 1156. Dupre V. Thompson, 4 Barb. 279; 523. Durand, Matter of, 194 N. Y. 477; 538. Dupuy V. Wurtz, 53 N. Y. 666; 78, 79. Durling v. Loveland, 2 Curt. 226; 479. Duryea v.Mackey, 151 N. Y. 204; 92, 661, 1203, 1210, 1219, 1231. Dui^fea, Matter of, 128 App. Div. 205; 1060. Dusenbury, Matter of, 106 App. Div. 235; " 1207. Dusenbury, Matter of, 33 Misc. 166; 113, 1248. Dusenbury, Matter of, 34 Misc. 666; 1248. Dustan v. Carter, 3 Dem. 149; 1184. Dustan v. Dustan, 1 Paige, 509; 1157. Dutton V. Dutton, 8 How. Pr..99; 1289. Dwight's Est., 9 N. Y. Supp. 927; 1359, 1660. Dwight, Matter of, 2 Conn. 180; 1356. i Dworsky v. Arndstein, 29 App. Div. 274; 369. .. ' Dwyer, Matter of, 29 Misc. 382; 354, 438, 480,. 481. Dwyer, Matter of, 112 App. Div. 195; 879i 1394. Dwyer v. WaUs, 5 Misc. 18;, 1151. Dye V. Kerr, 15 Barb. 444; 1417. Dyer v. Erving, 2 Dem. 160; 307, 308, 353, 393, 431. Dyer, Matter of, 5 Paige, 534; 1279, 1283, 1292. Eadie, Matter of, 39 Misc. 117; 1420. Eagan v. Kergill, 1 Dem. 464; 832. . ; Eagan, Matter of, 89 App. Div. 565; 1140, 1173. Eagle V. Emmet, 4 Bradf. 117, 3 Abb. Pr. 218; 366, 367, 368. Earle v. Earle, 73 App. Div. 300; 1393i Earle v. Earle, 93 N. Y. 104; 787. Earle v. Earle, 173 N. Y. 480; 1153. Earl of Easton v. Seymour, 2 Curteis, 339; 3 Curteis, 530; 297. Earle, Matter of, 71 N. Y. Supp. 1038 (aff'd 74 App. Div. 458); 1112, 1114. Earle v. McGoldrick, 15 Misc, Rep. 136; 671, 1251. Early v. Early, 6 Redf. 376; 414, 415, 510, 511. . East River Natl. Bank v. M'Caffrey, 3 Redf. 97; 1226. Eaton V. Benton, 2 Hill, 576; 1163. Eaton, Matter of, 55 Misc. 472; 1114. Eaton V. North, 7 Barb. 631; 407. Ebeling v. Ebeling, 61 Misc. 637; 1171, 1172, 1459, 1461. Eberhardt v. Schuster, 6 Abb. N. C. 141; 1174. Eberle v. Schilling, 32 Misc. 195; 1378, 1379. .; Ebminne, Matter of, 30 Misc. 21; ,462. Eck«rt, Matter of, 36 Misc. 610; 491. ^ i Eckford v. De Kay, 8 Paige, 89; 1270. Eckler, Matter of, 126 App. Div. 199; 269 Eckler; Matter of, 47 Misc. 320; 433, 464. Eddy, Matter of, 41 Misc. 283; 470, 486. Eddy, Matter of, 10 Misc. 211; 648, 651. Edelmeyer, Matter of, 157 App. Div. 773; 1431. Edgerton, Matter of, 35 App. Divi .125 (aff'd 158 N. Y. 671); 1067, 1072, 1102. Edie, Matter of,- 117 App. Div. 310; 525, 544. Edmonds, Matter of, 47 App. Div. 229; 985, 1417. EdsaJl V. Vandermark, 39 Barb. 589; 137. Edson V. Bartow, 154 N. Y. 199; 534, 1169. Edson vr Bartow, 10 Appi Div. 104; 534. Edson, Matter of. 70 Hun, 122; 487. TABLE OF CASES. CITED kv References are to pages tedsbii V. Parsons, 85 Hun, 263 (aff'd 155 N- Y. 555): 349, 362, 364, 365. Edwards v. Edwards, 1 Dem. 132; 150. Edwards v. Edwards, 2 Cr. & M. 612: 990. Edwards, Matter of, 58 Iowa, 431; 372. Edwards, Matter of, 32 N. Y. Supp. 901; 1070. Edwards, Matter of, 110 App. Div. 623; 262. Edwards, Matter of, 132 App. Div. 544; 549. Egan,"Est. of, 7 Misc. 262; 1436. Egan V. Kergill, 1 Dem. 464; 977. Egan Matter of, 46 Misc. 375; 462, 471. Egan V. Pease, 4 Dem. 301; 339. Egbert V. McGuire, 36 Misc. 245; 571, 1251. Egberts v. Wood, 3 Paige, 517; 893. Egerton v. Conklin, 25 Wend. 224; 542, 548. Ehret, Matter of, 70 Misc. 576; 150. Eichman, Matter of, 33 Misc. 322; 985. Eilfers, Matter of, 29 N. Y. St. Rep. 58; 486. Eisemann, Matter of, 3 Dem. 72; 1429. Eisenlord v. Clum, 126 N. Y. 564; 140. Eisner y. Ayery, 2 Dem. 466; 157, 231. Eisner, Est. of, 8 N. Y. St. Rep. 748; 1419. Eisner v. Koehler, 1 Dem. 277; 1158. Eisner, Matter of, 5 Dem. 383; 662, 1420, 1421. Eisner, Matter of, 6 App. Div. 563; 1273. Eldred y. Eames, 115 N. Y. 403; 172. Eldred, Matter of, 109 App. Div. 777; 340, 416, 433. Eldredge, Matter of, 55 Misc. 636; 539. Elger V. Boyle, 69 Misc. 273; 1268. Elgin, Matter of, 1 Tuck. 97; 778. Elias V. Schweyer, 13 App. Div. 336; 763, 780. Elkins, Matter of, 74 St. Rep. 299; 1372. Ellerson v. Westcott, 148 N. Y. 149; 365, ,694. Ellery, Matter of, 139 App. Div. 244; 319, '338, 409. EUick, Will of, Matter of, 19 Wkly. Dig. ■• 231 EUinsi Matter of, 74 St. Rep. 299; 1372. Elliott V. Asiel, 120 AppV Div. 829; 887. Elliot V. Gibbons, 30 Barb. 498; 1305. Elliot V. Smith, 22 Ch. D: 236; 1466. EUis.v. Filon, 85 Hun, 485; 979, 980, 1419. '■ ■ Ellis, Matter of, 22 St. Rep. 77; 119, 394. Ellis, Matter of, 1 Conftoly, 206; 444. Elmer v. Kechele, 1 Redf. 472; 693, 696, 769. ' ■"' '■'" ■ Elmer, Matter of, 88 Hun, 290; 300, 420. Elster, Matter of, 39 Misc. 63; 471; Elting, Matter of, 33 Misc. 675; 1274. Elting, Matter of, 93 App. Div. 516; 1354. Elwood V. Northrop, 106 N. Y. 172; 1219. Ely V. Holton, 15 N. Y.'595; 839. Ely, Matter of, N. Y. L. J., March 6, 1912; 1070. Eiy,'Matter of, 16 Misc. 228; 463. Emans v. Hickman, 12 Hun, 425; 993. Embree v. Hannah, 5 Johns. 101; 619. Embree, Matter of, 9 App. Div. 602; 1156. Embree, Matter of, 154 N. Y. 778; 1156. Embury, Matter of, 19 App. Div. 214 (aff'd 154 N. Y. 746); 1048, 1078, 1079, 1121, 1125. Emerson v. Bowers, 14 N. Y. 449; 692, 693, 696, 701, 769. Emerson v. Spicer, 46 N. Y. 594, (aff'g 55 Barb. 428); 1304. Emery, In re, 13 Civ. Proc. Rep. 365; 777. Emmet v. Emmet, 67 App. Div. 183; 545. Emmons v. Cairns, 3 Barb. 243; 527. Emmons, Matter of, 110 App. Div. 701; 324, 341, 346 347, 376, 377, 483. Empire State Surety Co. v. Cohen, 93 Misc. 299; 1312, 1368. Enders v. Enders, 2 Barb. 362; 1141, 1168. Endress v. Willey, 122 App. Div. 110; 530. Engel, Matter of, 83 Misc. 675; 764. Engel, Matter of, 74 Misc. 308; 755, 780. Engelbreoht, Matter of, 15 App. Div. 541; 1324, 1342. Engler, Matter of, 56 Misc. 218; 314, 316, 328 ' English V. Mclntyre, 29 App. Div. 439; 150, 938, 942, 949, 1257. Ennis v.-JPentz, 3 Bradf. 382; 1155. Eno, Matter of, 157 N. Y. Supp. 553; 181, 183, 185. Eno, Matter of, N. Y. L. J., April 11, 1916; 189. Eno, Matter of, 92 Misc. 658; 743. Enos, Matter of, 61 Misc. 594; 1163. Ensign, Est. of, 103 N. Y. 284; 142, 149, 395, 722; 1060. Eppig, Matter of, 63 Misc. 613; 534. Erdman v. Meyer, 52 Misc. 256; 1159. Erie R. Co. v. Ramsey, 45 N. Y. 644; 231. Erlcher, Matter of, 3 Redf. 8; 992, 995, 1208. Ervihg, Matter of, 103 App. Div. 500; 1185, 1186. Erwin v. Loper, 43 N. Y. 521; 970, 971, 1038. Esmond, Matter of, 145 N. Y. 621; 1461. Essig, Matter of, 63 Misc. 612; 221. Estrick v. Kobre, 84 Misc. 39; 205, 208. Euston, Matter of, 113 N. Y. 174; 1048. Evans v. Clfiveland, 72 N. Y. 486; 153. Evans v. Ellis, 5 Denio, 640; 476. Evans v. Knight, 1 Add. 239, 440. Evans, Matter of, 33 Misc. 671 ; 272. Evans, Matter of, 33 Misc. 567, 430. Evans, Matter of, 81 App. Div. 636; 463. Evans, Matter of, 113 App. Div. 373; 350. Evans, Matter of, 37 Misc. 337; 463, 469, 486. Evans v. Pierson, 1 Wend. 30; 962. Evans v. Schoonmaker, 2 Dem. 249 (aff'd 31 Hun, 638); 81, 82, 593, 735. EverdeU v. Hill, 58 App. Div. 151; 349, 363. Everitt v. Bveritt, 29 N. Y. 39; 527, 543, 1155. Everts v., Everts, 62 Barb. 577; 113, 667. Evertson v, Evertson, 5 Paige, 644; 1305. Ixvi TABLE OF CASES CITED References are to pages Ewen V. Perrine, 5 Redf. 640; 466, 483. Eychner, Matter of, 65 Misc. 86; 1211, 1214, 1223. Eyre v. Countess of Shaftsbury, 2 P. Wnjs. 107; 1279. Eyre v. Higbee, 35 Barb. 502; 896. Eysaman, Matter of, 113 N. Y. 62; 202, 406. . , Eysaman v. Nelson, 79 Misc. 304; 1450. Eysel, Matter of, 65 Misc. 432; 885. Faburn v. Dimon, 20 App. Div. 529; 1001. Facundi, Est. of, N. Y. L. J., Nov. 20, 1890; 762. Pagan v. Dugan, 2 Redf. 341; 488. Fail, Matter of, 56 Misc. 217; 140. Faile, Matter of, 44 Misc. 619; 524, 527, 1468. Faile, Matter of, 51 Misc. 166; 524, 1476. Fairbanks v. Corlies, 1 Abb. 150; 260. Fairbrass v. Purdy, 44 App. Div. 636; 533. Fairchild v. Edson, 154 N. Y. 199; 527, 539 541 1159. Falabella, Matter of, 139 N. Y. Supp. 1003; 465. Fall's Est., In re, 10 N. Y. Supp. 41; 195. Falls, Matter of, 29 N. Y. St. Rep. 759; 266, 269, 285. Fardette v. U. S. F. & G. Co., 86 App. Div. 50; 799, 809, 1313. Fargo's Est., Matter of, 18 N. Y. Supp. 670, 1031. Fargo, Matter of, 68 Misc. 68, 72 Misc. 305; 1275. Fargo V. Squiers, 154 N. Y. 250; 1021, 1142, U55. Fargo V. Squires, 6 App. Div. 485; 1165. Farley v. McConnell, 52 N. Y. 630 (ail'g 7Lans. 428);218, 802. Farmers' L. & T. Co. v. Eno, 21 Abb. N. C. 219; 577. Farmers L. & T. Co. v. Ferris, 67 App. Div. 1; 1115. Farmers' L. & T. Co. v. Hall, 5 Dem. 73; 1382 1383 Farmers' L. & T. Co. v. Hill, 4 Dem. 41; 211 249 Farmers' L. & T. Co. v. Kip, 192 N. Y. 266; 1010, 1021. Farmers' L. & T. Co., Matter of, 47 App. Div. 448; 283. Farmers' L. & T. Co., Matter of, 49 App. Div. 1; 1335. Fa;rmers' L. & T. Co., Matter of, 119 App. Div. 104; 547, 648. Farmers' L & T. Co., Matter of, 65 Misc. 418; 1259. Farmers' L. & T. Co., Matter of, 189 N. Y. 202' 547. Farmers' L. & T. Co. v. McCarthy, 128 App. Div, 621; 1143, 1166, 1167. Farmers' L. & T. Co. v. M'Kenna, 3 Dem. 219; 127. Farmers' L. & T. Co. v. Pendleton, 179 N. Y. 486; 573, 1368. Farmers' L. & T. Co. v. Pendleton, 37 Misc. 256; 573. Faitmers' L. & T. Cjo. v. Pendleton, 90 App. Div. 607; 573. Farmers' L. & T. Co. v. Shav, 127 App. Div. 656; 537, 540. Farmers' L: & T. Co. v. Shaw, 66 Misc. 201; 537, 540, 642. Farney V. Weirich, 52 Misc. 245; 643. Farnsworth v. Oliphant, 19 Barb. 30; 155, 1369, Farquharson V. Nugent, 6 Dem. 296; 1436, 1436. Farrell v. Calkins, 10 Barb. 348; 288. Farrell, Matter of, 1 Tuck. 110; 382. Farrell, Matter of, 125 App. Div. 702; 27, 1349, 1371.. Farrell, Matter of, N. Y. L. J., July 1, 1892; 1304. Farrell, Matter of, N. Y. L. J., Jan. 31, 1912, 1070. .JFarrington v. American L. & T. Co., 18 Civ. Pro. 135; ,590. Farwell v. Tweddle, 10 Abb. N. C. 94; 950, 1153. Fassbender v. Am. Surety Co., 66 Misc. 6; 8^8. Fattosini, Matter of, 33 Misc. 18; 114, 1473.' Faulktier, Ex parte, 7 Hill, 181; 381, 562. Fay, Matter of, 62 Misc. 154; 1062, 1102. Fay, Matter of, 37 Misc. 532; 1063. Fay V. Muhlker, 13 Daly, 314; 173. Fayerweather, Matter of, 143 N. Y. 114; 1121. Fearing, Matter of, 200 N. Y. 340 (aff'g 138 App. Div. 881); 1047, 1074, 1075. Federal TJnion Surety Co., Matter of, 154 App. Div. .937; 836. Federal Unibii Surety Co., Matter of, 211 N. Y. 549; 836. Feehan, Matter of, 36 Misc. 614; 233. Feely, Matter of, 4 Redf. 306; 778, 128:6, 1290. Feeley, Matter of, N. Y. L. J., May 13, 1890; 129, 153. Feeney, Matter of,. 65 Misc. 158; 448, 462. Feierabend, Matter of, 38 Misc. 56; 946. Felt V. Dorr, 29 Hun, 14; 230. Penton v. Fenton, 36 Misc. 479; 1139, 1162. Ferguson v. Cummings, 1 Dem. 433; 231, 232. Ferguson v. Harrison, 27 Misc. 380; 150, 606. i Ferguson, Matter of, 41 Misc. 466; 716, 718. Ferguson, Matter of, N. Y. L. J., DeQ^!23, 1911; 155. Fembacher v. Fernbacher, 4 Dem. 227; 275, 757, 766, 1150, 1320. Fembacher, Matter of. 18 Abb. N. C.l; 157. Fembacher, Matter Of, 8 Civ. Proc. Rep. .349;. 771, 1150, 1334. Ferrer v. Pyne, 81 N. Y. 281; 1474. Ferretti v. Prudential Ins. Co., 49 Misc. 489,988. Ferrie v. Public Adm'r, 3 Bradf. 151; 723, 724. TABLE OF CASES CITED Ixvii References are to pages Ferrigan, Matter of, 42 App. Div. 1 (aff'd 160 N. Y. 689); 165, 166. Ferrigan, Matter of, 92 App. Div. 376; 616, 691. Ferrin v. Myrick, 41 N. Y. 315; 990, 991, 995, 1022. Ferris v. Burrows, 34 Hun, 104 (aff'd 99 N. Y. 616); 1473. Ferris v. Van Vechten, 9 Hun. 12; 892. Ferris v. Van Vechten, 73 N. Y. 113; 892, 940. Ferris' Est., 1 Tuck. 15; 697. Ferris v. Ferris, 2 Dem. 336; 760: Ferris v. Pub. Adm'r, 3 Bradf. 249; 139. Ferry v. Dunham, 136 App. Div. 61 ; 1312. Ferry v. Sampson, 17 St. Rep. 428; 366. Ferry v. Sampson, 112 N. Y. 415; 367, 373 Fetherly v. Waggoner, 11 Wend. 599; 416. Fettiplace v- Gorges, 1 Ves. Jr. 46; 141. Fevre v. Toole, 84 N. Y. 95; 1161. FideUty, etc., Co., Matter of, 57 App. Div. 532' 545 Field V/ Field, 77 N. Y. 294; 970. Field V. Gibson, 20 Hun, 274; 590. Field, Matter of, 71 Mjac. 396; 1063. Field, Matter of, 204 N. Y. 448 (rev'g 144 App. Div. 737; N. Y. L. J.,, Feb. 29, 1912); 301, 303. Field V. Parker, 4 Hun, 342; 231. Field V. Schieffelin, 7 Johns. Oh. 150; 569, 1304, 1305, 1311. Field V. Van Cott, 15 Abb. Pr. (N. S.) 349; 830. v Fielding, Matter of, 30 Misc. 700; 1219. Fiester v. Shepard, 92 N. Y. 251; 26, 93, 756, 1031, 1178, 1262. Figueira v. Taafe, 6 Dem. 166; 486. Filley's Est., 20 N. Y. Supp. 427; 99, 100, 161, 780, 782. Filley, Matter of, 47 N. Y. St. Rep. 428; 245 250 Finch' Matter of, 115 App. Div. 871; 487. Finch V. Wilkes, 17 Misc. 428; 1467. Fincke v. Fincke, 53 N. Y. 528; 1155. Finn, Matter of, 44 Misc. 622; 1394, 1419. Finn, Matter of, 1 Misc. 280; 484. First Nat. Bank v. Board of Suprs., 106 N. Y. 488, 1211. First Nat. Bank v. National, etc.. Bank, 156, N. Y. 459; 569. First Nat. Bank v. Tamajo, 77 N. Y. 476; 173. First Presbyterian Church v. McKallor, 35 App. Div. 98; 537, 540. First Presbyterian Society v. Bowen, 21 Hun, 389; 541, 550. First Universalist Soc'y v. Boland, 155 Mass. 171; 1134. Fisch, Matter of, 34 Misc. 146; 1057, 1059. Fish V. Coster, 28 Hun, 64; 1253. Fish V. Coster, 92 N. Y. 627; 578. Pish, Estate of, Surr. Dec, 1905, p. 307; ' N. Y. L. J., May 26, 1905; 1439. Fish V. Ferris, 3 E. D. Smith, 567; 135, 1336. pish, In re, 19 Abb. Pr. 209; 1186, 1189. Fish, Matter of, 88 Hun, 56; 329. Fisher v. Banta, 66 N. Y. 468; 144. Fisher v. Fisher, 1 Bradf. 335; 885, 1380, 1432, 1446. Fisher, Matter of, 4 Misc. 46; 529. Fisher, Matter of, 93, App. Div. 186; 1140, 1435, 1436. Fisher, Matter of, 96 App. Div. 133; 1053. Fisk, Matter of, 45 Misc. 299; 941, 950, 1152, 1153, 1272, 1295, 1431. Fisk V. Fisk, 77 App. Div. 83; 896. Fiske V. Anderson, 33 Barb. 71; 122. Fitch, In re, 3 Redf. 457; 1297. Fitch, Matter of, 160 N. Y. 87; 75, 80, 590, 602, 1077, 1379. Fitch V. Witbeck, 2 Barb. Ch. 161; 1208, 1209. Pithian, Est. of, 14 N. Y. Civ. Proc. 52 167, 1411. Fithian's Estate, 3 N. Y. Supp. 193; 49 Fithian, In re, 44 Hun, 457 (aff'g 3 N. Y Supp. 193, rev'd sub. nom Clark, Mat- ter of, 119 N. Y. 427); 172, 381, 666 667, 668. Fitler, Matter of, 11 Abb. N. C. 107; 813 Fitter, Matter of, 92 Misc. 706; 1161. Fitzgerald, In re, 33 Misc. 325; 301, 335 Fitzpatrick v. Brady, 6 Hill, 581; 1031. Fitzsiramons, Matter of, 174 N. Y. 14 159, 160, 289. Fitszimmons, Matter of, 29 Misc. 731 540. Fitzsimons, Matter of, 29 Misc. 204; 535 Five Points House of Industry v. Amer- man, 11 Hun, 161; 1155, 1157. Flagg, Est. of, 10 N. Y. St. Rep. 694 1299. Flanagan v. Fidelity & Deposit Co., 32 Misc. 424; 823. Flandrow v. Hammond, 13 App. Div. 325; 150, 590. Flandrow, Matter of, 28 Hun, 279; 381, 562, 899. Flansburgh, Matter of, 82 Hun, 49; 437. Flatauer v. Loser, 211 N. Y. 15; 219. Fleet V. Simmons, 3 Dem. 542; 764, 801. Fleming, Matter of, 5 Dem. 336; 658. Fleming, Matter of, N. Y. L. J., Oct. 15, 1889; 1135. Fletcher v. Hurd, 14 N. Y. Supp. 388; 1159. Fliess V. Buckley, 90 N. Y. 286; 966. Flinn v. Chase, 4 Den. 85; 899. Flint, Matter of, 15 Misc. 698; 995, 1027. Florence, In re, 2 Bradf. 281; 512. Florence, Matter of, 54 Hun, 328; 76. Florence, Matter of Will, 7 N. Y. Swpp. 578; 76, 79. Florence v. Sands, 4 Redf. 210; 1141, 1142. Flynn v. Corniken, 9 How. Pr. 214; 1146. Flynn v. Diefendorf, 51 Hun, 194; 984. Flynn, Matter of, 58 Misc. 628 (aff'd 129 App. Div. 907); 809, 1294. Flynn, Matter of, 136 N. Y. 287; 246, 248, 249. Flynn, Matter of, 92 App. Div. 379; 616. Ixviii TABLE OF CASES CITED References are to pages Flynn, Matter of, 20 N. Y. Supp, 919 (aff'd 136 N. Y. 287); 251. Flynn, Matter of, 75 Misc. 87; N. Y. L. J., Nov. 1, 1911; 991, 992. Flynn v. -McDermott, 183 N. Y. 62; 1160, 1188, 1189. Floyd V. Fitcher, 38 Barb. 409; 1155. Foehner v. Huber, 42 App. Div. 439; 92, 581. Foersch v. Schmitt, 55 Misc. 608; 888. Fogarty, Matter of, 117 App. Div. 583; 1349, 1351. Foley V. Eagan, 13 Abb. Pr. (N. S.) 361, 1318. Foley, Matter of, 27 Misc. 77; 540. Foley, Matter of, 39 App. Div. 248; 1007, 1208 1226 Foley, Matter of, 55 Misc. 162; 336, 409. Foley, Matter of, 10 N. Y. Supp. 12; 533. Foley, Matter of, 76 Mise. 168; 447. Foley, Matter of, N. Y. L. J., Feb. 21, 1912; 353. Folts, Matter of, 71 Hun, 492; 204, 446, 459, 462. Fonda v. Penfield, 56 Barb. 503; 574. Fontain v. Ravenel, 17 How. (U. S.) 369; 541. Foos, Matter of, 2 Dem. 600; 374. Foote V. Beecher, 78 N. Y. 155; 287. Foote V. Bruggerhot, 66 Hun, 406; 1444. Foote, Matter of, 17 N. Y. Supp. 44; 957. Forbes v. Halsey, 26 N. Y. 53; 1235. Forbes, Matter of, 60 Hun, 171; 484. Fordham v. Gouverneur Village, 5 App. Div. 565; 367. Forman v. Marah, 11 N. Y. 544; 1312. Forman, Probate of the Will of, 1 Tucker, 205' 457. Forman v. Smith, 7 Lans. 443; 469, 470. Forman v. Von Pusbau, 126 App. Div. 629; 1107. Forman's Will, 54 Barb. 274; 417, 454, 438, 463. Forster v. Kane, 1 Dem. 67; 1331, 1336. Forster v. Winfield, 142 N. Y. 327; 1160. Forsyth v. Burr, 37 Barb, 540; 878, 918. Forsyth, Matter of, 10 Misc. 477; 1044. Forsyth v. Rathbone, 34 Barb. 405; 550. Fort V. Gooding, 9 Barb. 371; 1163. Fortune, Matter of, 14 Abb. N. C. 415; 155 Fosdick V. Delafield, 2 Redf. 392; 522, 566, 567. Fosdick V. Hempstead, 8 N. Y. Supp. 772; 531. Fosgate v. Hydraulic Co., 12 Barb. 352; ,369. Foster v. Coe, 4 Lans. 53; 256. Foster, Ex parte, 3 Redf. 532; 174. Foster v. Foster, 7 Paige, 48; 98, 151, 152 394. Foster, Matter of, 15 Hun, 387; 942. Foster, Matter of, 8 Misc. 344; 1005, 1006. Foster, Matter of, 16 Misc. 175; 1165, 1194, 1195, 1196. Foster, Matter of, 30 Misc. 573; 1257, 1260. Foster, Matter of, 37 Misc. 681; 1261. • Foster, Matter of, 38 Misc. 347; 1165, . 1194. ' Foster v. Mott, 3 Bradf. 409; 1291. Foster v. Wetmore, 14 N. Y. Supp. 194; 940. Foster v. Wilber, 1 Paige, 637; 12, 23, 101. Fothergill v. Fothergill, 80 Hun, 3^6; 525. Foulds, Matter of, 35 Misc. 171; 890. Foulks V. Foulks, 10 N. Y. Supp. 785; 1474. Fountain v. Carter, 2 Dem. 313; 101. Fouvergne v. City of New Orleans, 18 How. 470; 84. Fowler v. Butterly, 78 N. Y. 68; 885. Fowler v. Depau, 26 Barb. 239; 550. Fowler v. Lockwood, 3 Redf. 465; 1344, 1381, 1392. Fowler v. Ramsdell, 4 Albany Law Jour- nal 94" 454 463 Fowler v.' Walter, i Dem. 240; 711, 719. Fowles, Matter of, N. Y. L. J., April 12, 1916; 1465; Index sub "Survivorship." Fox v. Burns, 12 Barb. 677; 906.. Fox V. Fee, 167 N. Y. 44; 496. Fox V. Fee, 24 App. Div. 314; 1221. Fox, Matter of, 9 Misc. 661; 487. Fox, Matter of, 166 App. Div. 718; 140, 1370. Fox, Matter of, 52 N. Y. 530; 541, 889. Fox, Matter of Est. of, 92 N. Y. 93; 1226. Fraenznick v. Miller, 1 Dem. 136; 1408, 1423, 1425. Fralick v. Lyford, 107 App. Div. 543; 535 541 FraUck v. ' Lyford, 187 N. Y. 524; 535, 541. France v. Willets, 4 Dem. 369; 1409. Francis, Matter of, 73 Misc. 148; 324, 366, 406. Frank, Matter of, 1 App. Div. 39; 167, 172, 1319. Frankenheimer, Matter of, 130 App. Div. 454; 1168j 1186. Frankenheimer, Matter of, 195 N. Y. 346: 1168, 1184, 1186. Frankenstein, Matter of, April 15, 1916; 1014. FrankUn, Matter of, 26 Misc. 107; 1004, 1274, 1397, 1433, 1439, 1440, 1445. Eraser, Matter of,, 165 App. Div. 441; 1448. Frazer, Matter of, 92 N. Y. 239; 906, 907, 910, 1223, 1396, 1416. Frazier, Matter of, N. Y. L. J., March 28, 1912; 1062, 1074. Freel, Matter of, 49 Misc. 386; 643, 1444. Freeman v. Colt, 96 N. Y. 63; 623, 99S. Freeman v. Coit, 27 Hun,, 447; 988, 995. Freeman v. Freeman, 4 Redf. 211; 938, 939, 940, 945, 1266, 1432, 1445. Freeman v. Kellogg, 4 Redf. 218; 696, 701, 754, 761, 775, 800. Freeman, Matter of, 46 Hun, 467; 429, 434. Freeman v. Nelson, 4 Redf. 374; 1025. FreUgh, Matter of, 42 Misc.' 11; 1273, TABLE OF CASES CITED IxiX References are to pages French v. Dauchy, 134 N. Y. 542; 826. French, Matter of, 52 Hun, 303; 519. Frethey v. Durant, 24 App. Div. 58; 212, 214. Freund, Matter of, 143 App. Div. 335; 1104. Freund, Matter of, 202 N. Y. 556; 1104. Freund v. Washburn, 17 Hun, 543; 127. Frey, Matter of, 2 Connoly, 70; 337. Freygang, Matter of, 3 Law Bull. 60; 1264. Frick, Matter of, 19 N. Y. Supp. 315; 442, 457. Fried V. N. Y. C. R. R. Co., 1 Sheldon, 1; 901. Friedell, Matter of, 20 App. Div. 382; 92. Fries v. Osborn, 190 N. Y. 35; 551. Fritts, Matter of, 19 Misc. 402; 1197. Fritz V. City Trust Co., 72 App. Div. 532; 571. ■ Fritz V. City Trust Co., 173 N. Y. 622; 571. Froelich, Matter of, 122 App. Div. 440; 542 955 956. Froolich, Matter of, 192 N. Y. 566; 542, 955, 956. Frost V. Brisbin, 19 Wend. 11; 855. Frost V. Craig, 28 N. Y. St. Rep. 157; 885. Frost V. Frost, 15 Misc. 167; 129. Frothingham v. Hodenpyl, 41 N. Y. St. Rep. 398; 1408. Fry, Matter of, 79 Misc. 180; 1451. Fry V. Smith, 10 Abb. N. C. 224; 1467. Frye, Matter of, 48 N. Y. St. Rep. 572; 36, 38. Fuller, Matter of, 16 Civ. Proc. Rep. 412; 1327. Fuller, Matter of, 86 Hun, 47; 253. Fuller, Matter of, 62 App. Div. 428; 1080. Fuller V. Yates, 8 Paige, 325; 1161. FuUerton v. Jackson, 5 Johns. Ch. 278; 1283, 1315, 1316. Fulton V. Whitney, 66 N. Y. 548; 25, 218, 769, 948. Furman v. Coe, 1 Cai. Cas. 96; 951, 1452. Furman v. Furman, 153 N. Y. 309; 99, 246. Furman v. Van Sise, 56 N. Y. 435; 1306. Furniss v. Furniss, 2 Redf. 497; 1254. Furniss, Matter of, 86 App. Div. 96; 977, 1419, 1445. Gaffney, Matter of, 116 App. Div. 583, aff'd 189 N. Y. 503; 245, 254. Gagan's Will, In re, 20 N. Y. Supp. 426; 405 Gain^ v. Chew, 2 How. (U. S.) 245; 220. Gaines v. Fuentes et al., 2 Otto (92 U. S.), 10; 84. -<}aines. Matter of, 74 Hun, 94; 283. Gaines, Matter of, 84 Hun, 520; 73. iGaiftfes v. New Orleans, 6 Wallace, 642; 84. Gaines v. Winthrop, 2 Edw. 571; 361. Gala V. Luttrell, 2 Addams, 234; 22. Gale, Matter of, 83 Misc. 686; 1161. Gale V. Wells, 12 Barb. 84; 1305. Gall V. Gall, 64 Hun, 601; 19 Abb. N. O. 19; 840. Gall V. Gall, 114 N. Y. 109; 368. Gall, Matter of, 40 App. Div. 114; 246, 1024. Gall, Matter of, 42 App. Div. 255; 246. Gall, Matter of, 47 App. Div. 490; 246. Gall, Matter of, 2 Connoly, 286 (aff'd 131 N. Y. 593);355. Gall, Matter of, 5 Dem. 374; 359, 430. Gall, Matter of, 32 N. Y. St. Rep. 695; 342. Gall, Matter of, 182 N. Y. 270; 26, 28, 213, 245, 251, 1.374, 1417. Gall, Matter of, 107 App. Div. 310; 1431. Gall's Will, 9 N. Y. Supo. 466; 358. Gallagher v. Crooks, 132 N. Y. 338; 546, 1483. Gallup, Matter of, 43 App. Div. 437; 471. Gallup V. Wright, 61 How. Pr. 286; 547. Galway v. Bryce, 10 Misc. 255; 547. Gamber, Matter of, 53 Misc. 168; 318. Gamble v. Gamble, 39 Barb. 373; 299, 334, 463, 488. Gannon, Matter of, 2 Misc. 330; 458. Gannon v. McGuire, 160 N. Y. 476; 291. Gansevoort v. Nelson, 6 Hill, 392; 970, 984. Ganson v. Tifft, 71 N. Y. 52; 1460. Gantert, Matter of, 136 N. Y. 106; 1204, 1205, 1206. Garbig v. N. Y., etc., R. R. Co., 75 Hun, 605; 459. Gardiner v. Gardiner, 34 N. Y. 155; 466, 475, 486. Gardiner v. Raines, 3 Dem. 98; 329. ' Gardner v. Collins, 2 Pet. (U. S.) 58; 1472. Gardner v. Gardner, 5 Paige, 170; 262. Gardner v. Gardner, 22 Wend. 526; 448, 462. Gardner v. Gardner, 7 Paige, 112; 1420. Gardner v. Hyer, 2 Paige, 11; 549. Gardner, Matter of, 5 Redf. 14; 1418, 1419. Gardner v. Miller, 19 Johns. 188; 571. Gardner v. Pitcher, 109 App. Div. 106; 984. Garland, Matter of, 40 Misc. 579; 1053. Garlock v. Vandervort, 128 N. Y. 374; 24, 27, 92, 140, 212, 213, 1349, 1425, 1475. Garner, Matter of, 54 Misc. 116; 424. Gamer, Matter of, 59 Misc. 116; 90, 149, 151, 722. Garniss v. Gardiner, 1 Edw. 128; 937. Garrett v. Scouten, 3 Den. 334; 1158. ' Gartland, Matter of, 60 Misc. 33; 378. Gartland, Matter of, 60 Misc. 31; 352. Garvey v. Clifford, 114 App. Div. 193; 897. Garvey v. N. Y. Life & Trust Co., 27 N. Y. St. Rep. 389; 1502. Garvey v. Owens, 35 N. Y. St. Rep. 133; 1314, 1380. Garvey v. Union Trust Co., 29 App. Div. 513; 538. Ixx TABLE OF CASES CITED References are to pages Garvey v. U. S. Fid., etc., Co., 77 App. Div. 391; 1037. Gasten, Matter of, 16 Misc. 125; 1169. Gates V. Gates, 34 App. Div. 608; 365. Gates, Matter of, 2 Redf. 144; 1320, 1321. Gavin, Matter of, 2 N. Y. Supp. 670; 734. Gay V. Ulrides, 136 App. Div. 809; 119. Gazlay v. Cornwell, 2 Redf. 139; 1490. ' Gearns, Matter of, 27 Misc. 76; 172, 1383, 1389, 1411. Gedney, Matter of, 30 Misc. 18; 69. Gedney, Matter of, 33 Misc. 160; 887. Gedney, Matter of, 143 N. Y. Supp. 157; 436, 439, 465. Gee, Matter of, 33 N. Y. Supp. 425; 202. Geib v. Topping, 83 N. Y. 46; 174. Geis, In re, 27 Misc. 490; 144, 1178. Geissler, George, Est. of, N. Y. L. J., June 19, 1902. Geissler, Matter of, 72 App. Div. 85; 547, 1151. Gelston v. Shields, 16 Hun, 143 (aff'd 78 N. Y. 275); 1316. Genet v. Tallmadge, 1 Johns. Ch. 561; 62, 1294. Genet v. Tallmadge, 1 Johns. Ch. 3; 1196; 1304. Gennert, Matter of, 96 App. Div. 8; 594, 733 Gens, Matter of, N. Y. L. J., May 17, 1912; 987. Geoffroy v. Gilbert, 154 N. Y. 741; 882. Geoghegan v. Foley, 5 Redf. 501; 1317. George, Matter of, 23 Abb. N. C. 43; . 1474. Georgi, Matter of, 21 Misc. 419; 1228, 1233 Georgi,' Matter of, 35 Misc. 685; 1209, 1214, 1218. Georgi, Matter of, 44 App. Div. 180 (aff'g 37 Misc. 242); 1218, 1240. Gerard, Matter of, 1 Dem. 244; 1191, 1429; Gerber v. State Bank., 167 App. Div. 263; 1480. Gerlach, Matter of, 29 Misc. 90; 721. CS-ierman Bank, Matter of, 39 Hun, 181; 1217, 1220. German Savings Bank v. Sharer, 25 Hun, 409; 1246. Gerould V. Wilson, 81 N. Y. 573; 218, 802, 832. Gerow's Est., 23 N. Y. Supp. 847; 938, 1396, 1397. Gerrard, Matter of, N. Y. L, J., Feb. 24, 1912" 303 Geiry v. Post, 13 How. Pr. 118; 366, 371. Getman, Matter of, 128 App. Div. 767; 1140, 1142. Getman v. McMahon, 30 Hun, 531; 1143. Getty V. Amelung, 7 Albany Law Jour. 415; 658. Geyar, Matter of, 62 Misc. 443; 244. Geyer v. Snyder, 140 N. Y. 394; 947. Geyer v. Snyder, 69 Hun, 115; 947. Giauque, Matter of, 83 Misc. 684; 439. Gibbons v. Shepard, 2 Dem. 247; 147. Gibbs, Matter of, 60 Misc. 645;' 1048, 1116. Giberton v. Fleischel, 5 Duer, 652; 178. Gibson, Matter of, 176 N. Y. 520; 26. Gibson, Matter of, 195 N. Y. 466; 290. Gibson, Matter of, 24 Abb. (N. S.) 45; 1184, 1185. Gibson, Matter of, N. Y. Surrogate's Court, Oct. 13, 1916 (aff'd App. Div. Jan. 1916); 1166. Gibson,; Matter of, 2 Connoly, 125; 1190. Gibson, Matter of, 128 App. Div. 769; 363 Gibson v. State, 38 Misc. 313; 372. Gick, Matter of, 49 Misc. 32 (aff'd 113 App. Div. 16); 864, 868, 872, 873, 874. Giddings v. Seward, 16 N. Y. 365; 1142, 1143, 1148, 1167, 1168. Gifford V. Dyer, 2 R. I. 99; 485. Gihon, Matter of, 29 Misc. 273 (aff'd 48 App. Div. 598); 274, 275, 652. Gihon, Matter of, 60 N. Y. Supp. 65; 462, 486. Gihon, Matter of, .^7 Misc. 626; 662. Gihon, Matter of, C4 App. Div. 504; 1515. Gihon, Matter of, 169 N. Y. 443; 660, 1048, 1100, 1101, 1105, 1136, 1515. Gilbert v. Gilbert, 9 Barb. 532; 360. Gilbert v. Knox, 5.'} N. Y. 125; 299, 312, 320 332 334 Gilbert, Matter' of, 3 N. Y. St. Rep. 208; 1265. Gilbert, Matter of, 104 N. Y. 200; 260. Gilbert, Matter of, 39 Hun, 61; 887, 1312. Gilbert, Matter of, 11 N. Y. Supp. 743, 1348. Gilbert, Matter of, 25 Misc. 584; 1439. Gilbert V. Morrison, 53 Hun, 442; 1000, 1189. Gilchrist, Matter of, 37 Misc. 543; 622, 726. Gilchrist v. Rea, 9 Paige, 66; 262, 1208, 1225. Giles V. De Talleyrand, 1 Dem. 97; 364, 365. Giles' Est., 11 Abb. N. C. 57; 365. Gill V. Brouwer, 37 N. Y. 549; 1199, 1474. Gill V. Clark, 31 Misc. 337; 167. Gill, Matter of, 183 N. Y. 347; 213, 971. Gill, Matter of, 190 N. Y. 155 (rev'g 137 App. Div. 901; a.rg.42 Misc. 457); 966, 970, 1002, 1009, 1389, 1407. Gill, Matter of, 101 App. Div. 607; 886. Gill, Matter of, 42 Misc. 457; 886, 970. Gilleran, Matter of, 50 Hun, 399; 604. Gillespie v. Brooks, 2 Redf. 349; 926, 1391, 1397. Gillespie, Matter of, 18 Abb. N. C; 41; 892. Gillespie v. Mulho land, Daly, Ch. J., 12 Misc. 40; 157. Gillet V. Hutchinson's Adm., 24 Wend. 184; 1022. Gilliam v. Guaranty Trust Co., 186 N. Y. 127; 548, 549, 840, 1145. Gillies v. Kreuder, 1 Dem. 349; 235. Gilligan, Est. of, 1 Con. 137; 147. TABLE OF CASES CITED Ixxi References are to pages Gillman, Est. of, 15 N. Y. St. Rep. 718; 235. Gillman, Matter of, 12 Civ. Proc. R. 179: 173. Gillman, Matter of, 7 St. Rep. 321; 253. Gillurve v. Becker, 56 Misc. 157; 1146. Gilman v. Oilman, 3 Ilun, 22; 283. Gilinan v. Gilman, 6 Thomp. & C. 214 (aft'd 63 N. Y. 41) ; 91, 1171, 1339, 1448. Gilman v. Gilman, 2 I ans. 1 ; 940. Gilman v. Gilman, 1 Redf. 354; 96, 262. Gilman, Matter of, 3 St. Ren. 340; 952. Gilman, Matter of, 82 App. Div. 186; 998. Gilman, Matter of, 92 App. Div. 462; 264, 927, 998. Gilman, Matter of, 178 N. Y. 606; 927, 998. Gitaan, Matter of, 38 Barb. 364 (1 Redf. 354);220, 301, 334, 417. Gilman, Matter of, 65 Misc. 409; 344. Gilman, Matter of, 41 Hun, 561; 959. Gilman v. Redington, 24 N. Y. 19; 529. Gilman v. Wilber, 1 Dem. 587; 953. Ginochio v. Porcella, S Bradf. 277; 963. Gittingsv. Russell, 114 App. Div. 405; 568, 569, 1480. Gittings V. Russell, 49 Misc. 432; 568, 569. Glacius V. Pogel, 88 N. Y. 433 (aff'g 4 Redf. 516); 26, 93, 888, 916, 976, 999, 1013, 1025, 1038, 1390, 1417. Gladding v. FoUett, 2 Dem. 58 (afE'd 30 Hun, 219; 95 N, Y. 652) ; 1260. Glann, Matter of, 2 Rt^f. 75; 1223. Glaskin v. Sheehy, 2 Dem. 289; 1365. Glatner v. Glatner, N. Y. L. J.^ March 7, 1912; 1145. Gleason, Matter of, 17 Misc. 510; 767. Glockner's Will, 2 N. Y. Supp. 97; 449. Gloucester, Matter of, 11 N. Y. Supp. 899; 362, 364, 365. Glover v. HoUey, 2 Bradf. 291; 1340, 1354. Glover v. Mayor, 7 Hun, 232; 614, 644. Goddard, Matter of, 94 N. Y. 544; 614, 621. Godding v. Porter, 17 Abb. Pr. 374; 166. Godine v. Kidd, 64 Hun, 585 (29 Abb. N. C. 37); 365, 840, 852. Goebel v. Wolf, 113 N. Y. 405; 522. Goetschius, Est. of, 2 Misc. 278; 890, 937, 1389. Goetschius, Matter of, 23 N. Y. Supp. 975; ' 1327. Goetz, Matter of, 120 App. Div. 10; 660, 661, 662, 663, 753. Goggin, Matter of, 43 Misc. 233; 690, 710, 711,717,726. Golden, Matter of, 40 Misc. 544; 78, 390. Goldsmith v. Swift, 25 Hun, 201; 950, 1272 Goldsticker, Matter of, 192 N. Y. 35; 214, 221 Goldsticker, Matter of, 54 Misc. 175; 269. Goldsticker, Matter of, 123 App. Div. 474 (a£f'dl92N. Y. 35);349, 362. Goldsticker, Matter of, 192 N. Y. 35; 391. Gombault v. PubUc Administrator, 4 Bradf. 226; 395,' 431, 462. Goodenough v. De Groot, 3 Law Bull. 35; 702. Goodenow v. Livingston, 1 How. Pr. 232; 1323 Goodman v. Alexander, 165 N. Y. 289; 1291. Goodrich, Matter of, 2 Redf. 45; 1156. Goodrich v. Pendleton, 4 Johns. Ch. 549; 15, 16, 712. Goods of Lay, 2 Curteis, 375; 297; Goodsell V. Western Union Tel. Co,, 109 N. Y. 147; 288. Goodwin v. Coddington, 154 N. Y. 283 525. Goodwin v. Crooks, 58 App. Div. 464 1185. Goodwin, Matter of, 122 App. Div. 800 1197 1309 Goodwin, Matter of, 95 App. Div. 183 434, 490. Goodyear v. Watson^ 14 Barb. 481; 1007 Gooseberry, Matter of, 52 How. Pr. 310 1321, 1488. Goran's Est., 23 N. Y. Supp. 766; 735, 738 Gorden, Matter of, 172 N. Y. 25; 363, 1161. Gorden, Matter of, 68 App. Div. 388 1474. Gordon, Matter of, 39 N. Y. St. Rep. 909 884. Gordon, Matter of, 82 App. Div. 439; 548 Goss, Matter of, 98 App. Div. 489; 968, 972, 1000. Goss, Matter of, 71 Hun, 120; 883. Gott V. Cook, 7 Paige, 521 ; 526. Gottsberger v. Taylor, 19 N. Y. 150; 799, 803. Gough, Matter of, 74 Misc. 315; 1199. Goulburn v. Sayre, 2 Redf. 310; 161. Gould V. Gould, 3 Story, 537; 220. Gould, Matter of, 9 N. Y. Supp. 606 (aff'd 131N. Y. 630);390. Gould, Matter of, 156 N. Y. 423 (aff'g 19 App. Div. 352); 1096, 1103, 1105. Goundry, Matter of, 57 App. Div. 232; 284, 816, 921, 923. Gouraud, Matter of, 95 N. Y. 256; 101, 1211. Govan's Est., 2 Misc. 291; 805. Gove v. Harris, 4 Dem. 293; 145, 379. Govers, Matter of, 5 Dem. 40; 154, 378. Covin V. De Miranda, 79 Hun, 329; 1374, Gowdey, Matter of, 101 App. Div. 275; 269. Graber v. Haaz, 2 Dem. 216; 404. Gragg V. Gragg, 46 Misc. 197; 547. Graham v. DeWitt, 3 Bradf. 186; 570. Graham v. Dickinson, 3 Barb. Ch. 169; 1011, 1170. Graham v. Linden, 50 N. Y. 547; 212. Graham w.< LivingstQn, 7 Hun, 11 ; 550. Graham, Matter of, ' 39 Misc. 226;, 90, Ixxii TABLE OF CASES CITED References are to pages Grahanij Matter of, N. Y. L. J., May 29, • 1891; 132. Graham v. The Public Administrator, 4 Bradf. 127; 76, 78. Graham's Will, 9 N. Y. Supp. 122; 324, 337. Granacher, Matter of, 74 App. Div. 567 . (aff'd 174 N. Y. 504); 413. Grant v. Grant, 1 Sandf. Ch. 235; 414. Grant v. Grant, 3 Redf. 283; 531. . Grant, Matter of, 16 N. Y. Supp. 716; 252. Grant, Matter of, 37 Misc. 151; 1178. Grant, Matter of, 56 App. Div. 176; 1308, 1309.' Grant, Matter of, 122 App. Div. 602; 832, 836. Grant, Matter of, 86 Hun, 617; 890. Grant, Matter of, 152 N. Y. 654; 890.' Grant, Matter of, 130 App. Div. 706; 233. Grant, Matter of, 132 App. Div, 739; 883. Grant's Est., Matter of, 49 N. Y. Supp. 574; 648. Gratacap v. Phyfe, 1 Barb. Ch. 485; 23. Graves, Matter of, 171 N. Y. 40; 1042, 1062. Graves, Matter of, 52 Misc. 433; 1056, 1072. Graves v. Waterman, 4 Hun, 687; 946. Gray V. Gray, 5 App. Div. 132; 1162. Gray, Matter of. 111 N. Y. 404; 1014. Gray, Matter of, 27 Hun, 461; 1322. Gray's WiU, Matter of, 5 N. Y. Supp. 464; 438, 442. Greagan v. Buchanan, 15 Misc. 580; 946. Greeley's Will, 15 Abb. Pr. (N. S.) 378, 393; 382, 431, 562. Green v. Disbrow, 79 N. Y. 1; 978. Green v. Dunlop, 136 App. Div. 116; 1019. Green v. Green, 4 Redf. 357; 1253. Green, Matter of, 67 Hun, 527; 320, 466, 485. Green, Matter of, 144 App. Div. 232 1065, 1104. Grear, Matter of, N. Y. L. J., Oct, 21, 1914 61. Green, Matter of, 20 N. Y. Supp. 538 486. Green, Matter of, 63 Misc. 638; 1479. Green, Matter of, 153 N. Y. 223; 1067, 1071, 1073. Green v. Salmon, 8 Ad. & E. 348; 989. Green v. Sanders, 18 Hun, 308; 1436. Greenblatt v. Hermann, 144 N. Y. 13; 1220. Greene V. Day, 1 Dem. 46; 145, 146, 1422. Greene,' Matter of, 48 Misc. 31; 691, 696. Greenhough v. Greenhough, 5 Redf. 191; 923 Greenboro V. Underbill, 12 Vt. 604; 372. Greenwood v. HolbroOk, 111 N. Y. 465; 1482. Greenwood v. Stucliffe, 14 B. & C. 226; 543. Gregory, Matter of, 13 Misc. 363; 90, 110, 392, 847. Gregory, Matter of, 15 Misc. 407; 342. Greifenstein, Matter of, 86 Misc. 173^,764,. 766. Griff en v. Ford, 1 Bosw. 123; 542, 644.. Griffin v. Condon, 18 Misc. 236; 994. Griffin, Matter of, 118 App. Div. 515; 908. Griffin, Matter of, 167 N. Y. 71; 540. Griffin v. Sarsfield, 2 Dem. 4; 1291, 1296, 1315. Griffith V. Beecher, 10 Barb. 432; 886, 887,. 899, 1321. Griffith, Matter of, 49 Misc. 405; 908, 914 '952 1422 Griffiths, Matter of, 88 Misc. 389; 304.^ Griggs V. Day, 18 N. Y. Supp. 796 (aff'd 135 N. Y. 469); 173. Griggs V. Guinn, 29 Abb. N. C. 144; 173. Grim v. Dyar, 3 Duer, 354; 625. Grinnell v. Howland, 51 Misc. 132; 1468, 1473. Griswbld v. Griswold, 4 Bradf. 216; 1002. Griswold v. Hart, 142 App. Div. 106; 871, Griswold, Matter of, 42 Misc. 230; 549. Griswold, Matter of, 15 Abb. 299; 379, 1321. Griswold V. Sawyer, 125 N. Y. 411; 882, 885. Gross V. Clark, 1 Civ. Proo. R. 25 (aff'd 1 Civ. Proc. R. 469);871. Gross V. Mathewson, 34 Misc. ^70; 1151. Gross, Matter of, 14 St. Rep. 429; 465. Grossman, Matter of, 92 Misc. 656; 1441. Grossman, Matter of, Surr. Dec. 1911, 827; 1439. Grosvenor v. Allen, 9 Paige, 76; 1241. Grosvenor, Matter of, 124 App. Div. 331 (aff'd 193 N. Y. 662); 1048, 1099, 1105, 1108. Grotrian, Matter of, 35 Misc. 479; 1162. Grotrian, Matter of, 30 Misc. 23; 1145, 1146, 1162. Grout v. Cooper, 9 Hun, 326; 1162. Grout, Est. of, 2 How. (N. S.) 140; 1181. Grout, In re, 16 Hun, 361; 1450. Grove, Matter of, 64 Barb. 526; 154. Grubb v. Hamilton, 2 Dem. 414; 776. Gryrnes v. Hone, 49 N. Y. 17; 1066. Guaranty Trust Co., Matter of, 131 App. Div. 658; 214, 941, 1153, 1268, 1272, 1276. Guck, Matter of, N. Y. L. J., March 15, 1912; 147. Guelich v. Clark, 3 Sup. Ct. (T & G.) 315; 361. Guental, Matter of, N. Y. L. J., March 19, 1912; 1416. Gugel V. Hiscox, 138 App. Div. 61; 1408. Gugel V. Vollmer, 1 Dem. 484; 362. Guibert'v. Saunders, 10 St. Rep. 43; 902. Guild V. Peck, 11 Paige, 474; 23. Guion V. Underbill, 1 Dem. 302; 233, 236, 1273. Guiterman v. Liverpool, etc., S. S. Co., 83 N. Y. 368; 460. Guldenkirch, Matter of, 36 Misc. 123; 952, 1415. TABLE OF CASES CITED Ixxiii References are to pages Gunning v. Lockman, 3 Redf. 273; 126, 1322. Gurofsky v. Lehigh Valley R. R, Co., 121 App. Div. 126; 674. Guth V. Dalton, 58 How. Pr. 289; 53. Guy V. Craighead, 6 App. Div. 463; 150, 608. . Guy V. Mead, 22 N. Y. 465; 447. Gwin, Wm., Matter of, 1 Tucker, 44; 297. Gwyer v. Gwyer, 5 App. Div. 156 (aff'd 160 N. Y. 659); 523. Haas V. Childs, 4 Dem. 137; 648, 649. Haberman v. Baker, 128 N. Y. 253; 570 Hacket, Matter of, 14 Misc. 282; 1120, 1121, 1125. Hackman v. Black, 2 Lee, 251 ; 22. Hadenberg v. Hadenberg, 46 Conn. 30 606. Hadden, Matter of, 1 Oonnoly, 306; 1139 Haebler v. Eichler Brewing Co., 42 App Div. 95; 1158. Haendle v. Stewart, 84 App. Div. 274 1256. Hafner v. Hafner, 171 N. Y. 363; 1156. Hafner v. Hafner, 62 App. Div. 316; 1156. Hagadorn v. Conn. Mutual Life Ins. Co., 22 Hon, 249; 460. Hagan v. Sone, 68 App. Div. 60 (rev'd 174 N. Y. 317); 181, 462. Hagan v. Soile, 174 N. Y. 317; 181. Hagan v. Yates, 1 Dem. 584; 455, 483. Hagar, Matter of, 48 Misc. 43; 497. Hagemeyer v. Saulpaugh, 97 App. Div. 535; 528. Hagen v. Ward, 58 App. Div. 258; 903. Haggorty, Matter of, 9 Hun, 175; 1284. Haggerty, Matter of, 128 App. Div. 479; 1075. Haight V. Brisbin, 7 Civ. Proc. Rep. 152; 803. Haight V. Brisbin, 100 N. Y. 219; 754, 764, 766, 771, 826, 1452. Haight V. Brisbin, 96 N. Y. 132; 762, 771. Haight, Matter of, 51 App. Div. 310; 1158, 1431. Haight, Matter of, 63 Misc. 624; 550. Haight v. Pine, 3 App. Div. 434; 525, 543. Halbert, Matter of, 15 Misc. 308; 436, 448, 452. Hald V. Claffy, 131 App. Div. 251; 904. Hale, Matter of, 6 App. Div. 411; 1361. Haley, Matter of, 21 Misc. 777; 688, 689, 764. Haley v. Sheridan, 190 N. Y. 331; 1494. Hall V. Brennan, 64 Hun, 394; 1212. Hall V. Brennan, 140 N. Y. 409; 1507. Hall V. Campbell, 1 Dem. 415; 1257, 1381. Hall V. Carter, 8 Ga. 388; 959. Hall V. Dusenbury, 38 Hun, 125; 1007, 1027. Hall V. Hall, 78 N. Y. 535; 1253. Hall V. Lauderdale, 46 N. Y. 70; 657. Hall V. McDermott, 78 Misc. 52; 53. Hall, Matter of, 61 App. Div. 266; 90, 283. Hall, Matter of, 164 N. Y. 196; 290, 942, 943- Hall, Matter of, 36 Misc. 618; 1132. Hall, Matter of, 7 Abb. N. C. 149; 1409. Hall, Matter of, 16 Mise. 174; 862, 952, 1415. Hall, Matter of, 68 Misc. 581; 474. Hall V. Strong, 117 App. Div. 912; 1408. Hall V. Thompson, 23 Hiin, 334; 525. Hall V. Tokeler, 2 Robt. 318; 346. Hall V. Tryon, 1 Dem. 296; 1435. Hallenbeck v. Hallenbeck, 103 App. Div. 107; 897. Hallenbeck, Matter of, 119 App. Div. 757 (modf'd 195 N. Y. 143); 585, 909, 1435. Hallenbeck v. Van Valkenburg, 5 How. Pr 281 ■ 298 Hallet V. Hare, 5 Paige, 316; 1489. Halligan, Matter of, 50' Misc. 481; 673. Hallock V. Bacon, 64 Hun, 90; 982. HaUock V. Hallock, 79 App. Div. 508; 1138. Hallock, Matter of, 42 Misc. 473; 1056; Halsey v. Halsey, 3 Dem. 196; 771. Halsey v. Reed, 9 Paige, 446; 1012, 1013. Halsey v. Van Amringe, 6 Paige, 12; 1320, 1321, 1340. Halsted v. Hyman, 3 Bradf. 426; 939, 1392 Halstead, Matter "of, 51 Misc. 542; 416. Ham V. Van Orden, 84 N. Y. 257; 1156. Hamer, Matter of, N. Y. L. J., June 10, 1891; 1342. Hamersley, Est. of, 15 Abb. N. C. 187; 659, 660. Hamersley v. Lockman, 2 Dem. 524; 400, 431. Hamersley, Matter of, 43 Hun, 639; 397, 400. Hamersley, Matter of, 7 N. Y. St. Rep. 292; 513. Hamilton v. Cutting, 60 App. Div. 293; 1350. Hamilton, Matter of, 76 Hun, 200; 92, 151, 152, 397, 429, 430, 1289. Hamilton, Matter of, 29 Misc. 724; 486. Hamilton, Matter of, 41 Misc. 268; 1119. Hamlin v. Osgood, 1 Redf. 409; 1155. Hamlin v. Stevens, 177 N. Y. 39; 549, 840, 853, 979. Hammond, Matter of, 16 St. Rep. 977; 347. Hammond, Matter of, 92 Hun, 478; 1031. Hampton v. Stoehr, 51 St. Rep. 560; 1307. Hancock, Matter of, 91 N. Y. 284 (rev'g 27Hun, 78);43, 252. , ' Hancox v. Meeker, 95 N. Y. 528; 173, 1431, 1432, 1433. Hancox v. Wall, 28 Hun, 214; 1153, 1364. Hangen v. Hachemeister, 17 J. & S. 34; 619. Hangen v. Hachemeister, 114 N. Y. 566; 902. Hangen v. Hachemeister, 21 J. & S. 532 (aff'd 114 N. Y. 566); 620. I Haniman, Matter of, 50 Misc. 245; 867, I 873. Ixxiv TABLE OF CASES CITED References are to pages Hannah,- Matter of, 45 Hun, 561; 283. Hannahs v. Hannahs, 68 N. Y. 610; 937, 939, 953, 1334. Hannin v. Osgood, 1 Redf. 409; 142. Hannon v. Osborn, 4 Paige, 336; 899. Hanover, Matter of, 3 Redf. 91; 600. Hapgood V. Houghton's Executors, 10 Pick. 154' 989 Harbeok, Mktter'of, 161 N. Y. 211; 1073. Harbeck, Matter of, 81 Hun, 26; 1380, 1450. Harbeck v. Pupin, 23 Abb. N. C. 190; 1014. Hard v. Ashley, 88 Hun, 103; 351. Hard v. Ashley, 117 N. Y. 606; 413, 512, 513, 524, 1349, 1350. Harden, Matter of, 88 Misc. 420; 61, 62, 511. Hardenberg v. Manning, 4 Dem. 437; 1008. Hardenbrook, Matter of, 23 Misc. 538; 1433. Hardenburg, Matter of, 85 Hun, 580; 283, 321 323 Harder, Matter of, 124 App. Div. 77; 1059. Hardin, Matter of, 44 Misc. 441 ; 1494. Harding,' Matter of, N. Y. L. J., May 28, 1891; 373. Hardy v. Ames, 47 Barb. 413; 968. Hardy, Matter of, 2 Dem. 91; 565. Hardy, Matter of, 28 Misc. 307; 540. Harlow, Matter of, 73 Hun, 433; 251. Harlow v. Mills, 58 Hun, 391; 933. Harlow v. Mills, 128 N. Y. 650; 933. Harmon, Matter of, 46 Misc. 229; 1507. Harnett v. Garvey, 66 N. Y. 641; 461. Harnett, Matter of, 15 N. Y. St. Rep. 725; 1430. Harper v. Harper, 1 T. & C. 351; 428, 434, 447, 477. Harper, Matter of, 27 Misc. 471; 1431, 1445. Harring v. Coles, 2 Bradf. 349; 1305, 1306, 1486. Harrington v. Abbertson, 115 App. Div. 177" 555. Harrington v. Keteltas, 92 N. Y. 40; 862, 924, 1415, 1507. ■ Harrington v. Libby, 6 Daly, 259; 656, 935 Harriot, Matter of, 145 N. Y. 540; 260, 289. Harris v. Achilles, 129 App. Div. 487; 1468. Harris v. American Bible Soc, 2 Abb. Ct. App. 316; 538. Harris v. Am. Bible Society, 4 Abb. (N. S.) 421; 5.38. ' Harris v. American Bible Soc, 46 Barb. 470; 538. Harris v. Clark, 7 N. Y. 242; 550. Harris v. Clark, 3 N. Y. 93; 1008. Harris v. Ely; 25 N. Y. 138; 23, 1408, 1423. Harris v. Harris, 26 N. Y. 4.33; 409, 416, 509, 510, 513. Harris v. Harris, 36 Barb. 88; 413. Harris, Matter of, 19 Misc. 388; 4465- 485. Harris, Matter of, 1 Civ. Proc. Rep. 162; 1179. Harris, Matter of, 4 Dem. 463; 1442. Harris v. Meyer, 3 Redf. 450; 758, 1008, 1009. Harris v. Murray, 28 N. Y. 547; 1107. Harrison v. Clark, 87 N. Y. 572; 77, 782, 828. Harrison v. Jewell, 2 Dem. 37; 543. Harrison v. McAdam, 38 Misc. 18; 547. Harrison v. McMahan, 1 Bradf. 283; 688, 695. Harrison v. Rowan, 3 Wash. C. C. R. 580; 435. Harry v. Dodge, 66 Misc. 302; 79. Harry v. Hilton, 11 Abb. N. C. 448; 53. Harstrom, Matter of, 7 Abb. N. C. 391; 83, 91. Hart V. Hart, 45 App. Div. 280; 1417. . Hart V. Kip, 148 N. Y. 306; 79, 1507. Hart V. Marks, 4 Bradf. 161; 550, 555, 1467. Hart, Matter of, 2 Redf. 156; 800. Hart, Matter of, 6 N. Y. St. Rep. 535; 775. Hart, Matter of, 60 Hun, 516; 1410. Hart V. TenEyck, 1 Cow. 743; 878. Hiart V. Ten Eyck, 2 Johns. Ch. 62; 878, 914, 942. Harteau, Matter of, 125 App. Div. 710; 531, 555, 950, 1152, 1272. Harteau, Matter of, 53 Misc. 201 (aff'd 142 App. Div. 904; mod'fd 204 N. Y. 292); 1274, 1476. Hartnett v. Wandell, 60 N. Y. 346; 382, 561, 562, 563, 565. Hartwell v. McMaster, 4 Redf. 389; 193, 311, 450, 452. Harty, Matter of, 85 Misc. 628; 322. Harvey v. Kennedy, 81 App. Div. 261; 1146, 1148. Harvey, Matter of, 3 Redf. 214; 218, 686, 1490. Harvey v. McDonnell, 113 N. Y. 526; 902, 903. Harvey v. Richards, 1 Mason, 380; 83, 605. Harward v. Hewlett, 5 Redf. 330; 1383. Harwood, Matter of, 52 Misc. 82; 531, 1476. Hasbrouck v. Hasbrouck, 27 N. Y. 182: 1016, 1392, 1451. Hasbrouck v. Knoblauch, 130 App. Div. 378; 542. Hasbrouck v. Knoblack, 59 Misc. 99; 529, 536, 1150,1151. Hasbrouck, Matter of, 153 App. Div. 394; 26. Hascall v. King, 28 App. Div. 280, 529. Hascall v. King, 162 N. Y. 134; 529. Haskett, Ex parte, 3 Redf. 165; 654, 659. Haskin, Matter of, 111 App. Div. 754 (rev'g 49 Misc. 177); 1431, 1445. Haskin v. Teller, 3 Redf. 316; 935. Haslehurst, Matter of Est. of, 4 Misc. 366; 1306, 1308. TABLE OP CASES CITED Ixxv References are to pages Hasler v. Hasler, 1 Bradf. 248; 656, 936, 997. Hasley, Matter of, 17 Weekly Digest, 241; 260. Hassard v. Rowe, 11 Barb. 22; 1304. Hasselbrook, Matter of, 128 App. Div. ' 874; 489, 490. Hassey v. Keller, 1 Dem. 577: 764, 769. Hastings, Est. of Sarah, N. Y. L. J., June 27, 1902; 958. Hastings, Est. of, 6 Dem. 423; 874. Hastings, Matter of, 6 Dem. 307; 1139. Hastings v. Tousey, 123 App. Div. 480; 655, 662. Hatch V. Luckman, 64 Misc. 508 (aff'd 165 App. Div. 765); 79. Hatch V. Sigman, 1 Dem. 519; 412, 413, '513. Hathaway, Matter of, 27 Misc. 474; 75, 77, 1078, 1084. Hathaway, Matter of, 71 N. Y. 238; 36. Hathaway, Matter of, 24 N. Y. Supp. 468; 1023. Hatten, Est. of, 6 Dem. 444; 1330. Hatton V. McFadden, 15 N. Y. St. Rep. 124; 760. Hauenstein v. Kull, 59 How. Pr. 24; 1305. Haug V. Hewitt, 87 Misc. 67; 749, 1293. Haug, Matter of, 55 Misc. 481 ; 946. Haug, Matter of, 29 Misc. 36; 690, 707, 710, 717, 726. Haug V. Schumacher, 166 N. Y. 506; 543. Haughian v. Conlan, 86 App. Div. 290; 435. Haughian v. Conlan, 39 Misc. 584; 1350. Haughian, Matter of, 37 Misc. 457; 711. Hauptmann v. First Nat. Bank, etc., 83 Hun, 78; 569. Hauptmann v. Hauptmann, 91 App. Div. 197; 895. Hauselt v. Gano, 1 Dem. 36; 1023, 1362. Hauselt v. Vilmar, 76 N. Y. 630; 1327. Havemeyer, Matter of, 3 App. Div. 519; 754, 760, 763, 764. Havemeyer, Matter of, 32 Misc. 416; 1048. Haven v. Haven, 1 Redf. 374; 543. Havens v. Havens, 1 Sandf. Ch. 324; 1148. Havens v. Van Den Burgh, 1 Den. 27; 360. Havens v. Sherman, 42 Barb. 636; 1219, 1220. Havens, Will'of, 8 Misc. 574; 1425. Haviland, Matter of, 17 Misc. 193; 554. Hawk, Matter of, 54 Misc. 187; 941, 950, 1153. Hawkes V. Warren, 140 App. Div. 712; 851. Hawley v. Cramer, 4 Cow. 735; 1235. Hawley v. James, 16 Wend. 61; 529. Hawley v. James, 5 Paige, 318; 1010, 1161. Hawley, Matter of, 104 N. Y. 250; 23, 27, 77, 211, 1254, 1255, 1302, 1363. Hawley, Matter of, 100 N. Y. 206 (aff'g Est. of Singer, 3 Dem. 571); 193, 213, 245, 247, 248, 250, 1113. Hawley, Matter of, 37 Misc. 667; 727. Hawley, Matter of, 44 Misc. 186; 476. Hawley v. Singer, 3 Dem. 589; 1343, 1446. Haxtun v. Corse, 2 Barb. Ch. 521; 530. Haxtun, Matter of, 102 N. Y. 157; 1214, 1222 1223 1224, Hayden, Matter of,' 54 Hun, 197; 125 N. Y. 176; 1431, 1436, 1438, 1440. Hayden, Matter of, 204 N. Y. 330; 665, 666, 669. Hayden v. Pierce, 144 N. Y. 512; 1505. Hayden v. Sugden, 48 Misc. 108; 1038. Hayes v. Gunning, 51 Misc. 517; 523. Hayes v. Kerr, 19 App. Div. 91; 486. Hayes, Matter of, 40 Misc. 500; 937, 951, 952, 1314. Hayes v. Meyer, 35 N. Y. 226; 1107. Hayle v. Hasted!, 1 Curt. 236; 394. Hayne v. Sealy, 22 Misc. 243; 886. Haynes v. Brooks, 116 N. Y. 487; 894. Haynes v. Sherman, 117 N. Y. 433; 1157. Hays V. Ernest, 32 Fla. 18; 299. Hays V. Gourley, 1 Hun, 38; 1155. Hays V. Hibbard, 3 Redf. 28; 1169, 1171, 1173. Hays V. Jackson, 6 Mass. 153; 86. Hayward, Matter of, 44 App. Div. 265; 242. Hayward v. Place, 4 Dem. 487 (afl'd 105 N. Y. 629); 712, 717, 762, 769. Haywood v. Townsend, 4 App. Div. 246, 832 Hazard v. Hazard, 5 Sup. Ct. (T. & C.) 79; 487. Hazard, Matter of, 73 Hun, 22; 1006. Hazard v. Wilson, 3 Abb. N. C. 50; 1325. Heady's Will, 15 Abb. Pr. (N. S.) 211; 329. Healy v. Healy, 55 App. Div. 315; 853. Healy, Matter of, 27 Misc. 352; 141, 393. Heaney, Matter of, 125 App. Div. 619; 254, 1388, 1429. Heard v. Horton, 1 Den. 165; 545. Hearman', Matter of, 34 N. Y. St. Rep; 231 1224 Heath V. Cole, 15 Hun, 100; 320, 321, 323, 333 334. Heath v. Heath, 18 Misc. 521 ; 840. Hebbard v. Haughian, 70 N. Y. 55; 416. Hecht, Matter of Application of, 71 Hun, 62; 1253, 1256, 1265. Hedding Meth. Epis. Church, Matter of, 35 Hun, 315; 1179. Hedger, Matter of, 1 Connoly, 524; 1474. Hedges v. Hedges, Prec. in Ch. 269; Gilb. Eq. Rep. 12; 295. Hedges, Matter of, 57 App. Div. 48; 468, 486. Heelas, Matter of, 5 Redf. 440; 1425. Heermans v. Hill, 2 Hun, 409; 92, 246, 401. Heilman v. Jones, 5 Redf. 398; 145, 253. Heinemann v. Heard, 62 N; Y. 448; 837. Heinrich v. Heidt, 106 App. Div. 179; 984. Heldmann, 153 App. Div. 583; 263. Hellenberg v. Ind. Order of B'nai B'rith, 94 N. Y. 580; 884, 886. Heilman, Matter of, 174 N. Y. 254; 883. Hembury, Matter of, 37 Misc. 454; 907. Hemmje v. Meinen, 20 N. Y. Supp. 619; 539. Ixxvi TABLE OP CASES CITED References are to pages Hempstead v. White Sewing Mach. Co., 134 App. Div. 575; 1325. Henderson, Matter of, 157 N. Y. 423; 26, 246, 247, 248, 1112. Henderson v. Merritt, 10 App. Div. 397; 524. Henderson v. Scott, 32 Hun, 413; 1174. Hendricks v. Decker, 35 Barb. 298; 1174. Hendrickson v. Ladd, 2 Dem. 402; 590, 593 596 712 Heney v. Mead, 4 Law Bull. 10; 206. Hennessy v. Patterson, 85 N. Y. 91; 1156. Henry v. Bishop, 2 Wend. 575; 317. Henry, Est. of, 4 Dem. 253; 272. Henry v. Henry, 4 Dem. 253; 205, 260. Henry v. Henry, 3 How. (N. S.) 386; 260. Henry, Matter of, 2 How. (N. S.) 250; 127, 135. Henry, Matter of, 5 Dem. 272; 1325. Henry, Matter of, 18 Misc. 149; 436. Henry, Matter of, 78 Misc. 319; 253. Henshaw, Matter of, 37 Misc. 536; 85. Hepburn v. Hepburn, 2 Bradf. 74; 1013, 1188. Hepburn v. Montgomery, 97 N. Y. 617; 195 267 Herbert v. Smith, 6 Lans. 493; 123. Herbert v. Stevenson, 3 Dem. 236; 155, 1377. Herkimer v. Rice, 27 N. Y- 163; 932. Hermanqe, Matter of, 2 Dem. 1; 1291. Hermann, Matter of, 75 Misc. 599; 1465. Hermann, Matter of, 83 Misc. 283; 403. Herrick v. Malin, 22 Wend. 388; 353. Herrick, Matter of, 32 St. Rep. 1032; 938, 944. Herrick v. Snyder, 27 Misc. 462; 328, 329, 349. Herring v. Hoppock, 15 N.Y. 409; 181. Herrington V. Budd, 5 Den. 321; 360, 361. Herrington v. Lowman, 22 App. Div. 266; 1352. Herrington, Matter of, 73 Misc. 182; 1422. Herriott v. Prince, 87 Hun, 95 (aff'd 155 N.Y. 5); 571. Herrmann, Matter of, 91 Misc. 464; 154. Herst V. Beach, ,5 Madd. 351; 69. Hertell v. Bogert, 9 Paige, 52; 958, 959. Hertf elder's Est., 1 Law Bull. 96; 1396. Hervy, Matter of, 67 Hun, 13; 1206. Herzog v. Title Co., 177 N. Y. 86; 522, 1144, 1468. Hesdra's Est., In re, 4 Misc. 37; 196, 247, 251. Hesdra, Matter of, 119 N, Y. 615 (aff'g 17 N. Y. St. Rep. 612); 311, 336. Hess, Matter of,, 110 App. Div. 476; 1072. Hess, Matter of, 187 N. Y. 554; 1072. Hetherington, Matter of, 25 Wkly. Dig. 4; 773. Hetzel V. Easterly, 96 App. Div. 517; 217. Heual V. Stein, 165 App. Div. 14; 132. Heuser, Matter of, 87 Hun, 262; 1410. Hewett v. Bronson, 5 Daly, 1 ; 990. Hewitt, Matter of, 31 Misc. 81; 448, 462. Hewitt, Matter of, 40 Misc. 332; 1002. Hewitt's Will, 91 N. Y. 261; 5 Redf. 271; 300, 301. Hewlett V. Elmer, 103 N. Y. 156; 194, 284. Hewlett V. Wood, 55 N. Y. 634; 445, 446, 459. Heyeii, Matter of, 40 Misc. 511; 766. Heymann, Matter of, N. Y. L. J., Jan. 29, 1912;: 1166. : Heyzer v. Morris, 110 App. Div. 313; 442, 461, 469. Hibbard, Matter of, 63 Misc. 196; 1150, 1151. Hibbard, Matter of, 89 Misc. 707; 192. Hickey v. Dixon, 42 Misc. 4; 1281. Hicks, Matter of, 14 St. Rep. 320; 169, 196. Hicks, Matter of, 170 N. Y. 195; 667. Hicks, Matter of, 54 App. Div. 582; 785, 1318, 1369. Hicks, etc., v. Walton, 14 App. Div. 199; 979. Hidden, Matter of, 63 Misc. 535; 1152, 1274. Hierman v. Hapgood, 1 Dem. 188; 174. , Higbie v. Westlake, 14 N. Y. 281; 1244, Higgenbotham, Matter of, 51 Misc. 158; 892. Higgins V. Downs, 101 App, Div. 199; 518. Higgin, Matter of, 55 Misc. 175; 1063J Higgins, Matter of, 94 N. Y. 554; 339. Higgins, Matter of, 65 Misc. 415; 774. Higgins, Matter of, 91 Misc. 387; 27, 869. Higgins V. Union Trust Co., 32 N. Y. St. Rep. 197 (aff'd 127 N. Y. 635); 88. Hildebrand, Matter of, 1 Misc. 245; 885. Hildebrand, Matter of, 23 N. Y. Supp. 148; 993. Hildenbrand, Matter of, 87 Misc. -471; 350. Hildersdon v. Lowe, 2 Hare, 355; 544. Hill v. Hanford, 11 Hun, 536; 1305. Hill V. Horton, 4 Dem. 88; 76, 77. Hill, Matter of, 43 Misc. 583; 650, 651.' Hill V. Moore, 131 App. Div. 365; 1502. Hill v. Nelson, 1 Dem, 357; 1442. Hill V. Newichawanick Co., 8 Hun, 459 (aff'd 71 N.Y. 593); 931. Hill V. Nye, 17 Hun, 457; 841, 851, 853, 1489. Hilliker v. Bast, 64 App. Div. 552; 546. Hillis V. Hillis, 16 Hun, 76; 417. Hilton V. Sowenfeld, 53 Misc. 152; 572. Hilton, Matter of, 29 Misc. 532; 648, 649. Hillman v. Stephens, 16 N. Y. 268; 887. Hindman v. Havirand, 2 App. Div. 146; 1146. Hine v. Hine, 118 App. Div, 585; 887, 932, 942. Hine v. Hine, 39 Barb. 507; 1171, 1172. Hinman, Matter of, 32 Misc. 536; 1166. Hirsch, Matter of, 116 App. Div. 367 (aff'd 188 N. Y. 584) ; 166, 769, 941, 944, 1437. Hirshfeld, Matter of, 88 Misc. 399; 749, 750, 1293. Hiscox, Matter of, 135 App. Div. S4&; 862, 884, 1406, 1436. TABLE OF CASES CITED Ixxvii References are to pages Hitchcock, Matter of, 16 Wkly. Dig. 533; 434. Hitchcock V. Peaslee, 89 Hun, 506; 1155. Hitchcock V. Thompson, 6 Hun, 279; 306. Hitchins, Matter of, 39 Misc. 767; 1443. Hitchins, Matter of, 43 Misc. 485; 1155. Hitchins, Matter of, 101 App. Div. 612; 1155. Hitchler, Matter of, 21 Misc. 417; 113, 1175. Hitchler, Matter of, 25 Misc. 366; 420, 1342. Hoag V. Lamont, 16 Abb. (N. S.) 91; 113. Hoag V. Wright, 174 N. Y. 36; 447. Hoagland, Matter of, 51 App. Div. 347; 893 1273 Hoagland, Matter of, 164 N. Y. 573; 893. Hoagland, Matter of, N. Y. L. J., Feb. 13, 1912; 1274. Hobart v. Hobart, 62 N. Y. 84; 287. Hobson V. Blackburn, 1 Addams, 274; 363. Hobson V. Hale, 95 N. Y. 598; 1205, 1434. Hock, Matter of, 74 Misc. 15; 429, 439, 447, 452, 464, 493. Hodge V. Leaning, 2 Dem. 553; 898. Hodgeson v. Micklethwaito, 2 Drewry, 294; 547. Hodgkins v. Hodgkins, 123 App. Div. 110; 545. Hodgman, Matter of, 11 App. Div. 344 (aff'd 164 N. Y. 627); 207, 259. Hodgman, Matter of, 82 Hun, 419; 251. Hodgman, Matter of, 31 N. Y. St. Rep. 479; 670. Hodgman, Matter of, 69 Hun, 484 (aff'd 140 N. Y. 421); 246, 258, 259, 1140, 1143, 1188, 1190, 1192. Hodgman, Matter of, 10 N. Y. Supp. 491; 1373 1377 Hoes v! Halsey, 2 Dem. 577; 156. Hoes, Matter of, 54 App. Div. 281; 166, 1418. Hoes, Matter of, 119 App. Div. 288; 249, 253, 619, 1500. Hoes V. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435 (rev'g 73 App. Div. 363); 80, 216, 219, 620, 686. Hoes V. Van Hoesen, 1 N. Y. 120 (aff'g 1 Barb. Ch. 379); 1010, 1146, 1473. Hoey V. Hoey, 53 App. Div. 208; 463. Hoffman, Est. of, 136 App. Div. 516; 62 Misc. 600; 171, 1448, 1449. Hoffman v. Kanze, 7 Misc. 237; 990. Hoffman, Matter of, 143 N. Y. 327; 1040, 1053, 1133. Hoffman, Matter of, 201 N. Y. 247; 1200. Hoffman, Matter of, 42 Misc. 90; 1003, 1104. Hoffman v. Pennsylvania Hospital, 1 Dem. 118; 1190. Hoffman v. Steuing, 49 Misc. 157; 360. Hogan v. Curtin, 88 N. Y. 162; 1158. Hogan V. Kavanaugh, 138 N. Y. 417; 1019, 1019, 1020, 1038, 1145, 1146, 1203, 1219, 1228. Hogarty, Matter of, 62 App. Div. 79; 1334. Hogle V. Hogle, 49 Hun, 313; 130, 1086. Holbrook, Matter of, 39 Misc. 139; 1441. Holbrook v. White, 13 Wend, 591; 899. Holcomb V. Harris, 166 N. Y^. 257; 871. Holcomb V. Holcomb, 95 N. Y. 316; 446, 478. Holcombe v. Nettleton, 41 Misc. 504; 980, 981. Holden, Matter of, 126 N. Y. 689; 1324, 1332, 1334, 1336. Holland v. Alcock, 108 N. Y. 312; 516, 534 541 HollaAd v.Ferris, 2 Bradf. 334; 413, 752. Hollenback v. Fleming, 6 Hill, 303; 317. Hollenbeck v. Van Valkenburgh, 6 How. 281 ■ 313 Holley V. Chamberlain, 1 Redf. 333; 1290, 1291. Hollingsworth v. Spaulding, 64 N. Y. 636; 887, 948. Hollis V. Drew Theo. Sem., 96 N. Y. 166; 538, 539, 540. HoUister v. Burritt, 14 Hun, 291; 945, 961. HoUohan, Matter of, 5 N. Y. Supp. 342; 487. Holly V. Gibbons, 176 N. Y. 620; 1000, 1028, 1204, 1206. Holly V. Hirsch, 136 N. Y. 690; 361, 1170. Holmberg, Matter of, 83 Misc. 245; 321, 323 Holme, Matter of, 167 App. Div. 237; 178, 422. Holmes v. Cock, 2 Barb. Ch. 426; 792, 800. Holmes v. Oilman, 138 N. Y. 369; 956. Holmes, Matter of, No. 2, 79 App. Div. 267' 231 273 Holmes, Matter of, 37 App. Div. 15 (aff'd 169 N.Y. 632); 669, 666. Holmes v. Mead, 62 N. Y. 332; 526, 537, 541, 564. Holmes v. Remsen, 4 Johns. Ch. 460; 619. Holmes v. Roper, 141 N. Y. 64; 1008. Holmes v. St. .John, 4 How. Pr. 66; 1323. Holmes v. Seeley, 17 Wend. 76; 1281. Holt v. Jex, 48 Hun, 528; 1139. Holt v. Tuite, 188 N. Y. 17; 863, 979. Holyoke v. Union Mutual Ins. Co., 22 Hun, 76 (aff'd 84 N. Y. 648); 609, 619, 882 Holzworth, Matter of, 166 App. Div. 150; 27 58 Holzworth, Matter of, 216 N. Y. 700 (aff'g 166 App. Div. 150); 22, 1465. Homans v. N. Y. Life Ins. Co., 55 Misc. 574' 899. Home'v. Fisher, 2 Barb. Ch. 559; 1011. Hone v. De Peyster, 106 N. Y. 645; 1331. Hone v. Lockman, 4 Redf. 61; 1003. Hone V. Van Schaick, 3 N. Y. 538; 544, 549. Hone V. Van Schaick, 20 Wend. 564; 1156. Hood V. Hayward, 124 N. Y. 1; 48 Hun, 338; 798, 821, 828, 1358. Hood V. Hood, 1 Dem. 392; 104. Hood V. Hood, 5 Dem. 50; 245. Hood V. Hood, 85 N. Y. 561, 95, 753, 826, 1038, 1252, 1389. Ixxviii TABLE OP CASES CITED References are to pages Hood, Matter of. 90 N. Y. 512; 254, 1347, 1374. Hood, Matter of, 1 Tuck. 396; 937. Hood, Matter of, 98 N. Y. 363 (aff'g 2 Dem. 583); 753, 783, 784, 830, 1253. Hood, Matter of, 104 N. Y. 103; 196, 784, 830, 1405. Hook V. Pratt, 8 Hun, 102; 71, 510. Hooley v. Gieve, 9 Daly, 104, 9 Abb. N. C. 9; 953. Hooley V. Gieve, 82 N. Y. 625; 760, 894. Hooper v. Beecher, 109 N. Y. 609; 260. Hoople, Matter of, 179 N. Y. 308; 1127. Hope V. Brewer, 136 N. Y. 126; 534, 540, 542. Hopkins v. Cameron, 34 Misc. 688; 1162. Hopkins v. Hopkins, 1 Hun, 352; 548. Hopkins v. Lane, 6 Dem. 12 (aff'd 17 N. Y. St. Rep. 677); 43. Hopkins, Matter of, 35 Misc. 702 17 Wkly. Dig.. 35; 1221. Luce, Matter of, 29 Hun, 145; 1241. Ludington v. Merc. Nat. Bank, 102 App. Div. 251; 569. Ludington v. Merc. Nat. Bank, 182 N. Y. 522* 569 Ludington v. Thompson, 163 N. Y. 499; 1375. Ludlam v. Otis, 16 Hun, 410; 308, 361, 545 546 Ludlow, Est. of, 4 Misc. 594; 1099. Ludlow, Matterof, 5 Redf.,391; 129. Ludwig V. Bnngart, 48 App. Div. 613 (rev'g 33 Misc. 177); 86, 88, 1141, 1350. Luers v. Brunjes, 5 Redf. 32; 953. Lunt V. Lunt, 8 Abb. N. C. 893; 963. Lupton V. Lupton, 2 Johns. Ch. 614; 1146, 1161, 1187, 1192, 1204. Lusk V. Alburtis, 1 Bradf. 456; 395. Lusk, Matter of, N. Y. L. J., Oct. 4, 1911; 1136. Lussen v. Timmerman, 4 Dem. 250; 599, 727. Lutheran Reformed Church v. Mook, 4 Redf. 513; 541. Luthgen, Matter of, 61 Misc. 544; 332. Lutz, Matter of, 43 Misc. 230: 1469, 1493. Lyddy, Matter of, 24 N. Y. St. Rep. 607; 420, 486. Lyddy's Will, In re, 4 N. Y. Supp. 468; 440, 458, 461. Lyle, Matter of, 41 Misc. 596; 887. Lyman, Est. of, 60 Hun, 82; 983. Lyman, Matter of, 11 N. Y. Supp. 530; 1029. Lyman, Matter of, 14 Misc. 352; 323, 333. Lyman v. Phillips, 3 Dem. 459 (aff'd 34 Hun, 627; 98 N. Y. 267); 299, 316, 328. Lynch v. Lorretta, 4 Dem. 512; 1474. Lynch v. Maloney, 2 Redf. 434; 1186. Lynch, Matter of, 33 Hun, 309; 91, 1236, 1238 ' Lynch,' Matter of, 52 How. Pr. 367, 1189. Lynch v. Pendergast, 67 Barb. 501; 543. Lynde v. Lynde, 113 App. 411; 1153. Lynes v. Coley, 1 Redf. 405; 590, 603. Lynes v. Townsend, 33 N. Y. 558; 1144. Lyon V. I. S. Association, 52 Hun, 359; 1187. Lyon V. I. S. Association, 127 N. Y. 402; 1186. Lyon, Matter of, 144 App. Div. 104; 1062. Lyon, Matter of, 1 Misc. 447; 1026, 1175. Lyon V. Park, HI N. Y. 350; 606, 609. Lyon V. Smith, 11 Barb. 124; 329, 334. Lyon's Will, Matter of, 26 N. Y. Supp. 469; 251. Lyons v. Dorf, 49 Misc. 6.52; 884. Lyons v. Mahan, 1 Dem. 180; 548. Lyons v. Steinhardt, 37 Misc. 628; 1146, 1187. Lyons v. Weeks, 63 App. Div. 212; 647. Lyons v. Weeks, 167 N. Y. 135; 547. Lytle V. Beveridge, 58 N. Y. 592, 644; 946. Maack, Matter of, 13 Misc. 368; 922, 1390, 1391, 1398, 1414. Maas V. Ger. Sav. Bk., 73 App. Div. 624; (rev'g 38 Misc. 134, aff'd 177 N. Y. 377); 609, 610. Mabie, Matter of, 5 Misc. 179; 462, 466. Mabon v. Ongley Elec. Co., 156 IST. Y. 19b; 610. Macaulay, Matter of, 94 N. Y. 674 (aff'g 27 Hun, 677); 102, 113, 114, 1034, 1036, 1177, 1261, 1362. Maccafil, Matter of, 127 App. Div. 21 (aff'g 57 Misc. 264); 580, 711. Mace, Matter ofj 4 Redf. 325; 1320, 1323. Machini v. Zanoni, 5 Redf. 492; 366. Mackay v. FuU^ton, 4 Dem. 163; 759; 1317. xc TABLE OF CASES CITED References are to pages Mackay, Matter of Will of James, 110 N. Y. 611; 316.317, 318. 327, 328. MacLaury v. Haft, 121 N. Y. 636; 1228. Macomber's Est., 11 N. Y. Supp. 198; 977. Maoomber, Matter of, 2 Connoly, 278; 1507. MacPherson's WHl, 4 N. Y. Supp. 181; 458. MacRae, Matter of, 189 N. Y. 142; 843, 851 852 Macy'v. Sawyer, 66 How. Pr. 381; 890. Madaloin, Matter of, 79 Misc. 653; 1473. Magee v. Magee, 67 Barb. 487; 551. Magee v. Vedder, 6 Barb. 352; 969, 972, 1223 Magill'v. McMillan,. 23 Hun, 193; 1155. Magoun, Matter of, 41 Misc. 352; 777. Magown v. 111. Trust Co., 170 U. S. 283; 1040. Mahaney v. Carr, 175 N. Y. 454; 840. Mahar, Matter of, 167 App. Div. 943, 1370. Maher, Matter of, N. Y. L. J., March 26, 1912; 763. Mahlstedt, Matter of, 67 App. Div. 176; ' 1068, 1071. Mahoney v. Bernard, 45 App. Div. 499; 1500. Mahoney, Matter of, 34 St. Rep. 183; 442. Mahoney, Matter of, 37 Misc. 472; 1004, 1007. Mahoney, Matter of, 88 App. Div. 140; 102 232 Mahoney, Matter of, 34 Hun, 501; 1220, 1221, 1240. Mairs v. Freeman, 3 Redf. 181; 344, 348, 420, 461, 486. Mairs, Matter of, 4 Redf. 160; 656. Majot, Matter of, 199 N. Y. 29; 1073. Malcolm, James, Will of. Matter of, Day- ton's Surr., 3d Ed., 159; 146. Maley, Matter of, 73 Misc. 195; 838. Mallon, Est. of, 13 Civil Proc. 205; 675, 802. Mallon, Matter of, 38 Misc. 27; 760. Malloy, Matter of, 1 Dem. 421 ; 675. Malone, Matter of, 150 App. Div. 31; 91; 253, 1463. Maloney, Matter of, 41 Misc. 539; 544. Mancini, Matter of, 89 Misc. 83; 778. Mandeville v. Mandeville, 8 Paige, 475; 700, 702. Manhattan, etc., Ass'n v. Cudlipp, 80 App. Div. 532; 549. Manhattan Oil Co. v. Gill, 118 App. Div. 17; 954, 1437. Manice v. Manice, 43 N. Y. 303; 530, 537, 1468. Manice, Matter of, 31 Hun, 119; 543, 1432. Manley v. Fiske, 139 App. Div. 665 (aff'd 201 N. Y. 546); 1265. Manley, Matter of, 12 Misc. 472; 693, 696, 716. Mann v. Benedict, 47 App. Div. 173; 569, 933, 956. Mann v. Mann, 1 Johns. Ch. 231; 544, 555, ^ 557 Mann^ Matter of, 51 Misc. 315; 342. Manning v. Manning, 1 Johns^ Ch. 527; 937. . Manning, Matter of, 169 N. Y. 449; 1115, 1116. Mansfield, Matter of, 10 Misc. 296; 890, 1002, 1011, 1037. Mansfield v. Shaw, 3 Phill. 22; 394. Manton, Matter of, 32 App. Div. 626; 486. Manuel v. Beck, 70 Misc. 357; 855. Mapes, Matter of, 5 Dem. 446; 656, 936. Maples V. Howe, 3 Barb. Ch. 611; 1234. Marble; Matter of, 88 Misc. 339j 678. Marcellus, Matter of, 165 N. Y. 70; 562, 976, 977, 1307, 1308, 1419. March v. March, 186 N. Y. 99; 525, 1155, 1156, 1199. Maresi, Matter of, 74 App. Div. 76; 1102, 1104, 1131. Mariolo, Matter of, 63 How. Pr. Rep. 62; 1494. Maritch, Matter of, 29 Misc. 270; 53, 1342. Market Nat. Bank v. Pacific Nat. Bank, 11 Abb. N. C. 104; 89 N. Y. 397; 121. Marks V. Emigrant Indust. Sav. Bk., 122 App. Div. 661; 653, 655. Marks v. Hallegan, 61 App. Div. 179; 523. Marks, Matter of, 40 Misc. 507; llOO. Marks; Matter of, 128 App. Div. 775; 152, 261, 262. Marlett V. Mariett, 14 Hun, 313; 521. Marley, Matter of, 140 App. Div. 823; 300, 318, 319. Marlin Fire Arms Co. v. Shields, 68 App. Div. 88, 171 N. Y. 384; 85. Marlor, Matter of, 52 Misc. 263; 473. Marlor, Matter of, 121 App. Div. 398 (rev'g 52 Misc. 263); 471, 487. Marre v. Ginochio, 2 Bradf. 165; 893, 922, 1391, 1414. Marsh v. Avery, 81 N. Y. 29; 1106. 1333. Maish V. Brown, 18 Hun, 319; 1172, 1459. Marsh v. Gilbert, 2 Redf. 465; 1171, 1460. Marsh v. Hague, 1 Edw. Ch. 174; 544, 549 ■ Marsh v. Keogh, 82 App. Diy. 503; 897. Marsh, Matter of, 5 Misc. 428; 1483, 1489. Marsh, Matter of, 45 Hun, 107, 269; 414. Marsh, Matter of, 75 Misc. 587; 1145. Marsh v. Tyrrell, 2 Hagg. 87, 110; 467. Marsh V. Wheele*', 2 Edw. 156; 1155. Marsh v. Whitmore, 21 Wall. 178; 946. Marshall v. De Cordova, 26 App. Div. 615; 569. Marshall v. Maech, 51 N. Y, 140; 158. Marshall, Matter of, 43 Misc. 238; 933, 1152.. Marshall, Matter of, 3 Dem. 173; 1429. Marstbn v. Roe, dem. Pox, 8 Ad. & El. 14; 360. Martens, Matter of, 106 App. Div. '50; 1184, 1187, 1188, 1190. Martens, Matter of, 16 Misc. 245; 892, 1275. TABLE OF CASES CITED References are to pages XCl Martin v. Andrews, 59 Miao. 298; 1020, 1455. Martin v. Ballavi, la Barb. 119; 523; Martin v. Dry Dock^ East Broadway & Battery Railroad Cfo., 92 N. Y. 70; 16, 673. •• , Martin v. Duke, 5 Redf. 597; 696, 700, 754, 776. ,• : . Martin v. Gage, 9 N. Y. 398; 1407. Martin V. Hai?m, 32 App. Divi 602; 822. Martin, Matter of, 9S.N. Y. 193; 437, 464, .466,469,471. . , Martin, Matter of, 27 Misc. 416; 1253, 1374. •. : Martin, Matter of, 124 App. Div. 793; 1443.. Martin, Matter of, 196 N. Y. 415 (mod'fg 133 App. Div. 893); 1432, 1444. Martin, Matter of, 80 Misc. 17; 23, 23. Martin,! Matter'of, 82 Misc. 574; 400, 436, 439, 445, 447, 458, 489. Martin, Matter of, 211 N. Y. 328;.26, 27. Martin, Matter of, 94 Misc. 81; 1047. Martindale; Matter o£, 69 Misc. 522; 307. Martine's Est., 11. Abb. N. C. 50; 146. Martz V. State Nat. Bank, 147 App. Div. . 250;885. ■ '.' • •. MArvin v. Brooks, 94 N. Y. 71; 1350.: Marvin v. Marvin, 11 Abb. (N. S.) 97 151, 152, 261, 397. Marvin v. Marvin, 2 Abb. (N. S.) 100 399. : ' ■ >■ . Marvin v. Marvin, 3 Abb. Ct. of App Dec. 192; 466, 469. i Marx, Matter o£, 117 App. Div. 890; 957 1153. Mars, Matter of, 49 Misc. 280; 1451. • Marx V. McGlinn, 88 N. Y. 357; 339,:443, 445, 466, 469, 470, 487, 541. Mason & H. O. Co. v. Pugsley, 19 Hun, 282; 407. Mason V. Jdnes, 2 Barb. 229 ; 529, 544. Mason v. Luddington, 56 How. Pr. 172; 166. :■; Mason, Matter of, 69 Misc. 280; 1054. Mason, Matter of, 60 Hun, 46; 460, Mason, Matter of, 98 N. Y. 527; 1162, 1430; 1432. Mason v. Williams; 53 Hun, 398; 465, 475. Mason v. Williams, 3 Dem. 285; 659, 660. Master's Est., 1 McCarthy, 439; 326: Masterton, Matter of, 6 Dem. 450; 872. Masury, Matter of, 28 App. Div. 580 (aff'd 159 N. Y. 532); 1069,. 1070, 1072. Mather, Matter of, 41 Misc. 414, 90 App. Div. 382, 179 N. Y. 526; 248, 1114, 1127. Mathewson, Matter of, 8 App. Div. 8; 1430. Maltsoiiiv. Abbey, 141 N. Y. 179; 980. Matthews v. Am. Cent. Ins. Co., 154 N. Y. 449; 9 App. Div. 339; 651, 657, 705. Matthews, Matter of, 122 App. Div. 605; 1138, 1140, 1142, 1143. Matthews, Matter; of, 75 Misc. 449; 367. Matthews, Matter of, 153 N. Y. 443; 1493.-i'-.i .•, .! ,r.,:J/ ,. , , Matthews, v. Mayor, 1 Sandf. 132; 614, 644. Matthews v. Studley, 17 App. Div. 303; 1147, 1349, 1350. Matthews v. Studley, 161 N. Y. 633; 1147. Mauran v. Hawley, 2 Dem. 396; 865, 870, 920. Maverick, Matter of, 135 App. Div. 44 (aff'd 198N. Y. 618); 1102. Maverick v. Reynolds, 2 Bradf. 360; 436, 461, 487. Maxwell, Matter of, 1 Conn. 230; 934, 1267. May, Matter of, 53 Hun, 127; 165, 255. Maybee, Matter of, 40 Mi^c. 518; 827, 1313. Mayer, Matter of, 144 N. Y. Supp. 438; 703. Mayer, Matter of, 84 Hun, 539; 259. Mayer, Matter of, 84 Misc. 9; 753. Mayne, Matter of, 98 App. Div. 171; 573. Mayo, Matter of, N. Y. L. J., Apr. 13, 1912; 1200. Mayor v. Gorman, 26 App. Div. 191; 965. Mayor, etc., of New York, Matter of, 55 Hun, 204, 119 N. Y. 660; 542. Maze V. Brown, 2 Dem. 217; 668. McAleenan, Matter of, 53 App. Div. 193; 195. McAlpine v. Potter, 126 N. Y. 285; 1431, 1433, 1435, 1439, 1442, 1443. McArthur, Matter of, 12 N.. Y. Supp. 822; 447. : McAvoy, Matter of,, 112 App. Div. 377; 1062. McCabe v. Fowler, 84 N. Y. 314; 941, 951, 1452. McCabe, Matter of, 18 N. Y. Supp. 715; 93. McCabe, Matter of, 84 App. Div. 145; 80. McCabe, Matter of, N. Y. L. J., Dec. 1, 1911; 314. McCaffrey, Matter of, 50 Hun, 371; 791. McCahiU, Matter of, N. Y. L. J., Nov. 29, 1911; 716. McCall V. Sun Mutual Ins. Co., 50 N. Y. 332; 205. McCann v. Hazard, 36 Misc. 7; 894. McCartee v. Camel, 1 Barb. Ch. 455; 366, 367, 369, 371. McCarter, Est. of, 18 Week. Dig. 433; 1365. McCarter, Matter of, 94 N. Y. 558; 1260, 1261, 1262, 1364, 1371. McCarthy v. Bonynge, 12 Daly, 356; 53. McCarthy v. Marsh, 5 N. Y. 263; 1472. McCarthy, Matter of, 5 Hun, 7; 446. McCarthy, Matter of, §9 Misc. 128; 301, 315. McCarthy, Matter of, 48 St. Rep. 315; 462, 488. McCarthy v. Supreme Court of Foresters, 107 App. Div. 185; 216, 686. McCarty, Matter of, 141 App. Div. 816; 435, 464. McCarty, Matter of, 68 Misc. 283; 193, 268. xcu TABLE OF CASES CITE0 References are to pages McCarty v. Myers, 5 Hun, 83; 361. McCarty v. Terry, 7 Lansing, 236; 369. McCauley, Matter of, 49 Misc. 209; 607. McClouth, Matter of, 9' Misc. 385; 1178. McClure, Matter of, 136 N. Y. 238; 1151. McClure V. WooUey, 1 Dem. 574; 104. McCoUum, Matter of, 80 App. Div. 362; 953, 957, 1153, 1436. McComb, Matter of, 117 N. Y. 378; 26, 1038, 1205, 1405. McComb V. Title Guarantee & Trust Co., 36 Misc. 370; 529, 533. McComb V. Title Guarantee & Trust Co., 70 App. Div. 618; 529, 533. McComb V. Wright, 5 Johns. Ch. 263; 371 373 McConnon, Matter of, 60 Misc. 22; 777. McCord V. Lounsbury, 5 Dem. 68; 327, 337 McCord, Matter of, 2 App. Div. 324; 664, 1438. McCormick, Ex parte, 2 Bradf. 170; 564. McCormick, Matter of, 40 App. Div. 73; 1197, 1258, 1334. McCormick, Matter of, 22 Misc. 309; 1197, 1260. McCormick, Matter of, 46 Misc. 386; 1435. McCormick, Matter of, 71 Misc. 95; 1063. .McCormick v. Shannon, 127 App. Div. 745; 1305, 1313. McCormick v. St. Joseph's Home, 26 Misc. 36 * 902 McC'orn v'. McCorn, 100 N. Y. 511; 1145. McCosker V. Brady, 1 Barb. Ch. 329; 573. M'Coskry, Est. of, 5 Dem. 256; 199. McCoun V. Sperb, 53 Hun, 166; 834. McCray v. McCray, 12 Abb. Pr. 1; 575. McCrum \. McCrum, 141 App. Div. 83; 369. McCue V. Fink, 20 Misc. 506; 956. McCue V. Garvey, 14 Hun, 562; 988, 991, 996. McCue, Matter of, 17 Week. Dig; 501; 456, 458. McCullough V. McCready, 52 Misc. 542; 997. McCu'sker, Matter of, 89 Misc. 652; 436. McDermott, Matter of, 49 Misc. 402; 898, 996. McDermott, Matter of, 90 Misc. 526; 442, 443. McDonald v. Garrison, 9 Abb. 178; 206. McDonald v. Mallory, 77 N. Y. 656; 674. McDonald, Matter of, 51 Misc. 318; 678, 899 996. McDonald' v. O'Hara, 144 N. Y. 668; 1020, 1456. McDonald, Matter of, 211 N. Y. 272; 754. McDonnell, Ex parte, 2 Bradf. 32; 664. McDonough v. Loughlin, 20 Barb. 238; 203, 204, 306, 328, 333, 406. McDonough, Matter of, N. Y. L. J., Nov. 28, 1911; 448, 460. McDougall, Matter of, 141 N. Y. 21; 577, 1150. McDowell, Matter of. Est. of, Phillip, Surr. Decs, 1896, p. 139; 53. McEchrori, Matter of, 55 App. Div. 147; 1331. McEvoy, Matter of, 3 Law Bulletin, 31; 733, 738, 805. McEwan, Matter of, 51 Misc. 455; 1123. McGahey v. Nassau Electric Co., 51 App. Div. 281; 898. McGahey v. Nassau El. R. Co., 166 N. Y. 617; 898. McGarren, Matter of, 112 App. Div.-603; '90, 92, 140, 283, 430, 722, 756. McGarren, Matter of, 124 App. Div. 312, 192 N. Y. 565; 1351. McGarry v. McMahon, 124 App. Div. 607; 575, 578. i'^ McGee, Matter of, N. Y. L. J., Feb. 7, 1913; 1126. ' McGee, Matter of, 6 App. Div. 527; 1214, 1224. McGee; Matter of, 63 Misc. 494; 872, 874. McGedrge v. Bud, 24 N. Y. 169; 754. McGerry,' Matter of, 76 Misc. 98; 1404. McGill, -Matter of, 26 Misc. 102; 468. McGillivray, Matter of, 138 N. Y. 308 754, 761. McGinness, Matter of, 13 Misc. 714; 94 McGlynn, Matter of, 41 Misc. 156; 1434 1439, 1440. McGoldrick v. Bodkin,. 140 App. Div. 196 1145. McGojray, Matter of, 20 N. Y. Supp. 366 252. McGoughran, Matter of, 124 App. Div 312 (app. dism'd 192 N. Y. 665); 214 219, 220, 221, 283, 1351. McGovei-n,. Matter of, 5 -Dem. 424 404. McGowan, Matter of, 28 Hun, 246; 1180 McGowan, Matter of, 124 N. Y. 626 1185. McGowen, Matter of, 36 N. Y. St. Rep, 689; 651, 667. McGown V. Underbill, 116 App. Div 638; 449, 460, 463. McGrath V. Weiller; 98 App. Div. 291 590. McGraw, Matter of, 45 Hun, 354; 641. McGraw, Matter of, 9 App. Div. 372; 321, 333, 437, 466. McGraw, Matter of. 111 N. Y. 66; 641. McGregor v. Buel, 24 N. Y. 166; 647, 701 807. McGregor v. McGegor, 1 Keyes, 133; 689 696, 702, 769. McGregor v. McGregor, 35 N. Y. 218 573. M'Guire v. Kerr, 2 Bradf. 244; 300, 301 305, 462, 487. McGuire v. McGuire, 80 App. Div. 63 528, 888. McGuire; Matter of, 106 App. Div. 131 868. McGuire v. Murphy, 107 App. Div. 104 897. Mclnnes, Matter of, 119 App. Div. 440 547. Mclntyre, Matter of, 4 Redf. 489; 920. TABLE OF CASES CITED References are to pages xcm. Mclntyre, Matter of, N. Y. L. J., June 2 1908; 299. McKay v. Green, 3 Johns. Ch. 56; 1010. McKay, Matter of, 33. Misc. 520; 1010, 1145, 1146. McKay, Matter of, 5 Misc. 123; 940, 1161, 1167, 1185, 1186. McKay, Matter of, 24 Misc. 255; 1011. McKay, Matter of, 37 Misc. 590; 140. McKay v. McAdam, 80 Hun, 260; 1155, 1190. McKean, Matter of, 31 Misc. 703; 463. McKee, Matter of, N. Y. L. J., Jan. 10, 1902; 1274. McKenna v. O'Connell; 84 Misc. 582; 760. McKeon, Matter of, 26 Misc. 464; 94. McKeon, Matter of, 37 Misc. 658; 760. McKeon v. See, 51 N. Y. 300; 178. MoKeown v. Pagan, 4 Redf. 320; 1032, 1033. M6Keown v. Officer, etc., 25 N. Y. St. Rep. 319; 538. McKibbel v. Nafis, 27 N. Y. Supp. 723; 157. McKiernan, Est. of, 4 Civ. Proc. Rep. 218; 1030. McKinley v. Van Dtisen, 76 App. Div. 200; 61, 518, 543. McKnifeht v. City of N. Y., 186 N. Y. 35; 1505. McKinstry v. Benson, 3 Johns. Cas. (2nd ed.) 562; 900. M'Knight, Matter of, 80 App. Div. 284; 777. (McKnight v. Morgan, 2 Barb. 171; 903. McKoan v. Devries, 3 Barb. 196; 112. McKyring v. Bull, 16 N. Y. 297; 832, 977. McLaren, Matter of, 6 Misc. 483; 1433, 1439, 1444. McLaren v. McMartin, 36 N. Y. 88; 1000, 1022. McLarney, Matter of, 153 N. Y. 416 (aff'g 90 Hun, 361); 342, 355, 357. McLauchlin v. Brett, 2 Ciw Proc. 194; 260. McLaughlin,, Matter of, 1 Tucker, 79; 70, 417. McLaughlin, Matter of, 158 App. Div. 952* 26 McLaughlin v. McDevitt, 63 N. Y. 213; 461, 466, 470, 487. McLaughUn's .Will, 2 Redf. 504; 449. McLaury v. Hart, 121 N. Y. 636; 1019. McLean v. Freeman, 70 N. Y. 81; 1155. McLean v. Ladd, 66 Hun, 341 ; 570. McLean, Matter of, 31 Misc. 703; 439. MoLeod, Matter of, 32 Misc. 229; 722. McLosky v. Reid, 4 Bradf . 334; 344, 1286, 1296. McLouth V. Hunt, 154 N. Y. 179; 259, 1152, 1153, 1271, 1272, 1274. M'Mahon v. Allen, 4 E. D. Smith, 519; 342. McMahon v. Harrison, 6 N. Y. 443; 260, 688, 695, 696, 701, 769. McMahon v. Harrison, 10 Barb. 659; 692, 695. . McMahon, Matter of, 28 Misc. 697; 1135. McMahon v. Smith, 20 Misc. 305; 834, 1324, 1332, 1334. McMahon v. Smith, 24 App. Div. 25; 832. McManus, Matter of, 35 Misc. 678 (rev'd 66 App. Div. 53); 249. McManus v. McManus, 179 N. Y. 338; 1145, 1146. McMaster, Matter of, 14 O. P. Rep. 195; 211. McMaster, Matter of, 16 N. Y. St. Rep. 240: 235. McMillan, Matter of, 126 App. Div. 155; 1496. McMonagle, Matter of, 139 App. Div. 398; 1241, 1449. M'Mulkin, Matter of, 5 Dem. 295; 72. McMulkin, Matter of, 6 Dem. 347; 420. McMullen, Matter of, 85 Misc. 661; 620, 758 McMullen, Matter of, 92 Misc. 637; 1096. McMurray v. McMurray, 66 N. Y. 175; 1221. McNaboe v. Marks, 51 Misc. 207; 1457. McNally v. Brown, 5- Redf. 372; 413, 414, 512. McNally, Matter of, 68 Misc. 8; 1597. McNamara v. Dwyer, 7 Paige, 239; 608. McNaughton v. Chive, 5 Abb. N. C. 225; 49, 211. McNaughton v. McNaughton, 41 Barb. 50; 545. McNaughton v. McNaughton, 34 N. Y. 201; 360, 548, 1170, 1474. McNulta V. Huntington, 62 App. Div. 257; 610. McNulty V. Hurd, 72 N. Y. 518; 26, 93, 971, 1029j 1036, 1417, 1422, 1474. McNulty V. Mitchell, 41 Misc. 293; 367. McPherson v. Clark, 3 Bradf. 93; 353. McPherson, In re, 104 N. Y. 306; 1079, 1085, 1086, 1128. McQuade, Matter of, 157 App. Div. 344; 1260. MoRae v. McRae, 3 Bradf. 199; 943.' McShane, Matter of, 73 Misc. 146; 591, 600, 601. McSorley v. McSorley, 2 Bradf. 188; 434, 462. McSorley v. Wilson, 4 Sandf. Ch. 414; 23 McTevey, Matter of, 93 Misc. 384; 1325. McWhorter v. Benson, Hopk.- Ch. 28; 1340. Meacham v. Stearnes, 9 Paige, 403; 1429, 1433. Mead v. Coolidge, 179 N. Y. 386; 1468. Mead v. Jenkins, 4 Redf. 369 (rev'd 27 Hun, 570); 190. Mead v. Jenkins, 95 N. Y. 31; 1212. Mead v. Jenkins, 4 Dem. 85; 289. Mead, Matter of, 90 Misc. 263; 862, 919, 931. Mead v. Merfitt, 2 Paige, 402; 888. Mead v. Sherwood, 4 Redf. 352; 1219, 1220. • Mead v. Sommers, 2 Dem. 296; 865. Meagley, Matter of, 39 App. Div. 83; 1227, 1228. XCIV TABLE OF CASES CITED References are to pages Meakings v. CromwelL 5 N-. Y. 136; 550, 888 Mee V. Gordon, 187 N. Y. 400; 524, 643, 1250. . Meech, Matter of, 1 Connolyj 535; 1290, 1291. Meehan v. Brennan, 16 App. Div. 395; 623 525 Meehan, Matter of, 29 Misc. 167; 885, 1502. Meehan, Matter of, 59 App. Div. 156; 893. ;. Meehan v. Rourke, 2 Bradf. 385; 330, 461, 462. '■■ Meeker v. Crawford, 5 Redf. 450; 1258, 1445. Meeker v. Draffen, 201 N. Y. 205; 148. Meekin v. B. H. & C. R. R., 164 N. Y. 145; 674. Meteks V. Meeks, 122 App. Div. 461; 25, 26. Meeks v. Meeks, 161 N. Y. 66; 645. Meeks v. Meeks, 34 Misc. 465; 1350, 1361. Meeks V. Meeks, 51 Misc. 538; 1349. Meiggs V. Hoagland, 68 App. Div. 182; 497 498. Melcher v.' Fisk, 4 Redf. 22; 1024, 1362. Meldon v. Devhn, 20 Misc. 56; 940, 1268. Meldon v. DevUn, 31 App. Div. 146; 531, 933, 940, 1162.V Meldon v. Devlin, 167 N. Y. 573; 531, 933, 940, 1152, 1268. Mellen, Matter of, 56 Hun, 553; 168. Mellen v. Mellen, 139 N. Y. 210; 617, 518, 1466. Menck, In re, 5 N. Y. St. Rep. 341; 1378. Mendel v. Lewis, 40 Misc. 271; 624. Mendinhall's Appeal, 124 Penn. St. 387; 486. . Meng, Matter of James S., N. Y. L. J., June 2, 1916; 674, 678, 1499. Menge, Matter of, 13 Misc. 553; 299, 323, 333 Mentz V. Newwitter, 122 N. Y. 491; 363. Menzie, Matter of, 64 Misc. 188; 932, 940, 945, 949, 1275. Mercantile Trust Co., Matter of, 156 App. Div. 224; 1462. Mercantile Trust Co., Matter of, 210 N. Y. 83; 291, 1452. Merchant, Matter of, 1 Tucker, 17; 758. Merchant v. Merchantj 2 Bradf. 432; 1392. Merchant v. Merchant, 25 N. Y. St. Rep. , 268; 1220, 1223, 1229.. Merchants' Insurance Co. v. Hinman et al., 15 How. Prao. R. 182; 142, 143. Merchant's Will, 1 Tucker, 151; 312. Mergentine, Matter of, 129 App. Div. 367 (aff'd 196 N. Y. 672); 1063. Merino v.Munoz, 99 App. Div. 201; 970. Merriam, Matter of, 136 N. Y. 68; 70, 490, 541. Merriam, Matter of, 16 N. Y. Supp. 738; 336. Merrick v. Jackson, 2 Dem. 214; 151. Merrick v. Waters, 51 App. Div. 83; 946. Merrill v. Farmers' L. & T. Co., 24 Hun, 297; 945. Merrill, Matter of, 151, App, Div. 785; 44. Merrill v. Rolston, 5 Redf. 220; 431, 487. Merritt v. Clason, ;12, Johns. 102; 310. Merritt v. Jackson, 2 Dem. 214; 154, 394. Merritt, Matter of, 86 App. Div. 179; 1171, 1460. . Merritt, Matter of, 35 App. Div. 337; 1371. Merritt, Matter of, 176 N. Y. 608; 1171. Merritt, Matter of, N. Y. L. J., July 3, 1912; 1060. Merritt v. Merritt, 32 App. Div. 442; 1374, 1381, 1450, 1507. Merritt v. Merritt, 161 N. Y. 634; 1374. Merritt v. Seaman, 6 N. Y. (2 Seld.) 168; 1022. Merritt v. Thompson, 1 Hilt. 550.; 366, 371. Merritt's Will, In re, 5 Dem. 544; 106, 121, 401. Mersereaii,; Matter pf, 38, Misc. 208; 546, 910, 1160, 1491. Mertens, Est. of F. W., N. Y. L. J., Nov. 26, 1901; 167. Mertens, Matter of, 39 Misc. 512; 893. Meserole v. Meserole, 1 Hun, 66; 518, 621. Messman V. Egenberger, 46 App. Diy. 46; 580, 1458, 1460. Metcalf, Matter of,, 16 Misc. 180; 438, 483. Methodist, etc., Church v. Hebard, 28 App., Div. 548;. 1142. Metropohtan Trust Co., v. Rodgers, 1 Dem. 365; 873. Metzger V. Rankine, 69 App. Div. 2B4; 889. Metzger v. Rankine, 174, N. Y. 540; 889. Metzger v. Metzger, 1 Bradf. ,266; 1395. Meusohke, Matter of, 61 Misc. ' 9; 908, 909, 910, 993, 995, 997. Meyer, I., Est. of, Surr. Decs. 1901, p. 18' 132 Meyer v.'Cahen, 111 N. Y. 270; 1012., , Meyer, Matter of, 181 N. Y. 553; 1374. Meyer, Matter of, 95 App. Div. 443; 91, , 1461. Meyer, Matter of, 98 App. Div. 7; 1374. Meyer, Matter of, N. Y. L. J.,,Ju^e 10, 1909; 92. ' ' Meyer, Matter of, 209 N. Y. 386; 1120, 1128. Meyer, Matter of, 72 Misc. 566; 18, 74, 486, 493. ■ , • Meyer v. Weil, 1 Dem. 71; 1027. Meyer> Will, 67 How. Pr. 203; 1155. Meyers v. American Loco. Co., 201 N. Y. 163; 93. Meyers v. Becker, 29 Hun, 567; 244. Meyers, Matter of, 28 Misc. 359; 348, 416. Micale, Matter of, N. Y. L. J., Jan. 17, 1912; 568. Middlebrook v. .Merchants' Bank, 3 Keyes, 136; 610. Middleworth v. Ordway, 191 N. Y. 404; 349. Mildeberger v. Franklin, 130 App. Div. 860; 1350. Miles, In re, 12 N. Y. Supp. 167; 1334. TABLE OF CASES CITED References are to pages XCV Miles, Matter of, 5 Redf; 110; 1338, 1341. Miles, Matter of, 170 N. Y. 75: 26, 1029, 1403. Miles, Matter of, 33 Misc. 147 (aff'g 170 N.Y. 75); 986, 1418. Milhau, Matter of, 28 Misc. 366; 710. Millard, Est. of, 6 Misc. 423; 1099. Millard, Matter Of, 2 Connoly,-ei; 861. Millard, Matter of, 9 N. Y. Supp. 126; 951 Miller V. Churchill, 78 N. C. 372; 646. Miller v. Coates, 66 N. Y. 609; 1368. Miller v. Goudert, 73 App. Div. 638; 1171. Miller v. Ooudert, 36 Misc. 43; 1460. Miller v. Crawford, 14 N. Y. Supp. 368, QQO Miller v. Gilbert, 144 N. Y. 68; 622. Miller v. Hill, 64 Misc. 199; 1169. Miller v. Jjongshore, 147 App. Div. 214; 973, 978. ' Miller, Matter of, 2 App. Div. 615; 1220. Miller, Matter of, 11 App. Div. 337; 325, 346. Miller, Matter of, 72 App. Div. 615; 462, 463, 487. Miller, Matter of, 18 App. Div. 211 (aff'd 155 N. Y. 646); 625. Miller, Matter of AppUcation of, 70 Hun, 61; 1029, 1030, 1036, 1261. Miller, Matter of, 16 Misc. 656; 1372, 1502, 1603. ( Miller, Matter of, 29 Misc. 272; 1294. Miller, Matter of, 36 Misc. 310; 478. Miller, Matter of, 37 Misc. 449; J069. Miller, Matter of, 50 Misc. 70; 349. Miller, Matter of, 77 App. Div. 473; 1072, 1073. Miller, Matter of, 30 N. Y. St. Rep. 212; 369. Miller, Matter of, 34 Hto, 267; 1306. Miller, Matter of, 110 N. Y. 216; 839, 1042. Miller, Matter of, 64 Misc. 232; 886, 1163, 1185, 1389. Miller, Matter of, 67 Misc. 660; 368. Miller, Matter of, N. Y. L. J., Nov. 29, 1911; 762. Miller, Matter of, 4 Redf. 302; 991. Miller, v. Miller, 18 Hun, 507; 139. Miller v. Miller, 79 Hun, 197; 546, 649. Miller v. Miller, 22 Misc. 582; 1162. Miller v. Porters, 17 How. Pr. 626; 272. Miller v. White' 5 Redf. 320; 420, 428, 429, 434, 490. Millioamp, Goodale and BuUoek, Matter of, 52 L. T. Rep. 758; 1266. Mills V. Albany Exch. Sav. Bk., 28 Misc. 251; 862. Mills V. Hoffman, 92 N. Y. 182; 163. MiUs V. Hoffman, 26 Hun, 594; 1415. Mills V. Husson, 140 N. Y. 99; 626, 1261. Mills, Matter of, 86 App. Div. 566; 1045. Mills, Matter of, 37 St. Rep. 706; 1372. Mills V. Mills, 28 Misc. 633; 1012. Mills V. Mills, 50 App. Div. 221; 629. Mills V. Mills, 23 St. Rep. 604; 381. Mills V. Mills, 115 N. Y. 80;: 667, 1374, 1503. Mills V. Smith, 141 N. Y. 256; 1191, 1192. Mills V. Thursby, 2 Abb. Pr. 432; 964. Mills V. Tompkins, 110 App. Div. 212; 525 644 Millwafd, Est. of, 6 Misc. 426; 1102. Milner, Matter of, 76 Hun, 328; 1044. Minehaw v. Hill, 144 App. Div. 854; 1362, 1408. Miner, Matter of, 146 N. Y. 121; 286. Miner, Matter of, 39 Misc. 605; 1032. Minges v. Mathewson, 66 App. Div. 379; 1152. Minot V. Minot, 17 App. Div. 520; 1492. Minturn, Matter of, 16 N. Y. Supp. 54771.; 1042. Minuse v. Cox, 6 Johns. Ch. 441; 360, 936. Misner v. Strong, 181 N. Y. 163; 26. Mitchell, Matter of, 61 Hun, 372; 1139, 1393 Mitchell, Matter of, 39 Misc. 120; 1342. Mitchell, Matter of, 41 Misc. 603; 1390, 1394. Mitchell, Matter of, 36 App. Div. 542; 937. Mitchell, Matter of, 161 N. Y. 654; 937. Mitchell, Matter of, N. Y. L. J., Nov. 22, 1913; 1076. Mitchell V. Mitchell, 170 App. Div. 452; 1502. Mitchell V. Mitchell, 16 Hun, 97 (aff'd 77 N. Y. 696); 312, 316, 318, 328, 337. Mitchell V. Stewart, 3 Abb. Pr. N. S. 260; 1372. Mitchell V. Thome, 134 N. Y. 541; 373, 653. Mittnaoht v. Bache, 16 App. Div. 426; 886. Mock V. Garson, 84 App. Div. 66; 329. Mock V. Mock, 8 App. Div. 197; 523. Moderno, Matter of, 6 Dem. 288; 537. Moderno, Matter of, 63 Hun, 261; 1026. Moehring, Matter of, 24 Misc. 418; 690, 717, 720, 726. Moehring, Matter of, 154 N. Y. 423; 665, 668, 669, 786, 1161. Moehring v. Mitchell, 1 Barb. Ch. 264; 366. - Moench, Matter of, 39 Misc. 480; 1507. Moesvyll, Est. of, 3 Law Bulletin, 80; 662. Moffat, Matter of, 24 Hun, 325; 1435. Moffat v. Moffat, 3 How. Pr. (N. S.) 156: 1371. Moffett V. Elmendorf, 152 N. Y. 475; 523, 1199, 1200. Moffett V. Elmendorf, 82 Hun, 470; 326, 623 Moke V. Norrie, 14 Hun, 138; 561. Mollan V. Griffith, 3 Paige, 402- 1012. Monahan v. Fitzpatrick, 16 Misc. 508: 1406. Monarque v. Monarque, 80 N. Y. 320; 517. Mondorf, Matter of, 110 N. Y. 450; 465, 466, 469, 486, 1332. Monell, Matter of, 22 Civ. Proc. 377; 127. Monell, Matter of, 28 Misc. 308; 214, 231, 1036, 1336. Monell V. Monell, 5 Johns. Ch. 283; 1294. XCVl TABLE OF CASES CITED References are to pages Monroe, Matter of, 4 Connoly, 496; 377. Monroe, Matter of, 5 N. Y. Supp. 552; 354. Monroe, Matter of, 2 Connoly, 395; 487, 488. Monroe, Matter of, 142 N. Y. 484; 25, 762,780,782,887,948. Monson v. N. Y. Security, etc., Co., 140 N. Y. 498; 1152. \ Monteith, Matter of, 27 Misc. 163; 253, 1043. Montgomery v. Dunning, 2 Bradf. 220; 878,883,893,922, 1392. Montignani v. Blade^ 74 Hun, 297; 522, 527 Montignani v. Blade, 145 N. Y. Ill; 546, 1140. Montross v. Wheeler, 4 Lans. 99; 155, 668. Monypeny v. Monypeny, 202 N. Y. 90; 516, 517. Moody V. Gleason, 7 Cowen, 482; 135, 1336. Moody, Matter of, 2 Dem. 624; 1197. Mooers v. White, 6 Johns. Ch. 360; 326, 347, 1225. Moon, Matter of, 28 St. Rep. 205; 462. Moor, Matter of, 109 App. Div. 762; 340. Moore v. Bristol, 2 Week. Dig. 293; 181. Moore's Est., 1 Tuck. 41; 1415. Moore v. Griswald, 1 Redf. 388; 337. Moore v. Hunt, 110 N. Y. 278; 319. Moore v. Lyons, 25 Wend. 119; 544, 547. Moore, Matter of, 46 Misc. 537; 335,' 420. Moore, Matter of, 90 Hun, 162; 1044, 1059. Moore, Matter of, 18 Week. Dig. 42; 778. Moore, Matter of, 109 App. Div. 762 (aff'd 187 N. Y. 573); 319, 320, 321. Moore, Matter of, 72 Misc. 644; 253, 843, 846, 857. Moore, Matter of, 152 N. Y. 602; 546. Moore, Matter of, 131 App. Div. 213; 1160. Moore, Matter of, 66 Misc. 116; 1063. Moore v. Millet, 2 Hilt. 522; 150. Moore v. Moore, 21 How. Pr. 211; 284. Moore v. Moore, 2 Bradf. 261; 436, 461. Moore V. Moore, 5 N. Y. 262; 1235. Moorehouse v. Hutchinson, 2 Dem. 429; 102, 780. Moorehouse v. Hutchinson, 4 Dem. 362; 1260. Mootrie v. Hunt, 4 Bradf. 173; 648, 652. Moran, Est. of, 5 Misc. 176; 728. Moran, Matter of, 59 Misc. 133; 273. Moran, Matter of, 58 Misc. 488; 99, 1026, 1027, 1175, 1177. Moran, Matter of, 75 Misc. 90; 991. Moran v. Morrill, 78 App. Div. 440; 897. Moran v. MorriU, 177 N. Y. 563; 897. More V. Finch, 66 Hun, 404: 686. Morehouse v. B. H. R. R. Co., 185 N. Y. 520; 159, 160. Morehouse v. Cooke, Hopkins' Ch. 226; 1289, 1291. Morgan v. Cowie, 49 App. Div. 612; 251, 1040, 1094, 1112. Morgaij V. Durand, 51 Misc. 523; 535. Morgan, Ex parte, 66 N; Y. 618 (aff'g 63 Barb. 621); 760. Morgan v. Hahnas, 49 N. Y. 667; 1319. Morgan v. Hannas, 13 Abb. Pr. (N. S.) 361; 1306, 1432. Morgan, Matter of, 104 N. Y. 74; 286, 1173, 1459,-1460. Morgan, Matter of, 2 How. Pr. (N. S.) 194; 696. Morgan, Matter of, 30 Misc. 578; 366. Morgan, Matter of, 56 Misc. 235; 533, 537,542. Morgan, Matter of, 85 Misc. 682; 1112, 1113. Morgan, Matter of, 164 App. Div. 854; 1113. Morgan, Matter of, 150 N. Y. 35; 1048. Morgan, Matter of, 36 Misc. 753; 1114, 1119. Morgan, Matter of, N. Y. L. J., Jan; 13, 1912; 1428. Morgan, Matter of, N. Y. L. J., May 19, 1916; 855. Morgan V. Morgan, 3 Dem. 612; 765, 776. Morgan v. Valentine, 6 Dem. 18; 1187. Morgan v. Warner, 45 App. Div. 424 (aff'd 162 N. Y. 612); 1098, 1117, 1118. Morgan v. Williams, 66 How. Pr. 139; 1156. Morgenstem, Matter of, 9 Misc. 198; 1492. Moriarity, Matter of, 27 Misc. 161; 664, 953, 1438. MorralL v. Sutton, 1 Phillips, 637; 542, 656. Morrell v. Dennison, 8 Abb. Pr. 401; 114. Morrell v. Dickey, 1 Johns. Ch. 153; 1296, 1316. Morris v. Hughes, 45 Misc. 278; 897. Morris v. Kfent, 2 Edw. 176; 1159. Morris v. Kniffin, 37 Barb. 336; 313, 331. Morris v. Sickly, 133 N. Y. 456; 1145, 1148. Morris v. Ward, 36 N. Y. 587; 523. Morris v. Wucher, 115 App. Div. 278; 897. Morris v. Wucher, 188 N. Y. 668; 897. Morrison v. Lawrence, 2 How. Pr. (N. S.) 72; 167. Morrison v. Morrison, unreported, 838. Morrison v. Mutual Life Ins. Co., 57 Him. 97; 619, 882. Mordson v. Smith, 3 Bradf. 209; 463, 488, Morrow v. McMahon, ^6 Misc. 348; 369, Morrow v. Morrow, 12 Hun, 386; 916. Morschauser v. Pierce, 64 App: Div. 668 882. Morse v. Scott, 4 Dem. 507; 456. Mortimer v. Chambers, 63 Hun, 335 1502. Mortimer v. Hartley, 3 De Gex & Sm 332; 544. Morton, Matter of, 7 Misc. 343; 970. Morton, Matter of, 68 N. Y. St/ Rep: 515 983. ■ Morton v. Morton, 8 Barb. 18; 527, 548, 660. Morton Trust Co. v. Sandsl 122 App. Div 691 (aff'd 195 N. Y. 28); 627. TABLE OF CASES CITED XCVU References are to pages Morton v. Woodbury, 153 N. Y. 243; 1148, 1200. Mosely v. Marshall, 27 Barb. 45; 1012. Moser v. Cochrane, 107 N. Y. 35; 1228. Moser v. Talman, 114 App. Div. 850; 539. Moses, Matter of, 138 App. Div. 525 ' (mdf'g 60 Misc. 637)'; 1063, 1064. Moses V. Murgatroyd, 1 Johns. Ch. 119; 1013. Moss V. Cohen, 158 N. Y. 240; 862. Mott V. Ackerman, 92 N. Y. 539; 578, 1252. Mott V. Fort Edward, etc., Co., 79 App. Div. 179; 219. Mott, In re, 2 Dem. 154; 1410. Mott V. Mott, 11 Barb. 127; 900. Motz, Matter of, 5 N. Y. St. Rep. 343; 874. Moulton, Matter of, 32 N. Y. St. Rep. 631, 768, 770. Moulton, Matter of, 10 N. Y. Supp. 717; 754, 771. Moultrie v. Hunt, 23 N. Y. 394; 72, 73. Mount, Matter of, 27 Misc. 411; 253. Mount, Matter of, 3 Redf. 9; 993, 995, 1208. Mount, Matter of, 185 N. Y. 162 (aff'g 107 App. Div. 1); 20, 62, 490. Mount v. Mitchell, 31 N. Y. 356; 1005, 1006, 1025. Mount V. Mount, 35 Misc. 62; 1374. Mount V. Mount, 68 App. Div. 144; 577, 670, 1374. Mount V. Tuttle, 183 N. Y. 358; 635, 536, 541, 542. Mouran V. Hawley, 2 Dem. 396; 48. Moury v. Peet, 7 Abb. N. C. 196; 153. Mowatt V. Carow, 7 Paige, 328; 549. Mowry v. Silber, 2 Bradf. 133; 339, 462, 469, 470, 486, 488. Moyer v. Weil, 1 Dem. 71; 593, 1419. Mudway V. Croft, 3 Curt. 671; 435. Mudway v. Croft, 2 N. C. 438; 452. Muir V. L. & W. Orphan Trustees of House, 3 Barb. Ch. 477; 74, 220, 381. Muir V. Wilson, 1 Hopkins' Ch. 512; 809. Mull, Est. of, 16 St. Rep. 981; 1327. Mulheran V. Gillespie, 12 Wend. 349; 1163. Mull V. Mull, 50 Misc. 362; 543. Mull V. Mull, 113 App. Div. 893; 543. Mullarky v. Sullivan, 136 N. Y. 227; 547. Mullen, Matter of, 25 Misc. 253; 534: MuUer, Matter of, 25 App. Div. 269; 1261. MuUer, Matter of, 31 App. Div. 80; 937. MuUon, Matter of, 145 N. Y. 98; 922, 923, 938, 971, 1392, 1414. Mulry, Est. of James, N. Y. L. J., March 14, 1900; 1377. Mumford v. Coddington, 1 Dem. 27; 1178. Mundorff v. Wangler, 44 N. Y. Super. Ct. 495;' 7981, 'SI*; Mundt v. Glokner, 24 App. Div. llO; 898. Mundt V. Glokner, 160 N. Y. 572; 898. Munger, Matter of, 38 Misc. 268; 466, 475. Munro's Est., 15 Abb. 363; 42, 49. Munsell v. Munsell, 33 Misc. 185; 1305. Munson v. Howell, 12 Abb. Pr. 77; 980. Munson v. Howell, 20 How. Pr. 60; 153. Munson, Matter of, 25 Misc. 586; 1173. Munson v. S. G. & C. R. R. Co., 103 N. Y. 58; 769. Munzor, Est. of, 4 Misc. 374; 167, 957, 1411, 1436, 1438. Murdock v. Ward, 67 N. Y. 387; 141, 142, 148, 546, 1483, 1491. Murphy v. Holmes, 87 App. Div. 366; 1305. Murphy, Matter of, 48 App. Div. 211; 301, 487. Murphy, Matter of, 15 Misc. 208; 321, 323, 333, 483. Murphy, Matter of, 41 App. Div. 153; 445, 447, 463, 465, 466, 475. Murphy, Matter of, 144 N. Y. 557; 357, 1492. Murphy, Matter of, 87 Misc. 564; 1497. Murphy, Matter of, 121 App. Div. 426; 1447. Murphy, Matter of, 28 Misc. 650; 471. Murphy v. Naughton, 68 Hun, 424; 991, - *994 995. Murray v. Blatchford, 1 Wend. 583; 571, 580, 926, 959. Murray v. BronsQn; 1 Dem. 217; 523. Murray, Matter of, 124 App. Div. 548; 1159, 1250. Murray, Matter of, 34 Misc. 39; 527. Murray, Matter of, 75 App. Div. 246; 524, 528. ■Murray, Matter of, 40 Misc. 433; 563, 564. Murray, Matter of, 92 Misc. 100; 1112. Murray v. Miller, 85 App. Div. 414;. 523, 535 Murray v. Miller, 178 N. Y. 316; 523, 533, 535. Musgrave, Matter of, 5 Dem. 427; 738, 805. Mutual Life Ins. Co. v. Corey, 27 N. Y. St. Rep. 608 (rev'd 48 id. 247); 317. Mutual Life Ins. Co. v. HoUoday, 13 Abb. N. C. 16; 362, 365. Mutual Life v. Schwaner, 36 Hun, 373 (aff'dlOlN. Y. 681);213. Myer v. Cole, 12 Johns. 349; 1022. Myer, Matter of, 184 N. Y. 54; 439, 440, 441 447 459. Myers v. Eddy,' 47 Barb. 263; 522! Myers, Matter of, N. Y. L. J., Nov. 22, 1913; 1076, 1136. Myers, Matter of, 36 App. Div. 625; 1393. Myers, Matter of, 131 N. Y. 409; 656, 937 957 Myers v. McCuUagh, 63 App. Div. 321; 573. Mygatt V. Washburn, 15 N. Y. 316; 1397. Mygatt V. Wilcox, 45 N. Y. 306,' 1343. Nagy, Matter of, 143 N. Y. Supp. 848; 1473. Nahmens v. Copely, 2 Dem, 253; 1187. Nanz v. Oakley, 60 Hun, 431; 830. Nanz V. Oakley, 120 N. Y. 84; 828, 835. XCVIU TABLE OF CASES CITED References are to pages Narganes,' Matter of, 161 App. Div. 563; 977 1419. Nash,' Matter of, 37 Misc. 706; 497, 498, 499. Nash,' Matter of, 76 App. Div. 212; 336. Nash V. New York, 4 Sandf. Ch. I;v614. National Harrow Co. v. Benent & < Sons, 163 N. Y; 505; 290. National Safety Dep. Co. v. Steaid, 95 N. E. 973; 1136. National Trust Co. v. Gleason, 77 N. Y. 400; 691. Nay, Matter of, 6 Dem. 346; 864, 867. Naylor v. Brown, 32 Misc. 298,; 654. Nealis v. Meyer, 21 Misc. 344; 174.' Near v. Shaw, 76 Misc. 303; 342. Neder v. Zimmer, 6 Dem. 180; 1187. Neely, Matter of, 24 Misc. 255; 1020. Neher, Matter of, 57 Misc. 527; 984.^ Neiding, Matter of, 56 Misc. 216 (rev'd 123 App. Div. 894); 205. Neiheisel v. Toerge, 4 Redf. 328; 487. Neil, Matter of, 35 Misc. 254; 1420. Neilley v. Neilley, 89 N. Y. 352; 1419. NeUis V. Nellis, 99 N. Y. 505; 1156. " Nelson v. Brown, 144 N. Y. 384; 1162. Nelson, Matter of, 141 N. Y'. 152; 332, 338, 409. Nelson, Matter of, 63 Misc. 627; 970, 973, 1416, 1420. Nelson, Matter of, 97 App. Div. 212; 465, 466. Nelson v. McGiffert, 3 Barb. Ch. 158; 299, 335, 345, 348, 350, 417. Nelson v. Russell, 135 N. Y. 137; 547. Nelson v. The Pub. Adm., 2 Bradf. 210; 344. Nepean v. Doe, 2 M. & W. 894; 373. Nesbit V. Nesbit, 3 Dem. 329; 372. Nesmith, Matter of, 140 N. Y. 609; 937, 939, 1380, 1450. Nesmith, Matter of, 71 Hun, 139; 937. Nesmith, Matter of, 6 Dem. 333; 713, 805. Nestell, Matter of, 72 Misc. 331; 97, 169, 171 195 269 Nester v. Nester, 68 Misc. 207; 142. Nethercott v. Kelly, 24 N. Y. St. Rep. J71; 1310. Neugent v. Neugent, 2 Redf. 369; 333. Neustadter, Matter of, N. Y. L. J., Aug. 16, 1913; 1062. Nevins, Matter of, 4 Misc. 22; 316. Nevins' Will, Matter of, 24 N. Y. Supp. 828' 327 New V. NicoU, 73 N, Y. 132; 832, 955. Newcomb v. Lush, 84 Hun, 254; 546, 547. ' •■ Newcomb v. Lush, 155 N. Y. 687; 546, 547. NewcOmb, Matter of, 192 N. Y. 238; 78. Newcomb v. NewoomD, 33 Misc. 191; 525, 1200. Newcomb v. Webster, 113 N. Y. 191; 348. Newcombe, Matter of, 45 St. Rep: 806; 18 N. Y. Supp. 549; 42, 43. Neweome v. St. Peter's' Church, 2 Sand. Ch. 636; 218. Newell V. Nichols, 12 Hun, 604; 75 N. Y. 98; 141, 1465, 1466. Newell, StewaTt, Est. of, 38 Misc. 563; 862 1037 ■ ' . Newhmise V. Gale, 1 Redf. 217; 652j 752, 757,778. . ;. , Newhouse v. Godwin, 17 Barb. 236; 435, 463, 476, 479. , -■ - '' Newkirk v. Newkirk, 2 Cai. 345; 1158. Newland, Matter of, 7 Mis(3i.728-; 1441. Newland, Matter of,- 59 N. Y.. Sti Rep. 526; 1440. Newman, Matter of, 4 Dem. 65; 1167. Newton v. Bronson, 13 N. Y. 587; 888. Newton v. Stanley, 28 N. Y. 61;, 1139, 1143, 1167. Nexsen v. Nexsen, 2 Keyes, 229; 421, 446, 476. Nexsen v. Nexsen, 3 Abb. Ct. App. Dec. 360; 421, 462, 474. Nichols; V, Cha,pman, 9 Wend. 452; 964, 1005. Nichols, Matter of, 40 Hun, 387; 413. Nichols,: Matter of, 91 Hun, 140; 1057. Nichols, Matter of, 4 Redf. 288; 1396i Nichols, Matter of, 60 Misc. 29S; 1488, 1496. Nichols v. Nichols, 12 Hun, 428; 1174. Nickerson, Matter of, 2 Connoly, 6; 875. NicoU, Matter of, 1 Johns. Ch. 25; 1292. NicoU V. N. Y. & E. R. Co., 12 N. Y. 121; 1158. Niles V. Crocker, 88 Hun, 312; 971, 981, 982, 984. ■ V , . Niles, Matter of, 47 Hun, 348; 167, 194. Niles, Matter of, 13 St. Rep. 756; 310. Niles, Matter of, N. Y. L. J., Jan. 5, 1911; 1043. Niles, Matter of, 142 App. Div. 198; 816, 1420. Niles V. Stevens, 4 Den. 299; 672. Nisbet, Matter of, 5 Dem. 286; 325. Niven, Matter of, 29 Misc. 550; 1113, 1118. Noble V. Thayer, 19 App. Div. 446;! 524. Nockin, Matter of, 16 N. Y. St. Rep. 731; 1338 ■Nokes, Matter of, 71 Misc. 382; 341, 347. Noll, Matter of, 10 App. Div. 366 (aff'd 154 N. Yv 765); 809, 827, 1313. Nolte, Matter of, 10 Misc. 608; 462, 486. Nolting, Matter of, 43 Hun, 456; 369, 371. Nones, Matter of, 27 Misc. 165; 722, 1480. Noon, Matter of, 31 Misc. 420; 304, 306. Norris v. Beyea; 13 N. Y. 273; 642. Norris v. Norris, 32 Hun, 175; 88. Norris v. Norris, 85 App. Div. 113; 1304. Norris v. Norris, 63 How. Pr. 319; 496. Norsworthy v. Bergh: 16 How. Pr. 315: 1208. North, Matter of, 52 Misc. 429; 566; •Norton v. Coons, 3 Den. 130; 834. , Norton V. Lawrence, 1 Redf. 473: 162, 398. Norton, Matter of, N. Y. L. J.. June 12, 1891; 370. Norton, Matter of, -68 Misc. 133; 1431, 1446. TABLE OF CASES CITED References are to pages XCIX Norton, Matter of, 39 App. Div. 369, 540. Norton V. Norton, 2 Sandf. 296; 886, 890, 1390. Nottbeck V. Wilks, 4 Abb. Pr. 315; 360. Nottingham, Matter of, 88 Hun, 443; 261. Nowak, Matter of, 38 Misc. 713; 1312, 1318. Noyes v. Children's Aid Soc, 10 Hun, 289; 1320, 1321. Noyes v. Children's Aid Soc, 70 N. Y. 483; 1321, 1322, 1332. Noyes, Matter of, 3 Dem. 369; 891, 1003. Nussbaum, 144 N. Y. Supp. 443; 316, 329. Nutting, Matter of, 74 App. Div. 468; 1349. Nutting V. Pell, 11 App. Div. 55; 487. Nutzhorn v. Sittig, 34 Misc. 486; 361. Nyahay, Matter of, 66 Misc. 418; 114, 126. N. Y. Central, etc.. Matter of, 60 N. Y. 116; 1240. N. Y. Institution, etc., v. How's Exrs., 10 N. Y. 84; 537, 555. N. Y. Life Ins. & Trust Co. v. Baker, 165 N. Y. 484; 941, 1268, 1272. N. Y. Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1; 141. N. Y. Life Ins. & Trust Co., Matter of, 24 Misc. 71; 1153: N. Y. Life Ins. & Trust Co., Matter of, 86 App. Div. 247; 950. N. Y. Life Ins. & Trust Co. v. Sands, 26 Misc. 252; 1335. N. Y. Life, etc., v. Viele, 161 N. Y. 11; 546, 853, 1185. N. Y. Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591; 694. N. Y. Security Co., Matter of, 46 Misc. 224; 1469. Oakes v. Massey, 94 App. Div. 165; 623, 525 545 554. Oakes, Matter of, 19 App. Div. 192; 1186, 1186. Oakley, Est. of, Surr. Dec, 1902, 76; 1330. Oakley v. Oakley, 3 Dem. 140; 1306. Obecny v. Goetz, 134 App. Div. 166; 1492. Obecry v. Goetz, 116 App. Div. 807; 523. O'Berry, Matter of, 179 N. Y. 285; 91 . App. Div. 6; 1114, 1127. O'Brien v. Barkley, 60 St. Rep. 620; 1168. O'Brien v. E. S. Bank, 99 App. Div. 77; 1066. O'Brien's Est., 19 N. Y. Supp. 541; 25 N. Y. Supp. 704; 1327. O'Brien V. General Synod, etc., 10 App. Div. 605;. 1305, 1313. O'Brien v. Jackson, 42 App. Div. 171; 980; 1252. O'Brien v. Jackson, 167 N. Y. 31; 173, 1022 1023. O'Brien, Matter of, 5 Misc. 136; 196. O'Brien, Matter of, 33 Misc. 17; 254, 1373. O'Brien, Matter of, 45 Hun, 284; 585, 671. O'Brien, Matter of, 34 Misc. 436 (aff'd 66 App. Div. 282); 864. O'Brien, Matter of, 65 App. Div. 282 (aff'g 34 Misc. 436); 865, 872. O'Brien, Matter of, 39 App. Div. 321; 1204, 1208. O'Brien, Matter of, 145 N. Y. 379; 91, 1449. O'Brien, Matter of, 25 N. Y. Supp. 704; 1447. O'Brien, Matter of, 19 N. Y. Supp. 641; 776. O'Brien v. Neubert, 3 Dem. 166; 691, 769, 772. O'Brien v. People, 36 N. Y. 276; 446. O'Brien v. Williamsburg Sav. Bank; 101 App. Div. 108; 897. Ockerhausen, Matter of, 59 Hun, 200- 234. Ockerhausen, Matter of, 10 N. Y. Supp. 928; 1467. Ocobock V. Eeles, 37 App. Div. 114; 428. O'Connell's Est., Matter of, 1 Misc. 60; 1038. O'Connell, Matter of, 33 App. Div. 483; 1416. O'Conner v. Gifford, 117 N. Y. 275; 862, 924, 952, 970, 1415. O'Connor v. Huggins, 113 N. Y. 511; 218, 1220. O'Connor, Matter of, 66 Misc. 403; 297. O'Connor v. McLaughlin, 80 App. Div. 305; 263. O'Dea, Matter of, 84 Hun, 591; 455, 462. O'Day, Matter of, 88 Misc. 408; 62; 1336, 1336. Odell, Matter of, 1 Connoly, 94; 167, 168, 169, 170, 172, 1411. Odell, Matter of, 1 Misc. 390; 153, 251, 394, 399, 400. O'Dell, Matter of, 52 Hun, 88; 1260. O'Donoghue v. Boies, 92 Hun, 3; 1306. O'Donohue, Matter of, 28 Misc. 607 (aff'd 44 App. Div. 186); 1081. OfEerman, Matter of, 25 App. Div. 94; 1046; 1105. O'Flymi V. Powers, 21 N. Y. Supp. 905; 889. O'Flynn v. Powers, 136 N. Y. 412; 889, 1019, 1046, 1507. O'Gara v. Eisenlohr, 38 N. Y. 296; 368, 367, 368, 372. Ogden, Matter of, 41 Misc. 168; 993, 995, 1448, 1449. Ogden V. Smith, 2 Paige, 195; 572. Ogg, Matter of, 1 Connoly, 10; 1306, 1307. Ogilvie, V. Hapiilton, 1 Lee's Ecc. Rep. 418; 91. OgQvie V. Ogilvie, 1 Bradf. 369; 936. Ogilvie V. Wright, 1 Johns. Ch. 263; 367. O'Gorman, Matter of, 127 App. Div. 159; 481. Ogsbury, Matter of, 7 App. Div. 71; 1067, 1070, 1071. O'Hara v. Dudley, 14 Abb. N. C. 71; , ,554. ,., ,. O'Hara, Matter of, 50 Misc. 496; 1448. O'Hara, Matter of, 19 Misc. 254; 1189. O'Hare, Matter of, 60 Misc. 269; 691. TABLE OF CASES CITED References are to pages O'Keefe, Matter of, 80 App. Div. 513; 195, 1335. Olcbtt V. Baldwin, 190 N. Y. 99; 1431, 1442. Oliver V. Frisbie, 3 Dem. 122; 761, 762. OUver, WiU of John, Matter of, 13 Misc. 466;"g38.: Olmstead v. Long, 4 Dem. 44; 250. Olmstead, Matter of, 52 App. Div. 615; 952. Olmstead, Matter of, 164 N. Y. 571; 9S2. Olmstead, Matter of, 24 App. Div. 190; 1263. ; Olmsted v. Keyes, 85 N. Y. 593; 1480. Olmsted v. Vredenburgh, 10 How. Pr. 215; 230. Olyphant v. Phyfe, 48 App. Div. 1; 1229. O'Neil V. Howe, 16 Daly, 181; 174; O'Neil, Matter of, 26 N. Y. St. Rep. 242; 405. O'Neil, Matter of, 1 Tuck. 34; 778. O'Neil, Matter of, 46 Hun, 500; 251, 254. O'Neil V. Murray, 4 Bradf. 311; 462, 487, 488. O'NeU's Will, 91 N. Y. 516; 300, 301, 302, 305, 307, 308, 376. O'Neill V. Barry, 20 App. Div. 121; 979. O'Neill, Matter of, 49 Misc. 285; 1214, 1217. Onondaga Trust, etc., Co. v. Price, 87 N. Y. 542; 1143. Oosterhoudt, Matter of, 15 Misc. 566; 1000. Oppenheim v. Wolf, 3 Sandf. Ch. 571; 366, 371. Oraindi's Est., 9 N. Y. Supp. 873; 159. Oram v. Oram, 3 Redf. 400; 774. Orange County Trust Co. v. Morrison, 56 Misc. 88; 528, 1154. Orcutt v. Orms, 3 Paige, 464; 1016. Ordish v. McDermott, 2 Redf. 460; 359. Ordway, Matter of, 196 N. Y. 95; 1449. Orlando, Matter of, 148 N. Y. Supp. 270; 753, 761, 802. O'Regan, Matter of, 62 Misc. 592; 1159. O'ReUly, Matter of, 59 Misc. 136; 212. O'Reilly v. Meyer, 4 Dem. 161; 1344, 1381, 1448. Ormiston v. Olcott, 84 N. Y. 339; 829, 941, 945, 1150, 1268. O'Rourke, Matter of, 12 Misc. 248; 1000. Orr V. Oilman, 183 U. S. 278; 1074. Orser, Matter of, 4 Civ. Proc. Rep. 129; 1165. Orser V. Orser, 24 N. Y. 51; 333, 420. Orser v. Orser, 5 Dem. 21; 1395. Orson, Wm of. Matter of, 18 Week. Dig. 306; 204. Orth V. Haggerty, 126 App. Div. 118; 1148, 1160. Orton V. Orton, 3 Keyes, 486; 1138, 1148, 1167, 1474. Osborne v. McAlpine, 4 Redf. 6; 1341. Osborne v. Parker, 66 App. Div. 277; 968, 981, 983. Osburn v. Rochester Trust & S. D. Co., 152 App. Div. 235; 347. Osburn v. Rochester Trust & S. D. Co,, 209 N. Y. 54; 324, 343, 347. , Osgood V. Manhattan Co., 3 Cowen, 612; 1225. Ofterhout v. Hardenburg, 19 Johns. 266; 992. Otis V. Cowles, etc., Co., 13 N. Y.Supp. 251' 459. Otis V. Thompson, Hill & D. Supp. 131; 1281. Otis's Will, Matter of, 22 N. Y. Supp. 1060; 436, 438, Otto V. Van Riper, 1«4 N. Y. 536; 826. Overby v. Gordon, 177 U. S. 214; 391. Oviedo V. Duffie, 5 Redf. 137; 76, 77. Owen, Matter of, 48 App. Div. 507; 204. Owens V. Bloomer, 14 Hun, 296; 995, 1208. Owens V. Missionary Society, 14 N. Y. 380; 432, 541, 542. Oxley V. Lane, 35 N. Y. 340; 524. Pache V. Oppenheim, 93 App. Div. 221; 995. Packard v. Dunfee, 119 App. Div. 599; 564, 1022. Paddock v. Kirkham, 102 N. Y. 597; 206. Paddock, Matter of, 6 How. Pr. 215; 760. Paddock, Matter of, 81 App. Div. 267; 1146. Page, Matter of, 107 N. Y. 266; 617, 691, 728 Page, Matter of, 39 Misc. 220; 1056. Paget V. Melcher, 21 Misc. 196; 1156. Paget V. Stevens, 143 N. Y. 172; 573. Paige, Matter of, 62 Barb. 476; 487. Paine v. Aldrich, 38 St. Rep. 402; 462. Paine v. Aldrich, 133 N. Y. 544;' 459. Paine, Matter of, 6 Dem. 361; 415. Palma, Matter of, 42 Misc. 469; 340. Palma, Matter of, 117 App. Div. 366; 1066. Palmer v. Bradley, 142 Fed. Rep. 193 (aff'd 154 Fed. Rep. 311); 84. Palmer v. Culbertson, 143 N. Y. 213; 1171. Palmer v. Dunham, 24 N. Y. St. Rep. 997; 807. Palmer v. Dunham, 6 N. Y.- Supp. 262; 1431. Palmer, Matter of, 85 App. Div. 117; 1161. Palmer, Matter of, 182 N. Y. 518; 115J. Palmer, Matter of, 115 N. Y. 493; 153. Palmer, Matter of, 3 Dem. 129; 884, 896. Palmer, Matter of, 117 App. Div. 360; 1071. Palmer, Matter of, 158 N. Y., 669; 1062. Palmer, Matter of, 33 App; Div. 307; 1062. Paolo, Matter of,. 36 Misc. 514; 691. Paramore, Matter of, 15 N. Y. St. Rep. 449' 619. Parhaii v. Moran, 4 Hun, 717; 217, 686. Parish's Est., 29 Barb. 627^; 654, 657, 658. Parish V. Parish, 87 App.> Div. 430; 291. Park, Matter of, 8 Misc. 550; 1128. Parker v. Been 65 App. Div. 698 (afif'd 173 N. Y. 332); 1205. TABLE OF CASES CITED CI References are to pages Parker v. Butler, 76 Hun, 240; 523.- Parker v. Day, 155 N. Y. 383; 1021. Parker v. Gainer, 17 Wend. 559; 963, 964. Parker, Matter of, 1 Barb. Ch. 154; 1306. Parker v. Supervisors, 106 N. Y. 392; 6.57. Parkinson v. Parkinson, 2 Bradf. 77; 1188. Parks V. Parks, 9 Paige, 117; 544, 545. Parmelee v. Owego & S. R. R. Co., 6 N. Y. 74; 1158. Parr, Matter of, 113 App. Div. 921; 891. Parr, Matter of, 45 Misc. 564; 137, 891, 1411. Parsell v. Stryker, 41 N. Y. 480; 364, 365, 840: Parsons v. Lyman, 20 N. Y. 103 (rev'g 4 Bradf. 268); 80, 83, 590, 602, 603, 605, 609, 736, 1474. Parsons, Matter of, 39 Misc. 126; 1150, 1151, 1154. Parsons, Matter of, 51 Misc. 370; 1072. Parsons, Matter of, 117 App. Div. 321; 1044, 1072. Pascalis v. Canfield, 1 Edw. 201; 1013. Patchen v. Wilson, 4 Hill, 57; 575, 861. Patterson v. Buchanan, 40 App. Div. 493; 981, 989. Patterson v. Copeland, 52 How. Pr. 460; 608. Patterson v. Ellis, 11 Wend. 259; 1156. Patterson v. Knapp, 83 Hun, 492; 166. Patterson, Matter of, 63 Hun, 529; 93 267, 282. Patterson, Matter of, 5 Misc. 178; 1186, 1190. Patterson, Matter of, 146 N. Y. 327; 221 686. Patterson, Matter of, 16 N. Y. Supp. 146 28'5. ■ Patterson, Matter of, 4 How. Pr. 34; 449, 462. Patterson, Matter of, 29 N. Y. Supp, 451 •79 Hun, 371 (aff'd 146 N. Y. 327); 252: 719. Patterson, Matter of, 39 N. Y. St. Rep 849; 815. Patterson, Matter of, 146 App. Div. 286 1069. Patterson, Matter of, 41 Misc. 66; 762. Patterson v. Patterson, 59 N. Y. 674; 988, 990 994 995. Patterson v. Vivian, 63 Misc. 389; 932, 933 Patterson's Will, 13 N. Y. Supp. 463 439 Patullo, Matter of David, 1 Tucker, 140 816. Pawling V. Bird, 13 Johns. 192; 1007. Paxton V, Brogan, 12 N. Y. Supp. 563 378 Payne, Matter of, 78 Hun, 292; 914. Pearsall v. Elmer, 5 Redf. 181; 562. Pearsall, Matter of, 21 N. Y. St. Rep. 305 260. Pearsall, Matter of, 91 Misc. 212; 1155. Pearsall, Matter of, 4 N. Y. Supp. 365 1474. Pearson v. Colhns, 113 App. Div. 657; 539. Pearson, Matter of, 21 N. Y. St. Rep. 128; 1425. Pease v. Egan, 3 Dem. 320; 210, 244, 1324. Pease v. Egan, 131 N. Y. 262; 1013, 1208. Pease v. Gillette, 10 Misc. 467; 1377. Peaslee, Matter of, 73 Hun, 113; 92. Peaslee, Matter of, 81 Hun, 597; 1196. Peck V. Belden, 6 Dem. 299; 480, 486. Peck V. Carey, 27 N. Y. 9; 329, 332, 334, 336, 448, 462. Peck, Matter of, 131 App. Div. 81; 91, 212, 245, 246, 254. Peck, Matter of, 39 N. Y. St. Rep. 234; 195, 266. Peck, Matter of, 42 St. Rep. 898; 462. Peck, Matter of, 60 Hun, 583; 285. Peck, Matter of, 3 Redf. 345; 1226." Peek, Matter of, 57 Misc. 535; 1496. Peck, Matter of, 79 App. Div. 296 (aff'd 177 N. Y. 538); 957, 1436, 1448. Peck, Matter of, 17 N. Y. Supp. 248; 446, 458. Peck V. Mead, 2 Wend. 470; 888. Peck V. Peck, 23 Hun, 312; 151, 262. Peck V. Peck, 3 Dem. 548; 792. Peck V. Sherwood, 56 N. Y. 615; 906, 910, 1275, 1409. Peebles v. Case, 2 Bradf. 226; 339, 405, 419. Reiser, Matter of, 79 Misc. 668; 304. Pell V. Folger, 23 N. Y. Supp. 42; 533. Pell V. Folger, 68 Hun, 443; 1151. Pell, Matter of, 171 N. Y. 48; 1040, 1042, 1114. Peltz V. Learned, 70 App. Div. 312; 891. Pemberton v. Pemberton, 13 Vesey, 290; 220. Pendle v. Waite, 3 Dem. 261; 917. Pendleton's Case, 5 N. Y. Supp. 849; 451. Penfield, Est. of, N. Y. L. J., Feb. 17, 1912; 167, L72. Penneld, Matter of, N. Y. L. J., Feb. 17, 1912; 1411. People ex rel. Nikerson v. , 19 Wend. 16; 1284. People V. Adirondack Ry. Co., 160 N. Y. 225* 291 People V. Augsbury, 97 N. Y. 501; 460. People V. Barber, 152 N. Y. 417; 290. People, etc., v. Barker, 81 Hun, 22; 1097. People V. Brown, 46 Hun, 320; 240. People ex reL Gould v. Barker, 150 N. Y. 52; 563. People V. Barnes, 12 Wend. 492; 824, 826. People V. Bergen, 53 N. Y. 404; 231. People V. Bloedel, 4 N. Y. Supp. 100; 859. People V. Bloom, 193 N. Y. 1; 871. People ex rel. Byrne v. Brugman, 3 App. Div. 155; 1315. ■ People V. Byron, 3 Johns. Cases, 53; 809. People ex rel. Cornelius v. Callan, 69 Misc. 187; 843, 857. People ex rel. Andrews v. Cameron, 140 App. Div. 76 (aff'd 200 N. Y. 585); 1061, 1062. cu TABLE OF CASES CITED References are to pages People V. Carr, 25 Hun, 325; 36. People V. Carr, 86 N. Y. 512; 36, 68. People ex rel. Lent v. Carr, 100 N.' Y. 236 31, 33, 57. People v. Colborne, 20 How. Pr. 378; 98 People V. Coleman, 107 N. Y. 541; 1096. People V. Coleman, 119 N. Y. 137; 564. People V. Commissioners, 31 Hun, 235 562, 563. People V. Co. Judge, etc., 13 How. Pr, 398; 98. Pfeople V. Cowles, 3 Abb. Ct. App. Dec 507' 225 244. People V. Davenport, 30 Hun, 177; 950. People V. Davenport, 117 N. Y. 549; 950 People V. Donahue, 70 Hun, 317; 1265. People V. Downing, 4 Sandf. 189; 799, 831 People V. Dunlap, 13 Johns. 437; 824. People ex rel. Duryea v. Duryea, 109 App, Div. 533; 1291. People V. Etz, 5 Cowen, 314; 369. People V. Falkner, 2 Sandf. 81; 827. People V. Faulkner, 107 N. Y. 477; 933. People ex rel. Patrick v. Fitzgerald, N. Y. L. J., June 12 1902; 259. People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339; 306, 703. People ex rel. Davis v. Gardner, 45 N. Y. 812; 31. People ex rel. Wright v. Gerow, 136 App. Div. 824; 1316. People ex rel. McKnight v. Glynn, 56 Misc. 35; 1084, 1094. People V. Guild, 4 D6n. 551; 227. People V. Harman. 2 Sw. 576; 216, 217. People V. Hill, 195N. Y. 16; 440. People V. Journal Co., 213 N. Y. 1; 193, 267. People V. Judges of Erie, 4 Cow. 445; 561, 962, 963. People V. Kearney, 31 Barb. 430; 1282. People V. Kemmler, 119 N. Y. 580; 461. People V. Keysef, 28 N. Y. 226; 571. People ex rel. Breslin v. Lawrence, 107 N. Y. 607; 259, 260. People ex rel. Brooklyn Ind. School v. Kearney, 21 How. Pr. 74; 1305. People V. Laws, 3 Abb. Pr. 450 (aff'd 4 Abb.Pr. 296);227, 823. People V. Lazansky, 208 N. Y. 435; 19. People V. Lewis, 28 How. Pr. 159; 98. People ex rel. Dean v. Markell, 72 Misc. 427; 244. People V. Marshall, 7 Abb. N. C. 380;:225. People ex rel. Noble v. Mitchell, 170 App. Div. 379; 186. People V. Mercantile S. D. Co., 159 App. Div. 98; 1081, 1130. People V. Mercein, 3 Hill, 399; 1284. People V. Murphy, 135 N. Y. 450; 311. People V. Murray, 5 Hill, 468; 310. People ex rel. Mayor v. Nichols, 79 N. Y. S82; 1279. Peddle ex rel. Patrick v. Fitzgerald, 73 App. Div. 339; 427, 791. People ex rel. Patrick v. Fitzgerald, N. Y. L. J., June 12, 1902; 431. People V. Pekarz, 185 N. Y. 481; 440. People V. Pierson, 176 N. Y. 20; 1309. People V. Pleas, 2 Johns. Cas. 376; 928, 951 People V. Powers, 147 N. Y. 104; 533. People V. Prendergast, 146 App. Div. 713; 886, 908. People ex rel. McDonough v. Prendergast, 167 App. Div. 140; 623. People V. Riley, 25 Hun, 587; 244. People V. Rowland, 5 Barb. 449; 827. People ex rel. Schofield v. Surrogate's Court, NY. L. J., May 28, 1915; 647. People ex rel. Stebbins v. Purdy, 144 App. Div. 361; 564. People ex rel. Adams v. Sigel, 46 How. Pr. 151; 1251. People v.Simonson, 126 N. Y. 299; 542. People v. Spencer, 179 N. Y. 412; 440. People V. Striat, 148 N. Y. 666; 459. People V. Sup. Oneida Co., 82 Hun, 105; 38 People V. Townsond,. 37 Barb. 620; 218, 227 People V. Waldron, 62 How., Pr. 221; 92, 634. People ex rel. Pruyne v. Watts, 122 N. Y. 238; 1283, 1289. People V. Weissenbach, 60 N. Y. 386; 859. People ex rel. Adams v. Westbrook, 61 How. 138; 1223, 1224, 1226. People v. Wilcox, 22 Barb. 178; 1279, 1288, 1290. People ex rel. Ripley v. Williams, 69 Misc. 402; 1128. People V. Woodbury, 70 App. Div. 416; 223,230,231. People's Trust Co. v. Flynn, 188 N. Y. 385; 528, 1149, 1468. People's Trust Co. v. Flynn, 113 App. Div. 683; 524, 528. People's Trust Co. v. Flyim, 49 Misc. 62; 524. People's Trust Co. v. Harman, 43 App. Div. 348; 1177. People's Trust Co., Matter of, 37 Misc. 239; 210, 246. People's Trust Go. v. Smith, 82 Hun, 494; 539. People's Trust Co. v. Smith, 62 St. Rep. 104; 1160. Pepoon, In re, 91 N. Y. 265; 320, 336. P. E. P. School, Matter of, 86 N. Y. 396: 1330. Peraza^ Matter of, N. Y. L. J., Jan. 24, 1912; 753. Percival, Matter of, 79 Misc. 567; 910, 1459. 1460. Perego's Will, Matter of, 65 Hun, 478; 321 333 PerkiAs V. HiU, 66 N. Y. 87.; 269. Perkins v. Stimmel, 114 N. Y. 359; 666, 668, 826, 826, 1306. ' Perkins v. Taylor, 19 Abb. Pr. 146; 174. Perley v. Sands, 3 Edwards' Ch. Rep. 325" 772. Perrott v. Perrott, 14 East. 423; 360. Perry, Matter of, 6 Misc. 149; 93, 1383. TABLE OF CASES CITED References are to pages cm Perry, Matter of, 37 N. Y. St. Rep. 576; 1373, 1503. Perry, Matter of, 38 Misc. 167; 907. Perry v. Perry, 21 N. Y. Supp> 133; 513. Person, Matter of, 52 Misc. 273; 556. Person v. Warren 14 Barb. 488; 463. Personam v. Goodale, 199 N. Y. 323; 1203, 1205, 1219. Peters v. Carr, 2 Dem. 22; 113, 1024. Peters, Matter oi, 69 App. Div. 465; 543. Peters v. Smith, 60 Misc. 203; 572. Peters v. Stewart, 2 Misc. 357 (rev'g 1 Misc. 8); 984. Peters v. Tall Chief, 121 App. Div. 309 (rev'g 52 Misc. 617); 79. Petersen v. The Bank, 32 N. Y. 21; 20 How. Pr. 240; 150, 590, 606, 607, 608, 609, 610. Peterson, Matter of, 64 Misc. 217; 1475. Peterson, Matter of, 79 Hun, 371; 774. Peterson, Matter of, 51 Misc. 467; 114, 392. Peterson, Matter of, 137 App. Div. 435 (aff'g 62 Misc. 161); 1031, 1418. Peterson, Matter of, 68 Misc. 10; 249, 251. Petrie, Ma;tter of, 5 Dem. 352; 702, 765. Petrie v. Petrie, 126 N. Y. 683 (aff'g 6 N. Y. Supp. 831); 287, 445, 459. Petrie v. Petrie, 7 Lans. 93; 1166. Petrie v. Shoemaker, 24 Wend. 85; 463. Pettit, Matter of, 65 App. Div. 30; 1078, 1125. Pew V. Hastings, 1 Barb. Ch. 452; 19, 64, 91, 154, 250. Peyser, Matter of, 5 Dem. 244; 1338, 1410, 1445. Peyser V. Wendt, 2 Dem. 221; 230, 231, 1177. Pfarr, Matter of, 38 Misc. 223; 79 App. Div. 634; 723* 724. Pfyte, Matter of, 5 N. Y. Leg. Obs. 331; 985. Phalen, Matter of, 51 Hun, 208; 260, 1209, 1218. Phalen, Matter of, 4 N. Y. Supp. 408; 1211. Phalen V. U. S. Trust Co., 186 N. Y. 178; 363, 365, 1073. Phelps V. Cameron, 109 App. Div. 798; -547. Phelps, Matter of, 5 N. Y. Supp. 270; 314. Phelps, Matter of, 19 Week. Dig. 293; 482. Phelps V. Phelps, 28 Barb. 121; 550. Phelps V. Pond, 23 N. Y. 69; 542, 550. Philbin, Matter of, N. Y. L. J., July 9, 1893* 928 Philbin, Matter of, N. Y. L. J., July 9, 1892; 950. Philbin v. Patrick, 22 How. Pr. 1; 173. Philip, Matter of, 46 N. Y. St. Rep. 356; 351. PhiUips V. Bignell, 1 Phill, 239; 22. Phillips V. Chater, 1 Dem. 533; 449, 455. Phillips V. Davies, 92 N. Y. 199; 523. Phillips V. Liebmann, 10 App. Div. 128; 1319, Phillips, Matter of, 34 Misc. 442; 329. Phillips, Matter of, 56 Misc. 96; 1475. Phillips V. McCombs, 53 N. Y. 494; 551, 1172. Phillips V. Phillips, 112 N. Y. 197; 524, 1138. • PhiEps V. PhiUps 77 App. Div. 113; 461. PhiUps V. The Parish of St. Clements Danes, 1 Eq. Cas. Abr. 404; 295. Phillips, Will of, Matter of, 98 N. Y. 267; 312, 317, 319, 321, 327. Philp, Matter of, 29 Misc. 263; 655, 659, 663, 1424. Philson V. Moore, 23 Hun, 152; 541, 1170. Phipps V. Carman, 84 N. Y. 650; 174. Phipps, Matter of, 77 Hun, 325 (aff'd 143 N.Y. 641); 1047, 1048. Phoenix v. Livingstone, 101 N. Y. 451; 1433, 1435, 1443. Phoenix v. Trustees of Columbia, 87 App. Div. 438 (aff'd 179 N. Y. 592); 550, 1037. Pickering v. Lord Stamford, 3 Ves. Jt. 331 ; 1476. Pierce v. Chamberlain, 41 How. Pr. 5Q1; 1189. Pierce, Matter of, 12 How. Pr. 532; 1289. Pierce, Matter of, 60 Misc. 25 (rev'd 132 App. Div. 465); 897, 1070, 1071. Pierpont v. Patrick, 53 N. Y. 591; 453. Pierrepont v. Edwards, 24 How. Pr.,419; 1168. Pierrepont v. Edwards, 25 N. Y. 128; 554, 1149, 1167. Pierson, Matter of, 19 App. Div. 478; 252, 973. Pierson, Matter of, 58 Misc. 94; 1150. ■ Pietraroia v. N. J., etc., Co., 197 N. Y. 434; 219. Pike, Matter of, 83 Hun, 327; 436, .466, 487. PiUing V. Pilling, 45 Barb. 92; 442, 461, 463. Pilsbury, Matter of, 50 Misc. 367; 490, 527. Pilsbury, Matter of, 50 Misc. 367; 543. Pilsbury, Matter of, 113 App. Div. 893; 490, 527, 543. Pimel V. Betjemann, 183 N. Y. 194; 548, 1145, 1199. Pinckney v. Pinckney, 1 Bradf. 269; 545. Pinckney v. Smith, 26 Hun, 524; 1086, 1221. Pinckney, WiU of, 1 Tucker, 436; 346, 347. Pinnay v. Fancher, 3 Bradf. 198; 1156. Piper V. Barse, 2 Redf. 19; 1169, 1171, 1172. Pirie, Matter of, 133 App. Div. 431; 1214. Pimie v. Purdy, 19 Barb. 60; 1148. Pitcher, In re, 4 Law Bull. 32; 1370, 1371. Pitkin V. Wilcox, 12 N. Y. Supp. 322; 585, 1373. Pitkin V. Wilcox, 20 Civ. Proc Rep. 27; 666. Pitney, Matter of, 113 App. Div. 845, 932 Pitney, Matter of, 186 N. Y. 540; 932, CIV TABLE OF CASES CITED References are to pages Pittman v. Johnson, 35 Hun, 38 (aff'd 102 N. Y. 724); 1167, 1174. Pitts V. Jameson, 15 Barb. 310; 896. Pitts V. Pitts, 52 N. Y. 595; 1494. Place, Matter of, 1 Redf. 276; 1382, 1393. Place, Matter of, 105 N. Y. 629 (aff'g 4 Dem. 487; also aff'g 4 N. Y. St. Rep. 533); 716, 767. Plate, Matter of, 156 N. Y. Supp. 999; 179, 181, 183, 185. Plate, Matter of, 93 Misc. 423; 181, 183, 185. Plath, Matter of, 66 Hun, 223; 648. Piatt V. Moore, 1 Dem. 191; 883. Piatt, Matter of, 8 Misc. 144; 1126. Piatt V. Mickle, 137 N. Y. 106; 142, 546, 1491. Piatt V. Piatt, 105 N. Y. 488; 1019, 1020, 1147, 1203. Plopper, Matter of, 15 Misc. 202; 1229. Plum, Matter of, 37 Misc. 466; 1133, 1135. Plumb, In re, 64 Hun, 317 (aff'd 135 N. Y. 661); 205, 207, 261, 407. Plumb, Matter of, 135 N. Y. 661; 207. PJumb, Matter of, 4 N. Y. Supp. 135; 778. Plumb, Matter of, 52 Hun, 119; 1306, 1309, 1310. Plumb, Matter of, 24 Misc. 249; 170, 1310. Plummer, Matter of, 38 Misc. 536; 1145, 1475. Pollock, Ex parte, 3 Redf. 100; 170, 171, 1391. Pollock V. Hooley, 67 Hun, 370; 408. Pomroy v. Hincks, 180 N. Y. 73; 1468, 1498. ■ Pond V. Bergh, 10 Paige, 140; 525, 544. Pond V. Curtis, 7 Wend. 45; 62, 1304, 1305. Ppnd, Matter of, 40 Misc. 66; 1502, 1506. Pond, Matter of, 42 Misc. 165; 1448. Popham V. Spencer, 4 Redf. 399; 668, ' ' '1352 ' Popp, Matter of, N. Y. L. J., Nov. 8, 1911: 727. Popp, Matter of, 123 App. Div. 2; 1437. Porter v. Kingsbury, 77 N. Y. 164; 1174. Porter, Matter of, 1 Misc. 489; 113, 121. Porter, Matter of, 30 App. Div. 213; 1374= Porter, Matter of, 60 Misc. 504; 1420. Porter, Matter of, 22 N. Y. Supp. 1063; 401. Porter, Matter of, 5 Misc. 274; 949. Porter, Matter of, 67 Misc. 19; 1099, 1100, 1107. Porter v. Purdy, 29 N. Y. 106; 219, 231, 686. Porter's Will, 22 N. Y. Supp. 1062; 314. Porteus V. Holm, 4 Dem. 14; 336, 338. Portingall, Matter of, 39 St. Rep. 903; 486. Posiier v. Rosenberg, 149 App. Div. 277; 977. Post V. Bruere, 127 App. Div. 250; 529. Post V. Hover, 33 N. Y. 594; 544, 1144. Post V. Hover, 30 Barb. 312; 1155, 1156. Post v. Ingraham, 122 App. Div. 738! 1349, 1350. Post V. Mason, 26 Hun, 187 (aff'd 91 N: Y. 539); 216, 220, 399, 473, 476, 479. Post; Matter of, 5 App. Div. 113; 127, 1086. Post, Matter of, 19 N. Y. Supp. 18, 170. Post, Matter of, 30 St. Rep. 217; 1372. Post, Matter of, 30 Misc. 551; 111, 1327, 1374. Post, Matter of, 38 N. Y. St. Rep. 1; 255. Post, Matter of, 64 Hun, 635; 260j 261. Post V. Moore, 181 N. Y. 15; 1076, 1159, 1250. Postley V. Cheyne, 4 Dem. 492; 776, 777. Potter V. Chapin, 6 Paige, 639; 432, 542. Potter v.^Hodgman, 81 App. Div. ,233; QOQ Potter V. Hodgman, 178 N. Y. 680; 888. Potter, Matter of, 17 App. Div. 267; 286. Potter, Matter of, 161 N. Y, 84; 287, 442. Potter, Matter of, 32 Hun, 599; 284. Potter; Matter of, 33 N. Y. St. Rep. 936; 363, 364. Potter, Matter of, 51 App. Div. 212; 1074. Potter V. McAlpine, 3 Dem. 108; 337, 455, 531, 914. Potter V. Ogden, 136 N. Y. 384; 110, 111, 130, 827, 829, 830. Potter V. Richards, 10 Wend. 607; 1342. Potter V. Sachs, 45 App. Div. 454; 948. Potts V. Baldwin, 67 App. Div. 434; 984, 985, 1014, 1418. Potts V. Baldwin, 173 N. Y. 335; 1014. Poultney v. Randall, 9 Bosw. 232; 1304. Powell V. Demming, 22 Hun, 235; 661. Powell, Matter of, 5 'Dem. 281; 718. Powell, Matter of, 136 App. Div. 830; 260. Powell v. Tuttle, 3 N. Y. 396; 222. Power V. Burmester, 34 N. Y. St. Rep. 716; 686. Power V. Cassidy, 79 N. Y. 602; 533, 634. Power V. Speckman, 126 N. Y. 354; 77, 95, 230, 752, 774, 821. Powers, In re, 124 N. Y. 361; 889, 1019, 1204, 1206. Powers, In re, 30 Ch. D. 291; 25. Powers, Matter of, 75 Misc. 86; 991. Powers V. Powers, 16 N. Y. St. Rep. 770; 1189. Prall, Matter of, 78 App. Div. 301; 1063. Praetz, Matter of, 87 Misc. 128; 1203. Pratt V. Roman Catholic Orphan Asylum, 20 App. Div. 352; 634,- 542. Pratt V. Roman Catholic Orphan Asylum, 166 N. Y. 593; 542. Pray v. Hegeman, 92 N. Y. 608; 531. Pray, Matter of, 40 Misc. 516; 1388. Prentice, Matter of, 160 N. Y. 568; 211, 289. Prentice, Matter of, 25 App. Div. 209; 1433,1445. Prentiss v. Weatherly, 68 Hun, 114; 144 N. Y. 707; 584, 826, 1306. Prescott, Est. of, 4 Redf. 178; 363. Prescott, Matter of, 1 Tuck. 430; 937. Preston v. Howk, 3 App. Div. 43; 637, 564, .1158. '^'^ ^ ' TABLE OF CASES CITED References are to pages cv Preston v. Howk, 154 N. Y. 734; 537, 1158. Preston, Matter of, 75 App. Div. 250; 1047. Preston, Matter of, N. Y. L. J., May 28, 1901; 1064. Prevost, Matter of, 89 Misc. 704; 591, 598. Price V. Brown, 1 Bradf. 291; 338. Price V. Brown, 112 N. Y. 677; 168. Price V. Fenn, 3 Dem. 341; 107, 402, 1221, 1241. Price V. Holman, 135 N. Y. 124; 936, 939. Price, Matter of, 62 Misc.- 149; 1068. Price V. Price, 75 N. Y. 244; 901. Price V. Wilson, 3 N. & M. 512; 989. Price-McCormiclc Co., Matter of, 69 App. Div. -37; 1107. Price V. Mulford, 107 N. Y. 303; 1374. Pricliard v. Thompspn, 95 N. Y. 76; 534, Priest V. Watkins, 2 Hill, 225; 381, 562, 564. Priester v. Hohlock, 70 App. Div. 256; 885, 890. Prime, Matter of, N. Y. L. J., March 6, 1891; 950. Prime, In re, 136 N. Y. 347; 1044; 1062. Primmer, Matter of, 49 Misc. 413; 993, 995. Primmer v. Primmer, 166 App. Div. 402; 314. Prince v. Hazelton, 20 Johns. 501; 294, 296, 297. Prince, Matter of, 56 Misc. 222; 969. Pringle v. Burroughs, 185 N. Y. 373 (aff'g 100 App. Div. 366); 441. Printup, Matter of, 121 App. Div. 322; 79. Prior, Matter of, 10 N. Y. Supp. 861; 1186. Pritchard V. Kirsoh, 58 App. Div. 332; 540. Pritchard v. Palmer, 68 N. Y. St. Rep. 688, 88 Hun, 416; 317. Probst, Matter of, 40 Misc. 431; 1047. Proctor v. Clark, 3 Redf. 445; 355. Proctor, Matter of, 41 Misc. 79; 1096, 1097. Proctor V. Wanamaker, 1 Barb. Ch. 302; 90, 617, 634, 772. Prote, Matter of, 54 Misc. 495; 1497. Prout, Matter of, 11 N. Y. Supp. 160; 193. Prout, Matter of, 52 Hun, 109; 144. Prout, Matter of, 53 Hun, 541; 1121. Prout, Matter.of, 128 N. Y. 70; 610, 735, 805. Prout, Matter of, 19 N. Y. St. Rep. 318; 1126. Prout V. McNab, 6 Dem. 152; 366. Provost V. Int. Giant Safety Coaster Co., 152App. Div. 83;587. Pruyn v. Brinkerhoff, 57 Barb. 176; 204, - 262, 406. Pruyn, Matter of, 141 N. Y. 544; 1352, 1408, 1409, 1423. Pryer v. Clapp, 1 Dem. 387; 100, 101, 104, 113. Public Administrator v. Elias, 4 Dem. 139; 872. Public Administrator v. Hughes, 1 Bradf. 125; 724. Pugsley V. Aiken, 1 Kern. 494; 1021. Pulitzer, Matter of, 89 Misc. 67; 1429. PuUen, Matter of, 52 Misc. 75; 997. Pullman, Matter of, 46 App. Div. 574; .1048, 1102, 1106, 1108. 1120. Pullman v. WUlets, 4 Dem. 536; 1343, 1450. Purdy V. Doyle, 1 Paige, 558; 1013. Purdy V. Hayt, 92 N. Y. 446; 92, 212, 519, 1425. Purdy, Matter of, 46 App. Div. 33; 283, 315, 413, 414. Purdy, Matter of, 24 Misc. 301; 1099. Purdy V. Purdy, 18 App. Div. 310; 1161. Purdy V. Purdy, 36 App. Div. 535; 1147. Purdy V. Webster, 3 How. (N. S.) 263; 206. Purdy's Will, 20 N. Y. Supp. 307; 310. Putnam v. Lincoln Safe Deposit Co., 118 App. Div. 468; 569. Putnam v. Lincoln Safe Deposit Co., 49 Misc. 578; 920, 943, 1150, 1507. Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166; 567, 1374. Putnam v. Ritchie, 6 Paige, 390; 1281, 1304. Putney, Matter of, 61 Misc. 1; 1308. Pye, Matter of, 21 App. Div. 266; 274. Pye, Matter of (No. 1), 18 App. Div. 306; 1143. Pye, Matter of (No. 2), 18 App. Div. 309; 770, 772. Pyle V. Pyle, 137 App. Div. 568 (aff'd 199 N.Y. 538); 761, 769. Quackenboa, Matter of, 38 Misc. 66; 229, 230,231. Quackenboss v. Southwick, 41 N. Y. 117; 573, 761, 762, 784. Quackenbush v. Quackenbush, 42 Hun, 329' 381 Quade v. Bertsch, 65 App. Div. 600 (aff'd 173N. Y. 615);528. Quatlander, Matter of, 29 Misc. 566; 1208. , . Quick V. Ludburrow, 3 Bulst. 30; 900. • Quin V. Hill, 6 Dem. 39; 1310. Quin, Matter of, 1 Connoly, 381; 891, 894, 932, 1344, 1381. Quinn's Est., In re, 9 N. Y. Supp. 550; 926. Quinn v. Hardenbrook, 54 N. Y. 83; 544, 1144. Quinn v. Hill, 4 Dem. 69; 990. Quinn, Matter of, 16 Misc. 651; 1447, 1449. . Quinn, Matter of, 30 N. Y. St. Rep. 210; 1407. Quinn, Matter of, N. Y. L. J., Nov. 25, 1911; 1395. Quinn v. Skinner, 49 Barb. 128; 523. Quintard v.Morgan, 4 Dem. 168; 718. Raab, Matter of, 42 App. Div. 141; 1158. Raads, Matter of, 9 N. Y. Supp. 812; 1475. CVl TABLE OF CASES CITED References are to pages Raborg, Matter of, 3 N. Y. St. Rep. 323; 1291. Radley v. Fisher, 24 How. Pr. 404r981. Rafferty v. Clark, 1 Bradf. 473; 1146. Rafferty, Matter of, 52 Misc. 69; 1187, 1442: RaiTerty v. Scott; 4 App. Div. 429; 145, 394. Rainforth, Matter of, 37 Misc. 660; 1403, 1407; Rainsforth, Matter of-, 40 Misc. 609; 948, 1416. Raisbeok, Matter of, 52 Misc. 279; 354. Rait V. Rait, 1 Bradf. 345; 1305i Raleigh, Matter of, 75 Misc. 55; 874, 1067. Ramsay v. De Remfer, 65 Hun, 212; 533. RamsdeU, Mattei-of, 117 N. Y. 636; 490. Ramsdell v. Viele, 6 Dem. 244; 409, 434. Ramsdill, Matter of, 190 N. Y. 492; 1096, 1123, 1126. Rand, Matter of, 28 Misc. 465; 469, 486. Randall, Matter of, 152 N. Y. 508; 25, 26, 93, 144, 948, 1192, 1411, 1420, 1425. Randall, Matter of, 80 Hun, 229; 948. Randell, Est. of, 8 N. Y. Supp. 652; 895, 896,976. Randolph, Matter of, N. Y. L. J., Sept. 20, 1911; 1^70. ' Rank v. Camp, 3 Dem. 278; 1180. Ranken, Matter of, 101 App. Div. 189; 529. Ranken, Matter of, 182 N. Y.-519; 529. Rankine v. Metzger, 69 App. Div. 264; 1265. Ransier, Matter of, 26 Misc. 582; 1371. Ranson v. Nichols, 22 N. Y. 110; 722, 1480. Rapalje v. Hall, 1 Sandf. Ch. 399; 939. Rapalye v. Rapalye, 27 Barb. 610; 1012. Rapelje, Matter of, 66 Misc. 414; 885. Rappelyea v: Russell, 1 Daly, 214; 989, 991 994. Rapplefe, Matter of, 66 Hun, 558; 459. Rapplee's Will (Sup.), Matter of, 21 N. Y. Supp. 801; 458. Rasch, Matter of, 26 Misc. 459; 1323, ■ 1457. Rastetter v. Hoenninger, 214 N. Y. 66; 365. Rathbone v. Dyckman, 3 Paige, 9; 544. Rathyen, Matter of, 115 App. Div. 644; 773. Raven v. Norton, 2 Dem. 110; 401. Ray v. Van Hook, 9 How. Pr. 427; 1321. Raymond v. Dayton, 4 Dem. 333; 1396, 1417. Raymond v. Fitch, 2 C. M. & R. 588; 900. Raymond, Matter of, 73 App. Div. 11; 519, 529, 1476. Raymond, Matter of, 86 Misc. 359; 317, 331 Raymond, Matter of, 167 App. Div. 893; 317, 332, 335. Rayner, Matter of, 93 App. Div. 114; 259. Rayner v. Pearsall, 3 Johns. Ch. 578; 951." Raynor v. Gordon, 23 Hun, 264; 1215, 1224. Raynor, Matter of, 48 Misc. 325; 691, 716. Rea V. McEachron, 13 Wend. 565; 1220. Read v. KneU, 143 N. Y. 484; 946. Read, Matter of, 41 Hun, 95; 1423. Read, Matter of, 17 Misc. 195; 465, 466, 467,487. Read v. Williams, 27 St. Rep. 505; 569. Read v. Williams, 125 N. Y. 560; 516, 517, 569. Real V. People,.42 N. Y. 270; 446. Recknagel, Matter of, 148 App. Div. 268; 966. Redfield, Matter of, 71 Hun, 344; 92, 145. Redrilond, Matter of, 50 Misc. 74; 340; Reed v. Chilson, 142 N. Y. 152; 114. Reed,: Matter of, 2 Connoly, 403; 448, 462. Reed, Matter of, 171 App. Div. 21; 117, 122. . Reed, Matter of, 45 App. Div. 196; 942. Reed, Matter of,-214 N. Y. 383; 1201. Reed V. Reed, 52 N. Y. 651; 91, 254, 1331, 1332, 1338, 1448. Reeve V. Crosby, 3 Redf. 74; 204, 321, 405, 406, 487. Reeves, Matter of, 48 Hun, 607; 1324. Reeves v. Snook, 86 App. Div. 303; 631, 1476. Regan, Matter of, 29 Misc. 527; 159.' Regan, Matter of, 167 N. Y. 338 (rev'g 58 App. Div. 1, and aff'g 29 Misc. 527); 158, 246, 289, 1367. Regina v. Stewart, 12 Ad. & E. 773; 988. Reich V. Union R. R. Co., 78 Hun, 417; 459. Reichert, Matter of, 34 Misc. 288; 695, 1068. Reid V. Brown, 54 Misc. 481; 1149. Reid V. Vanderheyden, 5 Cow. 719; 16, 258, 1320, 1338. Reiffield, Matter of, 36 Misc. 472; 413. Reilley v. Duffy, 4 Dem. 366: 1408. ReUly V. Hart, 55 Hun, 465 (aff'd 130 N. Y. 625); 123. Reilly v. Erie R. Co., 63 App. Div. 415; 900. Reinach, Matter of, 41 Misc. 78; 1403. Reins, Matter of, 59 Misc. 126; 309. Reiser, Matter of, 81 Misc. 101; 304, 327. Rembe, Matter of, 23 Misc. 44; 1391. Remington v. Walker, 99 N. Y. 626; 939. Remsen v. Brinckerhoff, 26 Wend. 325; 320. Remsen v. Wheeler, 105 N. Y. 575; 1079. Renwick v. Renwick, 1 Bradf. 234; 1225. Restivo V. Bradley Cont. Co., 166 App. Div. 809; 158. Reynolds v. Aetna Life Ins. Co., 30 Misc. 152; 1330. Reynolds v. Collins, 3 Hill, 441; 886, 1390. Reynolds, Admr., v. CoUins, 3 Hill, 36; 972, 985. Reynolds, Matter of, 11 Hun, 41; 1316. Reynolds, Matter of, 87 Misc. 569; 408. Reynolds, Matter of, 124 N. Y. 388; 991, 1139. TABLE OF. CASES CITED CVU References are to pages Reynolds v. Reynolds, 3 Wend. 244; 1022. Reynolds v. Reynolds, 16 N. Y. 257: 1146, 1204. Reynolds v. Robinson, 64 N. Y. 589; 460. Reynolds v. Robinson, 82 N. Y. 103; 1162. Reynolds v. Root, 62 Barb. 250; 444, 462, 469. Reynolds v. Sison, 78 Hun, 595; 937, 939. Reynolds' Will, 4 Dem. 68; 314. Rheinhart v. Rheinhart, 134 App. Div. 440; 1049, 1107. Rhodes V. Caswell, 41 App. Div. 229; 214. Ricard v.SLaytin, 2 Dem. 587; 254. Riocardo, Matter of, 79 Misc. 371; 802, 1473. Rice V. Harbeson, 63 N. Y. 493; 1011, 1013, 1017, 1018. Rice, Matter of, 56 App. Div. 253; 1105, 1114, 1118. Rice, Matter of, 28 Misc. 404; 56 App. Div. 253; 1113. Richards v. Hartshorn, 110 App. Div. 650; 542. Richards v. Northwest P. D. Church, 32 Barb. 42; 523. Richards v. Walton, 12 Johns. 434; 288. Richardson v. Bates, 23 How. Prac. 516; 121. , Richardson's Est., In re, 9 N. Y. Supp. • 638; 927. Richardson, Matter of, 81 Hun, 425; 254. Richardson, Matter of, 2 Misc. 288; 937. Richardson, Matter of, 51 App. Div. 637; 450, 451, 463. Richardson, Matter of, 120 App. Div. 406; 269. Richardson, Matter of, 8 Misc. 140; 715, 718, 774, 787. Richardson, Matter of, 31 Misc. 666; 864. Richardson, Matter of, 118 App. Div. 164; 91. Richardson v. Van Voorhis, 3 N. Y. Supp. 396; 233. Richmond v. Richmond, 123 App. Div. 117; 1152. Richmond, Matter of, 63 App. Div. 488; 259, 576, 579, 585, 1332, 1476. Richmond, Matter of, 168 N. Y. 385 (aff'g 62 App. Div. 624); 1020, 1204, 1230. Rickard, Matter of, 15 Abb. (N. S.) 6; 1304. Rickets v. Livingston, 2 Johns. Cas. 100; 1164, 1196. Ricketts v. Weaver,12 Mees. W. 718; 900. Ridden v. Thrall, 125 N. Y. 572; 1066. Rider v. Legg, 51 Barb. 260; 337, 409, 421. Rider, Matter of, 68 Misc. 270- 1210, 1214. Rider, Matter of, 3 Silvernail Ct. of Ap- peals, 607; 976. Rider v. Miller, 86 N. Y. 507; 446. Ridgeway, Matter of, 2 Redf. 226; 366. Ridfeley v. Johnson, 11 Barb. 527; 571, 1251. Rieben v. Hicks, 4 Bradf. 136; 1408, 1423. Rieck V. Pish, 1 Dem. 75; 808, 1196, 1294. Riegelman, Est. of, 2 Civ. F^oc. Rep. 98; 1180. Riegelman v. McCoy, 1 Dem. 86; 654. Riegelman v. Riegelman, 4 Redf. 492; 654, 1180. Riggs V. American Tract Society, 95 N. Y. 603; 456. Riggs V. Cragg, 26 Hun, 89; 519, 950, 1272. Riggs V. Cragg, 89 N. Y. 479; 26, 77, 92, 140, 212, 519, 758, 1179, 1308, 1425, 1474. Riggs V. Palmer, 115 N. Y. 506; 138, 694. Riker v. Comwell, 113 N. Y. 115; 1199. Riker v. New York Hospital, 66 How. Pr. 246* 539 556 Riley v. Diggs, 2 Dem. 184; 541, 542, 554. Rima v. Rossie Iron Works, 120 N. Y. 433; 129. Rinehart v. Hasce Building Co., 153 App. Div. 153; 579. Rintelen, Matter of, 37 Misc. 462 (aff'd 77 App. Div. 142); 462, 474, 480, 487. Rintelen v. Schaefer, 158 App. Div. 477; 451. Ritch v. Hawxhurst, 114 N. Y. 512; 1196. Ritch, Matter of, 2 Redf. 330; 1359. Ritch, Matter of, 76 Hun, 36,; 1449. Rivarz v. Patterson, 59 Misc. 263; 569. Rivenburgh v. First Nat. Bank, 103 App. Div. 64; 897. Roarty v. McDermott, 146 N. Y. 296; 570. Robb V. Wash. & Jeff. CoUege, 103 App. Div. 327; 524, 526, 529. Robb V. Wash. & Jeff. College, 185 N. Y. 485; 524, 626, 529, 530, 539, 540, 642. Robbins, Est. of, Matter of, 7 Misc. 264; 1000, 1015, 1607. Robbins, Matter of, 4 Redf. 144; 912, 913. Robbins v. McClure, 100 N. Y. 328; 1065. Roberson v. Rochester Folding Box Co., 64 App. Div. 30, 171 N. Y. 538; 85. Robert V. Corning, 89 N. Y. 241; 307, 1171. Robert v. Corning, 23 Hun, 299; 1171. Robert v. Ditmas, 7 Wend. 523, 970, 984. Robert, Matter of, N. Y. L. J., Jan. 9, 1912; 648. Robert, Matter of, 4 Dem. 185; 306, 307. Robert v. Morgan, 4 Dem. 148; 210, 245, . 1397. Robert's (Catherine) Will, 8 Paige, 519; 91. Roberts v. Bosworth, 107 App. Div. 611; 1199. Roberts, Matter of, 40 Misc. 512; 950, 1162, 1272, 1274. Roberts, Matter of, 72 Misc. 625; 93, 1241, 1389, 1449. Roberts, Matter of, 112 App. Div. 732; 528. Roberts, Matter of (U. S. Ct. for China), May, 1907; 612. Roberts, Matter of, 214 N. Y. 369 (aff'g 162 App. Div. 922); 21, 62. Roberts v. Pike, 19 Civ. Proc. Rep. 422; 981. Robertson v. Adam, Redf. Cases upon Wills, 367; 453. Robertson v. Caw, 3 Barb. 416; 476. CVUl TABLE OF CASES CITED References are to pages Robertson v. De Brulatour, 188 N. Y. 301 (aff'g 111 App. Div. 882); 941, 1152, 1153, 1268, 1274, 1275, 1428, 1433, 1444. Robertson, Matter of, 51 App. Div. 117 (aff'd 165 N. Y. 675); 246, 249. Robertson, Matter of, 23 Misc. 450; 521, 640. Robertson, Matter of, 2 Misc. 288; 1445. Robertson v. McGoech, 11 Paige, 640; 707. Robertson v. Pickrell, 109 U. S. 608; 391. Robins v. Coryell, 27 Barb. 556; 162, 312. Robins v. McClure, 100 N. Y. 328; 722, 723, 1480, 1490. Robinson v. Adams, 179 N. Y. 558; 569. Robinson v. Adams, 11 Am. Rep. 473; 477. Robinson v. Adams, 81 App. Div. 20; 569. Robinson v. Appleby, 69 App. Div. 509 (aff'd 173N. Y. 626);897. Robinson v. Kelso, 53 Misc. 89; 1146. Robinson, Matter of, 87 Misc. 164; 449. Robinson, Matter of, 142 App. Div. 913; 710. Robinson, Matter of, 75 Misc. 75; 1179. Robinson, Matter of, 37 Misc. 336; 1139, 1435. Robinson, Matter of, 160 N. Y. 448 (aff'g 40 App. Div. 30); 1335. Robinson, Matter of, 45 Misc. 551; 1171, 1460, 1'473. Robinson, Matter of, 42 Misc. 169; 1422. Robinson, Matter of, 59 Misc. 323; 158. Robinson, Matter of, 125 App. Div. 424 (aff'dl92N. Y. 574);158. Robinson, Matter of, 53 Misc. 171; 166, 167. Robinson v. Raynor, 28 N. Y. 494; 284. Robinson v. Robinson, 1 Lans. 117; 530. Robinson v. Robinson, 5 Lans. 168; 1374, 1468. Robinson v. Schmidt, 17 App. Div. 628; 574. Robinson v. Thomas, 123 App. Div. 411; 899. Rocco V. Thompson, N. Y. L. J. (U. S. Sup. Ct.), March 19, 1912; 114. Roche V. Nason, 185 N. Y. 128 (aff'g 105 App. Div. 256); 301, 349, 377, 384, 435, 450, 463. Rocheron v. Jacques, 2 Edw. Ch-. 207; 1190. Rochester City Bank v. Suydam, 15 How. Pr. 254; 477. Rochevbt v. Rochevot, 74 App. Div. 685; 947. Roderigas V. E. R. -Sav. Inst., 63 N. Y. 460; 217, 366, 663, 655, 686. Roderigas v. E. R. Sav. Inst., 76 N. Y. 316; 49, 211, 216, 217, 222, 231, 653. Roe, Matter of, 82 Misc. 565; 328. Roe V. Smith, 42 Misc. 89; 571. Roe V. Smith, 97 App. Div. 633; 571. Roe V. Strong, 107 N. Y. 350; 460. Roehl V. Haumesser, 114ilhd. 311; 840. Rogers v. Adler, 137 App. Div. 197; 699. Rogers v. Decker, 131 N. Y. 490; 19. Rogers's Est., Matter of, 16 N. Y. Supp. 197; 144. Rogers v. Hosack, 18 Wend. 319; 1013. Rogers v. Hosack, 6 Paige, 415; 977. Rogers v. King, 8 Paige, 210; 86, 1372. Rogers L. & M. Works v. Rogers, 16 N. Y. Supp. 197; 1259. Rogers, Matter of, 10 App. Div. 693; 283, 284, 285. Rogers, Matter of, 37 Misc. 54; 957. Rogers, Matter of, 71 App. Div, 461; 1075, 1103. Rogers, Matter of, 80 App. Div. 362; 957. Rogers, Matter of, 2 Connoly, 639; 1269. Rogers, Matter of, 172 N. Y. 617; 1074. Rogers, Matter of, 153 N. Y. 316 (rev'g 92 Hun, 609); 586, 666, 923, 1368, 1373, 1407, 1502, 1503, 1506. Rogers, Matter of, 62 Misc. 412; 299, 317. Rogers, Matter of, 161 N. Y. 108; 1152, 1274. Rogers v. McGuire, 76 Hun, 133; 572. Rogers v. McGuire, 90 Hun, 456; 1165, 1173. Rogers v. McLean, 34 N. Y. 536; 127. Rogers V. Murdock, 45 Hun, 30; 1165, 1194, 1196. Rogers v. Patterson, 4 Paige, 409; ^270. Rogers v. Potter, 9 Johns. 312; 326. Rogers v. Price, 3 Younge & Jervis, 28; 989. Rogers v. Rogers, 4 Redf. 521; 565, 806. Rogers v. Rogers, 3 Wend. 503; 1010, 1018. Rogers v. Rogers, 2 Redf. 24; 1190. Rogers v. Rogers, 153 N. Y. 343; 548, 1173, 1460. Rogers v. Rogers, 111 N. Y. 228; 1265. Rogers v. Squires, 26 Hun, 388; 801, 969. Rohe, Matter of, 22 Misc. 416; 454, 463, 465. Rolla V. Wright, 2 Dem. 482; 337, 409. Rollwagen, Matter of, 48 How. 103; 357, 432. Rollwagen v. Rollwagen, 3 Hun, 121; 313, 486. Rollwagen v. Rollwagen, 63 N. Y. 504; 311, 320, 419, 428, 461, 466, 469, 483. Romaine, In re, 127 N. Y. 80 (aff'd 58 Hun, 109); 1047, 1130. Romaine's Will, 6 N. Y. Legal Observer, 1056; 460, 487. Roman Catholic Asylum v. Emmons, 3 Bradf. 144; 550, 654, 556, 567. Rome, Matter of, 42 Misc. 172; 1430. Roome v. PhiUips, 27 N. Y. 367; 361, 574. Rooney, Matter of, 26 Misc. 106; 644. Rooney, Matter of, 3 Redf. 15; 992, 995, 1208. Roos, Matter of, 4 Misc. 232; 630. Roosevelt v. EUithorp, 10 Paige, 416; 899. Roosevelt, Matter of, 5 Redf. 601; 1427. Roosevelt, Matter of, 143 N. Y. 120; 1076. Roosevelt v. Porter, 36 Misc. 441; 648. Roosevelt v. Roosevelt, 6 Hun, 31; 626. Roosevelt v. Thurman, 1 Johns. Chi 220; 525. TABLE OP CASES CITED CIX References are to pages Roosevelt v. Van Alen, 31 App. Div. 1; 1444. Root, In re, 1 Redf. 257; 616. Root V. Stuyvesant, 18 Wend. 257; 299. Rose V. Clark, 8 Paige, 574; 1482. Rose V. Leask, 124 App. Div. 799; 979. Rose, Matter of, 153 App. Div. 263; 249. Rose V. Rose, 4 Abb. Ct. App. Dec. 108; 542. Rose V. Rose, 6 Dem. 26; 946, 949, 1395. Roseboom v. Mosher, 2 Den. 61; 572. Rosekrans v. Rosekrans, 163 App. Div. 730; 841. Rosen v. Ward, 96 App. Div. 262; 1500. Rosendahl, Matter of, 40 Misc. 542; 1054. Rosenfeld v. Miller, 131 App. Div. 282; 1310. Rosenfield, Est. of, 5 Dem. 251; 1225. Rosenfield, Matter of, 10 Civ. Proc. Rep. 201; 1230. Ross V. Caywood, 162 N. Y. 259; 193, 267. Ross V. Gleason, 115 N. Y. 664; 443. Ross V. Gleason, 26 N. Y. St. Rep. 501; 486. Ross V. Longmuir, 15 Abb. 326; 102. Ross, Matter of, 123 App. Div. 74; 1367. Ross, Matter of, 87 N. Y. 514; 290, 446. Ross, Matter of, 33 Misc. 163; 1433, 1435, 1445. Ross V. Roberts, 2 Hun, 90; 574,1155. Ross V. Ross, 6 Hun, 80; 915, 978. Ross' Will, 20 N. Y. Supp. 520; 486. Ross V. Wiggi 101 N. Y. 640; 33. Ross V. Willett, 76 Hun, 211; 599. Rossa V. Smith, 17 Hun, 138; 979. Rosseau v. Bleau, 131 N. Y. 177; 416, 1019, 1020, 1147. Rosseau v. Rouss, 180 N. Y. 116; 364, 853, 979. Rosseil, Matter of, 121 App. Div. 381; 283. Rossignot, Matter of, 50 Misc. 231; 359. Rothschild, Matter of, 109 App. Div. 546; 655 793. Rothschild, Matter of, 42 Misc. 161; 1372, 1407. Rothschild, Matter of, 63 Misc. 615; 1103. Rothschild v. Schiff, 188 N. Y. 327; 552. Rouch V. Garver, 1 Ves. 160; 1279. Roundle v. Allison, 34 N. Y. 180; 1174. Rounds, Matter of, 25 Misc. 101; 441, 463, 541. Rounds, Matter of, 7 N. Y. St. Rep. 730; 337. Rouse V. Payne, 120 App. Div. 667; 809, 826, 827. Rousseau v. Bleau, 8 N. Y. Supp. 823; 902. Roux, Matter of; 5 Dem. 523; 718. Rowe, Matter of, 42 Misc. 172; 940. Rowell, Matter of, 45 App. Div. 323; 979. Rowland v. Howard, 75 Hun, 1; 979. Rowland, Matter of, 55 App. Div. 66; 159. Rowland, Matter of, 5 Dem. 216; 1395, 1396. Royee v. Adams, 123 N. Y. 402; 574, 1256. Rubens, Matter of, 128 App. Div. 626 (aff'd 195 N. Y. 527); 71, 72. Rubens, Matter of, 117 App. Div. 523; 104, 400. Ruddon v. McDonald, 1 Bradf. 352; 329, 334. Rudolph, Matter of, 92 Misc. 347; 1067, 1071. Ruge, Matter of, N. Y. L. J., June 23, 1892; 1198. Rugg V. Jenks, 4 Dem. 105; 234. Rugg V. Rugg, 83 N. y. 592; 203, 204, 320, 327, 335, 336, 406. Ruggiero v. Tufani, 54 Misc. 497; 989, 990, 991. Ruggles v. Sherman, 14 Johns. 446; 1006. Rumsey v. Goldsmith, 3 Dem. 494; 336, 337 338 Rumsey, Matter of, 45 St. Rep. 453; 955. RundeU v. Lakey, 14 N. Y. 513; 1397. Runk, Matter of, 55 Misc. 478; 538. Runk, Matter of, 200 N. Y. 447 (rev'g 138 App. Div. 789); 16, 24, 27, 57, 63, 86, 88, 94, 1250, 1351, 1370, 1371, 1379. Ruoff V. Greenpoint Savings Bank, 40 Misc. 549; 367. Ruoff V. John Hancock Ins. Co., 86 App. Div. 447; 883. Ruppaner, Matter of, 7 App. Div. 11; 1335. Ruppert V. Union Mut. Ins. Co., 7 Robt. 155; 883. Ruser, Matter of, 6 Dem. 31; 414, 415, 511. Russak V. Tobias, 12 Civ. Proc. Rep. 390; 760, 1265. Russell v. Hartt, 87 N. Y. 18; 13 N. Y. Week. Dig. 309; January 6, 1882; 80, 91, 153, 207, 376, 379, 394, 508, 596, 598, 1297. Russell V. Hilton, 37 Misc. 642; 664, 1153, 1438. Russell V. HUton, 80 App. Div. 178; 888, 1150, 1153. Russell V. Hilton, 175 N. Y. 525; 888, 1150, 1153. Russell V. Lyth, 66 App. Div. 290; 53. Russell, Matter of, 168 N. Y. 169; 1065, 1144. Russell, Matter of, 3 Dem. 377; 165, 166. Rutherford, Matter of, 196 N. Y. 311; 1184, 1189. Rutherford, Matter of, 5 Dem. 499; 939. Rutherford v. Meyers, 50 App. Div. 298; 93, 1350. Rutherford v. Rutherford, 1 Denio, 33; 322 334 Ruthven v. Patten, 1 Robert, 416; 1036. Rutledge, Matter of, 162 N. Y.. 31 (aff'g 37 App. Div. 633); 1429, 1430. Rutter, Matter of, 59 Misc. 326; 543. Ryall V. Kennedy, 67 N. Y. 379; 78. Ryalls, Matter of, 74 Hun, 205; 80 Hun, 459; 1392. Ryan v. Ward, 48 N. Y. 204; 1368. Ryckman v. Gillis, 6 Lans. 79; 523. Ryder v. Hulse, 24 N. Y. 372; 1480. Ryder, In re, 129 N. Y. 640; 26, 27, 1224, 1419. Ryder v. Lott, 123 App. Div. 685; 1151. ex TABLE OF CASES CITED References are to pages Ryder, Matter of, 41 App. Div. 247; 1146. Ryer, Matter of, 94 App. Div. 449; 1250. Ryer, Matter of, 180 N. Y. 532; 1250. Ryer, Matter of, 120 App. Div. 154; 231, 243. Ryerss v. Wheeler, 22 Wend. 148; 553, 557. Sacia v. Berthoud, 17 Barb. 15; 569. Saekett, Matter of, 38 Misc. 463; 1464. Sackett v. Thomas, 4 App. Div. 448; 979. Sackett v. Woodbury, 70 App. Div. 416; 224. Sage v. Wheeler, 3 App. Div. 38; 525. Sage V. Woodin, 66 N. Y. 578; 893, 926. Salisbury, Matter of, 24 N. Y. St. Rep. 413; 246, 249. Salisbury, Matter of, 6 N. Y. Supp. 932; 254. Salisbury, Matter of, 61 Misc. 550; 525. Salisbury v. Slade, 160 N. Y. 278; 550. Salmon v. Stuyvesant, 16 Wend. 321; 340. Salomon v. Heiohel, 4 Dem. 176; 878. Salter v. NeaviUe, 1 Bradf . 488; 1005. Saltus's Est., 1 Tucker, 230; 131, 153. Saltus, Matter of, 3 Keyes, 500; 1016. Saltus, Matter of, N. Y. L. J., Feb. 4, 1902; 1063. Saltus, Matter of, 3 Abb. Ct. App. Dec. 243; 893, 1391. Saltus V. Saltus, 2 Lans. 9; 226. Sampson v. Wood, 10 Abb. (N. S.) 223; 1368. Sandberg, Matter of, N. Y. L. J., Dec. 7, 1911; 349. . Sandel v. Sommers, 131 App. Div. 5^7; 978. Sanders v. Soutter, 126 N. Y. 193; 93. Sanderson, Matter of, 9 Misc. 574; 300, 306, 307, 309, 310. Sandford v. Granger, 12 Barb. 392; 1208, 1226. Sandford, Matter of, N. Y. L. J., May 18, 1912; 1236. Sandford v. Sandford, 4 Hun, 753; 1167. Sandrook, , Matter of, 49 Misc. 371; 769, 948, 1393. Sands, Matter of, 20 St. Rep. 850; 531. Sands, Matter of, 62 Misc. 146; 390, 420, 596. Sands V. Miner, 16 App. Div. 347; 894. Sanford v. Goodell, 82 Hun, 369; 525, 531. Sanford v. Jackson, 10 Paige, 266; 1161. Sanfordi Matter of, 100 App. Div. 479; 366, 368, 707. Sanford, Matter of, 66 Misc. 395; 1102. Sanford V. Sanford, 5 Lans. 486; 1393. Sanford v. Sanford, 45 N. Y. 723; 885. Sanford v. Sanford, 58 N. Y. 69; 885. Sanford v. Sanford, 62 N. Y. 553; 1212, 1213. Sankey's Case, 4 County Court Reports (Pa.), 624; 856. Sanson v. Bushnell, 25 Misc. 268; 549. Santos, Matter of, 31 Misc. 76; 166, 167, 474, 1342. Saperstein v. Ullman, 49 App. Div. 446; 9i53. , -:; ,; Sarasohn, Matter of, 47 Misc. 536; 320, 334. . Sargent, Matter of, 42 App. Div. 301; 1372. Sartorelli v. Ezagni, 64 Misc. 115; 1025. Saul V. Swartz, 112 App. Div. 511; 648. Saunders, Matter of, 86 Misc. 582; 1330. Saunders, Matter of, 4 Misc. 28; 938, 940, 1417, 1419, 1420. Savage v. Burnham, 17 N. Y. 661; 524, 529. Savage v. Gould, 60 How. Pr. 217; 765. Savage v. Olmstead, 2 Redf. 478; 1254. SawmUl Co. v. Dock, 3 Dem. 55; 113, 119, 650, 651. Sawyer v. Cubby, 146 N. Y. 192; 528; 1156. Sayles, Matter of, 57 Misc. 524; 1447. Sayre v. Ladd, 7 Week. Dig. 302; 1474. Sayre v. Sayre, 3 Dem. 264; 1408. ScaUen v. Brooks, 54 App. Div. 248; 897. Schabacker, Matter of, 46 Misc. 219; 1187. Schaefer, Matter of, 65 App. Div. 378; 170. Schaeffer, P., Est. of, Law Jour., March 10, 1900; 132. Schantz v. Oakman, 163 N. Y. 148; 1350. Scharmann v. Schoell, 38 App. Div. 528 115, 826. . Scharmann v. Schoell, 23 App. Div. 398 826. Schecker v. Woolsey, 2 App. Div. 62 493. Scheetz, Matter of, 62 Misc. 166; 985. Schell V. Hewitt, 1 Dem. 249; 135, 1329, 1330, 1336. Schell, Matter of, 53 N. Y. 263; 1430. Schenck v. Agnew, 4 Kay & J. 405; 547. Schenck v. Dart, 22 N. Y. 420; 284, 1016, 1392. Schermerhorn v. Cotting, 131 N. Y. 48; 1271. Schermerhorn, Matter of, 38 App. Div. 350; 1043, 1114, 1119. Scherrer, Matter of, 24 Misc. 351; 1261. Schettler v. Smith, 41 N. Y. 328; 631. Schieffelin v. Stewart, 1 Johns. Ch. 620; 936. Schiffer v. Pruden, 64 N. Y. 47; 1494. Schlegel, Matter of, N. Y. L. J., Feb. 7, 1912' 1276 Schlegel V. Winckel, 2 Dem. 232; 1378, 1402. Schlereth v. Schlereth, 173 N. Y. 444; 524. Sehlesinger, Matter of, 36 App. Div. 77; 1372, 1377. Schlieder v. Dexter, 114 App. Div. 417; 1306. Schlosser, Matter of, 63 Misc. 163;, 245, 1496. Schluter v. Bow. Sav. Bk., 117 N. Y. 125; 590, 609. Schmeig v. Kochersberger, 18 Misc. 617; 524. Schmid, Matter of, 116 App. Div, 706; 774. Schmidt v. Heusner, 4 Dem. 275: 767, 878, 1030, 1408. TABLE OF CASES CITED CXI References are to pages Schmidt V. Jewett, 127 App. Div. 376; 547. Schmidt v. Jewett, 195 N. Y. 486; 547. Schmidt V. Limmer, 01 App. Div. 359; 1145, 1146, 1148. Schmidt, Matter of, 42 Misc. 463; 90, 1493. Schmidt, Matter of, 39 Misc. 77; 1080. Schmidt, Matter of, 77 Him, 201; 1284, 1315. Schmidt, Matter of, 139 N. Y. Supp. 464; 436, 439, 442, 447, 465. Schmittler v. Simon, 101 N. Y. 554; 564, 1022. Schmitz V. Langhaar, 88 N. Y. 503; 1004, 1025, 1362. Schnabel, Matter of, 136 App. Div. 522 • (aff'd 202 N. Y. 134); 24, 26, 93, 1451. Schneider, Matter of, 36 N. Y. Supp. 972; 1319. Schneider, Matter of, 1 App. Div. 39; 167. Schneider v. McFarlsnd, 2 N. Y. 459; 1220. Schnitzer, Estate of, Surr. Dec, 1909, p. 182; 1429. Schnitzler, Matter of, 61 Misc. 218; 142, 546.' Schober, Matter of, 90 Misc. 230; 436, 442, 443. Schoellkopf Holding Co. v. Kavinoky, 216 N. Y. 507; 1206. Schofield, Matter of, 72 Misc. 281; 349, 377, 413. Scholle v. Seholle, 113 N. Y. 261; 1205. Schoonmaker v. Walford, 20 Hun, 166; 203, 287. Schrappel v. Hopper, 40 Barb. 425; 1241. Schreiber, Matter of, 112 App. Div. 495; 420, 429, 490. Schreiner v. Schreiner, 63 Misc. 601; 1162. Schrieber's Will, 5 N. Y. Supp. 47; 440. Schroeder, Matter of. No. 2, 113 App. Div. 221; 168, 195. Schroeder, Matter of. No. 1, 113 App. Div. 204; 910, 948. ' Schroeder, Matter of, 186 N. Y. 537; 948. Schroder, Matter of, N. Y. L. J., March 20, 1912; 1194. Schroeppel v, Hooper, 40 Barb. 425; 899. Schuessler, Matter of, 49 Misc. 203; 1248. Schuler, Matter of, 46 Misc. 373; 1295. Schult V. Moll, 132 N. Y. 122; 525. Schultheis v. Schultheis, 14 N. Y. Supp. 324; 511. Schultz V. Pulver, 3 Paige, 182; 1320. Schultz v. Pulver, 11 Wend. 361; 568, 589, 609, 1320, 1391. Schultz V. Schultz, 35 N. Y. 653; 413, 414, 513r Schulz, Matter of, 26 Misc. 688; 991.. Schumacher v. Schmidt, 4 Amer. Rep. (Ala.) 138; 362, 364. Schutz V. Morette, 146 N. Y. 137 (rev'g 81 Hun, 518); 972, 1000, 1033, 1396. Schwartz, Matter of, N. Y. L. J., Sept. 19, 1912; 1054, 1055. Schwartz, Matter of, 156 App. Div. 931; 1054. Schwartz, Matter of, 209 N. Y. 537; 1054. Schweigert, Matter of, 17 Misc. 186; 550, 1476. Schweizer, Matter of, N. Y. L. J., Feb. 28, 1912; 350. Schwencke v. Haffner, 22 Misc. 293; 549. Scofield V. Adams, 12 Hun, 366; 1166. Scofield V. Adriance, 2 Dem. 486; 1324. Scofield V. Adriance, 1 Dem. 196; 668, 824. Scofield V. ChurchiU, 72 N. Y. 565; 218, 799, 831, 832, 836. Scofield, Est. of, 3 Law BuU. 37; 1361. Scott V. Barber, 129 App. Div. 241; 469, 486. Scott V. Douglass, 39 Misc. 555; 575. Scott V. Guernsey, 48 N. Y. 106; 525, 1144. Scott V. Ives, 22 Misc. 749; 537. Scott, Matter of, 31 Misc. 85; 533. Scott, Matter of, 208 N. Y. 602; 1113. Scott, Matter of, 80 App. Div. 369; 1322. Scott, Matter of, 34 Misc. 446; 864. Scott, Matter of, 1 Redf. 234;. 926. Scott, Matter of, 5 Legal Obs. 379; 926. Scott, Matter of, 8 App. Div. 369; 379. Scott, Matter of, 49 App. Div. 130; 782.. Scott V. McNeal, 154 U. S. 34; 653, 655. Scott V. Missionary" Society, 41 N. J. Eq. 115; 840. Scott V. MoneU, 1 Redf. 431; 889, 1012. Scott V. Stebbins, 91 N. Y. 605; 1145. Scovel V. Roosevelt, 5 Redf. 121; 1153. Scovill, Matter of, 88 Misc. 364; 60. Sooville, Matter of, 72 Misc. 310; 1291, 1314, 1315. Scranton as Ex'r v. Farmers' & Me- chanics' Bank, etc., 24 N. Y. 424; 150. Scrimgeour, Matter of, 80 App. Div. 388 (aff'd 175 N. Y. 507); 251, 1113, 1114, 1119, 1128. Scudder, Matter of, 21 Misc. 179; 656, 933 936 1451 Scully V. McGrath, 201 N. Y. 61; 862, 926. Scutella, Matter of, 145 App. Div. 156; 129 N. Y. Supp. 20; 802. Seabra, Matter of, 18 Week. Dig. 428; 80. Seabra, Matter of, 38 Him, 218; 129, 1086. Seabury v. Bowen, 3 Bradf. 207; 1002. Seabury, Matter of, 87 Misc. 241; 62, 1336. Seagrist, Matter of, 1 App. Div. 615; 285, 437, 439, 440, 467, 1327. Seagrist, Matter of, 11 Misc. ,188; 475. Seaman v. Duryea, 10 Barb. 523; 224, 225, 958. Seaman v. Duryea, 11 N. Y. 324; 24, 224, 225, 1305, 1368. Seaman Est. of, 16 Week. Dig. 118; 872. Seaman s Friend Society v. Hopper, 33 N. Y. 619; 445, 456. Seaman v. Jamison, 146 App. Div. 428; 686. Seaman, Matter of, 63 App. Div. 49; 214, 245, 666, 1035. Seaman, Matter of, 147 N. Y. 69; 1040, 1042, 1044, 1067, 1070, 1074. cxu TABLE OF CASES CITED References are to pages Seaman v. "Whitehead, 78 N. Y. 306; 1021, 1320, 1322, 1332, 1333, 1337. 1448. Searles v. Brace, 19 Abb. N. C. 10; 1012. Sears, Matter of, 33 Misc. 141; 336, 337, 405, 468. Sears, Matter of, 5 Dem. 497; 807, 1263. Seaward v. Davis, 133 App. Div. 191; 1350. Secor V. Sentis, 5 Redf . 570; 1429. Secor V. Tradesmen's Nat. Bank, 92 App. Div. 294; 894. Sedgwick v. Ashburner, 1 Bradf. 105; 80, 81. Segelken v. Meyer, 94 N. Y. 473; 825. Seguine v. Seguine, 2 Barb. 385; 299. Seguine v. Seguine, 4 Abb. Ct. of App. Dec. 191; 466, 469, 475, 486, 488. Seibert v. Miller, 34 App. Div. 602; 545. Seigler, Matter of, 49 Misc. 189; 897, 1333, 1437, 1450. Seiter v. Straub, 1 Dem. 264; 78, 1305. Seixas, Matter of, 73 Misc. 488; 73. Seligman v. Sonneborn, 11 St. Rep. 305; 367. Selleck, Matter of, 111 N. Y. 284; 890, 1334, 1397, 1445. Selling, Matter of, 2 N. Y. Supp. 634; 692. Selling, Matter of, 5 Dem. 225; 1182. Selover v. Coe, 63 N. Y. 438; 984. Senior v. Ackerman, 2 Redf. 302; 884. Senser v. Bower, 1 Penrose & Watts (Pa.), 450' 372 Sentel'l, Matter of, 53 Misc. 165; 206. Senter v. Petheram, 64 Misc. 294; 1448. Sergant, Matter of, 62 Misc. 173; 885, 889, 1388, 1415. Severance v. Griffith, 2 Lans. 38; 1011. Sexton, Matter of, 1 Dem. 3; 1323. Sexton, Matter of, 61 Misc. 569; 936, 937. Sexton V. Sexton, 64 App. Div. 385 (aff'd 174 N. Y. 510); 26,- 1425. Seymour v. Butler, 3 Bradf. ;93; 1183. Seymour, Matter of, 33 Misc. 271; 724, 725, 726. Seymour, Matter of, 27 N. Y. St. Rep. 762; 1184. Seymour, Matter of, 76 Misc. 371; 406. Seymour, Matter of, 144 App. Div. 151; 1115. Seymour v. Seymour, 5 Bradf. 193; 1188. Seymour v. Seymour, 4 Johns. Ch. 409; 12, 23, 1350. Seymour v. Van Wyck, 2SeId. (6 N. Y.) 120* 299 322 Shadb'olt, katter of, 72 Misc. 591; 1457. Shaffer v. Bacon, 35 App. Div. 248; 174. Shakespeare v. Markham, 10 Hun, 311 (aff'd 72 N. Y. 400); 219, 365, 976, 979, 1418, 1419. Shangle v. Hallock, 6 App. Div. 55; 525, 1155; Shannon, Matter of, 11 App. Div. 581; 465, 487. Shannon, Matter of, 1 N. Y. Supp. 747; 1011. Shannon, Matter of, N. Y. L. J., Sept. 4, 1912; 368. Shaper, Matter of, 86 Mjsc. 677; 331. Sharer, Matter of, 36 Misc. 502; 1069. Sharkey v. McDermott, 91 Mo. 647; 840. Sharp v. Dimmick, 4 Lans. 496; 525. Sharp V. Johnson, 22 Ark. 79; 372. Sharp V. Pratt, 15 Wend. 610; 572. Sharpsteen v. TiUon, 3 Cow. 651; 1155. Shattuck, Matter of, 118 App. Div. 888; 540. Shattuck, Matter of, 193 N. Y. 446; 536, - 540. Shaw v. Bryant, 90 Hun, 374 (aff'd 167 N. Y. 715); 1310. Shaw V. Davis, 55 Barb. 389; 898. Shaw V. N. Y. Central, 101 App. Div. 246; 102 218 Shaw V. Shaw, 1 Dem. 21; 347, 420. Shaw's WiU, Matter of, 2 Redf. 107; 456. Sbayne v. Shayne, 54 Misc. 474; 486. Shearer v. Field, 6 Misc. 189; 219. Shearer^ Matter of, 1 Civ. Proc. Rep. 455; 497. 498. Shedd, Matter of, 60 Hun, 367 (aff'd 133 N. Y. 601); 907, 911. Sheehan, Matter of, N. Y. L. J., Dec. 5, 1911; 710. Sheel V. Cohen, 55 Hun, 207; 133. Sheerin v. Public Administrator, 2 Redf. 421 ■ 878 933 Shelden, Matter of, 40 N. Y. St. Rep. 369; 483. Shelden v. Quinlan, 5 HUI, 441; 288. Sheldon v. Bliss, 8 N. Y. 31; 24. Sheldon v. Dow, 1 Dem. 503; 442. Sheldon v. Ferris, 45 Barb: 124; 367, 369, 371. Sheldon, Matter of, 40 N. Y. St. Rep. 369; 487. Sheldon, Matter of, 158 App. Div. 843; 101, 344. Sheldon, Matter of, 118 App. Div. 488; 104. Sheldon, Matter of, 117 App. Div. 357; 269, 280. Sheldon v. Sheldon, 133 N. Y. 1; 1162, 1164. Sheldon v. Sheldon, 8 N. Y. 31; 1398. Sheldon's WiU, In re, 16 N. Y. Supp. 464; 471. Sheldon v. Wright, 5 N. Y. 497; 1221. Shepard v. Patterson, 3 Dem. 183; 940. Shepard v. Saltus, 4 Redf. 232; 928. Shepard v. Stebbins, 48 Hun, 247; 1306, 1310. Shepherd v. McEvers, 4 Johns. Ch. 136; 573, 787. Sherar, Matter of, 36 Misc. 502; 1071. Sherar, Matter of, 25 Misc. 138; 1127. Sheridan v. Andrews, 80 N. Y. 648; 1331. Sheridan v. Houghton, 6 Abb. N. C. 234, 413. 512. Sheridan v. Houghton, 16 Hun, 628 (aff'd 84N.Y. 643);416. Sherman, Matter of, 163 N. Y. 1; 1040. Sherman, Matter of, 24 Misc. 66; 1163. Sherman, Matter of, 70 Hun, 466; 1289. Sherman v. Page, 21 Hun, '59; 566. Sherman v. Page, 85 N. Y. 123; 289, 566, Sherman v. Scott, 27 Hun, 331; 840. TABLE OF CASES CITED CXUl References are to pages Sherman v. Willett, 42 N. Y. 146; 959, 1015, 1390. Sherman's Appeal, 16 Abb. Pr. 397; 485. Sherrill v. Christ Church, 121 N. Y. 701; 1042. Sherry v. Lozier, 1 Brad. 437; 340. Sherry, Matter of, 7 Abb. N. C. 390; 226. Sherryd, Matter of, 2 Paige, 602; 68. Sherwell, In re, 125 N. Y. 376; 1045. Sherwood v. American Bible Soc, 4 Abb. Ch. App. Dec. 227; 541. Sherwood v. Johnson, 1 Wend. 445; 1007. Sherwood v. Judd, 3 Bradf. 419; 226. Sherwood v. Sherwood, 3 Bradf. 230; 545. Shethar, S., Est. of, Surr. Decs., 1898, p. 387' 132 > I I- Shield's v. Ingram, 5 Redf. 346; 486. Shields, Matter of, 68 Misc. 264; 1104. Shields V. Shields, 60 Barb. 56; 702, 775. Shilton's Est., 1 Tucker, 73; 693, 696, 701. Shimmel v. Morse, 57 App. Div. 434; 213. ' Shipman's Est., Matter of, 5 N. Y. Supp. 559; 50. Shipman v. Fanshaw, 15 Abb. N. C. 288; 1156. Shipman, Matter of, 53 Hun, 511 ; 790. Shipman, Matter of, 82 Hun, 108; 670, 891, 922, 993, 1208, 1377, 1390, 1393, 1414, 1431, 1447. Shipman, Matter of, 22 St. Rep. 362; 366. Shipman v. Protected Home Circle, 174 . N. Y. 398; 450. Shipman v. Rollins, 98 N. Y. 311; 554. ShoU V. ShoU, 6 Barb. 312; 1164. Shook V. Shook 19 Barb. 653; 573. Shorter v. Mackey, 13 App. Div. 20; 667, 1349. Shuler v. Shuler, 63 Misc. 604; 521. Shulters v. Johnson, 38 Barb. 80; 552, 554. Shultz V. Pulver, 11 Wend. 363; 924. Shultz V. Whitney, 17 How. Pr. 471; 173. Shumway v. Cooper, 16 Barb. 556; 140. Shumway v. Harmon, 6 Sup. Ct. (T. & C.) 626; 550. Shumway v. Harmon, 4 Hun, 411; 890. Shute V. Shute, 5 Dem. 1; 1007. Shuttleworth v. Harmon, 4 Hun, 411; 890. Shuttleworth v. Winter, 55 N. Y. 625; 936 1393 Siglar'v. Van Riper, 10 Wend. 414; 909. ' Silkman, Matter of, 88 App. Div. 102; 44. Silkman, Matter of, 121 App. Div. 202 (aff'd 190 N. Y. 560); 862, 884, 896, 948, 957. Silliman, Matter of, 38 Misc. 226 (rev'd 79 App. Div. 98, aff'd 175 N. Y. 513); 1114, 1118, 1119. Silliman, Matter of, 67 Misc. 27; 1428, 1446. Silliman, Matter of, 79 App. 98; 1100. Silling's Est., 2 N. Y. Supp. 637; 1326. Silverbrandt v. Widmayer, 2 Dem. 263; 912 922. Silverman,' Est. of, N. Y. L. J., Nov. 27, 1895; 1363. Silverman, Matter of, 87 Misc, 571; 425, 868, 869. Silvetti, Matter of, 66 Misc. 394; 114. Simmons- v. Burrell, 8 Misc. 388; 540, 838, 841, 851, 1492. Simmons v. Simmons, 26 Barb. 68; 344. Simmons v. Taylor, 19 App. Div. 499; 578. Simon, Matter of, 47 Misc. 562; 440. Simonson, Matter of, 119 N. Y. 661; 1403. Simonson v. Waller, 9 App. Div. 503; 1473. Simpkins v. Scudder, 3 Dem. 371; 1190. Simpson v. Moore, 30 Barb. 637; 950, 1272. Simpson v. Simpson, 44 App. Div. 492; 573, 893. Simpson v. Trust Co., 129 App. Div. 200; 525 527 Simpson's Will, 56 How. Pr. 125; 326. Simpson's WiU, 2 Redf. 29; 313, 314, 339. Sims V. Sims, 75 N. Y. 466; 691. Sinclair v. Jackson, 8 Cow. 543; 1251. Singer, Est. of, 3 Dem. 571; 250. Singer v. Hawley, 3 Dem. 571; 250. Singer, Matter of, 19 Misc. 679; 306. Sinzheimer, Matter of, 5 Dem. 321; 140, 546. Sippel V. Macldin, 2 Dem. 219; 1004, 1362. Sipperly v. Baucus, 24 N. Y. 46; 64, 246, 250. Sisco V. Martin, 61 App. Div. 502; 215. Sisters of Charity, etc., v. Kelly, 67 N. Y. 409; 300, 302, 318, 328. Sizer, Matter of, 129 App. Div. 7 (aff'd 195 N. Y. 528); 318, 334, 335, 337, 416. Slcaats, Matter of, 74 Hun, 462; 442, 486. Skidmore v. Collier, 8 Hun, 60; 957. Skidmore v. Davies, 10 Paige, 316; 90, 260. Skidmore v. Romaine, 2 Bradf. 122; 1011. Skinner, Matter of, 45 Misc. 659; 1067, 1071. Skinner, Matter of, 106 App. Div. 217; 1071, 1102, 1128. Skinner, Matter of, 81 App. Div. 449; 1150. Skinner, Matter of, 180 N. Y. 515;. 1150. Skipwith V. Cabell, 19 Gratt. 758; 485. Slater, Matter of, 17 Misc. 474; 1218, 1219, 1236, 1238. Slater v. Slater, 176 N. Y. 143; 895. Slingerland, Matter of, 36 Hun, 575; 150, 864. Sloane, Matter of, 154 N. Y. 109; 1040, 1044, 1136. Sloane, Matter of, 63 Misc. 472; 977. Sloane, Matter of, 135 App. Div. 703; 192. Sloane v. Stevens, 107 N. Y. 122; 1196. Slocum V. English, 62 N. Y. 494, 2 Hun, 78; 684, 1211. Slocum, Matter of, 60 App. Div. 438; 1431. Slocum, Matter of, 169 N. Y. 153; 957, 1442, 1443. Slosson V. Lynch, 28 How. Prac. R. 417; 141. Slosson V. Lynch, 43 Barb. 147; 148, 546. Slosson, Matter of, 87 Misc;'517; 107§, CXIV TABLE OF CASES CITED References are to pages Slosson V. Naylor, 2 Dem. 257; 1439. SmaU V. Edrick,<5 Wend. 138; 121. Small, Matter of, 158 N. Y. 128; 289. Small, Matter of, 105 App. Div. 140; 479. Small, Matter of, 118 App. Div. 502; 486. Smart, Matter of, 93 Misc. 402; 1217. Smith V. A. D. Farmer, etc., Co., 16 App. Div. 438; 890, 1147. Smith V. AUen, 161 N. Y. 478; 838. Smith V. Atherton, 54 Hun, 172; 1145. Smith V. Barlett, 79 App. Div. 174; 523. Smith v. Bixby, 5 Redf. 196; 1395. Smith V. Blood, 106 App. Div. 317; 898, 1204, 1221. Smith V. Britton, 2 T. & C. 498; 863. Smith V. Buchanan, 5 Dem. 169; 1433. Smith V. Bursh, 92 N. Y. 228; 544. Smith V. Bush, 59 Misc. 648; 578, 1146. Smith V. Central Trust Co., 7 App. Div. 278; 150. Smith V. Chase, 90 Hun, 99; 886. Smith V. Cheseborough, 176 N. Y. 317; 340 524 528. Smith' V. C'hristopher, 3 Hun, 585; 1418. Smith V. Cornell, 111 N. Y. 554; 892, 1002. Smith V. Coup, 6 Dem. 45; 1230. Smith V. Cowles, 81 App. Div. 328; 895. Smith V. Edmonds, 10 N. Y. Leg. Obs. 185; 577. Smith's Est., In re, 2 Connoly, 418; 1339, 1381, 1447. Smith's Est., 1 Tuck. 108; 421. Smith V. Floyd, 124 App. Div. ,277; 574, 1265. Smith V. Floyd, 193 N. Y. 683; 574. Smith V. F. T. Founding Co., 16 App. Div. 438; 884. Smith V. Gage, 41 Barb. 60; 899. Smith V. Hart, 4 Barb. 28; 350. Smith V. Havens Relief, etc., Soc, 44 Misc. . 594; 528, 529, 1160. Smith V. Havens Relief, etc., Soc, 118 App. Div. 678; 528, 529, 540. Smith V. Havens ReUef, etc., Soc, 190 N. Y. 557" 540. Smith V.' Hilton, 19 N. Y. St. Rep. 340; 220 399. Smith' V. Howlett, 29 App. Div. 182; 946. Smith V. Hull, 97 App. Div. 228; 547. Smith V. Hull, 184 N. Y. 534; 547. Smith V. Kearney, 2 Barb. Ch. 533; 1163, 1194, 1196. Smith V. Keller, 205 N. Y. 39; 467. Smith V. Lawrence, 11 Paige, 206; 573, 1012. Smith V. Lehigh Valley R. R. Co., 177 N. Y. 379; 871. Smith V. Lusk, 2 Dem. 595; 1369. Smith, Maria, Est. of, Surr. Decs., 1894, 329; 53. Smith, Matter of, 41 N. Y. St. Rep. 337; 92. Smith, Matter of, 40 Misc. 331; 897. Smith, Matter of, 15 N. Y. St. Rep. 734; Smith, Matter of, 46 Misc. 210; 523, 524, 525, 544, 554. Smith, Matter of, 89 Hun, 606; 251. Smith, Matter of, 179 N. Y. 663; 1373. Smith, Matter of, 36 Misc. 128; 473, 487. Smith, Matter of, 24 N. Y. Supp. 928; 483. Smith, Matter of, 16 Week. Dig. 472; 702. Smith, Matter of, 18 Misc. 139; 994. Smith, Matter of, 71 App. Div. 602; 1096, 1097. Smith, Matter of, 40 App. Div. 480; 1117, 1118. Smith, Matter of, 7 N. Y. Supp. 327; 760. Smith, Matter of, 46 App. Div. 318; 1358. Smith, Matter of, 13 Misc. 592; 1414. Smith, Matter of, 66 App. Div. 340; 1373, 1443. Smith, Matter of, 1 Misc. 269; 932, 1396. Smith, Matter of, N. Y. L. J., March 13, 1903; 1394. Smith, Matter of, 120 App. Div. 199; 86, 1349, 1350. Smith, Matter of, 75 App. Div. 339; 975, 993 995 Smith', Matter of, 136 App. Div. 10; 1403. Smith, Matter of, 71 Misc. 99; 1178. Smith, Matter of, N. Y. L. J., May 13, 1912; 368, 373. Smith, Matter of, 65 Misc. 417; 99, 161, 246. Smith, Matter of, 42 Misc. 639; 884. Smith, Matter of. 111 App. Div. 23; . 157. Smith, Matter of, 96 N. Y. 516; 204, 286, 466, 474, 476, 479. Smith V. McGowan, 3 Barb. 404; 353. Smith V. Meakin, 2 Dem. 129; 1208. Smith V. Murray, 1 Dem. 34; 1162, 1165, 1178, 1195, 1196. Smith V. Northampton Bank, 4 Gush. 1; 563. Smith V. Parsons, 146 N. Y. 116; 529, 1156, 1309. Smith V. Peyrot, 201 N. Y. 210; 1022. Smith V. Price, 1 Lee, 569; 22. Smith V. Proskey, 39 Misc. 385; 894. Smith V. Proskey, 82 App. Div. 19; 894. Smith v. Proskey, 177 N. Y. 526; 894. Smith V. Remington, 42 Barb. 75; 101, 1603. Smith V. Robertson, 24 Hun, 210; 342. Smith V. Rockefeller, 5 Sup. Ct. (T. & C.) 662; 518. Smith V. Rockefeller, 3 Hun, 295; 1155, 1157. Smith V. Scholtz, 68 N. Y. 42; 645, Smith V. Second Nat. Bank, 169 N. Y. 467, 592, 602. Smith V. Secor, 31 App. Div. 103; 531, 602,606. Smith V. Secor, 157 N. Y. 402; 531. Smith V. Smith, 2 Dem. 43; 1289, 1290. Smith V. Smith, 4 Johns. Ch. 281; 1270. Smith V. Smith, 4 Paige, 271; 650, 566. Smith V. Stevenson Co., 117 App. Div. 690; 572. Smith V. Talmadgej 3 Law Bull. 97; 207. Snuth V. Tiffany, 16 Hun, 662; 609. TABLE OF CASES CITED cxv References are to pages Smith V. Van Ostrand, 64 N. Y. 278; 1151, 1153. Smith V. Wells, 69 N. Y. 600; 119. Smith's WUl, 24 N. Y. Supp. 928; 452, 455. Smith V. Wyckoff, 3 Sandf. Ch. 82; 550, 555. Smythe v. Rowe, 4 Law Bull. 60; 123. Snedeker, Matter of, 95 App. Div. 149; 284, 899, 996. Snedeker, Matter of, 61 Misc. 216; 1424, 1467. Snedeker v. Snedeker, 47 App. Div. 471; 1498. Snedeker v. Snedeker, 164 N. Y. 58; 898. Snell, Matter of, 32 Misc. 611; 301. Snelling, Matter of, 136 N. Y. 515; 437, 462, 465, 466. SnelUng v. Yetter, 25 App. Div. 590; 267. Snider v. Snider, 11 App. Div. 171; 142, 546. Snider v. Snider, 160 N. Y. 151; 545, 546. Snyder, Matter of, 103 N. Y. 178; 231, 234. Snyder, Matter of, 35 Misc. 588: 529, 531. Snyder, Matter of, 48 St. Rep. 643; 528. Snyder, Matter of, 34 Hun, 302; 234. Snyder v. Sherman, 88 N. Y. 656; 285. Snyder v. Snyder, 96 N. Y. 88;'977. Snyder v. Snyder, 5 Civ. Proc. Rep. 267; 1420. Snyder v. Snyder, 60 How. Pr. 368; 988. Society v. Hopper, 33 N. Y. 624; 452. Society v. Loveridge, 70 N. Y. 387; 458. Soden, Matter of, 38 Misc. 25; 441, 443, 463. Sogaard, Matter of, 39 Misc. 519; 819. Sohn, Matter of, 1 Civ. Proc. Rep. 373; 652, 777. Solley V. Westcott, 43 Misc. 188; 1151. Solomon, Matter of, 145 N. Y. Supp. 528; 337. Solomons v. Kursheedt, 3 Dem. 307; 914, 1384r, 1407. Sommerville, Matter of, 1 Tuck. 76; 157. Sondheim, Matter of, 32 Misc. 296 (aff'd 69 App. Div. 5); 1080. Soper V. Brown, 136 N.. Y. 244; 545. Soper V. Halsey, 85 Hun, 464; 1159. Soule, Matter of, 6 Dem. 137; 105. Soule, Matter of, 72 Hun, 594; 250, 254. Soule, Matter of, 46 Hun, 661 (aft'd 109 N. Y. 662); 104, 260. Soule, Matter of, 3 N. Y. Supp. 259; 466, 470, 471, 478. Soule, Matter of, 1 Connoly, 18; 488. Southard v. Benner, 72 N. Y. 424; 902. Southgate v. Continental Trust Co., 74 App. Div. 150; 1160. Southgate v. Continental Trust Co., 176 N.Y. 588; 1160. , • Southworth v. Adams, 33 Abb. L. J. 36; 84. Southworth, Matter of, 52 Misc. 86; 549. Southworth, Matter of, 6 Dem. 216; 1489. Soutter, Master of, 105 N. Y. 514; 1347, 1500. Soverhill v. Suydam, 59 N. Y. 140; 1164, 1421. Sparks, Matter of, 27 Misc. 350; 549. Sparrow v. Norfolk, Noy's R.'28; 11. Spaulding v. Gibbons, 5 Redf. 316; 329. Spaulding, Matter of, 163 N. Y. 607 (aff'g 49 App. Div. 541; 22 Misc. 420); 1068, 1070, 1072. Spear v. Tinkham, 2 Barb. Ch. 211; 1150. Spears v. Burton, 31 Miss. 547; 372. Spears, Matter of, 89 Hun, 49; 886, 890, 1351. Speckles v. Public Administrator, 1 Dem. 475; 621. Spelman v. Terry, 74 N. Y. 448; 135, 807. Spence v. Chambers, 39 Hun, 193; 269. Spencer v. Hay Library Assoc, 36 Misc. 393; 534, 540, 1139. Spencer, Matter of, 8 Misc. 193; 1146. Spencer v. Popham, 5 Redf. 425; 104, 105, 668,671. • Spencer v. See, 5 Redf. 442; 1155. Spencer v. Spencer, 38 App. Div. 403; 1143, 1149, 1431, 1445. Spencer v. Strait, 40 Hun, 463; 1447. Spencer v. Weber, 163 N: Y. 493; 941. Spencer's Est., 4 N. Y. Supp. 395; 854. Sperb, Matter of, 71 Misc. 378; 433. Sperb V. McCoun, 110 N. Y. 605; 835. Spicer v. Raplee, 4 App. Div. 471; 1000. Spicer's Will, 1 Tucker, 80; 112, 128, 135. Spilane v. Duryea, 51 How. Pr. 260; 1146. Spooner, Matter of, 86 Hun, 9, 1447, 1448. Spooner, Matter of, 87 Misc. 170; 60, 179, 425. Spooner, Matter of, 89 Misc. 30; 468, 474, 475. Sprague, Matter of, 125 N. Y. 732; 266, 284. Sprague, Matter of, 46 Misc. 216; 1430. Sprague, Matter of, 41 Misc. 608; 908, 909. Spraker v. Davis, 8 Cowen, 132; 1225. Sprathoff, Matter of, 50 Misc. 109; 268. Spratt, Matter of, 17 App. Div. 636; 466, 488. Spratt, Matter of, 4 App. Div. 1; 268, 468, 479. Spratt V. Syms, 104 App. Div. 232; 376, 594, 597. Spreen, Matter of, 1 Civ. Pro. Rep. 375; 96 870 873 Spring, Matter of, N. Y. L. J., Feb. 21, 1912; 1071. Springstead, Matter of, 8 N. Y. Supp. 696; 457. Spurr, etc., v. Empire State Surety Co., 117 App. Div. 816; 207. Spurrell v. Spurrell, 11 Hare, 154; 547. Squire v. Bugbee, 65 App. Div. 429; 577. Squire v. Ordemann, 194 N. Y. 394; 569, 938. Staats V. Staats, 11 Johns. 337; 544. Stacey, Matter of, 89 Misc. 88; 862. Stachelberg v. Stachelberg, 52 Misc. 22; 359. Stachelberg v. Stachelberg, 124 App. Div. 232 (aff'd 192 N. Y. 576); 1492. CXVl TABLE OF CASES CITED References are to pages Stadtmuller, Matter of, 110 App. Div. 76" 991 995 998. Stagg V. Beekman, 2 Edw. 89; 1165. Stagg V. Jackson, 1 N. Y. 206; 23, 888, 1252, 1389, 1434, 1474. Stallo, Matter of, 160 App. Div. 86; 761. Stallo, Matter of, 211 N. Y. 272; 751. StaUo, Matter of, 82 Misc. 135; 751. Stanfield, Matter of, 135 N. Y. 292; 1149, 1185, 1186, 1189. Stanford, Matter of, N. Y. L. J., May 6, 1893; 1132. Stanley v. National Union Bank, US N. Y. 122* 979. Stanley v. Stanley, 4 Dem. 416; 774. Stanton, Est. of, 18 St. Rep. 807; 1327. Stanton, Matter of, 1 Connoly, 108; 766. Stanton, Matter of, 41 Misc. 278; 937, 1380, 1388. Stanton v. Miller, 58 N. Y. 192; 530. Stanton v. Wetherwax, 16 Barb. 259; 451, 456, 463. Stapler v. Hoffman, 1 Dem. 63; 255, 432, 496. ■ Staples V. Howes, 39 App. Div. 548; 528. Staples V. Mead,' 152 App. Div. 745; 1500. Stapleton, Matter of, 71 App. Div. 1; 259, 283, 486. Starbuck, Matter of, 63 Misc. 156 (aif'd 137 App. Div. 866; 201 N. Y. 531); 1065, 1103, 1104. Stark, Matter of, 15 N. Y. Supp. 729; 943. Starr v. Starr, 132 N. Y. 154; 623. State V. Wilbur, 77 N. Y, 158; 884. Steamboat Orleans v. Phoebus, 11 Peters, 175' 297. Stebbi'ns v! Hart, 4 Dem. 501; 465. Stebbins, Matter of, 52 Misc. 438; 1056, 1059. Steele v. Conn. Gen. Life Ins. Co., 22 Misc. 249; 882. Steele v. Leopold, 135 App. Div. 247; 201 N. Y. 518; 686, 720. Steencken, Matter of, 58 App. Div; 85; 1329. Steencken, Matter of, 51 App. Div. 417; 1377. Steenwerth, Matter of, 97 App. l)iv. 116; 286. Stein, Conrad, Est. of, L. J., June 17, 1902; 132. Stein, Matter of, 33 Misc. 542; 1273. Stein v. Wilzinski, 4 Redf. 441; 333. Steinback v. Diepenbrock, 5 App. Div. 208; 278. Steinbrugge, Matter of (report filed July, 1902); 1072. Steincle v. Oechsler, 5 Redf. 312; 1155. Steiner, Matter of, 134 App. Div. 162; 1404. Steiner, Matter of, 89 Misc.' 66; 347. Steinle v. Bell, 12 Abb. Pr. N. S. 171; 117. Steinway, Matter of, 37 Misc. 704; 666. Steinway v. Steinway, 163 N. Y. 183; 1456. Steinway v. Steinway, 10 Misc. 563; 528. Steinway v. Von Bernuth, 69 App. Div. 361; 1350, Stephen v. Lott, 42 Hun, 408; 260. Stephen, Matter of, 2 N. Y. Supp. 36; 109. Stephens v. Stephens, 2 Dem. 469; 798. Stephenson v. Short, 92 N. Y. 433; 619, 539 SterUiig. Matter of, 68 Misc. 3; 760, 770. Stern's Est., In re, 9 N. Y. Supp. 445; 756. Stern, Matter of, 2 Connoly, 204; 757. Stern, Matter of, 33 Misc. 542; 958. Sterns, Matter of, 2 Connoly, 272; 648. Stevens, Matter of, 20 Misc. 157; 93, 1178. Stevens, Matter of, 114 App. Div. 607; 259 1336 Stevens, Matter of, 40 Misc. 377; 1179. Stevens, Matter of, 47 Misc. 560; 950, 1272. Stevens, Matter of, 187 N. Y. 471; 941, 1162, 1153, 1268, 1272, 1274. Stevens, Matter of, 25 N. Y. St. Rep. 993; 1449. Stevens v. Melcher, 152 N. Y. 551 (aff'g 80 Hun, 514); 891, 938, 941, 1185, 1188, 1190, 1275, 1276, 1430. Stevens v. Reynolds, 6 N. Y. 458; 364. Stevens v. Stevens, 3 Redf. 507; 611, 815. Stevens v. Stevens, 2 Redf. 265; 550, 1171. Stevens v. Stevens, 2 Dem. 469; 815. Stevens v. Vancleve, 4 Wash. C. C. R. 262; 435. Stevenson v. Lesley, 70 N. Y. 512; 1155. Stevenson, Matter of, N. Y. L. J., Nov. 7, 1914; 62, 1336. Stevenson, Matter of, 150 N. Y. Supp. 423; 132. Stevenson, Matter of, 86 Hun, 326; 1414, 1416. Stevenson, Matter of, 77 Hun, 203; 145. Stevenson, Matter of, 3 Paige, 420; 572. Stevenson v. Weisser, 1 Bradf. 343; 1007. Steward's Est., 10 N. Y. Supp. 24; 913. Stewart v. Chambers, 2 Sandf. Ch. 393; 1166. Stewart v. Crysler, 52 App. Div. 597; 1146. Stewart v. Franchetti, 167 App. Div. 641; 155. Stewart v. Lispenard, 26 Wend. 256; 437, 441, 463. Stewart, Matter of, 135 N. Y. 413; 264, 267, 269. Stewart, Matter of, 23 App. Div. 17; 136, 262, 1336. Stewart, Matter of, 13 N. Y. Supp. 219; 443. Stewart, Matter of, 10 N. Y. Supp. 744; 480, 488. Stewart, Matter of, 131 N. Y. 274; 1074, 1076, 1079. Stewart, Matter of, 77 Hun, 564; 864. Stewart, Matter of, 39 St. Rep. 801; 462. Stewart, Matter of, 1 Connoly, 86; 370. Stewart, Matter of, 30 App. Div. 371; 941, 1266. Stewart, Matter of, 162 N. Y. 693; 941. Stewart, Matter of, 71 Misc. 640; 1236, 1238. Stewart, Matter of, Surr. Dec, (Kings Co.), April 24, 1911; 1237. TABLE OF CASES CITED CXVU References are to pages Stewart v. O'Donnell, 2 Dem. 17; 150, 1371. Stewart v. Phelps, 71 App. Div. 91; 1152, Stewart v. Phelps, 173 N. Y. 621; 1152. Stewart's Will, 2 Redf. 77; 333. Stewart's Will, Matter of, 3 N. Y. Supp. 284; 369-. . Stewart v. Wooley, 121 App. Div. 531; 527 Sticlcney, Matter of, 161 N. Y. 42 (aff'g 31 App. Div. 383); 324, 326, 343, 345. Stickney, Matter of, 41 Misc. 70; 354. StieHs, Matter of, 60 Misc. 631; 874. Stikeman, Matter of, 48 Misc. 156; 689, 1256. Stiles V. Burch, 5 Paige, 132; 212. Stiles, Matter of, 64 Misc. 668; 884, 908, 909. Stillman, Matter of, 29 N. Y. St. Rep. 213' 333 Stillwell V.' Carpenter, 2 Abb. N. C. 238; 219. Stillwell V. Carpenter, 59 N. Y. 414; 26. StillweU, Matter of, 68 Hun, 406 (aff'd 139N.Y. 337); 1246. Stillwell V. Mellersh, 5 Eng. L. & Eq. R. 185; 340. Stillwell V. Swarthout, 81 N. Y. 109; 1219, 1220, 1241. Stilwell V. Melrose, 15 Hun, 378; 888. Stilson, Matter of, 85 App. Div. 132; 639. Stimson v. Vroman, 99 N. Y. 74; 552. Stinde v. Ridgeway, 55 How. Pr. 301; 621. Stires v. Van Rensselaer, 2 Bradf . 172; 548, 550. St. John, Est. of, Daily Reg., May 21, 1883; 668. St. John V. Andrews- Institute, 104 App. Div. 160; 141. St. John V. Andrews Institute, 117 App. Div. 698; 530, 531. St. John V. Andrews Institute, 191 N. Y. 254; 141, 630, 531, 635, 637, 639, 640, 542, 547, 1466. St. John, Matter of Chauncey, 1 Tucker, 126; 1006, 1388. St. John, Matter of, 104 App. Div. 460; 1403, 1407. St. John V. McKee, 2 Dem. 236; 1396, 1417, 1447. St. Johns Parish v. Bostwick, 8 App. D. C. 452; 568. St. John V. Voorhies, 19 Abb. Pr. 53; 1362. St. Jurjo V. Dunscomb, 2 Brad|. 105; 596. St. LiJte's Home v. Assn. for Indigent Females, 62 N. Y. 191; 656. Stockwell, Matter of, 17 Misc. 108; 317. Stoddard v. Johnson, 13 Hun, 606; 1159. Stoehr, Matter of, 23 N. Y. Supp. 280; 1307 1308 Stokes v. Dale, 1 Dem. 260; 657, 1324. Stokes, Est. of, 1 Dem. 260; 210, 244. Stokes V. Weston, 142 N. Y. 433; 647, 548, 1156. Stone V. Demarest, 67 App. Div. 549; 150. Stone V. Forsyth, 2 Doug. 707; 69. Stone, Matter of, 15 Misc. 317; 538. Stone, Matter of, 56 Misc. 247; 1115. Stone V. Scripture, 4 Lansing, 186; 609, 610. Storm, Matter of, 84 App. Div. 552; 662, 832 Storey v. Brennan, 15 N. Y. 524; 181. Storm's Will, 3 Redf. 327; 325, 346. Story V. Dayton, 22 Hun, 450; 128, 136, 246, 251, 254. Story V. N. Y. & Harlem R. R. Co., 6 N. Y. 86; 288. Stotesbury, Matter of, not reported; 1311, 1378. Stout V. Betts, 74 Hun, 266; 275. Stouvenel v. Stephens, 2 Daly, 319; 366, 367, 369, 371. Stouvenel's Estate, 1 Tuck. 241; 1374. Stover, Matter of, 4 Redf. 82; 76, 78, 79. Stow V. Stow, 1 Redf. 305; 409. Stowell, Matter of, 15 Misc. 533; 1208, 1226. Stowenel's Est., 1 Tuck. 241; 1352, 1408. Strang, Matter of, 117 App. Div. 796; 1120. Strang, Matter of, 121 App. Div. 112; 538. Straus, Matter of, N. Y. L. J., Oct. 9, 1911; 1047. Straut, Matter of, 22 St. Rep. 550; 1371. Strickland, Matter of, 10 Misc. 486; 1 Connoly, 435; 883, 889, 1223, 1416. Strickland, Matter of, 22 N. Y. St. Rep. 901; 1378. Striker, Matter of, 24 Misc. 422; 1014. Stringer v. Young, 191 N. Y. 157; 627. Strong V. Harris, 84 Hun, 314; 667. Strong, Matter of. 111 App. Div. 281; aff'd 186 N. Y. 684; 234, 244, 798, 916. Strong, Matter of, 5 Misc. 33; 1169. Strong V. Strong, 3 Redf. 477; 260. Strong's Will, In re, -16 N. Y. Supp. 104; 330. Strubbe v. Kings Co. Trust Co., 60 App. Div. 548 (aff'd 169 N. Y. 603); 1280, 1283 Stuart V. Foster, 18 Abb" Pr. 305'; 916. Stuart V. Palmer, 74 N. Y. 188; 1079. Stubbs V. Holywell R. Co., L. R. 2 Exch. 311; 900. Stumpf, Matter of, 4 App. Div. 282; 92. Sturgis, Matter of, 164 N. Y. 485; 540. Stuyvesant v. Hall, 2 Barb. Ch. 151; 671. Stuyvesant, Matter of, 72 Misc. 295; 1104. Stuyvesant v. Weil, 167 N. Y. 421; 1209. Suarez, Matter of, 3 Dem. 164; 707, 787. Suarez v. Montigny, 1 App. Div. 404; 569. Suarez v. Montigny, 153 N. Y. 678; 569. Suarez v. The Mayor, 2 Sandf. Ch. 173; 644. Suckley, Matter of, 11 Hun, 344; 1489. Sudlow v. Pinckney, 1 Dem. 158; 233. Suess, Matter of, 37 Misc. 459; 1436. Sullivan v. Fosdick, 10 Hun, 173; 676, 696, 712. SulHvan, Matter of, 61 Hun, 379; 366, 367. Sullivan, Matter of, 84 App. Div. 51; 195, 258. CXVIU TABLE OF CASES CITED References are to pages Sullivan v. McCann, 124 App. Div. 132; 212. Sulz V. Mut. Res. F. L. Assn., 145 N. Y. 563; 882, 883, 884, 896. Summers, Matter of, 37 Misc. 575; 1226. Supervisors, etc., v. Briggs, 3 Dem. 173; 1323. Supervisors, etc., v. Thompson, 50 Hun, 1 ; 1375. Supplee V. Sayre, 61 Hun, 30; 971, 981. Susz V. Forst, 4 Dem. 346; 756, 758. Sutherland v. Brush, 7 Johns. Ch. 17; 569, 801, 959. Sutherland, Matter of, 28 Misc. 424; 448, 449, 463, 487. Sutherland v. Ronald, 11 Hun, 238; 521. Sutherland v. St. Lawrence County, 42 Misc. 38; 788. Sutton, Matter of, 149 N. Y. 618 (aff'g 3 App. Div. 208, and 15 Misc. 659); 1045, 1105. Sutton v. Public Administrator, 4 Dem. 33; 616. Sutton V. Weeks, 5 Redf. 353; 713, 804, 814. Suydam, Matter of, 84 Hun, 514; 443, 476, 479, 487. Suydam, Matter of, 152 N. Y. 639; 487. Swade, Matter of, 65 App. Div. 592; 1068. Swales, Matter of, 60 App. Div. 599; 722. Swan, Matter of, 158 App. Div. 568; 655. Swart, Matter of, 2 Silv. 585; 1147. Swarthout v. Curtis, 4 N. Y. 415; 1305. Swarthout v. Ranier, 143 N. Y. 499; 1154. Swartwout v. Burr, 1 Barb. 495; 1241. Swartwout v. Oaks, 52 Barb. 622; 1304. Swartwout v. Swartwout, 2 Redf. 52; 778, 1291. Sweeney v. Provident Loan Soc'y,- 65 Misc. 580; 862. • Sweeney v. Warren, 127 N. Y. 426; 93, 885, 889, 1389, 1415. Sweet V. Burnett, 136 N. Y. 204; 523, 544. Sweet V. Chase, 2 N. Y. 79; 542. Sweet V. Irish, 36 Barb. 467; 1164. Sweet V. Sweet, 1 Redf. 451; 350. Sweetland, Matter of, 47 N. Y. St. Rep. 285; 1059. Sweezey v. Willis, 1 Bradf. 495; 142, 143, 1480, 1482, 1489. Sweezy v. Thayer,, 1 Duer, 286; 1170. Swenarton v. Hancock, 22 Hun, 38; 405. Swift, In re, 137 N. Y. 77; 1040, 1045, 1047, 1105. Swift, Matter of, 20 Daily Reg. 100; 104. Sworthout, Matter of, 38 Misc. 56; 890, 891, 892, 1002, 1008. Szabo, Matter of, 143 N. Y. Supp. 678; 758. Taafe v. Connor, 10 H. of L. Cas. 77; 22 Beav. 271; 547. Taber, Matter of, 132 App. Div. 495; 1146, 1147, 1415. Tabernacle Baptist Church v. Fifth Ave. Baptist Church, 60 App. Div. 327 (aff'd 172 N. Y. 598); 526. Tabor, Matter of, 31 Misc. 579; 1474. Tacke's Will, In re, 3 N. Y. Supp. 112; 1326. Tacke's Will, In re, 3 N. Y. Supp. 431; 1326. Taft's Est., In re, 8 N. Y. Supp. 282; 1396, 1438. Taft V. Marsily, 47 Hun, 1.75; 898. Taggard, Matter of, 138 N. Y. 610; 1251. Taggart's Est., Matter of, 16 N. Y. Supp. 514; 681. Taggart v. Murray, 53 N. Y. 236; 524, 644. Tailer, Matter of, 147 App. Div. 741; 1139. Talbot, Matter of, "di Misc. 382; 304. Talmage, Matter of, 59 Misc. 130; 519, 536 539 Talmage, Matter of, 60 Misc. ^94; 546. Tanas v. Municipal Gas Co., 88 App. Div. 251; 898. Tapnen v. M. E. Church, 3 Dem. 187; 519, 1425. Tarrant v. Ware, 25 N. Y. 425; 335. Tartaglio, Matter of, 12 Misc. 245; 114, 1473. Tarver v. Tarver, 9 Pet. 1.74; 84, 220. Tatnall v. Hankey, 2 Moore, P. C. C. 351; 69. Tavshanjian v. Abbott, 59 Misc. 642 ' (aff'd 130 App. Div. 863, 200 N. Y. 374); 342, 1492. Talor V. Bryden, 8 Johns. 172; 1007. Taylor v. Dodd, 2 Sup. Ct. (T. & C.) 88; 1146. Taylor v. Dodd, 58 N. Y. 335; 1145, 1167. Taylor v. Gardner, 4 How. Pr. 67; 1323. Taylor v. Higgs, 202 N. Y. 65; 364. Taylor, Matter of, 13 N. Y. St. Rep. 176; 75, 78. Taylor, Matter of, 30 App. Div. 2l3; 1407; 1507. Taylor, Matter of, 6 Dem. 158; 80. Taylor, Matter of, 144 App. Div. 634; 1499. Taylor, Matter of, 62 Misc. 442; 97. Taylor, Matter of, 20 N. Y. Supp. 960; 367. Taylor, Matter of, 49 St. Rep. 644; 366. Taylor v. Morris, 1 N. Y. 341; 572. Taylor v. Public Administrator, 6 Dem. 158; 80, 621. Taylor v. Shuit, 4 Dem. 528; 916. Taylor v. Syme, 17 App. Div. 517 (rev'd 162 N. Y. 513); 150, 590, 591, 593, 594, 610, 686. Taylor v. Taylor, 3 Bradf. 54; 1241. Taylor v. Wendel, 4 Bradf. 324; 1012. Te Culver, Matter of, 22 Misc. 217; 1464. Teed, Matter of, 59 Hun, 63; 538. Teed, Matter of, 76 Hun, 567; 538. Teed v. Morton, 60 N. Y. 502; 549, 1474. Teeter v. Teeter, 47 N. Y. St. Rep. 580; 979. Tehan v. Tehan, 83 Hun, 368; 1162. . Telford v. Morison, 2 Adams, 319; 22. Temple, Matter of, 36 Misc. 620; 1164. Tenney, Matter of, 104 App. Div. 290; 546. TABLE OP CASES ClfED CXVIX References Terpenning v. Skinner, 30 Barb. 373; 522, 554. Terry v. Bale, 1 Dem. 452; 897. Terry v. Dayton, 31 Barb. 519; 1420. Terry, Matter of, 31 Misc. 477; 1304. Terry, Matter of, 218 N. Y. 218; 1133. Terry v. Rector, etc., of St. Stephens Church, 79 App. Div. 527; 1150, 1154. Terry v. Sampson, 112 N. Y. 415; 653. Terry v. Wiggins, 47 N. Y. 512; 524. Terrill v. Public Administrator, 4 Bradf, 245 ■ 554. Terwiiliger v. Brown, 44 N. Y. 237; 933, 946, 1235. Terwiiliger, Matter of, 63 Misc. 479; 722, 724. Texas V. Municipal Gas Co., 88 App. Div. 251; 691. Thacher v. Henderson, 63 Barb. 271; 1281 1304, 1305. Thayer v. Burr, 201 N. Y. 155; 1274. Thayer v. Clark, 4 Abb. (Ct. of App.) 391 (48 Barb. 243); 228, 799, 827, 831. Thayer, Matter of, 58 Misc. 117 (aff'd 126 App. Div. 951; 193 N. Y. 430) 1096. The Thomas Jefferson, 10 Wheaton, 428 297. Theobald v. Smith, 103 App: Div. 200 839, 1492. Theological Seminary v. Kellogg, 16 N Y. 83; 1155. Thieler v. Raynor, 115 App. Div. 626 529 Thieler v. Raynor, 190 N. Y. 44; 529. Thieriot, Matter of, 117 App. Div. 686 761,762,780,894. Thieriot, Matter of, 188 N. Y. 589; 894. ThLstle V. Thistle, 5 Civ. Proc. Rep. 43 110. Thomas v. Bennett,. 56 Barb. 197; 1304. Thomas v. Cameron, 16 Wend. 579; 899. Thomas, Est. of, N. Y. L. J., November 8, 1902; 1102. Thomas, Matter of, 1 Hun, 473; 550. Thomas, Matter of, 39 Misc. 136; 1075. Thomas, Matter of, 3 Misc. 388; 1059. Thomas, Matter of, 33 Misc. 729; 722, 723 Thomas, Matter of, 39 Misc. 223; 924, 1099. Thomas, Matter of, 61 Misc. 213; 1145, 1146. Thomas v. Parslee, 12 Hun, 151; 531. Thomas v. Stevens,'4 Johns. Ch. 607; 555. Thomas v. Troy City Bank, 19 Misc. 470; 569. Thompson v. Browne, 4 Johns. Ch. 619; 24, 942, 953, 1013, 1267, 1304. Thompson v. Carmibhael, 3 Sandf, Ch. 120; 580, 1171. Thompson, Est. of, 1 Civ, Proc. Rep. 264; 599, 733. Thompson, Ex parte, 4 Bradf. 154; 295, 296,297. . ' Thompson, Matter of, 57 App. Div. 317; 1111,1116. Thompson, Matter of, 6 Dem. 656; 814. are to pages Thompson, Matter of, 1 Wend. 43; 76, 855. Thompson, Matter of, 11 Paige, 453; 151, 262. Thompson, Matter of, 87 App. Div. 609; 950, 1272, 1391. Thompson, Matter of, 33 Barb. 334 (aff'd 28How. Pr. 581);718. Thompson, Matter of, 41 Misc. 420; 950, 1272, 1391, 1394. Thompson, Matter of, 41 Misc. 223; 1378. Thompson, Matter of, 184 N. Y. 36; 26, 27, 57, 883. Thompson, Matter of, 50 Misc. 222; 471. Thompson, Matter of, 121 App. Div. 470; 471, 487. Thompson, Matter of, 146 App. Div. 602; 453. Thompson v. Mott, 1 Dem. 32; 1273. Thompson v. Mott, 2 Dem. 154; 1409. Thompson v. Quimby, 2 Bradf. 449; 307, 309, 453, 454, 463, 487. Thompson v. Quimby, 21 Barb. 107 (aff'g 2 Bradf. 449); 451, 454, 458. Thompson v. Stevens, 62 N. Y. 634; 320, 333 Thompson v. Taylor, 71 N. Y. 217; 24, 1031, 1032, 1033. Thompson v. Thompson, 21 Barb. 107; 463. Thompson v. Whitlock, 5 Jur. (N. S.), 991 * 543 Thompson v. Whitmarsh, 100 N. Y. 35; 1021, 1451. Thomson v. Am. Surety Co., 170 N. Y. 109 (aff'g 56 App. Div. 113); 836. Thomson v. MacGregor, 81 N. Y. 592; 836. Thomson, Matter of, 14 St. Rep. 615; 945. Thomson v. Thomson, 1 Bradf. 24; 145, 878, 893, 894, 911, 913, 918, 920, 1372, 1374, 1408. Thorn v. De Breteuil, 179 N. Y. 64; 529, 531, 1436. Thorn v. Garner, 113 N. Y. 198; 939, 1184, 1185. Thorn v. Shiel, 15 Abb. (N. S.) 81; 379, 496. Thorne, Est. of, 4 Monthly Law Bulle- tin, 48; 50. Thornburgh, Matter of,- 72 Misc. 619; 21, 27, 59, 60, 92, 94, 1423. Thorne, Matter of, 155 N. Y. 140; aff'g 23 App. Div. 624; 431. Thorne, Matter of, 162 N. Y. 238; 1072. Thorne, Matter of, 26 N. Y. St. Rep. 240; 486. Thorne, Matter of, 155 N. Y. 140 (aff'g 23 App. Div. 624); 837, 838, 851. Thorne, Matter of, 44 App. Div. 8 (rev'g 27 Misc. 624); 1068, 1072. Thorne v. Underbill, 1 Dem. 306; 1459. Thornhill v. Hall, 2 Ch. & T. 22; 543. Thorp, Matter of, 31 Misc. 581; 937. Thorp V. Riley, 3 N. Y. Supp. 547; 206. Thrall, Matter of, 30 App. Div. 271; 1449. Thurber, Matter of, 37 Misc. 155; 1362. Thurber, Matter of, 162 N. Y. 244; 818. exx TABLE OF CASES CITED References are to pages Tickel V. Quinn, 1 Dem. 425; 891, 932, 976, 993, 1395, 1396. Tierney v. Fitzpatrick, 195 N. Y. 433; 897, 1071, 1395. Tierney, Matter of, 88 Misc. 347; 158. Tiffany v. Clark, 58 N. Y. 632; 947. Tiffany, Matter of, 143 App. Div. 327; 1047. Tifft, Matter of, 65 Misc. 151; 448, 461. Tifft V. Porter, 8 N. Y. 516; 1139, 1167. Tighe V. Morrison, 116 N. Y. 263; 801. Tighe, WiU of, N. Y. L. J., Aug. 15, 1898; 354. Tilby V. Tilby, 3 Dem. 258; 193. Tilden v. Dows, 3 Dem. 240; 1259. Tilden v. Fiske, 4 Dem. 357; 707, 787, 1264. Tilden v. Green, 54 Hun, 231; 533. Tilden v. Greene, 130 N. Y. 29; 523, 533. Tilden, Matter of, 56 App. Div. 277 (rev'g 32 Misc. 118); 245, 253. Tilden, Matter of, 5 Dem. 230; 253. Tilden, Matter of, 32 Misc. 118; 398. Tilden, Matter of, 98 N. Y. 434; 99, 161, 245, 248, 250, 289, 1113. Tilley, Matter of, 166 App. Div. 240; 1066. Tilley, Matter of, 215 N. Y. 702; 1066. Tillotson, Ex parte, 2 Edwards' Gh. 113; 135. TUman v. Davis, 95 N. Y. 17; 138, 140, 141, 142, 148, 546. Tilt V. Kelsey, 207 U. S. 43; 391, 1045. Tilton V. Ormsbee, 70 N. Y. 609; 871, 872, 874, 876. Tilton V. Ormsby, 10 Hun, 7; 871, 872, 874, 876. Timerson, Matter of, 39 Misc. 675; 1165, 1194. Timon v. Claffy, 45 Barb. 438; 85, 413. Tims, Matter of, 63 Misc. 148; 545, 549, 1156. Tinney, Matter of, 49 Misc. 213; 1168. Tisdale, Matter of, 110 App. Div. 857; 912, 1177, 1362, 1382* 1390. Title Guarantee & Trust Co., Matter of, ■ 46 Misc. 544; 524. Title Guarantee & Trust Co., Matter of, 114 App. Div. 778; 524, 1448. T. G. T. Co. V. C, B. & Q. R. R. Co., 123 N. Y. 37; 1257. Title, G. T. & Co., Matter of, 81 Misc. 106; 1076. Title G. & T. Co., Matter of, 195 N. Y. 339 (rev'g 127 App. Div. 118); 542, 1010, 1168. Titus V. Perry, 13 N. Y. St. Rep. 237; 979. Titus V. Poole, 145 N. Y. 414; 1505. Tobias v. Ketchum, 32 N. Y. 319; 1161, 1250. Tobin V. Carey, 34 Hun, 432; 133. Tobin V. Graf, 39 Misc. 412; 530. Tobin, Matter of, 15 St. Rep. 749'; 366. Tobin, Matter of, 40 St. Rep. 366; 16 N. Y. Supp. 462; 1392. Toch V. Toch, 81 Hun, 410; 577, 1011, 1018, 1141. Todd, Matter of, 64 App. Div. 436; 1431. Toergev. Toerge, 9 App. Div. 194; 645. Tombo, Matter of, 86 Misc. 361; 1284. Tombo, Matter of, 164 App. Diy. 392 1315. Tompkins, Matter of, 69 App. Div. 474 285.. Tompkins, Matter of, 154 N. Y. 634; 886. Tompkins, Matter of, 9 Misc. 436; 1167. Tompkins v. Moseman, 6 Redf. 402; 1266, Tompkins v. Rice, 55 Hun, 563; 885. Tompkins v. Verplanck, 10 App. Div. 572 547. Tompkins v. Verplanck, 154 N. Y. 634; 647. Tonnele v. Hall, 4 N. Y. 140; 309, 1469. Tonnelle v. Hall, 2 Abb. 206; 668, 1173. Tonnelle v. Wetmore, 196 N. Y. 436; 621 Tooker v. BeU, 1 Dem. 62; 660, 661. Topping's Est., In re, 14 N. Y. Supp. 495 1396. Topping, Matter of, 9 N. Y. Supp. 447 1211. Topping, Matter of, 29 N. Y. St. Rep. 211 1229 Torkington, Matter of, 79 Hun: 118; 287 Toronto G. T. Co. v. C, B. & Q. R. R. Co., 123 N. Y. 37; 610. Torry v. Black, 58 N. Y. 185 (rev'g 66 Barb. 414); 1304. Torry v. Bowen, 15 Barb. 304; 334. Torry v. Frazer, 2 Redf. 486; 1304, 1313. Totten, Matter of, 179 N. Y. 112; 291, 897, 1070, 1394. Toulon, Matter of, 66 Hun, 199; 110. Tousey v. Hastings, 127 App. Div. 94; 364. Tousey v. Hastings, 194 N. Y. 79, 364. Tousey, Matter of, 34 Misc. 363; 484. Towle V. Remsen, 70 N, Y. 303; 1158. Townley, Matter of, 1 Connoly, 400; 337. Townsend, v. Bogart, 5 Redf. 93; 320, 436. . , •■ Townsend, Matter of, 75 Hun, 593; 437. Townsend, Matter of, 83 Hun, 200; 1005, 1006. Townsend, Matter of, 6 Dem. 147; 1170. Townsend, Matter of, 153 App. Div. 86; 92, 1114. Townsend, Matter of, 215 N. Y. 442; 1114. Townsend, Matter of, 73 Misc. 481; 760. Townsend, Matter of, 203 N. Y. 522; 1214. Townsend, Matter of, N. Y. L. J., March 28, 1912; 1063. Townsend v. Pell, 3 Dem. 367; 81, 82. Townsend v. Supervisors, 73 Misc. 563; 38 Townsend v. Whitney, 75 N. Y. 425; 223, 230, 1037. Tracer v. Jennison, 106 U. S..191 ; 84. Tracy v. Frost, 11 N. Y. Supp. 561; 994. Tracy v. Frost, ^2 St. Rep. 907; 991. Tracy, Matter of, 18 Abb. N. C. 242; 1335. Tracy, Matter of, 179 N. Y. 601 (rev'g 87 App. Div. 216); 891, 1076, 1134, 1136. Tracy v. Reynolds, 7 How. Pr. 327; 261. Tracy v. Tracy, 15 Barb. 503; 1146. ■ Train v. Davisj 49 Misc. 162; 646, 549: TABLE OF CASES CITED exxi References are to pages Train v. Davis, 114 App. Div. 903; 546, 549. Trask v. Annett, 1 Dem. 171; 814. Trask's Est., In re, 49 N. Y. Supp. 825; 1358. Trask v. Sturges, 170 N. Y. 482; 1456. Traver, Matter of, 9 Misc. 621; 251. Traver, Matter of, 161 N. Y. 64; 1158. Travis, Matter of, 85 Hun, 420; 1186, 1187.' Travis, Matter of, 19 Misc. 393; 1042, 1044. Travis v. Travis, 48 Hun, 343; 809, 813. Treadwell v. Clark, 190 N. Y. 51; 1507. Treadwell, Matter of, 37 Misc. 584; 707, 716, 718, 762, 769. Treat v.Fortuije, 2 Bradf., 116; 1163. Tredwell, Matter of, 85 App. Di\. 570; 155 1377. Tredwell, Matter of, 58 Misc. 103; 466. Trelease, Matter of, 115 App. Div. 654; 1161. Trelease, Matter of, 49 Misc. 205; 1150. Tremberger, Matter of, N. Y. L. J., March 7, 1911; 1084, 1094. Tremenheere v. Chapin, 56 Misc. 208; 1261. Trimble v. Dzieduzyiki, 57 How. 208; 1296. Trimm, Matter of, 30 Misc. 493; 837, 858. Trost, Matter of, 38 Misc. 404; 324, 326. Trotter, Matter of, 182 N. Y. 465; 26, 524 528 1475. Trotter, Matter' of, 104 App. Div. 188; 524 528 Troup V. Reid, 2 Dem. 471; 334. Trowbridge v. Goss, 126 App. Div. 679; 625. Truesdell v. Bourke, 80 Hun, 59 (rev'd 145 N.Y. 612); 903. Truesdell, Matter of, 40 Misc. 336; 775. Trunkey v. Van Sant, 83 App. Div. 272; 533. Trunkey v. Van Sant, 176 N. Y. 636; 633, 1160. Trustees of Amherst College v. Ritch, 91 Hun, 509; 1160. Trustees v. Ritch, 91 Hun, 509; 357, 539. Trustees v. Ritch, 151 N. Y. 282; 639, 1160. Trustees of The Theological Seminary v. Calhown, 26 N. Y. 422; 299, 320, 332, 334, 335, 336, 406, 420, 483. Trustees of Theological Seminary v. Kel- logg, 16 N. Y. 83; 530, 642, 1155. Tuck V. Knapp, 42 Misc. 140; 569. Tucker v. Ball, 1 Barb. 94; 1165. Tucker v. Bishop, 16 N. Y. 402; 548, 549, 1156. Tucker, Matter of, 28 Misc. 696; 1197. Tucker, Matter of, 29 Misc. 728; 1444. Tucker, Matter of, 27 Misc. 616; 1074. Tucker V. Field, 5 Redf. 139; 486. Tucker v. McDermott, 2 Redf. 312; 939, 1359, 1361. Tucker v. Tucker, 5 N. Y. 348; 546. Tucker v. Tucker, 4 Keyes, 136, S. C. 4 Abb. Ct. App. Dec. 428; 26, 92, 216, 219. Tucker v. Tucker, 6 Barb. 103; 623. Tugwell V. Heyman, 3 Camp. 298; 988. Tully, Matter of, 54 Misc. 184; 1283, 1291. Tunison v. Tunison, 4 Bradf. 138; 486, 488. Tuohay v. Public Administrator, 2 Dem. 412; 618. Turfler, Matter of, 24 N. Y. Supp. 91 ; 890. Turfler, Matter of, 78 Hun, 258; 1410. Turfler, Matter of, 23 N. Y. Supp. 135; 1169. Turhune v. Brookfield, 1 Redf. 220; 151, 397, 431, 480, 485. Turk, Ex parte, 1 Bradf. 110; 1155. Tumbull v. Turnbull, 118 App. Div. 449; 897. Turner v. Mather, 86 App. Div. 172; 1141, 1146, 1148, 1149. Turner v. Mather. 179 N. Y. 681; 1149. Turrell, Matter of, 28 Misc. 106; 340. Turrell, Ma'.ter of, 47 App. Div. 561; 340. Turrell, Matter of, 166 N. Y. 320; 309, 319 Turreil, Matter of, 28 Misc. 106 (aff'd 47 App. Div. 561; 166 N. Y. 330); 320, 322, 327, 336, 338. Tuthill V. Davis, 121 App. Div. 290; 1160. Tuttle V. Heavey, 59 Barb. 334; 1304. Tuttle v. Heiderraan, 5 Redf. 199, 205; 1182. Tuttle V. Tuttle, 2 Dem. 48; 1166, 1199. Twenty-Third St. Bap. Church v. Cornell, 117 N. Y. 601; 1008. Twombly, Matter of, 24 Misc. 51; 569. Tyeis, Matter of, 41 Misc. 378; 691, 728, 761. Tyler v. Bollard, 31 Misc. 64; 898. Tyler v. Bollard, 49 App. Div. 648; 898. Tyler v. Bollard, 166 N. Y. 605; 898. Tyler v. Gardiner, 36 N. Y. 669; 461, 466, 467, 468, 470, 486. Tyler v. Mapes, 19 Barb. 448; 328. Tyler, Matter of, 60 Hun, 566; 38. Tyler, Matter of, 6 Dem. 48; 719. Tymon v. Cromwell, 2 Dem. 650; 619. Tyndall v. Fleming, 123 App. Div. 837; 644, 547, 548. Tyndall, Matter of, 117 App. Div. 294; 169, 283. TyndaU, Matter of, 48 Misc. 39; 1307, 1308. Tyson, Matter of, N. Y. L. J., Feb. 29, 1912; 483. Udell V. Steams, 125 App. Div. 196; 342, 1492. Uhlman v. N. Y. Life Ins. Co., 109 N. Y. 421" 1349 Uline V; N. Y. C. & H. R. R. Co., 79 N. Y. 176; 206. UUmann v. Cameron, 186 N. Y. 339; 533. Ulhnann, Matter of, 137 N. Y. 403; 620, 1080, 1116. UUman v. Ulhnan, 151 App. Div. 419; 1289. Ulrich V. Ulrich, 17 N. Y. Supp. 721; 979. exxii TABLE OF CASES CITED References iae to pages Ulster Co. Savings Inst. v. Fourth Natl. Bank, 8 N. Y. Supp. 162; 606. Ulster Co. Savings Inst. v. Young, 161 N. Y. 23; 969, 983, 985. Underbill v. Dennis, 9 Paige, 202; 43, 135, 262, 1289, 1290, 1292, 1336. Underbill's Est., 9 N. Y. Supp. 457; 224. Underbill, Matter of, 117 N. Y. 471 (aff'g 1 Connoly, 113); 26, 92, 145, 254, 1192. Underbill, Matter of, 35 App. Div. 434 (aff'd 158 N. Y. 721); 1253, 1260, 1443. Underbill, Matter of, 1 Connoly, 541; 1407. Underbill, Matter of, 27 N. Y. St. Rep. 720; 1499. Underbill v. Newburger, 4 Redf. 499; 922, 969, 972, 1344, 1381, 1420. Underbill v. Vandervoort, 56 N. Y. 242; 523, 578. UnderbiU v. Wood, 65 N. Y. Supp. 1105; 541. Underbill v. Wood, 63 App. Div. 640; 541. Underwood v. Curtis, 127 N. Y. 523; 27, 524, 530. Underwood v. Wing, 19 Beav. 459; 1465. Ungricb, Matter of, 201 N. Y. 415; 1195. Ungricb v. Ungricb, 131 App. Div. 24; 946. Union Trust Co. v. Gage, 6 Dem. 358; 230. Union Trust Co., Matter of, 88 Misc. 456; 61, 1324, 1336. ; Union Trust Co., Matter of, 65 App. Div. 449; 213. Union Trust Co., Matter of, 70 App. Div. 5; 1442. Union Trust Co., Matter of, 172 N. Y. 494* 290 291 Union Trust Co!, Matter of, 179 N. Y. 261 ; 355, 548. Union Trust Co. v. St. Luke's Hospital, 74 App. Div. 370; 556. Union Trust Co. v. St. Luke's Hospital, 175 N. Y. 505; 556. United States v. Duncan, 4 McLean, 207; S. C, 12 111. 523, 1001. United States v. Leary, 138 App. Div. 857; 166, 168. United States v. Ricketts, 2 Cr. Cir. Ct. 553; 1001. U. S. Mortgage & Trust Co.,- Matter of, 114 App. Div. 539; 937, 953. U. S. Trust Co. V. Bixby, 2 Dem. 494; 938, 1445. U. S. Trust Co. V. Bixby, 67 How. Pr. 390; 938. U. S. Trust Co. V. Hoyt, N. Y. L. J., Feb. 23, 1912, March 2, 1912 (aff'd 160 App. Div. 621); 837, 841, 852. , U. S. Trust Co., Matter of, 176 N. Y. 304 (aff'g 80 App. Div. 77); 26, 94, 144,1408. U. S. Trust Co., Matter 'of, 36 Misc. 378; 645. U. S. Trust Co., Matter of, 117 App. Div. 178' SQ7 U. S. Trust Co. v. Maxwell, 26 Misc. 276; 547. U. S. Trust Co. V. Miller, 57 Misc. 500 142, 646. U. S. Trust Co. V. Sober, 178 N. Y. 442 531, 1476. U. S. trust Co. V. Stanton, 76 Hun, 32 885. ' U. S. Trust Co. V. Wood, 146 App. Div 751; 589, 605. Upton V. Bernstein, 27 N. Y. Supp. 1078 409. Urqubart v. Fricker, 3 Add. 58; 394. Utica Ins. Co. v. Lynch, 11 Paige, 520 '939 - ■ Utica T. & D. Co., Matter of, 148 App. Div. 525; 1143. Vail V. L. I. R. R. Co., 106 N. Y. 283, 1158. Vail, Matter of, 43 Misc. 476; 548. Vail V. Vail, 4 Paige, 317; 217, 1468. Valentine v. Belden, 20 Hun, 537; 932. Valentine v. Duryea, 37 Hun, 427; 948. Valentine v. Jackson, 9 Wend. 302; 662, 899. Valentine, Matter of, 22 Week. Dig. 175; 1326. Valentine, Matter of, 9 Abb. N. C. 313; 1338 Valentine, Matter of, 88 Misc. 397; 1111. Valentine, Matter of; 72 N. Y. 184; 1219. Valentine, Matter of, 91 Misc. 203; 1080. Valentine v. Valentine, -2 Barb. Ch. 430; 1252. Valentine v. Valentine, 3 Dem. 697; 950. Valentine v. Valentine, 4 Redf. 265; 993, 1396. Vallance v. Bausch, 28 Barb. 633; 1065. VanAlenv. Hewins, 5 Hun, 44; 151, 154, 378. ■■• ' Van Alst ,v. Hunter, 5 Jobns. Ch. 148; 435, 43g, 461. Van Alstyne; Matter of, 147 App. Div. 44, 871. Van Alstyne, Matter of, 142 App. Div. 209; 1421. Van Alstvne v. Van Alstyne, 28 N. Y. 375; 325, 326, 648. Van Arsdate v. King, 165 N. Y. 325; 289. Van Benthuysen, Matter of (report filed June, 1902); 1072. Van Beuren v. Dash, 30 N. Y. 393; 1199. Van Beuren v. Loper, 29 Barb. 389; 898. Van Beuren, Matter of, N. Y. L. J., Jan. 19, 1891; 132. Van Bokkelin v. IngersoU, 5 Wend. 315 288. Van Buren v. Cockburn, 14 Barb. 118 353. Van Buren, Matter of, 19 Misc. 373 1343. '■ I - Van Camp v. Searle, 147 N. Y. 160; 577. Van Cortlandt v. Kipp, 1 Hill, 690; 307, 324^ 325, 365, 545. Van Cortlandt v. Kipp, 7 Hill, 352; 545. Van den Heuvel, Matter of, N. Y. L. J., March 16, 1912; 300, 428, 450. Van den Heuvel, Matter of, 76 Misc. 137; 311. , TABLE OF CASES CITED References are to pages CXXlll Van Dawalker, Matter of, 63 App. Div. 550; 459. Vanderveer v. McKane, 25 Abb. N. C. 105; 537; 539. Van Derzee, Matter of, 73 Hun, 532; 1502. Van Deusen v. Sweet, 51 N. Y. 378: 216. Van Dyke v. Emmons, 34 N. Y. 186; 1415. Van Dyke, Matter of, 44 Hun, 394; 1373, 1602. Van Emburgh v. Ackerman, 3 Redf. 499; 1468. - Van Epps v. Van Dusen, 4 Paige, 64; 1304, 1368; Van Geisen, Matter of, 47 Hun, 5; 315, 328- 3.37 Van dlelder v. Van Gelder, 84 N. Y. 658; 1330. Van Giessen v. Bridgford, 83 N. Y. 348; 81. ' ■ Van Guysling- v. Van Kuren, 35 N. Y. 70; 437, 438, 441, 451, 454, 458. Van Hanswyck v. Weifee, 44 Barb. 494; 313, 486. ' Van Hoi-ne v. Campbell, 100 N. Y. 287; 1150. Van Home, Matter of, 25 Misc. 391; 523, 1171. Van Houten, Matter of, 18 App. Div. 301; 211, 233, 569. Van Houten, Matter of, 11 App. Div. 208; 285. Van Hduten, Matter of, 18 Misc. 524; 1449. Van HoUten, Matter of, 16 Misc. 196; 316, '336. Van Houten, Matter of, 17 Misc. 445; 486. Van Kleeck, Matter of, 121 N. Y. 701; 1042. Van NeSs, Matter of, 78 Misc. 572; 437, 445, 447, 451, 465. Van Nostrand, Matter of, 3 Misc. 396; 1448, 1449. Van Nostrand v. Moore, 52 N. Y. 12; 542, 543, 544. Van Orden v. Krause, 89 Hun, 1 ; 988. ' Van Orman v. Van Orman, 34 N. Y.St. Rep'. 824; 466. ■ Van Pelt, Matter of, 63 Misc. 616; 1100. Van Pelt v. Van Pelt, 30 Barb. 134; 463. Van Post, Est. of, N. Y. L. J., June 20, 1901, 35 Misc. 367; 1112, 1114, 1119. Van Rensselaer v. Jones, 5 Deii. 449; 890. Van Rensselaer v. Morris, 1 Paige,' 13; 404. Van Rensselaer v. Van Rensselaer, 113 N. Y. 207; 1185. ' Van Sohaack v. SaUnders, 32 Hun, 515; 382, 562, 563. Van'Sise, Matter of,, 38 Misc. 165; 923, 1392 ' Van Slooten v. Wheeleri 76 Hun, 55; 885, 1419. Van Slooten v. Wheeler, 140 N. Y. 624; 977; 979, 1164, 1393. ' Van Tassel v. Burger, 119 App. Div. 509; 360,887. Van Valkenburg v. Lasher, 53 Hun, 594; 1422. Van Valkenburgh v. Van Allen, 1 How. Pr. 86; 1323. Van Vechten v. Keator, 63 ]Sf. Y. 52; 524, 542. Van Vechten v. Pearson, 6 Paige, 512; 525. Van Vec(hten v. 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Vanderbilt, Matter of, 50 App. Div. 246 (aff'd 163 N. Y. 597); 1073. Vanderbilt, Matter of, 68 App. Div. 27; 1100. Vanderheyden v. Reid, 1 Hopk. Ch. 408; 16. Vanderheyden v. Vanderheyden, 2 Paige, 287; 1340, 1344, 1446. . Vanderpoel v. Van Valkenburg, 6 N. Y. (2 Seld.) 190; 69, 220, 391, 399. Vandervort, Matter of, 8 App. Div. 341; 942. Vandervoort, Re, 1 Redf. 270; 889. Vanderwater, Matter of, 115 N. Y. 699 (aff'g 27 Week. Dig. 314); 129. Van Deuzen v. Trustees, etc., 4 Abb. Ct. App. Dec. 466; 537. Vail Doren, Matter of, 77 Misc. 44; 349. Varick v. Bodinfe, 3 Hill, 444; 899. Varnum v. Taylor, 59 Hun. 554; 954. Vassar, Matter of, 127 N. Y. 1; 1083, 1133. Vaughn v. Burford, 3 Brad. 78; 328. Vedder, Matter of, 14 St. Rep. 470; 453, 464. Vedder, Matter of, 6 Dem. 92; 454, 458. ^ . Vedder, Matter of, 2 Connoly, 548; 1186. Vedder v. Saxton, 46 Barb. 188; 906, 1398. CXXIV TABLE OF References Veeder v. Mudgett, 95 N. Y. 295; 964, 966. Vermilyea v. Beatty, 6 Barb. 429; 590. 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Thomson, 44 App. Div. 373; 841, 843, 853. Von der Leith, Matter of, 25 Misc. 255; 985; 1418. Von Glahn, Matter of, 53 App. Div. 165; 1410. Von Hoffman v. Ward, 4 Redf. 244; 76, 78 322 Von keUer, Matter of, 28 Misc. 600; 1142. Von Sachs v. Kretz, 72 N. Y. 548; 1506. Voorhees v. Voorhees, 39 N. Y. 463 (aff'g 50 Barb. 119); 412, 484. Voorhis, Est. of, 1 How. (N. S.) 261; 203. Voorhis, Est. of, 5 Civ. Proc. RepJ 444; 207. Voorhis, Revocation of Probate of Will of Ann, Matter of, 125 N. Y. 765; 299, 321, 323 333. Voorhis v. Voorhis, 50 Barb. 119 (aff'd 39 N. Y. 463); 85. Voshall V. Clarke^ 123 App. Div. 136; 517, 886. Vought V. Williams, 120 N. Y. 253; 369. Vredenburgh v. Calf, 9 Paige, 128; 90, 250, 771. Vreeland v. McClelland, 1 Bradf. 393; 71, , 81, 360, 462, 486. Vroom v. Van Home, lO^aige, 549; 562, 564, 586. Vukelic, Matter of, 143 N. Y. Supp.. 679; 1473. CASES CITED are to pages Waack, Matter of, 6 N. Y. Supp. 522; 217. Waehtpr, Matter of, 16 Misc. 137; 910, 997. Wade V. Holbrook, 2 Redf. 378; 449. Wade V. Kalbfleisch, 58 N. Y. 282; 901. Wadsworth v. Allcott, 6 N. Y. 64: 1390. Wadsworth, Est. of, 24 N. Y. St. Rep. 416; 135, 136. Wadsworth, Matter of, 2 Barb. Ch. 381; 759. Wadsworth v. Murray, 29 App. Div. 191; 545. Wadsworth v. Murray, 161 N. Y. 274; 523 545 Wadsworth v. Sharpsteen, 8 N. Y. 388; 450. Wagener, Matter of, 143 App. Div. 286; 368. Wager v. Wager, 21 Hun. 93; 518. Wager v.' Wager, 89 N. Y. 161; 20, 27, 86, 516, 517, 621, 667. Wager v. Wager, 96 N. Y. 164; 523. Wagner, Matter of, 119 N. Y. 28 (afPg 52 Hun, 23); 26, 93, 144, 871, 872, 919, 922; 923, 1397, 1403, 1408, 1423. Wagner, Matter of, 40 Misc. 490; 1416. Wagner, Matter of, 132 App. Div. 306; 945, 1327. Wagner, Matter of, 75 Misc. 419; N. Y. L. J., Jan. 10, 1912; 94, 1282, 1290, 1291. Wagner, Matter of, 81 App., Div. 163; ^1197, 1309. Wagstaff v. Lowerre, 23 Barl). 209; 1432. Wait, Matter of, 16 N. Y. St. Rep.i 292; 377. Wait, Matter of, 39 Misc. 74; 1422. Waite, Matter of, 43 App. Div. 296; 1373, 1503. Wakeman v. Hazleton, 3 Barb. Ch. 148; 951. Walbridge v. Brooklyn Trust Co., 143 App. Div. 502; 1205. Walcott V. Brown, 2 Brown's Ch. 205; 1192. Waldo V. Hayes, 96 App. Div, 454; 548, 1141. Waldo V. Waldo, 32 Hun, 251; 192, 194, 284. , ' Waldron, Matter of, 19 Misc. 333; 345, •413,511. Waldron, Matter of, 57 Misc. 275; 536. Waldron, Matter of, 74 Misc. 310; 1448. Waldron v. Waldron, 4 Bradf. 114; 1012. Walker, Matter of," 43 Misc. 475: 165, 1217. Walker, Matter of, 70 App. Div. 263; 1027. Walker, Matter of, 17 N. Y. Supp.. 666; 885. Walker, Matter of, 136 N. Y. 20; 92, 93, 219,520,536,864. Walker, Matter of, 54 Misc. 177; 76, 79, 490, 1315. Walker, Matter of, 67 Misc. 6; 334. Walker v. Steers, 14 N. Y. Supp. 398: 1170. ' , Wall V. Bulger, 46 Hun, 346; 1,174. . TABLE OF CASES CITED References are to pages CXXV Wall, Matter of, 105 App. Div. 643; 1047. Wallace v. Blake, 4 N. Y. Supp. 438; 205. Wallace, Matter of, 32 St. Rep. 226, 24 id. 405; 1185. Wallace,, Matter of, 71 App. Div. 284; 1080, 1084. Wallace, Matter of, 18 N. Y. St. Rep. 387; 1135. Wallace, Matter of, 68 App. Div. 649; 762. Wallace, Matter of, 28 Misc. 603; 250, 1113. Wallace v. Payne, 14 App. Div. 597; 88. Wallace v. Wallace, 71 Misc. 305: 349, 365. ■ Wallace v. Wallace, 216 N. Y. 28; 364, 365. Walrath, Matter of, 37 Misc. 696; 250, 1113. . Walrath, Matter of, 69 Hun, 403; 269. Walsh V. Downs, 3 Dem. 202; 865. Walsh V. Laffan, 2 Dem. 498; 321. Walsh, Matter of, 1 Tucker, 132; 314. Walsh, Matter of, 144 N. Y. Supp. 442; 565. Walsh, Matter of, 1 L. Bui. 63; 1322. Walsh V. Ryan, 1 Bradf. 433; 151, 393, 394, 397, 431. Walter v. Ham, 68 App. Div. 381; 525. Walter v. Walter, 60 Misc. 383; 528, 555, 1159. Walther v. Regnault, 56 Hun, 560; 578. Walton V. Godwin, 54 Hun, 387; 206. Walton V. Howard, 1 Dem. 103; 1320, 1332 1339 Walton, Matter of, 112 App. Div. 176; 669. Walton, Matter of, 38 Misc. 723; 138, 1407. Walton V. Walton, 4 Abb. Ct. App. 512; 576, 823. Walton V. Walton, 1 Keyes, 1; 585. Walton V. Walton, 7 Johns. Ch. 258; 360, 361, 1139, 1141, 1170. Walworth, Matter of, 66 App. Div. 171; 1075. Wandell, In re, 32 Hun, 545; 1306, 1308, 1309, 1311. Waner, Matter of, 39 Misc. 432; 1142. Wanninger's Est., In re, 3 N. Y. Supp. 137; 648. Wanninger, Matter of, 120 App. Div. 273 (affd 190 N. Y. 527); 1433, 1434, 1439. Ward V. Craig, 87 N. Y. 550; 195, 266. Ward V. Ford, 4 Redf. 34; 1258. Ward, In re, 1 Redf. 254; 583, 584. Ward, Matter of, 49 Misc. 181; 1415, 1431. Ward, Matter of, 50 Misc. 483; 722, 774. Ward, Matter of, 59 Misc. 328; 837, 841, 857, 1474. Ward, Matter of, Surr. Dec, 1908, p. 12; N. Y. L. J., Jan. 8, 1908; 1429. Ward V. Ward, 105 N. Y. 68; 1250. Ward V. Ward, 57 Misc. 428; 1350. Wardlaw v. Home, etc., 4 Dem. 473; 539, 1474. ■ i Waring, Matter of, 7 Misc, 502; 224, 231. Waring, Matter of, 99 N. Y. 115; 1265. Waring, Matter of, 46 Misc. 222; 1316. Waring v. Waring, 1 Redf. 206; 878, 894, 911. Warner v. Durant, 76 N. Y. 133; 1155. Warner, Est. of, 2 Connoly, 347; 1480. Warner v. Knower, 3 Dem. 208; 1421. Warner, Matter of, 39 App. Div. 91; 1501, 1502. Warner, Matter of, 63 App. Div. 565; 283, 284, 1398. Warner, Matter of, 39 Misc. 432; 1141, 1142, 1165, 1195. Warren v. Bouvier, 68 Misc. 159; 862. Warren, Matter of, 105 App. Div. 582; 1023, 1024. Warren, Matter of, 62 Misc. 444; 1075, 1114. Warren v. Paff, 4 Bradf. 260; 1374. Warren v. Union Bank of Rochester, 157 N. Y. 259; 1304, 1314. Warrin, Matter of, 66 App. Div. 414; 961, 969, 971, 973, 1396, 1410, 1418. Washbon v. Cope, 144 N. Y. 287; 216, 220, 547, 1151. Washbon, Matter of, 38 N. Y. St. Rep. 619; 1393, 1448. Washburn, Matter of, 12 Misc. 242; 113, 117, 121, 401. Water Commrs'. of Amsterdam, 104 N. Y. 677; 1330. Waterman, Matter of, 60 Misc. 292; 1434, 1442. Waterman, Matter of, 112 App. Div. 313; 762, 763, 780. Waterman v. Whitney, 11 N. Y. 157; 442. Waters v. Collins, 3 Dem. 374; 1167. Waters v. CuUen, 2 Bradf. 354; 417, 463, 488; Waters v. Waters, 7 Misc. 519; 122. Watkins v. Brown, 89 App. Div. 194; 991. Watrous v. Smith, 7 Hun, 644; 1142. Watson v. Donnelly, 28 Barb. 653; 436, 488. Watson, Matter of, 2 Dem. 642; 89, 126, 129 Watson, Matter of, 12 N. Y. Supp. 115; 449. Watson, Matter of, 171 N. Y. 256; 1063. Watson, Matter of, 5 Lansing, 466; 224, 225 1037 Watson, Matter of, 64 Hun, 369; 1503. Watson, Matter of, 115 App. Div. 310; 1417. Watson, Matter of, 101 App. Div. 550; 285 Watson, Matter of, 86 Misc. 588 (aff'd 165 App. Div. 252); 26, 1390.'' Watson, Matter of, 216 N. Y. 209; 26. Watson, Matter of, 10 Abb. N. C. 216; 1288, 1291. Watson, Matter of, 187 N. Y. 541; 1448. Watson V. Nelson, 69 N. Y. 536; 224, 225, 226, 234, 244. Watts, Matter of, 68 App. Div. 357; 1156. Watts V. Public Administrator, 4 Wend. 168 (rev'g 1 Paige's Ch. 347); 300. Waugh v. Waugh, 28 N. Y. 94; 657;. CXXVl TABLE OF CASES CITED References are to pages Way, Matter of, 6 Misc. 484; 410. WeaS V. Gaiitwejl, 36 Hun, 528 (aff'd, 108 N. Y. 255) ■ 521 '■ Wear, Matter of, 131 App. Div. 875; 343, 345, 512. ' Weaver, Matter of, 63 Misc. 244; 908, 957, 997, 1153. Webb, Benj., Est. of, N. Y. L. J., May 18, 1901; 167. Webb, Matter of, 11 Hun, 124; 590. Webster v. Gray, 54 Hun, 113; 1172. Weed V. Ellis, 3 Cai. 253; 1304. Weed, Matter of, 143 App. DiV. 822; 476. Weed V. Mutual Ben. Life Ins. Co., 70 N. Y. 561;450. Weed V. Waterbury, 5 Redf. 114; 599. Weed V. Weed, #4 N. Y. 243; 61. Weeks v. Cornwell, 104 N. Y. 325; 146. Weeks v. Frankel, 128 App. Div. 223; 571. Weeks, Est. of, 1 Civ. Proc. Rep. 164; 792, 804. Weeks, In re, 5 Dem. 194; 884, 1338, 1430. Wehrhane, Matter of, 40 Hun, 542; 550, 1474. Weil, Matter of, 16 N. Y. St. Rep. 1 ; 456. Weil, Matter of, 49 App. Div. 52; 807. Weil, Matter of, 110 App. Div. 67; 1025, 1032. Weiner, Matter of, 9 App. Div. 621 ; 1007. Weinstein, Matter of, 43 Misc. 577; 888. Weir V. FitzgeralS, 2 Bradf. 42; 434, 439, 462, 466, 487. ' Weir, Matter of, 59 Misc. 320; 911. WeiseU, Matter of, 51 Misc. 325; 646. Weiss, Est. of, Surr. Decs. 1896; 597; 113. Weiss, Matter of, 39 Misc. 71; 1171, 1459. Wolrh V. Gallagher, 2 Dem. 40; 1302, 1306, 1363. Welch, Matter of, 74 N. Y. 299; 1288, 1292. Welch, Matter of, 61 Misc. 6; 219. Welch V. N. Y. Central, 53 N. Y. 610; 218. Welch V. PoUey, 86 App. Div. 260; 569. Welch V. St. Patrick Church, 63 N. Y. St. Rep. 235 (81 Hiln, 372); 3l7. Wellbrook v. Ottew, 35 Misc. 459; 1145. Weller v. Suggett, 3 Redf. 249; 150. Welling, Matter of, 51 App. Div. 355; 285, 1332, 1337, 1430. Welling, Matter of, 57 App. Div. 357; 1324. Welling V. Welling, 3 Dem. 511; 1441. Wells V. Disbrow, 48 N. Y. St. Rep. 746; 1189. Wells V. Disbrow, 20 N. Y. Supp. 518; 1186, 1380. Wells V. Knight, 6 Hun, 50; 892. Wells, Matter of, 113 N. Y. 396; 141, 1199, 1200. Wells, Matter of, 123 App. Div. 79 (affM 194N. Y. 548);722. Wells V. Squires, 117 App. Div. 502; 529. Wells V. Squires, 191 N. Y. 31; 529. Wells V. Wallace, 2 Redf. 58; 2.51. Wells V. Wells, 30 Abb. N. C. 225; 1012. Welsh, Matter of, 1 Redf. 238; 462, 470, 487. Wplsh V. People, 88 N. Y. 458; 441. Welsh V. Welsh, 20 Week. Dig. 369; 1158. Wendel v. Binninger, 132 App. Div. 785; 884, 1390. Wendell, Matter of, 43 Misc. 571;- 443, 459. ' • ' Wendell, Matter of, 3 How. Pr. (N; S.) 68; 896. Wenner, Matter of, 125 App. Div! 358 (aff'd 193 N. Y. 672)'; 1166, 1168. Wentz, Matter of, 9 Misc. 240; 1305, 1308 ' 1311 Weppeier, Matter of, 2 Dem. 626; 1161. Werner v. Knowlton, 107 App. Div. 168 160. Werner v. Wheeler, 142 App. Div, 358 496, 1504. Wesley, Matter of, 17 N. Y. Supp. 304 530. West V. Gunther, 3 Dem. 386; 1296. West V. Mapes, 14 Week. Dig. 92; 648. West, Matter 'of, 40 Hun, 291 (aff'd 111 N. Y. 687); 7.54, 762, 767, 772. West V. McCullough, l94 N. Y. 518; 885, 897. West V. McCullough, 123 App. Div. 846: 885, 897. ' ■ Westbrook, Matter of, 44 Misc. 339; 354. Westcott V. Cady, 5 Johns. Ch. 334; 348, 1154. Westerfield, Matter of, 61 App. Div. 413; 245, 283. Westerfield v. Rogers, 63 App. Div. 18; 1349, 13.50. Westerfiad v. Rogers, 174 N. Y. 230; 1350, 1351. Westerman, Matter of, 29 Misc. 409; 469, 486. Western v. Romaine, 1 Bradf. 37; 1321, 1332, 1340. Westervelt v. Greggs, 1 Barb. Ch. 469; 23 1322 Westervelt, V. Gregg, 12 N. Y. 202; 1336. Westminster Presby. Ch. v. Trustees of Presbytery, 142 App. Div. 155; 1062. Weston V. Goodrich, 86 Hun, 194; 1078. Weston, Matter of, 91 N. Y. 502; 1323, 1414. Weston, Matter of, 60 Misc. 276; 376.. Westurn, Matter of, 6 App. Div. 596; 261. Westurrl, Matter of, 60 Hun, 298; 480, 484, 486. Westurn, Matter of, 152 N. Y. 93; 1040, 1083, 1096, 1101, 1108, 1116. Wetmore v. Carryl, 5 Redf. 544; 353. Wetmore v. N. Y. Inst, for the Blind, 9 N. Y. Supp; 753; 1166. Wetmore v. Parker, 7 Lansing, 121 (aff'd 62N. Y. 450); 114. Wetmore v. Parker, 52 N. Y. 450; 114, 215, 218, 630, 537, 538, 548. Wetmore v. Peck, 66 How. Pr.' 64; 1188. W^more v. Porter, 92 N. Y. 76; 1021. Wetmore V. St. Luke's HcJspital, 66 Hun, 313; 1144, 1147, 1200. Wetmore v. Wetmore, 162 N. Y. 503; 290. Wetmore v. Wetmore, 3 Dem. 414; 1370. Wever v. Martin, 14 Barb. 376; 145, 381. Weyman v. Ringbld, 1 Bradf; 40; 1156, TABLE OF CASES CITED References are to pages cxxvii Weymann v. Weymann, 82 App. Div. 342; 546. Wheaton, Matter of, 37 Misc. 184; 762. Wheeler v. Clutterbuek, 52 N. Y. 67; 1472. Wheeler v. Lester, 1 Bradf. 213, 293; 1156, 1159. Wheeler, Matter of, 5 Misc. 279; 462. ' Wheeler, Matter of, 28 N. Y. St. Rep. 638; 196. Wheeler, Matter of, 48 Misc. 323; 1209, 1217, 1218, 1220. Wheeler, Matter of, 115 App. Div. 616; 1059. Wheeler, Matter of, 32 App. Div. 183 (aff'd 161 N. Y. 652); 556. Wheeler, Matter of, 46 Hun, 64; 756. Wheeler v. Ruthven, 74 N. Y. 428, 30 Am. Rep. 315; 1184, 1474. Wheeler v. Wheeler, 9 Cow. 34; 571, 958, 959. Wheeler's WiU, In re, 25 N. Y. Supp. 313; 466. Wheelwright v. Rhoades, 28 Hun, 57; 938, 1430, 1445. Whelan's Est., Matter of, 2 N. Y. Supp. 635; 1326. Whelan, Matter of, 6 Dera. 425; 1326. Whelpley v. Loder, 1 Dem. 368; 1331. Whipple, Matter of, 81 App. Div. 589; 1435, 1441. Whipple v. Ripson, 29 App. Div. 70; 269. . Whitaker v. Whitaker, 52 N. Y. 368; 1008. Whitbeck, Matter of, 22 Misc. 494; 1474. Whitcomb v. Whitcomb, 92 Hun, 443; 980, 983. White V. Bogart, 73 N. Y. 256; 1029. White V. Emigrant Ind. Sav. Bk., 146 App. Div. 591; 653, 655. White V. Hicks, 43 Barb. 65; 554. White V. Hicks, 33 N. Y. 383; 554. White V. Howard, 46 N. Y. 144; 541, 1148, 1434. White V. Howard, 52 Barb. 294; 78. White V. Lewis, 3 Dem. 170; 920, 924. White V. Lowe, 1 Redf. 376; 722. White V. Mann, 26 Me. 361; 371. White, Matter ofy 31 Misc. 484; 369. White, Matter of, 40 App. Div. 165; 1279, 1283 White, 'Matter of, 160 N. Y. 635; 1279, 1283.' White, Matter of, 52 App. Div. 225; 249. White, Matter of, 121 N. Y. 406; 439, 454, 456 457 White, Matter of, 5 N. Y. Supp. 295; 481. White, Matter of, 15 N. Y. St. Rep. 753; 482. White, Matter of, 6 Dem. 375; 1395. White, Matter of,- 23 N. Y. St. Rep. 882; 468. White, Matter of, 119 App. Div. 140; 864, 865. White, Matter of, 208 N. Y. 64;1133. White V. Nelson, 2 Dem. 265; 80, 81. White V. Parker, 8 Barb. 48; 1304, 1305, 1313. White V. Poillon, 25 Hun, 69; 1246. White V. Pomeroy, 7 Barb. 640; 1290, 1292. Whitefield v. Crissman, 123 App. Div. 233' 528 Whitehead v. Draper, 132 App. Div. 799; 1428; 1441. Whitehead v. Kennedy, 69 N. Y. 466; 476. Whitehead, Matter of, 3 Dem. 227; 806, 1263, 1265. Whitehead, Matter of, 38 App. Div. 319; 973. Whitewright, Matter of, 89 Misc. 97; 1079. Whiting, Matter of, 33 Misc, 274; 1144. Whiting, Matter of, 19 Misc. 85; 884. Whiting, Matter of, 150 N. Y. 27 ; 1048. Whitlock V. Bowery Savings Bank, 36 Hun, 460; 586. Whitlock V. Whitlock, 1 Dem. 160; 1196, 1281. Whitmark, Matter of, 15 N. Y. St. Rep. 745; 273. Whitney v. Britton, 16 App. Div. 457; 145. Whitney, Matter of, 90 Hun, 138; 354. Whitney, Matter of, 153 N. Y. 259 (rev'g 90 Hun, 138); 290, 301, 307, 318. Whitney v. Phcsnix, 4 Redf. 194; 938, 1154 1371 1115. Whitney v. Townsend,,67 N. Y. 40; 272. Whitney v. Whitney, 63 Hun, 59; 61. Whitson V. Whitson, 53 N. Y. 479; 1431, 1447, 1474. Whittemore v. Beekman, 2 Dem. 275 950. Whittemore, Matter of, 1 Connoly, 155 1297. Wick, Matter of, 53 Misc. 211; 1438. Wicke, Matter of, 74 App. Div. 221; 1395 Wickwire v. Chapman, 15 Barb. 302; 728 Wickwire, Matter of, 80 Misc. 137; 254. Widmayer, Matter of, 74 App. Div. 336 463. Widmayer, Matter of, 52 App. Div. 301 285. Widmayer, Matter of, 34 Misc. 439; 450, 463. , Widmayer v. Widmayer, 76 Hun, 254 1350. Wigand v. De Jonge, 8 Abb. N. C. 260 43, 44. Wiggins, Ex parte, 29 Hun, 271; 760. Wiggins V. Sweet, 39 Am. Dec. 716 586. Wightman v. Stoddard, 3 Bradf. 393; 461, 483, 485, 487, 488, 550, 555. Wilber v. Warren, 104 N. Y. 195; 1008. Wilber v. Wflber, 165 N. Y. 451; 527. Wilbur, Matter of, 27 Misc. 126; 1395.' Wilbor, In re, 20 R. I. 126; 1465, 1466. Wilcox's Est., 1 Misc. 55; 230. Wilcox, Est. of, 11 Civ. Proc. Rep. 115; 1208, 1344, 1381. Wilcox V. Hawley, 31 N. Y. 648; 898. Wilcox, Matter of, 37 N. Y. St. Rep. 462; 267. cxxvm TABLE OF CASES CITED References are to pages Wilcox, Matter, of, 131 N. Y. 610; 290, 353 WUcox, Matter of, 194 N. Y. 288; 527. WUcox, Matter of, 14 N. Y. Supp. 109; 336, 337. Wilccfx, Matter of, 125 App. Div. 162 (rev'd 194 N. Y. 288); 1429, 1441. Wilcojiv. Murtha, 41 App. Div. 408; 885. Wilcox V. Quimby, 73 Hun, 524; 891, 1275 1382 Wilcox' V. Vail Schaick, 19 Hun, 279; 1304, 1397. Wilcox V. WUcox, 14 N. Y. 575; 1279, 1283, 1305. Wilde, Matter of, 38 Misc. 149; 462. Wilde V. Smith, 2 Dem. 93; 924. Wilder v. Keeher, 3 Paige, 166; 893, 1013. Wilder v. Ranney, 95 N. Y; 7; 571. Wildey v. Robinson, 85 Hun, 362; 1444. Wiley, Matter of, 119 N. Y. 642; 579, 586, 666, 669, 1369. Wiley, Matter of, 98 App. Div. 93; 936, 937. Wilkens, Matter of, 144 App. Div. 803; 885, 1071. Wilkes V. Rogers, 6 Johns. 566; 1306. Wilkins V. EUett, 9 Wall. 740; 609. Willcox V. Smith, 26 Barb. 316; 151, 973, 985, 1321, 1332, 1340, 1382, 1383, 1388, 1396, 1482. Willet V. Haifles, 96 App. Div. 5; 1500. Willets, Matter of, 112 N. Y. 289; 830, 1370, 1384, 1441. Willets, Matter of, 51 Misc. 176, 119 App. Div. 119 (aff'd 190 N. Y. 527); 1114, 1126. Willets V. Titus, 14 Hun, 554; 1156. Willett, Matter of, 6 Dem. 435; 173, 1333, 1342. Williams v. Boul, 101 App. Div. 593 (aff'd 184 N.Y. 605); 543. Williams v. Clarke, 82 App. Div. 199; 1281, 1305, 1306. Williams v. Conrad, 30 Barb. 524; 1155, 1253. Williams v. Crary, 4 Wend. 443; 1163. Williams v. Crary, 5 Cow. 368; 1163, 1164. Williams V. Crai*y, 8 Cow. 246; 1163, 1195. Williams v. Eaton, 3 Redf. 503; 1013. Williams v. Freeman, 83 N. Y. 561; 523. Williams v. Haddock, 78 Hun, 429; 361. Williams v. Haddock, 145 N. Y. 144; 361, 887 Williams v. Kinney, 43 Hun, 8; 1389. Williams, Matter of, 135 App. Div. 123; 272 Williams, Matter of, 15 N. Y. Supp. 320; 1173. Williams, Matter of, 6 Misc. 512; 269. Williams, Matter of, 17 N.-- Y. St. Rep. 839; 167, 168, 1327. Williams, Matter of, 46 N. Y. St. Rep. 791; 488. Williams, Matter of, 34 Misc. 748; 348. Williams, Matter of, 40 N. Y. St. Rep. 356; 315. Williams, Matter of, 2 Connoly, 579; 321, 333. Williams, Matter of; 19 N. Y. Supp. 778; 466. J Williams, Matter of, 111 N. Y. 680. (aff'g 5Dem. 292);.691. i ' Williams, Matter of, 89 Misc. 1; 480. Williams, Matter of, 5 Dem. 292; 599, 601. Williams, Matter of, 31 App. Div. 617; 907 908 909. ' Williams, Alatter of, 1 Redf. 208; 1167. Williams, Matter of, 1 Misc. 35; 1217, 1224. Williams, Matter of, 26 Misc. 636; 1253, 1358. i ' ' WilUams, Matter of, 187 N. Y. 286; 159, 1195. Williams, Matter of, 57 Misc. 537; 1374, 1403, 1507. Williams v. Mclntyre, 16 Week. Dig. 651; 985. Williams v. Montgomery, 148 N. Y. 510; 528. Williams v. Purdy, 6 Paige, 166; 975, 1163, 1420. Williams v: Storrs, 6 Johns. Ch. 353; 586, 1281, 1296, Williams v. Whedon, 109 N. Y. 333; 894. Williams v. WiUiams, 8 N. Y. 525; 523, 530, 531, 535, 541. Williams' Will, In re, 15 N. Y. Supp. 828; 466. Willick v. Taggart, 17 Hun, 511; 1304. Williamsbui^h Trust Co., Matter of, 60 Mise. 296; 1430. Williamsburgh Trust Co., Matter of, 72 Misc. 592; 1431. Williamson, Matter of, 1 Connoly,. 139; 892. Williamson v. Williamson, 6 Paige, 298; 1161, 1167, 1183, 1188. Williamson v. Williamson, 2 Redf. 449; 306, 328, 339, 340. WiUing, Est. of, 7 Civ. Proc. Rep. 92; 1440. Willis V. Mott, 36 N. Y. 486; 316, 328, 334. Willis V. Sharp, 115 N. Y. 396; 955, 1033. Willis V. Sharp, 113 N. Y. 586; 953, 954, 955, 1436. Willoughby v. McCluer, 2 Wend. 608; 922. Willson V. Willson, 2 Dem. 462; 1396, 1417. Wilmerding, Matter of, 75 Misc.; 432 (N. Y. L. J., Dec. 5, 1911); 300, 319. Wilmerding V. McKesson, 103 N. Y. 329; . fe9. Wilmot V. Robinson, 42 Misc. 244; 1144, 1148, 1161.^ Wilson V. Baptist Ed. Society, 10 Barb. 308; 1008. ;. Wilson V. Hetterick, 2 Bradf. 427; 322, 333. Wilson V. International Bank, 125 App. Div. 668; 893, 894. Wilson, Matter of, 103 N. Y. 374; 204. Wilson, Matter of, 76 Hun, 1; 315. Wilson, Matter of, 92 Hun, 318; 707, 722, 726,726. TABLE OF CASES CITED CXXIX References are to pages WUson V. Moran, 3 Bradf. 172; 476, 479, 487. Wilson V. Wilson, 76 App. Div. 232; 547. Wilson V. Wilson, 120 App. Div. 581; 1162. • Wiltse and Fromer, Matter of, 5 Misc. 105; 248. Windsor Trust Co., Matter of, 142 App. Div. 772; 1268. Wing, In re, 41 Hun, 452; 867, 872. Wing V. Angrave, 8 Ho. L. Cas. 183; 1465, 1466. Wingersky, Matter of, 75 Misc. 79; 989, 991 992 Winne, Matter of, 50 Misc. 113; 441, 462. Winne v. Winne, 166 N. Y. 263; 365, 853. Winnington; Est. of, 1 Civ. Proc. Rep. 267; 592, 593. Winsor, Matter of, 5 Dem. 340; 1306. Wintermeyer v. Sherwood, 77 Hun, 193; 984, 1505. Winters, Matter of, 21 Misc. 552; 1085, 1128. Wischmann, Matter of, 80 App. Div. 520; 801. Wise, Est. of, 2 Civ. Proc. Rep. 230n.; 600, 601. Withers, Est. of, 2 Civ. Proc. Rep. 162; 1332 1334 Witt, Matter of, 141 N. Y. Supp. 179; 1370. Wohlgemuth, Matter of, 110 App. Div. 644; 245. Wolf, Matter of, 88 Misc. 433; 61, 1480. Wolf's Appeal, Matter of, 22 W. N. C. 93; 856. Wolfe, Catharine, Est. of, 6 Dem. 268; 1047. Wolfe's Est., 15 N. Y. Supp. 539; 1042. Wolfe, In re, 137 N. Y. 205; 1109. Wolfe V. Lynch, 2 Dem. 610, 33 Hun, 309; 1237, 1239. Wolfe, Matter of, 1 Connoly, 102; 943. Wolfe, Matter of, 89 App. Div. 349 (aff'd 179 N. Y. 599); 1040, 1057. ' Wolstenholme v. Wolstenholme File Mfg. Co., 64 N'. Y. 272; 288. Wood V. Brown, 34 N. Y. 337; 24, 86, 573, 753, 958; 959, 1254, 1255. Wood V. Byington, 2 Barb. Ch. 387; 1208, 1226.- Wood, Est. of, 29 St. Rep. 298; 253. Wood, Est?, of, 70 Hun, 230; 767. Wood, Est. of, 7 N. Y. St. Rep. 721; 146. Wood, In re, 3 Redf. 9ra.; 993, 995, 1208. Wood V. Keyes, 8 Paige, 365; 1479. Wood V. Knapp, 100 N. Y; 109; 117, 122. Wood V. Mather, 44 N. Y. 256; 1312. Wood, Matter of, 38 Misc. 64; 138, 1177. Wood, Matter of, 40 Misc. 155; 1098, 1195. Wood, Matter of, 1 Dem. 559; 1187. Wood, Matter of, 5 Dem. 345; 152, 1262, 1379. Wood, Matter of, 70 App. Div. 321; 214, 25S, 1230. Wood; Matter of, 170 App. Div. 533; 1367. Wood, Matter of, 2 Connoly. 144; 352. Wood, Matter of, 17 N. Y. Supp. 354; 715, 718. Wood, Matter of, 8 N. Y. Supp. 884; 773. Wood, Matter of, 34 Misc. 209; 166. Wood, Matter of, 70 Misc. 467; 665, 1507. Wood, Matter of, 68 Misc. 267; 1101. Wood V. Mitcham, 92 N. Y. 375; 544. Wood V. Rusco, 4 Redf. 380; 977, 1373, 1419, 1420. Wood V. Tunicliff, 74 N. Y. 38; 999. Wood V. Vanderburgh, 6 Paige, 285; 1167. Wood V. Ward, 76 App. Div. 567; 543. Wood V. Wood, 4 Paige, 299; 775. Wood V. Wood, 5 Paige, 596; 1161,. 1305. Wood V. Young, 141 N. Y. 11; 1374. Woodard, Matter of, 13 St. Rep. 161; 1226, 1344, 1381. Woodbury, Matter of, 13 Misc. 474; 1015, 1016. Woodbury, Matter of, 40 Misc. 1430; 936, 993, 995, 1144, 1161. Woodcock V. Bennet, 1 Cow. 743; 878. Wooden v. W. N. Y. & P. R. R., 126 N. Y. 10; 674. Woodin V. Bagley, 13 Wend. 453; 577. Woodhouse v. Woodhouse, 5 Redf. 131; 233 Woodniff V. Boyden, 3 Abb. N. C. 29; 946. Woodruff V. Claflin Co., 198 N. Y. 470 (rev'g 133 App. Div. 874); 246, 862, 1009, 1032. Woodruff's Est., 1 Tuck. 58; 950, 1390. Woodruff V. N. Y., L. E. & W. R. R. Co., 129 N. Y. 27; 1447. Woodruff V. Taylor, 20 Vt. 65; 391. Woodruff V.' Woodruff, 3 Dem. 505; 144; 758. Woods, Matter of, 33 Misc. 12; 637, 555, 1157. Woods, Matter of, 55 Misc. 181; 890, 1438, 1447. Woods, Matter of, 168 N. Y. 640; 1157. Woods, Matter of, 61 App. Div. 587; 537, 565 1157. Wood's v. Moore, 4 Sandf. 579; 557. Woodsworth, Matter of, 2 Barb. Ch. 351; 1255. Woodward v. Ja,mes, 115 N. Y. 346 (aff'g 44 Hun, 95); 548, 1265, 1275. Woodward, Matter of, 69 App. Div. 286; 1395 Woodward, Matter of, 28 Misc. 602; 378. Woodward, Matter of, 167 N. Y. 28; 442, 474. Woodward, Matter of, 52 App. Div. 494; 468. Woodworth, Matter of, 5 Dem. 156; 140, 887, 936, 1392, 1475. WooUey, Matter of, 38 Misc. 363 (mod'fg 78App. Div. 224); 1200. WooUey v. WooUey, 95 N. Y. 231; 306, 336, 337. Woolsey, Matter of, 17 Misc. 547; 321, 333, 448. Woolsey, Matter of, 49 Misc. 201; 548. Worden v. Vangieson, 6 Dem. 237; 314. cxxx TABLE OF CASES CITED References are to pages Work, Matter of, 76 Mise. 403: 1, 18, 63 101, 102, 375. Wormser v. Croce, 120 App. Div. 287 342,, , Wormser, Matter of, 51 App. Div. 441 '893,1102,1116,1121. . Wormser, Matter of, 36 Misc; 434; 1099. Wormuth, V. Hale,, 17 Week. Dig". 180 ' 1362. Worthington, Matter of, 141 N. Y. 9 1435. Wotherspoon, Matter of, 45 Misc. 81 957. Wotton, Matter of, 59 App. Div. 584; 760. Wotton, Matter of, 167 N. Y. 629; 942. Wrede v. Gilley, 132 App. Div. 293; 883. Wright's Accounting, 4 Redf. 345; 977. Wright V. Austin, 56 Barb. 17; 1196. Wright V. Beirne, 2 Dem. 539; 975. Wright V. Fleming, 71 N. Y. 612; 1392. Wright V. Holbrook, 32 N. Y. 587; 1012. Wright, In re, 20 N. Y. Supp. 86; 1300. Wright V. Marshall, 3 Daly, 381; 893. Wright, Matter of, 1 Connoly, 281; 1306. Wright, Matter of, 89 Misc. 108; 1329. Wrfght, Matter of, 22 N. Y. St. Rep. 83; 1310. I Wright, Matter of, N. Y. L. J., Jan. 10, 1893; 534. Wright, Matter of, 121 App. Div. 581; ■1332. Wright V. Nostrand, 58 How. Pr. 184; 63. Wright V. Trustees of M. E. Church, Hoff. .Ch. 202; 148, 212, 555. Wuesthoff V. Germania Life Ins. Co., 107 N. Y. 580; 1314, 1315, 1316. Wurts V. Jenkins, 11 Barb. 546; 573. Wyckoff, Matter ofj 67 Mise! 1; 1290. Wyckoff V. Van Sicklen, 3 Dem. 75; 1445. •Wylie, Matter of, 162 App. DiV. 574; 320, 324, 343. Wylkens, Matter of, 144 App. Div. 803; 1394. . Wynlan v. Woodbury, 86 Hun, 277; 534: Wyman v. Wyman, 26 N. Y. 253; 1351. Wyman v. Wyman, 118 App. Div. 109; 335. Wyse'v. Wyse, 155 N. Y. 367; 447. Yale V. Baker, 2 Hun, 468; 260, 253. Yarwood v. The Trusts, etc., Co., 94 App. Div. 47; 364. Yates V. Houston, 3 Tex. 433; 372. Yates, Matter of, 27 Misc. 395; 988. Yates V. Root, 4 App. Div. 439; 979. Yates V. Thomas, 36 Misc. 552; 826. Yates V. Yates, 9 Barb. 324; 541. Yazoo & M. V. R. R. v. Adams, 180 U. S. 1;1063. ' - ■■ Yeandle v. Yeandle, 5 N. Y. Supp. 535; 459. Yeddo V. Whitney, 17 Week. Dig. 120; 976. Yerkes, Est. of, 146 App. Div. 941; 1377. Yetter, Matter of, 162 N. Y. 615; 947, 1392 Yetter, Matter of, 44 App. Div. 404; 194, 947, 1392. Yonkers Sav. Bank v. Kinsley, 78 Hun, 186; 887, 932. York, Matter of, 1 How. Pr., (N. S.) 16; 1425. ■.- Young, Est. oiF, N. Y. L. J., March 16, ,1916; 397, 429. Young V. Barker, 141 App. Div. 801; 761, 770, 1448. . Young V. Brush, 28 N. Y. 667; 1447. Young V. Cqse, 2 Redfi 56; 1155. Young V. Daviesi, 9 Jur. (N. S.) 399; 547. Young V. Hicks, 92 N. Y. 235; 91. Young, Matter of, 17 Misc. 680; 1438. Young, Matter of, 92 Misc. 633; 992. Young, Matter of, 78 Hun, 521; 1156. Young Men's Christian Association, Mat- ter of, 22 App. Div. 325; 541, 1031. Young Women's Christian Assn. v. French, 187 N. Y.,401; 141. ^ Young V. Robertson, 4 Macq. 319; 647. Young V. Shulenberg, 166 N. Y. 385; 367. Young V. Young, 5 Week. Dig. 109 (aft'd 80N. Y. 422);923. Young V. Young, 2 Misc. 381; 1018, 1038. Young V. Young, 127 App. Div. 130; 1157, 1259. Younger v. DufRe, 94 N. Y. 534 (aff'g 28 Hun, 242); 300, 305, 507., , Youngs, Matter of, 73 Misc.i535; 1496. Youngs- V. Youngs, 45 N. Y. 254; 1010., Yung, Matter of, N. Y. L. J., July 11, 1908; 366i ,-.''■ Yung, Matter of, Surr. Dec. 1912, p. 193; 1439. Zacharias v. Collis, 3 Phillim. 179; 418. Zahrt, Matter of, 94 N. Y. 605; 1161. Zapf V. Carter, 90 App. Div. 407; 291. Zapp'v. MilleTi 3 Dem. 266; 988. Zborowski, Matter of, 213 N. Y. 109; 1133. Zeggio V. Robinson, 153 App. Div. 886; 205. Zeigler, Matter of, 19 N, Y. Supp. 947; 456. . , ; Zeikus V. Fla. E. R. C. R. Co., 70, Misc. ;339;.674. , Zeph, Matter of, 50 Hun, 523; 366. Zerega, Matter oL 58 Hun, 505; 76, 79, 92. Zerega, Matter of, 81 Mise. 113; 1266. Zerega v. Zerega, 78 Misc. 468 ;: 14ai. , Zerwinski or Siriski, Matter of, 51 Misc. 661; 751. Zeuschner, Est. of,, 15 N. Y. St,. Rep. 744; 1403. . , Ziegler, Matter of, 47 N. Y. St. Rep.,491; , 463, Ziegler, Matter of, 85 Misc. 673; 1435, 1441. Ziegler, Matter of, 168 App. Div. 735; 1435,1441,1442. , , Ziemer v. Crucible Steel Co., 99 App. Div. 169; 216, 219, 686. , Zimmer v. Chewj 34 App. Div. 504; ,964. Zimmerman, Matter of, 22 Misc. 411; 534. Zone V. Zoiie, 4,Misc. 559; 525. ,. Zuill, Matter of, unreported; 1363, 1411. Zwickert, Matter of, 26 N. Y. Supp. 773; 1284. SURROGATES' COURTS STATE OF NEW YORK PARTI THE COURT— ITS HISTORY, ORGANIZATION AND JURISDICTION CHAPTER I HISTORY OP THE COURT In the learned treatise on the Law and Practice of Surrogates' Courts in New York by Amasa A. Redfield, LL.D., now about to be amalgamated with a later work in the present volume, there appeared an historical introduction of great value and suggestiveness which it is imperative should be preserved. It is contained, newly subdivided, in the following seventeen sections. § 1. Mr. Redfield's historical summary. — The courts of this coimtry which possess original jurisdiction of matters relating to wills and the administration of the estates of deceased persons, have occasion to resort constantly to the precedents estabhshed by the ecclesiastical courts of England, to whose jurisdiction in such matters they have succeeded in this country. In an introductory note prefixed to the first volume of hi& reports, the late Sur- rogate Bra,dford has given a succinct and interesting sketch of the origin of the ecclesiastical jurisdiction over the probate of wills and the administration of the estates of deceased persons which the reader will find well worth perusal. [The reason for this, I may add, is stated in Matter of Work, 76 Misc. 403, at page .406. It is that the real source of some of the jurisdiction of the Court is historical, rather than statutory. E. g., Suppose instead of originally treating the court as succeeding to the Ecclesiastical Courts of England, they had been declared to have the jurisdiction of the Roman praetor, as Fowler S. so tersely puts it. H. W. J.] § 2. The ecclesiastical courts. — Down to a very recent period, the ecclesiastical courts formed a fimdamentai division of the judicial power 1 2 " surrogates' courts §§ 3, 4 of England, dating their origin from the principal epoch in the history of the origin of Engiish courts of justice — ^the period from Edward I to Ed- ward III. For a very long time, both before and after that period, their jurisdiction was a subject of vehement dispute between the clergy on the one hand, and the parliament and law courts on the other. Repeated in- stances of collision between the judges and the-bishops as to the extent of the jurisdiction of the latter occurred, and the law courts frequently issued prohibitions against proceeding in the ecclesiastical courts with suits not legally cognizable there. From time to time the. jurisdiction of the latter courts was restricted by legislation, until 1857, when it was very materially diminished by the establishment of the courts of probate and divorce and matrimonial causes. The ordinary ecclesiastical courts were the provincial or archiepiscopal courts of the provinces of Canterbury and York, being, in the former province, the court of arches, the prerogative or testamentary court and the court of pecuhars; and, in the latter province, the prerogative or testa- mentary court and the chancery court. There were also diocesan courts, the principal of which is the consistory court, which was formerly held in the cathedral or some aisle or chapel of the cathedral, the bishop presiding, but now usually held by the bishop's chancellor in some convenient place in the diocese. § 3. The prerogative courts. — The prerogative courts had jurisdiction of wills and administrations of personal property left by persons haying effects of a certain value, in the various jurisdictions within the province. The court of arches, so called because anciently held in the church, of Saint Mary-le-Bow (S. Maria de Arcubus), exercised appellate jurisdiction in the province of Canterbury, and had also original jurisdiction in some testa- mentary matters. From this court an appeal lay to the judicial committee of the privy council. There were also the faculty court and a court of peculiars of the^ Arch- bishop of Canterbury, the former having had a voluntary or non-contentious jurisdiction, and the latter both contentious and voluntary jurisdiction, in matters relating to wills and letters of administration^ though the voluntary jurisdiction of the former courts, and a great part of that of the latter, have now been abolished. § 4. Subjects of jurisdiction.— In general, causes cognizable in the ec- clesiastical courts were formerly classified as beneficial, matrimonial, testamentary, and criminal. The jurisdiction in testamentary matters is now transferred to the probate courts and others. The niatrimonial juris- diction, except as to granting marriage hcenses, is transferred to the court for divorce and matrimonial causes. The jurisdiction in criminal suits, including church discipUne and the correction of offenses of a spiritual kind, and the beneficial jurisdiction relating principally to ecclesiastical dues and fees, rights of ecclesiastical patronage, validity of presentations to livings, and dilapidations of the chancel or parsonage-house, are still exercised by these courts. §§ 5-7 HISTORY OF THE COURT 3 § 5. The Court of Probate. — ^As before observed, all jurisdiction, both voluntary and contentious, of the ecclesiastical and other courts, in testa- mentary causes, and with respect to granting or revoking letters of ad- ministration, is now taken away from those courts and transferred to other courts, of which the principal is a court of probate sitting in London, having jurisdiction throughout all England. 20 & 21 Vict. c. 77; 21 & 22 Id. c. 95. See Cox's Institutions, etc., 570. Where there is no contention as to' the grant of probate or of letters of administration, the grant is in "com- mon form," and is now made either in the principal registry in London, or in the district registries throughout England and Wales. Where there is a contention, the questions of probate or grant of letters are determined judicially in "solemn form" in the court of probate, except where the estate does not exceed a certain amount, in which cases the county courts exercise jurisdiction. The probate court may try questions of fact itself, or may direct an issue to be tried before any of the superior courts. § 6. Colonial tribimals. — In the English colonies of America, the juris- diction of the ecclesiastical courts of the mother coimtry in testamentary causes, etc., was exercised by the tribunals estabhshed for ordinary civil business, according to the precedents and principles of the spiritual courts. In the Dutch colony of New York, this jurisdiction was governed by the Dutch Roman law, the custom of Amsterdam, and the law of Aasdon, by a tribunal composed of members of the colonial coimcil; afterward, in 1653, by the court of burgomasters and schepens; and afterward (1665) by the court of orphan masters, and then by the mayor's court, after the occupation of the province by the English. The history of the testamentary courts of New York since that time, and the Hmitations of their jurisdic- tion, have been the subject of careful exaniiflation by an eminent judge, in a judicial proceeding before him, as surrogate of New York county; and the reader will thank us for taking a few passages from his opinion, con- spicuous alike for prof oimd learning and gracefulness of statement. [Opin- ion of Chief Justice Charles P. Daly, of the common pleas, acting surrogate during a vacancy caused by the death of the incumbent of that office (Nov., 1862), in the Matter of Brick's Estate, reported in 15 Abb. Pr. 12. See also a valuable monograph on the History of the Judicial Tribunals of New York, by the same eminent judge, prefixed to E. D. Smith's Com- mon Pleas Reports, vol. I.] § 7. The Mayor's Coixrt.— ^After the English occupation, in 1664, says Judge Daly, the court of burgomasters and schepens was changed into the mayor's court, a name by which it was known for one hundred and forty-six years afterward, until the present name was given of the court of common pleas. For some years, under the English rule, it continued to exercise the same fimctions as before, its proceedings being conducted in the Dutch language. The court of orphan masters was discontinued, and the mayor's court, for a long period after its proceedings were conducted in the English language, exercised the same jurisdiction in respect to testa- mentary matters and estates of persons dying intestate within the city, as 4 subrogates' courts § 8 it or the court of orphan masters had exercised previously, with some modi- fications and restrictions. § 8. The Duke's Laws. — ^When the government of the province was committed to Governor NichoUs, by James II, then Dukejjf York, a body of laws was framed for its government, afterward known as "The Duke's Laws," and this Code, with §uch additions' as Were made to it by the gov- ernor and coxmcil, or at the annual sitting of the court of assize, the written instructions received by the governors from the home government, the principles of the common law, together with certain usages and customs derived from the Dutch, constituted the law of the province until the sitting of the first legislative assembly in 1683. By, the Duke's laws, a constable and two overseers were required to proceed to the house" of a deceased person, fortyrcight days after the death, and inquire respecting his estate, and whether he had left any will. They were required, further, to make an inventory of his effects, appraise the value, and make a return of their proceedings, under oath, to the next court of sessions. The province was divided into three ridings, and in each of these ridings there was a court of sessions, composed of the justices of peace living within the riding, which was held twice a year. The probate of wills, the granting of administration in cases of intestacy, the final accounting of executors and administrators, together with such compulsory measures as were nec- essary to compel it, the removal of executors, the distribution of estates, and the appointment of guardians, took place in the first instance before the court of sessions, except in the city of New York, where the same juris- diction was exercised by the mayor's court. If the estate, however, ex- ceeded £100, all proceedings upon the probate of wills, and all records in cases of administration, had to be transmitted^ duly certified, to the office of the secretary of the province in the city of New York, where they we're required to be recorded, and where letters testamentary and of adminis- tration in such instances, and the final discharge of executors or adminis- trators, which was called a quietus, were granted by the governor under the seal of the province. The proof and all proceedings took place in the first instance before the court of sessions or the mayor's court, and the court gave its judgment or opinion, which was transmitted to the governor under the certificate of one of the justices and the clerk, and the-act of the governor was simply a formal ratification by the granting of letters or of discharges. In some instances the governor gave his judgment upon the construction of a will, and Governor Andros granted letters without any proceeding in court, but these were exceptional instances and of rare occurrence. In all proceedings before them, the court of sessions had the power of granting a rehearing, or, "as it was called, a "review," and upon such review might in their discretion admit new evidence— a power, how- ever, which, was not continued in the coui-ts which succeeded, in 1691, to the civil jurisdiction of these tribunals. See The Duke's Laws, Collection of the N. Y. Historical Society, § 9 HISTORY OF THE COURT 5 vol. I, 315, 404, 412, 415; Records of Wills in N. Y. Surrogate's Office, Ub. I, 1, 3, 10, 19, 21, 28, 31, 38, 41, 67, 90, 91, 105, 190, 195, 270, 283, 355, 376, 377, 442; lib. II, 29; Mb. Ill, 191; lib. IV, 129; Book of Inven- tories, vol. I, 1, 5; Daly's Jud. Trib. 23-30; 2 Rev. L. of 1813, app. V. This state -0^ things continued until 1686. In the letter of instructions, 3 Col. Doc. 372, 688, 820, transmitted in that year to Governor Dongan, he was, among other things, directed to see that the ecclesiastical jurisdiction of the Archbishop of Canterbury should take place in the province, " as farr as conveniently may bee," except the collating of benefices, the granting of marriage licenses, and the probate of wills, which were reserved to the gover- nor; and in a similar letter of instructions to Sloughter, in 1689, the ecclesi- astical jurisdiction of the Bishop of London, was added. The ecclesiastical jurisdiction of the Bishop of London, so far as it related to testamentary matters or the administration of the estates of intestates, was limited to cases where the effects of the deceased were exclusively within the bishop's diocese, and the jurisdiction was exercised by a court held in the diocese by the bishops, commissary, or surrogate; but if the deceased had left effects in more than one diocese, then the Archbishop of Canterbury had exclusive jurisdiction, and the matter was heard before his delegate in the prerog- ative courts, of which there were two, the prerogative office at York and Canterbury. Ayhff's Parergon Juris Canonici Anglicana, 192, 534, Lon- don, 1726; Gibson's Codex, 465, 471, 472, 478; Godolphin's Orphan's Legacy, 106; 4 Inst. 335; WiUiams on Ex. 248, 4th Lond. ed. § 9. The Governor's jurisdiction — His delegate.^^After these instruc- tions were received, a change took place in the course of procedure. The courts of sessions and the mayor's court continued to exercise the same functions as before, but the governor, or the secretary of the province, also took proof of the execution of wills and of the inventory and appraisement of estate; and in 1691, under the administration of Lieutenant-Governor Ingoldsby, a clause was inserted in alL letters testamentary or of adminis- tration, that the granting of such letters, the hearing of accounts, the reckoning of administration, and the granting of the final discharge, be- longed to the governor, and not to any inferior judge. If a will was proved before a secretary, he annexed a certificate that "being theretmto dele- gated," the will had been duly proved before him; and an authentication, in the name of the governor, in the form that continued in use down to the Revised Statutes, that the will had been "proved, approved, and allowed," under the prerogative seal, was annexed, and the whole was re- corded in the secretary's office — the validity of the record being attested by his signature. Records of Wills in N. Y. Surrogate's Office^ from 1683 to 1690 and 1691, 182, 229. In this way a distinct department grew up in the secretary's office, which took the name of the prerogative office, and the records, connecte4 with it the name of the registry of the prerogative, and, in 1691, the whole became distinguished by the judicial appellation of the prerogative court. The legislative assembly which was convened in 1683, having been 6 surrogates' courts § 9 established, was again reinstated in 1691, and, at its second session, in 1692, an act was passed. Laws of N. Y. from 1691 to 1751, Smith and Livingston's ed. I, 15, by which it was declared that the probate of all wills and letters of administration should thenceforth be granted by the gov- ernor, or such person as he should delegate, imder the seal of the prerogative office; that all wills in the counties of Orange, Richmond, Westchester, or Kings, should- be proved in New York before the governor or his delegate, and LQ the remote coiinties in the courts of common pleas— tribimals which had been created in each county by an act of the previous session; and where the proof was taken in the courts of common pleas, it was required to be certified under the hand of the judge and clerk to the secretary's office in New York, where probate was granted. Where the estate was under £50, the courts of common pleas were authorized to admit the will to pro- bate, or to grant letters of administration, and from their decision an ap- peal was allowed to the governor, or to the person he might delegate to act for him. How this jurisdiction was then understood appears from a letter written the year following, by Clarkson, the secretary of the prov- ince, to the Lords of Trade. Col. Doc. IV, 28. " The governor," he says, "discharges the place of the ordinaiy (the bishop) in granting administra- tion and in proving wills, and the secretary of the province acts as regis- trar." The secretary of the province was an officer independent of the gov- ernor, holding his appointment from the crown, the duties of which he discharged chiefly through a deputy. Governor Fletcher, immediately after the passage of this act, in 1692, appointed this deputy his delegate, and he took proof of wills, which were afterward approved and allowed in the name of the governor. In 1702, Lord Cornbury appointed as his delegate a Dr. Bridges, who was afterward chief justice of the province. The proof of wills was then taken before him, and upon his certificate let- ters were granted by the deputy secretary in the name of the governor. Rec; of Wills, VII, 3, 64, 87, 93, 129, 169, 212. Before Dr. Bridges, also, executors and administrators were sworn faithfully to execute their trust; the renunciation of executors was formally made before him, and he took proof of inventories. This gentleman was a man of legal acquirements, and had received in England the degree of doctor of laws, and he was the first in the province to make use of the title of surrogate, adding it after his signature to all documents. Dr: Bridges having been appointed chief justice, Cornbury appointed the deputy secretary his delegate, and this officer, with the exception of a few interruptions or changes, continued to act as the governor's delegate down to the time of the revolution. The provision in the act of 1692, which required all wills in the coimties named to be proved in New York before the governor or his delegate, was found to be exceedingly onerous. Traveling then was very different from what it is now, and to bring witnesses in all such cases to New York was at- tended with difficulty and expense. In view of this inconvenience, Corn- bury, acting upon the previous precedent of Ingoldsby, and giving what was, perhaps, an allowable construction to the act of 1692, commissioned § 9 • HISTORY OF THE COURT 7 delegates to act for him in all of these counties, and at a later period, under future governors, delegates were appointed for the more remote counties. Rec. of Wills, til, 212, 476, 489; VIII, 18, 19; XII, 187, 199; XIII, 891; Book of Commissions, III, 473; V, 235, 412, 418, 420; VI, 4. At the same time, a local delegate was appointed for the city and county of New York, distinct and apart from the secretary of the province or deputy secretary, who were also commissioned to act as delegates: In fact, an attempt was made to carry out, in conformity with the instructions that accompanied the governor's commission, the distinct jurisdictions in England, by the commissary pf the bishop diocesan, and the ordinary or delegate of the Archbishop of Canterbury; or what was then known as the court held by the commissary of the bishop, and the prerogative court held by the delegate of the archbishop or metropohtan. Gibson's Codex, 465, 1035. If the deceased had, at the time of his death, effects in more than one county, or as the oflScial document expressed it, "goods, chattels, and credits in divers places within the province," then the governor exer- cised exclusive jurisdiction. The will was proved before his delegate in the prerogative court. Letters were issued in the name of the governor, imder the prerogative seal, attested by the signature of the secretary or the deputy secretary, and the whole was recorded in the registry of the pre- rogative court. If the deceased, however, had effects only in one county, then the will was proved before the local delegate of that county. He gave a certificate of the fact, and the will was then taken to the registrar's court, where it was approved and allowed, letters. testamentary were granted in the name of the governor, the seal of the prerogative was affixed, and the whole was recorded in the registry of the court. Letters of administration could not be obtained except in the prerogative court. By the act of 22, ^3 Car. II (cap. 10), administrators were required to exhibit, xmder oath, an inventory of the personal estate of the deceased in the registry of .the court that granted letters; to make a true and just account, also imder oath, to the court, of their administration, by the day fixed in their bonds which was not less than a year; their accounts were to be examined and allowed in that court, and they bound themselves to pay to such persons as the judge of that court should limit or appoint. This jurisdiction in the colony was vested in the prerogative court; executors and administrators accoimted before it, and the decree upon final distributions was made, there. It had the power to issue citations to compel the attendance of witnesses, and it heard appeals, where probate or administration was granted by the court of common pleas; in addition to which it exercised a jurisdiction more especially ecclesiastical, such as the granting of marriage Ucenses, Ucenses to schoolmasters, and in taking proof of the due installation of clergymen. Rec. of Wills in N. Y. Surr. Office, II, 39, 104, 107; III, 149; IV, 129, 182, 213, 221; 230, 250, 328; V, 286, 333; VI, 1; VII, 474, 484, 491; VIII, 18, 19; XII, 197, 199; XIII, 891; XXVIII, 107; Book of Inven. I, 5; Rec. of Admin. I, 2; N. Y. Col. Doc. VII, 830; VIII, 322, 413; N. Y. Rec. of Marr., Albany, 1860; Munsell's Annals of Albany, III, 327; IV, 16. 8 surrogates' courts ' § 10 § 10. The delegates. — The delegate who represented the governor in this court, or, as he might be called, the general delegate, was either the secre- tary of the province or the deputy secretary — generally the latter. He was empowered by his commission to admit wills to probate, to grant letters of administration, and for that purpose might " affix the prerogative seal of the province thereto, without any further fiat or allowance." Book of Corns. V, 62. No such general powers were conferred on the local delegates. They were authorized by their commissions to take proof of the execution of any will made by a person residing in their county, to swear executors or administrators that they Wuld faithfully execute their trust, or that the inventories or accounts to be exhibited by them in the prerogative court were true, and to supervise the estates of intestates. This power of super- vising the estates of intestates was in consequence of a clause in the act of 1692, which provided that, where any person died intestate, two free- holders of the town, to be annually elected, should inquire into the real and personal estate of the deceased, and make an inventory of it, and return it, under oath, to the person in the county delegated by the governor to supervise the estates of intestates; that the person delegated should cause the goods and chattels to be sold, retaining thfe proceeds for those who should appear and have a right to claim them; and that if the deceased left orphans, and there was no widow or next of kin, the person so delegated by the governor should have the administration and care of the intestate's estate, and the guardianship of the persons and estates of the orphans, until they should marry or reach the age of twenty-one; a provision that was superseded and became inoperative by subsequent legislative enact- ments. Book of Corns. Ill, 473. With the exception of this provision, the powers of these legal delegates were not much greater in fact than that of commissioners of deeds in our day. They did little else than to adniihis- ter formal oaths, for if any contest arose upon the execution of a will, it was settled either in the prerogative court, from which alone letters could issue, or in the courts of record where it had to be proved in what was called the solemn form per testes, to make it binding upon real estate. At first, these local delegates bore only the name of delegates, but about 1746 they began to assume the title of surrogates, and were so designated thereafter in their commissions. There were thus, as in England, a local and a general tri- bunal, with this distinction, however, that the local tribunal here was much more limited in its powers; and, further, that its judicial acts, such as tak- ing the proof of wills, had to be approved and ratified under the seal of the prerogative court. In 1743, an act was passed for the' more speedy recovery of legacies. By this act any person entitled to a legacy or a residuary estate under a will, or to any share in the estate of an intestate, might bring an action against the executor or administrator, after it became due, or, if no time was fixed by the will after a year had expired, to compel its pa3mienli, in the supreme court or any court of record, if ib amounted to more than §11 HISTORY OF THE COURT 9 £20, or if under that sum, in a court of common pleas; and if a plea of want of assets was put in, the court was empowered to appoint auditors to examine the accounts of the executor or administrator, who were to report how the accounts stood, and what sum would remain after the payment of debts, and what proportion the plaintiff was entitled to. The court was empowered to correct any mista|ces or errors in the accounts reported, and for the amount found to be due the plaintiff had execution — which act continued in force down to the. Revised Statutes. This act, Laws of N. Y. Smith & Livingston's ed. I, 316; Street's N. Y. Council of .Revision, 281, and the general jurisdiction exercised by the court of chancery in such cases, furnished a much more effectual remedy than the prerogative court could afford, and the practice of accounting in that court, therefore, fell into disuse, except when an executor or administrator filed his account with the view of obtaining his discharge; and in time the common-law courts were but rarely resorted to, as the remedy in equity was more efficient and better adapted for adjusting the rights of all parties. § 11. The deputy further considered as the original of the Surrogate. — I have thus given, as far as it is now possible to ascertain it, the exact jurisdiction exercised by the prerogative court. No minutes of the sittings of this court, if any were ever kept, or if it ever had any regular sittings, which I very much doubt, are to be found. " The records belonging to it, and everything appertaining to wills and the administration of estates were carried to Albany during the revolution, before the evacuation of the city by the American troops. An act was passed in 1799 (2 Greenleaf 's Law of Ni Y. 420),, directing the judge of the court of probate to deliver to the Sur- rogate of the city and county of New York all books, records, minutes, documents and papers belonging to the court of probate, before the 1st of May, 1807, in pursuance of which the late Sylvanus Miller, who was then Surrogate, went to Albany in 1800, and brought away everything that' could then be found. I presume that if any minutes had ever been kept of the court, they would have existed then, and would have been discovered by Judge Miller, as the chain of records now here, and which he arranged and classified, are, for the whole colonial period, very com- plete and perfect."^Daly, J. In fact, its whole business was managed for seventy years before the revolution, by the secretary of the prov- ince and his deputy, with httle interference on the part of the gov- ernor, and with but little knowledge on their part respecting it. In connection with the registry, which the secretary claimed as a part of his office, everything was done to keep the court exclusively under the control of this officer. It was entirely managed by his deputy, who ful- filled many functions, which were so mixed up as the acts of one and the same person, that it was difficult even then to distinguish the varied capac- ities in which he acted. The precise character of his powers or those of the secretary,, together with the extent or nature of the authority which, in virtue of the governor's prerogative, was vested in the prerogative court, were matters of great perplexity then, and a constant subject of complaint 10 " surrogates' courts § 11 and remonstrance. See Gov. Moore's Letter to the Lords of Trade, and Gov. Tryon's upon the same subject, Col. Doe. VII, 130, 187, 283, 323. One of the last of the secretaries, Clark, held no less than twelve dis- tinct offices, nearly all of them connected with the administration of justice, and his deputy, Goldsbrow Banyan, who held that office, with but few interruptions, from 1746 to the revolution, in addition to act- ing as the general assistant of his principal, was examiner of the pre- rogative court, and the local delegate for the city and county of New York, while at the same time he fulfilled the function of general dele- gate, or as Gov. Tryon describes the office, acting as principal Sur- rogate. See Report of the Lords of Trade, N. Y. Col. Doc. VIII, 413. A course of management which was designed to baffle all inquiry then^ and which succeeded in doing so, was not very easy to unravel after- ward, and, therefore, when the revolution broke out, very confused ideas prevailed as to the nature of jurisdiction of this court, and even as to its name, being sometimes called the prerogative court, and sometimes the court of probate; a confusion of names which led to the impression that there were two tribunals before the revolution, an impression which I formerly entertained, whereas there was in reality but one. Daly's Judicial Tribunals of N. Y. 53; Rec. of Com. V, 70, 412, 418; VI, 201. The legis- lature, in 1778, 1 Laws of N. Y., Jones & Varick's ed. 23, riieant to sweep away every authority vested in this court, in virtue of the pre- rogative of the colonial governors, supposing it to be greater than it actually was, and to constitute a 'court thereafter to be held by a single judge, having the same jurisdiction in testai](ientary matters and in cases of intestacy, to be known as the court of probates; and, ac- cordingly, in an act passed in that year, it was declared that the judge in a court of probate should be vested with the powers and authority, and have the like jurisdiction in testamentary matters, which the governor of the colony of New York, while it was subject to the crown of Gr^at Britain, had and exercised as judge of the prerogative court, or the court of probates of the colony, except the power of appointing Surrogates. From this period to 1789, this new tribunal, the court of probates, con- tinued to exercise the same jurisdiction in such matters as the prerogative court had done. The proof of wills, where the deceased had effects in more than one county, was taken before the judge of that court, and before the surrogate where the effects were exclusively in one county; and in both cases the proof of the will was "approved and allowed'' in the name of the people, before the court of probates, where it was recorded, and from which letters issued under the seal of the court, attested by the signature of its clerk. Letters of administration were also granted there, and all inventories were filed there. Rec. of Wills in N. Y. Surrogate's Office, XXXII, 50, 360; XXXIII, 2, 19, 59, 316, 421, 438; XXXIV, 436; XXXV, 290; XXXVI, 2; XXXVII, 316, 427; XXXIX, 286, 436; 1 Rec. of Inven- tories, 1; Rec. of Admin. IV, V, VI, VII. This court held stated sittings, at regular periods in different parts of the State, until 178^, when it was § 12 HISTORY OF THE COURT 11 fixed in the city of New York until 1787, after whicb it was permanently- removed to Albany, and up to 1797 the surrogates of the different counties continued to exercise exactly the same powers which they did before the revolution. § 12. The birth of the Surrogate; power to probate. — In that year, 1787, an important change w^ made; an act was passed, 2 Laws of N. Y., Jones & Varick's ed. 71, by wliich the granting of probate and of letters of administration was taken away altogether from the court of probates, except in certain specified cases, and conferred upon the Sur- rogates of the different counties, from whose decision in contested cases an appeal was allowed to the court of probates. This act provided that the governor, with the consent of the coimcil of appointment, should commission a Surrogate for every county in the State, and em- powered each surrogate to take proof of the last wills and testaments of persons dying in his county, or who was an inhabitant of it if he died from home, to issue probate and grant letters testamentary thereon, or letters of administration with the will annexed; or where such person died intestate, to grant letters of administration; such letters to issue in the name of the people, and to be tested in the name of the' surrogate, and sealed with the seal of his office. This act further provided that each surrogate should record all wills proved before him, with the proof thereof, and all letters testamentary or of administration issued by him, with all things concerning the same, and directed that when administration was granted by him, the inventory should be "exhibited" in his office. Where persons died out of the State, or within it not being inhabitants, the act directed that their wills should be proved before, or administration of their personal estates should be granted by, the judge of the court of probates, and in such cases the .inventory was "exhibited" in the registry of that court. This act also gave the court of probates authority to compel administrators to account in cases of intestacy, to decree and settle thei order of distributions after the payment of debts and expenses, and to compel the payment of the amounts «o decreed. It was empowered, also, to hear and determine all causes touching any legacy or bequest in any last will and testament, payable out of the personal estate of the testa,tor, and to compel payment of it. Sparrow v. Norfolk, Nay's R. 28; Gibson's Codex, 466, 478. This was a provision Virtually empowering the court to call executors to account, which was an importiant change, as before that time probate or ecclesiastical courts had no power, either by the canon law or by statute, to compel executors to accoimt. Authority was also given to the court. to enforce its decree for payment of distributive shares tir be- quests or legacies, by execution against the person, and by the twentieth section of the act it was declared that "the courts of the said surrogate and the said court of probates, in the matters submitted to their cognizance, respectively, by this act, shall proceed according to the course of the courts having, by the common law, jurisdiction of like matters." In 1786, Greenleaf 's Laws, 238, the court of probates, where the personal 12 surrogates' courts §§ 13, 14 estate was insufficient to pay debts, was empowered to order the sale of the real estate, and make distribution, of the proceeds among tlae creditors, but wjtien the court was removed permanently to Albany, in 1797, 3 Greenleaf's Law's, 391, it was found very inconvenient to resort thither in all ,ca,seis for that purpose, and, accordingly, in -1799, an act was pa,ssed. Laws of N. Y. 1799, Andrew's ed. 724, conferring this power on the Surrogates when- the lands of the deceased were exclusively in one county; and by the same act they were authorized to admit wills to probate aiid tp grant letters of ad- ministration Tjsrhere persons died out of the State, or within it not being inhal?itants. , , § 13. Additional powers to Surrogates. — 'In 1801, the Surrogates were clothed yf'iih the same power as the judge of probate, tQ,qite the adminis- trators to account, to decree (Jistribution, or ,th^. payment of bequests and legacies, and compel it by execution,, 1 Webster's Laws, 317,, 325; Seymour V. Seymour, 4 Johnsi. Ch. 409; Foster v. TViII>^^,. 1 Paige, 537; Dakin.Y. Hud- sqn, 6 Cow. 221. In 1802, they were authorised to appoint guardians for infants as fully as the chancellor might 40, 3 Webst. 158; in 1806, to order the admeasurement of dower of lands within their county, upon the appli- cation of the widow, the heirs or the guardians of minors. Id. 316; in 1807, to exercise powers as extensive as the court of probates, in ordering sale of lands f pr the payment of debts, 5 Id. 138; in 1810, to order the mort- gaging or, leasing of the land of testators or intestates for the payment of debts, where any infants were interested; and all these laws, whether relat- ing to the surrogates or to the court of probates, were iiiporporated in one general act in the revision of 1813, in which act are also embraced some other general powers, such as compelling the production 1 of wills, docu- ments, or writings, the attendance of witnesses, and the power of punishing for contempt; and, by aji act passed iii the same year, they were authorized to complete the unfinished business tha,t might be left by their predecessor. Laws of 1813, 139. In 1819, tj^iey were empowered to confirm sales of re^l estate ordered by them for the payment of debts,, and io direct, conveyances to be made by executors or administrators, Laws of, 1819, 214; and in 1821,, to institute, an inquiry respecting the personal estate qf intestates not deliyered to the public administrator, or not accqunted for in a lawf,ul and satisfactory manner by, the person into whose hands it was supposed to have fallen. §14. Abolition of Court of Probates, — By the act passed in 1823, the court of probates was abolished. , Laws of 1823. , Its appellative jurisdiction on appeal from Surrogates was transferred tp the court qf chancery, and whatever otiher jurisdiction it possessed was by this act vested in that court. ,Frpm 1823 to the passage of the Revised Statutes, the only acts of a general character relating to surrogates were acts directing them to record all letters testamentary and of administration, all appointments of guard- ians, and all orders and decrees upon the sales of real estate made by them- selves or their predecesiaors. , Laws of 1828, 136. §§ 15, 16 HISTORY OF THE COURT 13 § 15. Surrogate's powers always special and limited. — It will be seen, as the result of this lengthened examination, that the powers conferred upon surrogates were, from the beginning, carefully enumerated in the com- mission under which they were first appointed, and by subsequent legis- lative acts; that what was not granted to tjiem was vested before the revolution, either in the prerogative court, the supreme* court, the court of common pleas, and the court of chancery, and afterward in the court of probates. That when the prerogative court was abolished, in 1778, its jurisdiction in testamentary matters and in cases of intestacy was trans- ferred to the court of probates; and that when that court was abolished, in 1823, its jurisdiction was vested in the court of chancery. The supreme court and the courts of common pleas had, as had been shown, under the provision in the act of 1743, the power of compelling executors or adminis- trators to account in actions brought to recover legacies or distributive shares,; and wills of real estate were proved in the supreme court or the court of common pleas until the passage of the Revised Statutes. The commissioners who prepared the revision of the statutes which was adopted in 1830, while proposing some substantial reforms in the then existing law relating to wills and the administration of estates, declared in their reports and notes. Revisers' Notes, 5 Edm. Stat. 622, that their prin- cipal object was "to adapt the written law to the actual existing law, and where that was settled, to express it in intelligible language, and to incor- porate provisions whichshould terminate the uncertainty that now prevails over a large part of the subject." Their revision, as adopted, formed almost a codification of the then existing law and practice of surrogates' courts. § 16. The Act of 1837. — The distinction between the procedure in cases of wills of real property and that in cases of wills of personal property was, unfortunately,' substantially preserved, and numerous deficiencies were soon found in the working of the system. In the year 1837 the Legislature adopted the very important statute entitled "An act concerning the proof of wills, executors and administrators, guardians and wards, and surro-: gates' courts," commonly known by practitioners in these courts as the act of 1837; and the extent of the changes which it made in the system prescribed by the Revised Statutes is indicated by the fact that its seventy- seven sections amend or repeal thirty-nine sections of the Revised Statutes. The next statute of general importance which should be noticed is the judiciary act of 1847, by which the judicial system of the State was reor- ganized, in consequence of constitutional changes made by the Constitu- tion of 1846; and we should also mention, from the great importance of the act, although applicable only to the city and county of New York, the statute of 1870, chapter 359, which considerably extended the powers and jurisdiction of the surrogate's court of that county. In almost every year, since the adoption of the Revised Statutes, other special changes of greater or less importance have been made by the legis- lature, but these changes have been made to remedy some supposed special 14 surrogates' courts §§ 17-19 defects, and without any reference to the system as a whole, until the present codification effected in 1880. § 17. The Code. — The confusion, resulting from this kind of fragmentary legislation, during a period of over thirty years, was the occasion of much complaint on the part of the profession, and a homogeneous code was urged upon the Legislature. The first proposed revision of the statutes, relating to the estates of deceased persons, was prepared by the commis- sioners of the code, and had the especial attention of the late Surrogate Bradford. This statute was intended to be inserted in the proposed Code of Civil Procedure, and was submitted to the Legislature for that purpose, in the form of an appendix (D) to the draft of a civil code for the State of New York, prepared by Messrs. Field, Noyes, and Bradford, the com- missioners of the codes, and pubUshed in 1862. The proposed civil code, as revised, was republished in 1865, without the appendices. In 1870, the legislature authorized a new commission to revise the statutes, whose report was the basis of the present Code of Civil Procedure. The second part of the code, containing chapter 18, which relates to sur- rogates' courts, etc., went into effect on the first day of September, 1880, andj as was to be expected, has given rise to many questions of construction. But it is matter for congratulation that simpUcity and uniformity have succeeded the obscurity and often the contradiction of the former statutes relating to proceedings in these courts. It will be observed that the new legislation has left the jurisdiction and powers of Surrogates', Courts substantially where it found them. Only a few and comparatively unimportant additions to the incidental powers of Surrogates are added to those previously existing, and these powers the courts had already held to be implied from those expressly conferred. The chief feature of the present code, in respect to Surrogates' Courts, is that it assimilates the proceedings in those courts to civil actions, so far as practicable, thus working an entire change in the practice in several respects. § 18. The Act of 1914. — Dr. Redfield made the foregoing 'observations at a time when, as he puts it, "the new legislation (had) left the jurisdiction and powers of Surrogates' Courts substantially where it foimd them." It remains therefore to comment on the later development of this juris- diction and of the sundry express and incidental powers, particularly in view of the act of 1914, rewriting Chapter XVIII of the Code, and of the controversy, that is now on, respecting, the extent to which the enlarged equitable powers, sought to be thereby conferred, are constitutionally granted. This discussion will be equally pertinent if the Legislature shall enact the new Surrogate Code as reconunended by the Board of Statutory Con- solidation in its report of 1915, Vol. II, to the Legislature of 1916 — since the new Code merely renumbers the existing sections and leaves them, but for necessary verbal changes, unaltered. § 19. Summary of Mr. Redfield's history.— It has been already noted §§ 20, 21 HISTORY OF THE COURT 15 that 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]. "Before the Revolution, the power of granting letters testamentary and letters of ad- ministration resided, in New York, in the Colonial Governor, as judge of the Prerogative Court, or Court of Probates of the colony. It was after^ ward 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 adminis- tration 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 prac- tice 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.) 'fhe 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 Court, or the Court of Probates of the colony, except, however, the power of appointing Surrogates. Matter of Brick's Estate, 15 Abb. Pr. 12, 14. Daly, J. § 20. Surrogate's powers originally derived from the Crown. — His- torically, therefore, it is, first, to be emphatically noted that the court derives its powers, as it were by mesne conveyances, originally from the Crown. Second, that the Legislature is the successor to the Crown, in so far as its power to enable the court to act is concerned. Third, that, nevertheless, the power of the Legislature itself is limited by the state constitution. Fourth, that the State Constitution never defined the jurisdiction or powers of the courts, but left it as taken up, "until otherwise provided by the L^islature." § 21. Effect of constitutional continuance of court. — The whole prog- ress of the legislative dealings with the functions and powers of the Surro- gates' Courts dates back, for the purposes of this discussion, to the Consti- tution of 1846. In a most luminous paper in the Fordham Law Review of March, 1916, Vol. II, Number 3, on the Surrogate's Court and the new law, by the Honorable Robert Ludlow Fowler, a Surrogate of New York County, he has re-stated the development of that court in a scholarly and most luminous manner. He points out that in addition to probate law there is now administered in the Surrogate's Court an immense laody of chancery law, applied in guardianship matters, in accounting proceedings and in the course of distributions of estates, and he makes the following observations which we take the liberty of quoting : Before the Revolution, the Royal Governor of New York nominated and dele- gated the Surrogates for the Prerogative Court in the various counties of the 16 STTRROGATES' COUBTS § 22 Province of New York. The original jurisdiction of the Prerogative Court and its Surrogates was confined to matters cognizable in the Ecclesiastical Courts in Eng- land. These matters were mainly probates, administrations ajid inventories. 'JCkf jurisdiction thus transferred to New York was limited by precedent and authority. Its limitations are to be found in the decisions rendered in the old Court of Chan- cery and in th,e common-law courts 'Itnown to the common lavy. It is importaint at this point to notice only that aU such limitations tended to circumscribe the jurisdiction of courts properly vested with a jurisdiction over successions by wUls and from intestates. The principles of these decisions were always regarded as a part of the common law in force in New York. It is unfortunate that soon after the State government was inaugurated, the higher courts began to ignore the fact, that in the colonial epoch the intention of the law officers of the crown had been to transfer to New York the trichotomous jurisdictions, Chancery, Common Law and Ecclesiastical, knqwn in England, and also that the framers of the State government had deliberately adopted this plan. The act to organize the Government of the State of New York, chap. 12, Laws of 1778, continued the former ecclesiastical jurisdiction exercised under the Crown, and recognized the Surrogates as continuing officers to be employed in the exercise of that jurisdiction. *It also regula,ted their future appointment. Chapter 38, Laws of 1787, confirmed and continued the Act of 1778 in principle. Chapter 38, Laws of 1787, first placed the jurisdiction of the Surrogates on a' statutory basis.; but that act especially provided that the courts of the Surrogates, in the matters submitted to their cognizance by that act, should proceed according to the course of the courts having, by the common law, jurisdiction of the like matters, "pro- vided that the same should not extend to the inflicting any ecclesiastical pains and penalties whatever." Thus it will be perceived, that the old Eeolesiastical, Courts were expressly made the exemplar for all proceedings and practice in the courts of the Surrogates in the State of New York by the Act of 1787. The Act of 1801, however, omitted this last unnecessary provision of the Act of 1787 as it was im- pfied by the Constitution and by the first section of the Act of 1801 (chap. 77, Laws of 1801; 1 K. & R. 317). The next revision of the laws of the State made no substantial change in the foundation of the Courts of Proba,te (1 R. L. ,of 1813, p. 444). It was,, I think, not first imphed by Chancellor Kent in 1820, that the powers and jurisdiction of Surrogates flowed from the Statutes of the State, Good- rich V. Pendleton, 4 Johns. Ch. 549, but since then, the decisions on this point have been imiforinly to that effect. The real meaning of this, I attempted to explain in Matter of Carter, 74 Misc. 1. Ever since 1837, the ttadency of legislation has been to enlarge the statutory jurisdiction of the Surrogates. Isham v. Gibbons, 1 Bradf . at p. 78., § 22. Same subject. — The same learned Surrogate in Matter of Carter, 74 Misc. 1, at p. 7, amplified this proposition as follows: Prior to the Revised Statutes the probate jurisdictions of New York proceeded as near as might be to the practice and the procedure of the ecclesiastical courts of England, in so far as that practice and procedure were established before the: independence of New York. Goodrich v.' Pendleton, 4 Johns. Ch. 549, 552; Vander- heyden v. Reid, 1 Hopk. Ch. 408, 411; rev'd, 5 Cow. 719; Bogardus v. Clarke, 1 Edw. Ch. 266, 267; 4 Paige, 623. While the present Surrogates have only such jurisdiction as is conferred by statutes, they have in addition such incidental powers as are necessary to the exercise of the jurisdiction thus conferred. Matter ,of Camp, 126 N. Y. 390; Matter of Bunk, 200 id. 447, 456. In the exercise of these incidental powers a Surrogate cannot proceed upon some novel theory of his own, but must always have reference to estabfished usage and precedent, as was authoritatively said in the case before cited, Martin v. Dry Dock, § 23 HISTORY OF THE COURT 17 E. B & B. R. B. Co., 92 N. Y. 74, where the court refers to the practice of former probate and administrative jurisdictions as explanatory of the incidental, powers arising under a general grant "of jurisdiction to the Surrogates." This is always the rule in similar instances. When the Supreme Court of New York was first vested with the common-law jurisdictions of the Courts of King's Bench, Common Pleas and Exchequer, which even now in the final analysis define its common-law juris- diction, reference was always had to the practice of the exemplars in order to d^er- mine the incidental powers of the Supreme Court or its justices. So it once was with the equitable jurisdiction of the Court of Chancery of this State. If we look back to the exercise of the probate and the administrative jurisdictions, now vested in the Surrogates, we shall find that the present jurisdiction to grant and revoke letters of administration is not a 'novelty to be exploited by the Surrogates them- selves, but that it has a definite relation to the former practice in the jurisdictions of a like na,ture, long established in New York. When the statutes of the State are silent or incomplete concerning the exercise of a grant of jurisdiction we have re- course to the exemplar of the borrowed jurisdiction in order to determine how the grant of power is to be exercised. This has been the course for several hundred years in New York, and it is that course now prescribed and made necessary by the general constitutional definition of the fundamental law of the State. But I will not enter on such indisputable and familiar ground. It is true that the Surrogates' present jurisdiction is primarily dependent on the statutes of this State, but when the statute grants in general terms a known jurisdic- tion to the Surrogate to issue and revoke letters of administration, Code Civ. Proc, (former) § 2472, it means to issue them in accordance with the practice and usage prescribed by the statute or, in its absence, by the fundamental law of the State. To determine what that fundamental law is we must first refer to the precedents, formerly binding in the probate jurisdictions of this State. This was the course obviously in the minds of the Court in Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 74, where I think I find clearly expressed adumbrations of the doctrine which I beheve to be the true one. § 23. Same subject. — ^The Code itself in present § 2490, subdivision 11, provides and continues the provisions of the Revised Statutes and supple- mentary Acts on which this section is known to be based, which Subdi- vision 11 rpads as follows: With respect to any matter not expressly provided for in the foregoing sub- divisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court having, by the common law, juris- diction of such matters, excep|; as otherwise prescribed by statute; and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred. The Constitution of 1846 took up "the existing Surrogates' Courts" and by language preserved in the present Constitution, Art. VI, Section 15, gave them and the Surrogates "the jurisdiction and powers which the Surrogates and existing Surrogates' Courts now possess, until otherwise 'provided by the Legislature." This throws a clear light upon the jeasoning in the Carter case, supra. One fact more requires to be marshalled before drawing any conclusion, and that is that while it is used as a term of limitation and condescending reproach,, that the Surrogates' Court is a court of "statutory jurisdiction," Mr. Surrogate Fowler points out in the article above referred to, that the 18 surrogates' courts § 24 Supreme Court itself, which reviews the action of the Surrogate, has merely statutory appellate jurisdiction, that it "has no inherent jurisdiction over matters of which the Surrogate has cognizance." "The present jurisdiction of the Supreme Court, in so far as it concerns matters of which the Surro- gate has original cognizance, is also wholly statutory. Without the statute the Supreme Court would have no power over testamentary or intestate succession. In the same way the jurisdiction of the Court of Appeals to review Surrogates' matters is not inherent." . And he suggests that "The power and jurisdiction conferred, on the Surrogates should be given effect according to the original intent," that is, the intent of the law " of the officers of the Crown and framers of the State government," to transmit to the Surrogates a peculiar jurisdiction long exercised in the territory of New York. (See Matter of Meyer, 72 Misc. at p. 570; Matter of Work, 76 Misc. 403, 405.) Here, therefore, we have a case of a court having ex- clusive jurisdiction over matters (Jf the utmost importance to the com- munity and its powers not defined or limited by the Constitution, but continued and preserved against destruction by being taken up as a con- stitutional court, and a more or less uniform hne of decisions holding that it is a statutory court of special and limited jurisdiction, and yet it is claimed that there are constitutional objections in the way of the Legisla- ture's amplifying and extending the powers of the court necessary and incident, to exercise the jurisdiction coricededly belonging to it over the generic subject-matters committed to its administration. So it was held in Matter of Bunting, 98 App. Div. 122, appeal dismissed, 182 N. Y. 552, that the language of the Constitutioh preserving the exist- ing Surrogates' Courts with the jurisdiction and powers which they then possessed "until otherwise provided by the Legislature" was an expression of the will of the people to exclude "authority to add to the jurisdiction possessed by such courts." Hatch, J., wi-iting for the court, construes it as meaning "The only power reserved in the Legislature is to regulate, take away, cut down or limit the jurisdiction thus conferred." Laugh- lin, J., however, very properly dissented, saying (see p. 127): "I concur except as to discussion of the powpr of the Legislature to extend jurisdiction, ' which I think is not essential to the decision, but / am of opinion that the Constitution confers such authority." It seems obvious that the dissenting Justice was correct, both as to the matter being obiter to the decision of the point before the court and, second, as to the incorrectness of the de- cision, if it were pertinent, and it must be discussed more fuUy before any profitable comment on the Surrogates' law as it now stands can be put forward.' § 24. Distinction between " jurisdiction " and " power." — If the deci- sion in the Bunting case be no more than dictum, nevertheless, it makes the question turn, as subsequent decisions show, on the assumption that in that c&,se a grant of general equitable jurisdiction was intended. There is, hence, at the outset, to be drawn a sharp distinction between a grant of general equitable jurisdiction which under our scheme of division of § 25 HISTORY OF THE COURT 19 judicial powers is reserved in the supreme court and the granting of equi- table powers to be used in the exercise of that special and Umited jurisdic- tion which characterizes the Surrogates' Courts. As will appear below, the court of appeals merely by dismissing the appeal in the Bunting case (supra), did not commit itself to the view taken in the prevaiUng opinion. Rogers v. Decker, 131 N. Y. 490, 493. On the contrary, it has repeatedly taken quite opposite positions. A sharp distinction must be drawn, therefore, as between " jurisdiction " and " power." The "jurisdiction " of a court means generically the domain in which the court may exercise such powers as it has. Duponceau re- marks that "jurisdiction is hmited to place or territory, to persons or to particular subjects." Or, "jurisdiction is the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal that if the power is conferred to render the judgment or enter the decree it also includes power to issue proper process for the enforce- ment of such judgment or decree." People v. Lazansky, 208 N. Y. 435, 438. So we say that the Surrogates' Courts have "probate jurisdiction," which is, as is fully set forth below, an exclusive jurisdiction in those courts as against aU other courts of the State. This jmsdiction the Constitution continued to the courts, and they have enjoyed it iminterruptedly ever since. But the Legislature has repeatedly assumed to define the powers of the court which it may exercise within that jurisdiction, and these powers have been progressively developed.. The same is true with regard to the jurisdiction of the court over testamentary trustees, over accountings, over guardians; and powers have been from time to time conferred upon the court in the exercise of these several jurisdictions which have more and more tended to make the court's exercise of that jurisdiction efficient and more nearly adequate to the need of the public of the State of New York. We have already noted several times that the original revisers (2 R. S. 220, 1 1), in the face of the attempt of the Surrogates to exercise certain implied powers, denied them by express statutory enactment any such powers and provided that they should exercise their powers in the manner prescribed in the statutes, and in no other, and "no Surrogate shall imder the pretext of incidental power or construction exercise, any jurisdiction whatever not expressly given by the statutes of this State." So that, even before the Constitution of 1846, the provision had had to be repealed by the Laws of 1837, chap. 460, § 71, because, as the court said in Pew v. Hastings, 1 Barb. Ch. 452, the exercise of certain incidental powers was absolutely essential to a due administration of justice. We propose to show that without transforming this court into a court of general equity jurisdiction, it has been given, and we think, properly, equitable powers in order to the exercise of what may be called its general jurisdiction over probates and other matters committed to its administra- tion, in some cases even broader and more extensive than those which the supreme court possesses as the successor of the court of chancery. § 25. Equitable powers concededly possessed heretofore. — In 1899, in 20 surrogates' courts § 25a Matter of Bolton, 159 N. Y. 129, apropos of the then § 2821, Code Civ. Proc, the court discussed this question of equity power and jurisdiction. That section provided that "the Surrogates' Court has the like power and authority to appoint a general guardian . . . which the Chancellor had, on the 31st day of December, 1846." "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." Referring, p. 134, to the constitutional history of the court, Vann, J., observes, " Originally it was not a constitutional court, but was created by the Legislature, and, although it was 'continued' by the revised Constitu- tioii, its jurisdidion and -power are not defined by that instrument, and we have to search for them in the statutes of the State." What the Bolton case held, and properly, was that the statute falls "far short of making chancellors out of Surrogates, so far as general jurisdiction over minors and their property is concerned. It does not give them the power to direct and control the conduct of guardians, after appointment, that was possessed by the chancellor, but only in the cases . . . specially prescribed by law." "This limitation is quite significant, in view of its absence when a similar power is conferred upon the Surrogate with refer- ence to executors, administrators and testamentary trustees in the third subdivision (i. e., in 1899) of § 2472." The Bolton case decides, therefore, p. 136, that the "Surrogates' Court, with its limited statutory power, and with no general equity jurisdiction, had no authority to direct a conversion of the infant's property from personalty into realty." It also niarks a recognition of the validity of the statute which gave to the Surrogates certain of the powers and authority enjoyed by the Chan- cellor. This was not assumed to diminish the jurisdiction of the Supreme Court. § 25a. Some equitable powers larger than those of equity court. — Again, we have Matter of Mount, 185 N. Y. 162 (1906), where CuUen, Ch. J., discussing the power and jurisdiction of these courts, again emphasizes that "the authority of the Surrogate rests wholly upon statute." He points out that prior to 1870, Laws, ch. 359, and to the Code, the construc- tion of a will would be had only in courts of equity as ancillary to their jurisdiction over trusts (citing Chipman v. Montgomery, 63 N. Y. 221; Wag^ V. Wager, 89 id. 161). And he adds, "The intention of the Code provision was to confer upon the Surrogate power and jurisdiction similar to thai theretofore possessed' hy courts of equity. In one respect it is probably a little broader. ..." Again, in Hylandv. Baxter, 98 N. Y. 610, at p. 616, Andrews, J. (dealing with the power of the Surrogate to provide for pa:St maintenance of an iiif ant), says: "The fact that this question is an equitable one, and de- pends upon equitable grounds, is not a ground of objection to the jurisdic- tion. The Surrogate's Court . . . has jurisdiction to determine ques- tions either legal or equitable arising in the course of proceedings in the § 25a HISTORY OF THE COURT 21 execution of powers expressly conferred, and which must be decided therein." See cases cited. We thus have another equitable power conferred on these courts, which formerly the supreme court alone enjoyed, and its own jurisdiction is unimpaired by the grant. Similarly, in respect to jurisdiction to probate a lost will, which formerly resided solely in the court of chancery; or respecting appointments of successor or substituted trustees. Similarly, in respect to accountings (see below imder discussion of Concurrent Jurisdiction). These grants of powers, formerly residing only in a court of equity, have gone approved and unchallenged. The writer asserts, accordingly, that it is not uncon- stitviional to give a court of limited and special jurisdiction, equitable powers to the end that that jurisdiction be more efficiently and effectually .exercised. This is so for the two reasons — a, that the general jurisdiction of the supreme court as a court of general equity jurisdiction is not thereby impaired; b, that it is in direct pursuance of the public policy of the State, as related to more eflEicient judicial administration. Under a, it may be observed, as more elaborately discussed later on, that the supreme court itself recognizes and welcomes the existence of a concurrent jurisdiction, and frequently declines to exercise its own general powers, e. g.,'ui accountings, if it appear, to its satisfaction, that the Surro- gate, within his restricted limits, has assumed jurisdiction, and can, under the statute, give adequate relief. Under b, we note that public policy demands that the burden on the supreme court be diminished, and cases, cogniaable in other courts of inferior jurisdiction are not to be brought in the supreme court in certain counties, imder heavy penalty of costs. See § 3228, Code Civ. Proc, sub. 5. In Matter of Kent, 92 Misc. 113, Fowler, Surr., queries whether the equity jurisdiction given by the act of 1914 is constitutional. See opinion as to the development, in accountings, of such "equitable jurisdiction." The writer prefers the words "grant of additional equitable powers." But the Surrogate will as a rule hesitate to declare a statute unconstitu- tional. It is a "transcendent power" so to do. Fowler, S., in Matter of Thornburgh, 72 Misc. 619. Ketcham, Surr., in Matter of Brewster, 92 Misc. 340. Again, in Matter of Roberts, 214 N. Y. 369, the court of appeals used the following languagawith regard to a criticism of the juris- diction of the Surrogate: "It impUes, if it does not assert, that in a pro- ceeding to sell the real estate of a decedent to pay the debts the existence of an equitable defense may be wholly disregarded, because the Surrogate has no jurisdiction in equity. Such is not the law." The court quotes, at page 374, the language of former § 2755, which permitted an heir or devisee to interpose any defense to the whole or any part of a debt- due or unpaid represented as existing against the decedent, and the court says at page 375 : "This permits the interposition of an equitable as well as legal defense," 22 surrogates' courts § 25b and at p. 377, they say, "To bar a proceeding, however, an eqtiitable de- fense must be one which is available against the claimant." This emphasizes the suggestion that a Surrogate may have cognizance of and determine matters of equitable import, while it is cbnceded that he hasn't general equity jurisdiction. See also Matter of Holzworth, 215 N. Y. 700, aff'g 166 App. Div. 150; also Matter of Kenny, 92 Misc. 330, to effect that the broad grant of equi- table power conferred on the surface of § 2510, must yield in any particular special proceeding to the special littiitations of the statute relating to that proceeding. § 25b. Growth of such powers. — In the Matter of- Kent, 92 Misc. 113, Fowler, Surf., reviewed the development of the Surrogate's jurisdiction to do equity" upon the judicial settlement of an account. We quote such part of his able review as is pertilient to our present discussion: The extent of the equitable jurisdiction of the Surrogates of New York in the course of the s'ettleriient of the accounts of the representatives of persons deceased is not doubtful prior to the Revised Statutes. Long prior to our Revised Statutes of 1830 the courts of probate in New York had enjoyed a limited and inherent jurisdiction to require the personal repre- sentatives of a deceased person to file an inventoiy and an account of their pro- ceedings. The jurisdiction of compulsory accountings was then closely connected with the allied power to require the production of an inventory by executors and administrators. So much so was this the case that as late as 1841, eleven years after the Revised Statutes took effect, Chief Justice Bronson of this State saw little difference between an inventory and an account, thus showing that legal traditions tend to linger on in the interstices of the law {Bloom v. Burdick, 1 Hill, 130). The jurisdiction of the original courts of probate in New York over inventories and accounts was defined by the jurisdiction of the Ecclesiastical Courts known to the common law of England after the reign of Henry VIII {Matter of Martin, 80 Misc. 17, 21).. That the courts spiritual did originally entertain such objec- tions cannot be doubted {Smith v. Price, 1 Lee, 569; Brown v. Atkivs, 2 Lee, 1; Hackman v. Black, 2 Lee, 251; PhiUips v. BigneU, 1 Phill. 239; Gale y. Lvitrell, 2 Addams, 234; Telford v. MoHson, 2 Addams, 319, 330; 4 Bums Ecc. Law, 609; Toller on Ex'rs, 246, 489, 490; 1 Story Eq. Jurisp., sees. 536, 537). The Surro- : gates' inherent and original jurisdiction (independent of a particular statute) over accountings was,. I, think, recognized in Bevan v. Cooper (72 N. Y. at pp. 328, 329). Such jurisdiction was regarded as derived from the original probate courts of New York or as annexed to the grant of a probate jurisdiction. ' It will be remembered that subsequent to the "Reformation" and the reign of ' King Charles I, in the continuing conflict between the courts secular and the ■ courts spiritual, it was first made a question whether the Ecclesiastical Courts of probate could entertain objections to the inventory at the suit of a legatee; the only instanpe in which a jurisdiction over accounts was then claimed by the spiritual courts (1 Story Eq. Jurisp., sec. 537). The jurisdiction of the Eoclesiasticail Courts over accounts was denied in Catchside v. Ovinglon by Lord Mansfield (Bur. Mans.,' 1922). Such jurisdiction was, however, afterward vindicated by Sir John Nicholl in a judgment which is generally regarded by those versed in the jurisdiction of courts as one of the most notable in our jurisprudence. I refer to Telfffrd v. Morison (2 Addams, 321). I have very often read that notable opinion^ and always with increasing admiration for the courage and the dignity of that very great judge under Oiost trying conditions. The Ecclesiastical Courts in England § 25b HISTOKY OF THE COURT 23 thereafter continued, when not prohibited by the secular courts, to exercise a juris- diction over objections to accounts (4 Bvirns Ecc. L. 424). The judgment in Telford v. Morison was, however, delivered only in the year 1824, or more than a century after the trichotomy of the old judicial establishment known to the common-law system had been finally transferred to New York, which, in spite of its origin and the title by the conquest of 1664, more closely than any other American colony adopted and adhered to the institutions of the common law, at least until our independence of the crown, when a new influence became manifest. I have so often referred to the general jurisdiction of our courts of probate un- der the various New York governments that I will not repeat it (cf. Matter of Martin, 80 Misc. p. 21, seq.). I wiU confine myself here to their jurisdiction over accounts. » The act for regulating the fees of the re-established courts of this State, passed in the year 1785 (chap. 71, N. Y. Laws of 1785), recognized the continuing juris- diction of Surrogates to exaniine and prove inventories and accounts, for the Sur- rogate is there authorized by law to take fees therefor. Coote in his work on the practice of the ecclesiastical courts gives a fair r6sum6 of the practice fol- lowed in New York by the former Surrogates on objections to inventories and accounts prior to the Revised Statutes. Such jurisdiction was limited, but settled by very well established rules unnecessary to discuss, but perpetuated in prin- ciple by the Revised Statutes of 1787 (2 J. & V. 71) and 1813 (1 R. S. 311, 444). The Revised Statutes of 1830 finally perpetuated some principles, but enlarged the jurisdiction (2 R. S. 91). The early Surrogates' Practices of this State are very silent on the question of the original jurisdiction of Surrogates over accounts and generally are content to refer without comment to the latest statutes of the State. But the early reports very well indicate the practice in accountings, al- though there are many earlier cases in New York, as yet left unreported, which would disclose far more {Seymour v. Seymour, 4 Johns. Ch. 409; Ouild v. Peck, 11 Paige, 474; Foster v. Wilber, 1 Paige, 637). The intimate connection of even the radical Revised Statutes with former practice is illustrated by the explanatory citations employed even after 1846 in such decisions as that in Gratacap v. Phyfe (1 Barb. Ch. 485); Harns v. Ely (25 N. Y. 138, 141) and Bevan v. Cooper (72 N. Y. 317, 328, 329). It was only with and subsequent to the Revised Statutes that the proceeding for a judicial settlement of accounts of representatives of a deceased by the Sur- rogate tended to become a substitute of the former administration suit in chan- cery, or what is now called "a judicial settlement of the account" (see 2 Woer- ner on Administration, 2d ed.„ p. 1218). We find thereafter that the adjudications in accounting proceedings more rarely refer to the law anterior to the Revised Statutes themselves (see the overruled case of Westervett v. Greggs, 1 Barb. Ch. 469; Stagg v. Jackson,- 1 N. Y. 206). Yet as early as 1822 there was pbservable in this State a tendency to broaden by statute the original jurisdiction of Surrogates in proceedings to settle accounts, and by statute of that'^year they were authorized to call executors to account for the proceeds of real estate sold by them for the payment of debts and legacies (Clark V. Clark, 8 Paige, 152). But this act gave the Surrogate no jurisdiction to take the account of trustees of a testamentary power not given to executors (Mc- ' Sorley v. Wilson, 4 Sandf. Ch. 414; Matter of Hawley, 104 N. Y. 263). The present jurisdiction of the Surrogates in proceedings for the judicial settle- ment of final accounts of executors and administrators and testamentary trustees may then be justly said to begin with and date from the Revised Statutes of 1830. Such proceedings tended thereafter to become what they now are, practically the former administration suits in chancery (1 Pom. Eq. Jiuisp., sees. 77, 187, 235; chap. 9, Story, Eq. Jurisp.). The Revised Statutes provided for the effect of a Sur- rogate's decree in judicial accountings, making it conclusive in certain specified 24 subrogates' coukts § 25b particulars upon the matters embraced in the account against all persons interested, but only provided they were cited or did not volunta,rily appear (2 R. S. 9,4, sec. 65, perpetuated by the Code, sec, 2742, C. C. P. of 1913; Joseph v. Herzig, 198 N. Y. 456; Chester v. Buff/Oo Car Mfg. Co., 183 N. Y. 425, 435; Matter of Killan, 172 ; N. Y. 647; Bowditch v. AyraiAt, 138 N. Y. 222, 231). The new SuH-oga,tes' Law Tvould seem to enlarge the effect of such decrees (sec. 2742, Code of 1915). The powers of the Legislature to sestabUsh a summary remedy in the Surrogates' Courts for the settlement of the estates of deceased persons and to enable Surrogates for that purpose to decide on aU claims and matters affecting the estate seems nbt to have been doubted (Kidd v. Chctpmarf,, 2 Barb. Ch. at p. 414), notwithstanding ■ that the original iurisdiction of the courts of equity in New York included the same powers. As the jurisdiction of the court of chancery was 'fixed by the constitution of the State, and the Surrogates' jurisdiction of proceedings to settle judicially the accounts of representatives of estates tended: really to detract from the regular equity jurisdictions so fixed by the constitution, it was regarded as doubtful whether the Legislature could invest the Surrogates' Courts with such equity powers. , It is just at this, point that the ancient jurisdiction of the Surrogates of New York over accounts became important to constitutional principles, for, if the Sur- rogates had no original jurisdiction over accounts, a transfer of the jurisdiction of a constitutional court to the Surrogates. might have been unconstitutional {Alex- ander V. Bennett, 60 N. Y. 204; cf.i Matter of Runk, 200 N. Y. 447, where there is a dictum purely obiter to the contrary). The amplification by the Legislature of an ancient jurisdiction stands doubtless on another principle, for then a concur- rent jurisdiction is only added to a similar jurisdiction, as intimated in Matter of Bunk (supra). Little by little the Legislature by acits unnecessary now to specify has invested Surrogates' Courts in accounting matters with much of the jurisdictipn exercised in the old court of chancery in administration suits (Sheldon v. Bliss, 8 N. Y. at p. 34; Searmn.v. Duryea, 11 N. Y. a); p. 328; Wood v. Broiim, 34 N, Y. 337; Thont- son V. Taylor, 71 N. Y. 217, 219; Hyland v. Baxter, 98 N. Y. 610; Garlock v.Yand^ •vm-t,. 128 N. Y. 374, 378; Matter of Sehnabel, 202 N, Y. 134, 137). The history of administration suits in chancery and the story of the mode by which the ec- clesiastical courts were deprived of their original jurisdiction over legacies are very well outlined, with some reference to the adjudications in Jenk's Short His- tory oiE English Law. (pp. 226-230). But the technical limitations on such ad- ministration suits are only to be found in the adjudications. In a suit in chancery for the administration of; assets the usual practice was to refer the matter to the master in chancery, to take an account of the debts, funeral expenses and pecuniary legacies, to compute interest, to advertise for cred- itors and legatees to appear apd prove their claims within a limited time> and to take an account of the personal estate which might have come into the hands of the, executors or of any other person, by his order or use, and that the personal estate be applied in payment of , debts, funeral expenses and legacies in a course , of administration (Hoffman, Ch.. Pr., pp. 180, 181).^ A party dissatisfied with the report of the master in chancery might file exceptions (i6jd., p. 184) . In Thomp- son V. Browne (4 Johns. Ch. 619) , discussed by Hoffman at pages 187, 188, two prop- ositions were laid down^one that where a creditor files a bill, either for himself or for all the creditors,^ the decree for an account is for the benefit of all the cred- • , itprs, :and:in the. nature; of a judgment, and that all may come in and prove their demands, and tha:t from the date pftJie decree the court will ^ijoin creditors from proceeding at law and ;will take jurisdiction of the sole distribution of the assets. In suijh distril).utipn all judgments prior to the decree were preferred according to their priority in, time, and all other debts ratably, without regard to legal prior- ities,, and irrespeo]^ve of whether the assets administered, were legal or equitable. In administration suits the executor ,or administrator was a necessary paity if § 25b HISTORY OF THE COTJRT 25 the suit affected the personalty (Story Eq. PI., sec. 171). Third persons who had possession of the personalty, or were hable to account therefor, under particu- lar circumstances, might also be joined. For example, if there was alleged to ex- ist collusion between such third persons and the legal representatives, or if the lat- ter were insolvent or refused to collect the outstanding claim, or also, if the third person was a surviving partner of the decedent {ibid., sec. 178). Heirs at law or devisees were necessary parties, if it was sought to charge the realty or to sell the realty. Where no heir could be found it was usual to make the attorney- general a party (ibid., sec. 180 and note). If the object of the bUl was to carry into effect the trusts created by the will, without establishing the will, a decree might be made in the absence of an heir (ibid., sec. 181). Both executors and administrators must be parties (ibid., sec. 218). Administration suits were controlled by the rules then governing parties to bills and cross-bills. Cross-bills could not introduce new parties (2 Daniels, Ch. Pr., sec. 1548, note). Here was a very distinct limitation on the jurisdiction of a court of equity, for if new parties could not be introduced the issues jurisdictional in administration suits were necessarily to be confined to the matters alleged in the original bill for administration. But the primary limitation on the equity jurisdiction in administration suits was that where a debt of a creditor was dis- puted, it must be first estabhshed at law. Since the Revised Statutes the Legislature has proceeded to assimilate the jurisdiction of the Surrogate to that Of the court of chancery in suits for the ju- dicial settlement of the accounts of executors and administrators. Chapter 576 of the Laws of 1910 was a great step forward (repealed by the Surrogates' Law of 1914). It provided as follows: "The Surrogates' Court has also jurisdiction upon a judicial accounting in a proceeding for the payment of a legacy to ascer- tain the title to any legacy or distributive share, to set off a debt against the same, and for that purpose to ascertain whether the debt exists, to affect the accounting party with a constructive trust, and to exercise all other power, legal or equi- table, necessary to the complete disposition of the matter" (sec. 2472a, C. C. P. of 1913). The idea that this enactment much enlarged the Surrogates' jurisdic- tion has been generally entertained {Matter of Gary, 77 Misc. 602, 605). That in some respects the Surrogates' equitable jurisdiction was larger than the juris- diction of the chancellor in administration suits is apparent. That the Surro- ■ gate had power before 1910 to ascertain who were legatees and distributees is not doubtful, but his jurisdiction to raise constructive trusts or to try disputed titles to legacies or distributive shares by reason of equitable considerations was due solely- to the Act of 1910 {MaUer of Randall, 152 N. Y. 508; Matter of Moiv- roe, 142 N. Y. 484; Matter of Will of Keleman, 126 N. Y. 73; FvlUm v. WhUney, 66 N. Y. 557; Meehs v. Meeks, V23, App. Div. 461; Maiter of Losee, 119 App. Div. 107, 111). In England, to this day, the remodeled probate courts possess no such large powers or jurisdiction as those now vested in the Surrogates of New York State. In England proceedings for such accounts and distribution of estates lie only in the Chancery Division of the High Court of Justice, and if a creditor institutes such proceedings his debt, if disputed, must in some way be fiirst estabhshed in an action by or against the executors {In re Powers, 30 Ch. D. 291; see 10th edition, WiUiams on Executors, vol. 2, pp. 1632, 1650). In Pennsylvania the issues aris- ing on devises are not yet justiciable in the orphans' courts on an audit of an account, but all such matters go to the common pleas courts of that State for final decision and disposition. No jury trial is known in the probate courts of England or Pennsylvania. That the proceedings in England or Pennsylvania are less efficient or more dilatory and expensive than under the system employed in this State has never been asserted by anyone familiar with the various juris- dictions. 26 surrogates' courts § 25b Notwithstanding the legislation of 1910 in this State, it is extremely doubtful that the powers of a court of equity even thereafter appertained to a Surrogate's Court (Matter of Randall, 152 N. Y. 508; Matter of Thompson, 184 N. Y. 36, at p. 44; Matter of Schnabel, 202 N. Y. 134, 137; Matter of Hasbrouck, 153 App. Div. 394, 398; Stillwell v. Carpenier, 59 N. Y. 414; Meeks v. Meeks, 122 App. Div. 461, 463) ; or, as it is sometimes expressed by other courts, the Legislature had not yet made " chancellors out of Surrogates" (Matter of Bolton, 159 N. Y., p. 135; Matter of Henderson, 157 N. Y. at p. 429). From this class of adjudications cited we may infer that even since the legislation of 1914 wherever the grant of equitable powers to a Surrogate may be unconstitutional, or is now doubtful and not ex- press, equitable jurisdiction will be denied to the Surrogates. Nevertheless, the grant of jurisdiction to the Surrogates over accountings is always held to carry with it such powers, legal and equitable, as are incidental and material to an efficient exercise of the jurisdiction (Biggs v. Cragg, 89 N. Y. 489; Hyland v. Baxter., 98 N. Y. at p. 616; Matter of UnderhiU, 117 N. Y. 471, 472; Matter of Wagner, 119 N. Y. 28, 31; Matter of U. S. Trust Co., 175 N. Y. 304, 309; Sexton v. Sexton, 64 App. Div. 385, 389, aff'd 174 N. Y. 510; Matter of Schnabel, 202 N. Y. 134). To have held otherwise would have been to defeat by judicial construction the ob- vious intent of the Legislature. That the Legislature prior to the new law of 1914 had not yet conferred upon Surrogates jurisdiction to decide some controversies which might arise in pro- ceedings before the Surrogates to settle the accoiints of executors or administra^ tors I thought apparent. For this reason I lately declined jurisdiction in an impor- tant matter (Matter of Watson, 86 Misc. at p. 595 seq., affirmed, 165 App. Div. 252). But the court of appeals took a larger view in Matter of Watson of the new legislation than it had ever before taken, and they affirmed the jurisdiction of the surrogates over what had seemed to me a thitherto doubtful class of con- troversies (215 N. Y. 209). In England persons who possess themselves of prop- erty of the deceased cannot be made parties to proceedings against the executor (2 WilUam on Ex'rs, 10th EngUsh edition, 1650). It is well known that before 1895 (chap. 595, L. of 1895) the Surrogates had no power to determine any controverted claims against the estate of a deceased person (Tucker v. Tucker, 4 Keyes, 136; McNulty v. Hurd, 72 N. Y., p. 520; Glacius V. Fogel, 88 N. Y. 434; Biggs v. Crag, 89 N. Y. 479; Fiester v. Shepard, 92 N. Y. 251; Lambert v. Craft, 98 N. Y. 342; In re Byder, 129 N. Y. 640; Matter of CaUahan, 152 Ni Y. 320, 324; Matter of Miles, 170 N. Y. 75; Matter of Gibson, 176 N. Y. 520, 528; Matt^ of Martin, 211 N. Y. 328, 330; Dayton on Surrogates, 3d ed., 489), al- though in accounting proceedings by a creditor equity had ordinarily complete jurisdiction to determine the title of the alleged creditor (Misner v. Strong, 181 N. Y. 163). Nor had the Surrogates until 1895 power to determine the vaUd- ity of claims of the estate against third persons, even though such third persons Were parties to the accounting (In re UnderhiU, 117 N. Y. 471; Meeks v. Meeks, 122 App. Div. 461, 462). The Surrogates' jurisdiction to determine in accounting ' proceedings claims of third persons to property claimed by the representatives of deceased persons was prior to 1910 also denied (Matter of Thompson, 184 N. Y. 36; Matter of GaU, 182 N. Y. 270, 278; cf . Matter of McLaughlin, 158 App. Div. 952). The Surrogates' equitable powers over the, proceeds of lands sold under a tes- tamentary power and brought into court, for example, were very i restricted prior to the year 1914 (Matter of McComb, 117 N. Y. 378, 382), imless there was a con- version effected by the will (Matter of Caldwdl, 188 N. Y. 115). A Surrogate had, until recently, no adequate power to pass upon the validity of a devise. It was, however, then held that where a testator undertook to create a trust in which the Teal and personal property were inseparably blended, the Surrogate had power to construe silch clause and declare the trust invalid and void in so far as it affects the personal property of testator (Matter of Trotter, 182 N. Y. 465). It will be § 25b HISTORY OF THE COURT 27 remembered that until 1850 the Surrogates had no jurisdiction whatever over the accounts of testamentary trustees (chap. 272, L. 1850; Matter of Runk, 200 N. Y. 447; Matter of Hawley, 104 N. Y. 250). Under the former law, for the purposes of distribution, the Surrogate had an in- cidental power to construe a will in so far as it was necessary to determine to whom legacies should be paid {Matter of Verplanck, 91 N. Y. 439; Garlock v. Van- dkvort, 128 N. Y. 374), but he had no jurisdiction to, compel a legatee to restore an overpayment on a legacy {Matter of Lang, 144 N. Y. 275), and no general ju- risdiction to construe wills {Kirk v. McCann, 117 App. Div. 56, 59). But when- ever the jurisdiction of the Surrogate over accountings existed, in a case where complete relief might be had in the Surrogates' Court, the other courts of the State vested with concurrent jurisdiction would decline to exercise their own jurisdiction (Wager v. Wager, 89 N. Y. 161; Underwood v. Curtis, 127 N. Y. 523; Matter of Farrell, 125 App. Div. 702). Thus, step -by step, the jurisdiction of the Surrogates to pass upon controverted claims against estates has been enlarged by statute {Matter of Thompson, 184 N. Y. at p. 44). But even now' the mode is very strictly limited {Matter of Martin, 211 N. Y. 328, 330; Matter of Holzworth, 166 App. Div. 150, 154; Matter of Higgins, 91 Misc. 387). I have now outlined the growth of the equitable jurisdiction of the Surrogates' Courts in proceedings for the settlement of accounts of repreisehtatives of estates prior to the year 1914, when the " New Surrogates Law" went into effect. That law contains more liberal provisions than any other act ever affecting the jurisdic- tion of the Surrogates. By that law (sec. 2510, C. C. P. of 1915) the Surrogates are given jurisdiction " to administer justice in matters relating to the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising by or between any and all the parties to any proceed- ing ... in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires." This is a very broad provision and was intended to be such. But as the new Surrogates' Law of 1914 was enacted under the old constitution it is doubted, and I think with much reason, whether the Legislature had the power to enlarge the equitable jurisdiction of the Surro- gates of this State (sec. 15, Art. VI, Const. 1894; Matter of Bunting, 98 App. Div. 122; opinion of Hatch, J., concurred in by Justices Van Brunt, Patterson and O'Brien). The appeal, it is to be observed in Matter of Bunting, was dismissed in the Court of Appeals without opinion (182 N. Y. 552). Consequently this, decision still confronts the profession of the law whenever the new equitable powers of the Surrogates are drawn in question. But, for the reason stated in Matter of Thornhurgh (72 Misc. 619, 621) ignoring for the present the constitutional question so serious to the Bar and to litigants in this court, let us inquire next what the new legislation portends. Are the Surrogates now by virtue of the new legislation possessed of all the equitable powers of the chancellors in these statu- tory proceedings to determine judicially the accounts of executors and adminis- trators? Has the Surrogates' Court really become a court of equity in proceed- ings to settle accounts? These are the great questions of- the moment. That the new legislation apparently on its face confers most extended equitable powers cannot be denied. But very late decisions of the higher courts have already confined such grants of equitable powers to the few instances particularly specified in subdi- visions 1 to 8, section 2510, C. C. P. {Matter of Holzworth, 166 App. Div. 150; Matter of Ryder, 129 N. Y. 640, 642). Whether such an extended and multifarious equitable jurisdiction is expedient has been much doubted. Mr. Throop, when he revised the Surrogates' Law, was of the opinion that the Surrogates ought not to be burdened by the trial of too many issues (see Throop's note to sec. 2742, C. C. P.). But whatever his power may be, the Surrogate's jurisdiction over accountings still depends upon the presence of the real parties in interest as only 28 surrogates' courts § 26 those cited are bound by the decree (Matter of Killan, 172 N. Y. 547; Mailer of Gall, 182 N. Y. 270). . From the foregoing survey of the jurisdiction of the Surrogates in proceedings to settle the accounts of testamentary proceedings it must be apparent that the Surrogate is not in loco cancellarii and has not the extended equitable powers and jurisdiction of a chancellor. § 26. Summaiy. — Finally, since the question is finally settled that where an express power is given to the Surrogate or his court, he naay exercise any incidental power necessary to properly execute such express power, and since the Constitution never assumed to define the powers of the court, but left its jurisdiction and powers to the Legislature, and since the Legislature has since 1846 repeatedly "otherwise ordered" and constantly enlarged the limits of the court's activities and the general powers of the Supreme Court have never been deemed to be impaired thereby, the writer concludes that the exercise of equitable powers, as incidental to the exercise of special jurisdiction, is properly given to the Surrogates and their courts by the act of 1914. (See below, sub Jurisdiction.) - In this conviction he has undertaken the task of amalgamating his previous work with the admirable treatise by Mr. Redfield, and so ably continued by his son, adhering, however, to his former plan of not unduly obtruding personal opinions, but of recording the authoritative decisions of our various courts. CHAPTER II THE COURT AND THE SURROGATE § 27, Statutory definitions. — Chapter XVIII contains, at its end, a precise definition of the fundamental terms with which it deals, essential to be mastered at the very outset of any discussion of the various titles of the act. It is contained in § 2768 which reads: § 2768. Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be observed, 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 wiU whether he left a will or not. 2. The word "assets," signifies personal property applicable to the payment 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 having such a claim or demand, any person having a claim for expense of administration,- or any person having a claim for fimeral expenses. 4. The word, "will," signifies a last will and testament, andr 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 acting in the execu- tion of a trust created by the wiU, which is separable from his functions as executor or administrator. 7. The word, "surrogate," where it is used in the text, or in a bond or imder- taking, given pursuant to any provision of this chapter, includes every oflScer or court vested by law with the functions of surrogate. 8. The expression, "judicial settlement," where it is appUed to an account, signifies 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 certain purposes specified in the statute; and an account thus made conclusive is said to be "judicially, settled." ' ■ 9. The expression, "intermediate account," denotes an accoimt filled in the surrogate'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. 10. The expression, "upon the return of a citation," where it is used in a pto- vision 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; §27 29 30 surrogates' courts § 28 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, "persons 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 otherwise 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 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 firial 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 unbequeathed 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 possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assess. The word, "inheritance," signifies real property as defined in this subdivision, descended as prescribed by law. The expression, "personal property," signifies every kind of property which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or a,dministrator. 14. The word "guardian" refers to a guardian of an infant's person or property, or both, appointed by the surrogate's court or the supreme court, and includes a guardian appointed by will or deed. 15. Whenever in this chapter a paper or instrument is required to be "acknowl- edged, or proved, and duly certified," the same shall be acknowledged or proven in the same manner as a deed is required to be acknowledged or proved and certified ' to be recorded in that county, except that when executed within the state of New York, no certificate of the county clerk shall be required. 16. The word "respondent" when used in this chapter signifies every party to a special proceeding, except the petitioner. 17. The words "surrogate's court" and "surrogate" where they refer to juris- diction mean the particular court or surrogate having jurisdiction of the estate or fund. 18. Whenever in this chapter a paper is directed to be deposited in the "post- office," such deposit may be made in any post-ofiice or letter box maintained and exclusively controlled by the United States government. Former § 2514 of this Code, with additions, to-wit, subd. 14-18, both inclusive. § 28. Enumeration of courts : Terms of office. — The courts which, in the United States, have jurisdiction of the administration of the estates of decedents, and of cognate subjects, are variously designated as Surrogates' Courts, courts of probate, orphans' com-ts, or the court of the ordinary. "The ordinary" was the technical term adopted by the EngHsh law to designate the bishop of a diocese, when sitting as an ecclesiastical tribunal in the administration of the ordinary temporal jurisdiction of his see; his subordinate, or deputy, was called a Surrogate, to indicate that he exer- cised a delegated power. In the State of New York, the courts which, after some intermediate changes, have succeeded to the characteristic § 29 THE COURT AND THE SURROGATE 31 jurisdiction of the ordinary, respecting probate and administration, are still termed Surrogates' Courts. The contention, elsewhere elaborated, as to the entire legislative control of this court, by express omission of any definition of its powers in the constitution, is further emphasized in its being omitted also from the Judiciary Law. But the constitution regulates the terms of office of all Surrogates. This is incident to the protection of the court as a constitutional court. First. Those in office January 1, 1895, are to hold their unexpired terms. Second. Those thereafter 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. ■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 ex- pire. People ex rel. Davis v. Gardner, 45 N. Y. 812. This case is directly in point. This provision as to the Surrogates is new. For it had 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 preceding January 1, 1870), and who had 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 wasclearly 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." However, 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 might be an authority, if the facts showed the case of any Surrogate in office January 1, 1895, or at the date of going into effect of a new constitution of similar purport, who may be near seventy. His term would not be abridged thereby. § 29. 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, upder § 15, art. VI, of former constitution. [This article was an amendment to the constitution of 1846, prepared by delegates, elected pursuant to chap. 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 32 surrogates' courts § 30 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 popula- tion 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 thirty counties alone now is the county judge also the Surrogate. In one of the remaining thirty, SulUvan county, there was also a special Surrogate [see County Law, Laws of 1892, chap. 686; 5 E,. 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, Chautauqua, Clinton, Columbia, Dutchess, Erie, Jefferson, Kings, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, 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. Thirty-two counties now have separate Surrogates; the additional ones being Bronxy (new) Fulton, Nassau, Schenectady; and Niagara now has a Smrrogate ex. off. County Judge. In the county of New York there were~ two separate Surrogates elected under the- provisions of chap. 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 coimty of New York. Laws of 1893, chap. 9, Code Civ. Proc, § 2506. Their status and functions and powers are coequal. Mr. Redfield asserted that the office of Surrogate of New York county is not held imder the constitution, but is a local office established especially for that county under pre-existing laws, but recognized and continued by the constitution. By the New York City Consolidation Act of 1882, so called, the special and local laws^ affecting public interests in New York city were brought together in asingle statute; among which special and local laws were those relating to the Surrogate and the Surrogate's Court of that city and county. In eight df the twenty-eight counties where separate Surrogates had been elected, to wit: Cayuga, Chautauqua, Jefferson, Oneida, Orange, Oswego, St. Lawrence and Washington, there were also special Surrogates as well. There are now special Surrogates in Cayuga, Chautauqua, Jef- ferson, Oneida, Orange, Oswego, St. Lawrence, Sullivan, Tioga and Wash- ington. (The names italicized are of counties where the special Surrogate is also special county judge.) 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. § 30. The law provides for five kinds of Surrogates. I. Surrogates proper. II. County judges sitting as Surrogates. III. Special Surrogates. , IV. Acting Surrogates. |§ 31-34 THE COURT AND THE SURROGATE 33 V. Temporary Surrogates. § 31. 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. ; § 32. County judges when sitting as Surrogates are entitled to the designation of "the Surrogate of the county, without any addition referring to his office as county judge." Code Civ. Proc, § 2472. The distinction between Surrogates proper and county judges sitting as Surrogates was formerly further emphasized by the fact that under the old constitution a Surrogate was not a judge, but merely a judicial officer (see People 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 Surro- gate. Still, this was only for purposes of construction in interpreting the provisions of the Code itself. To preside, by right, over a Court of Record constitutes the one so presiding a judge. §33. Special Surrogates are local officers whose election may be ordered on application of the board of supervisors "to discharge the duties of county judge and of Surrogates in cases of their inability, pr 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 mat- ter being indicated by italic). The Code distinctly designates these officers as "Special Surrogates." Code Civ. Proc, § 2472. The Code is not to be taken as irepealing the prior provisions of the law giving special Surrogates their powers. . L^ws of 1849, chap. 306, and La\ys of 1851, chap. 108; AMinger v. Pugh, 132 N. Y. 403; Ross v. Wigg, 101 N. Y. 640. The designations of the Surrogates are fixed by § 2472 : §2472. Surrogate and acting surrogate; their official desigriations. 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 d^esignated in this act, and, when a,cting as surrogate, may be designated as the "special surrogate" of his county. Where an officer, other than the surrogate, or special surrogate, acts as surrogate in a case prescribed by law, he must be designated by his official title with the addi- tion of the words, "and acting surrogate." Former § 2483 of this Code. From L. 1853, c. 648. § 34. 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, § 2472. The Code provides by § 2478: 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, or is disqualified in, a pai^ticular matter and special provision is not made by law for the discharge of the duties of his office in that contingency; the duties of hi^ office must be dis- cha,rged until thp vacancy is filled or the. disability ceases, as follows: 34 surrogates' courts ^ § 34 1. By the special surrogate. 3.: If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge. 3. If there is no special county judge, or he is in like manner disabled, or is pre- cluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district attorney. ■ i But before an officer is entitled to act as prescribed in this section^ proof of his authority to act as prescribed in section 2481 of this chapter must be m^de. . 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 being, 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 cases 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 cerlJifieates 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 supreme Qourt, the court shall direct the papers to be returned and filed,' and tran- scripts of all orders and decrees made therein to be recorded in the, surrogate's office of such coimty; 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. i ■ Former §2484 of this Code. From 2 R. S. 79 (Part 2, c. 6, tit. 2), §§49-54; L. 1847, c. 470, § 32; L. 1871, c. 859, § 8; L. 1877, c. 285; L. 1879, c. 151; L. 1893, c. 686. > As to Kings County, note special Act, chap. 490, Laws of 1884. The following sections embody the provisions governing these excep- tional cases: § 2479. // surrogate disgiuilified, who to act. Where the surrogate of any county, except New York, is precluded or discjualified from acting with respect to any particular matter, his powers with respect to that matter, or if he be temporarily absent, his powers with respect to all matters, shall be discharged by the several officers designated in the last section, in the order therein provided. If there is no such officer quaUfied to act therein, the surrogate may file in his office a certificate, stating that fact; specifying the reason why he is disqualified or precluded; and designating the surrogate of any county, other than New York, to act in his place in the particular matter or during his absence. The surrogate so designated has, with respect to that matter, or generally when the designation is made on account of absence' of the surrogate, all the powers of the surrogate making the designation, and may exercise the saine in either county. Former §2485 of this Code. From L. 1877, c. 285; L. 1879, c. 311; L. 1893, c. 686. ' '"'■" - The words "any county" are merely italicized to show the omission of the words "an adjoining" which used to qualify the word "county/,' § 2480. Id., in New York county. 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 ex- ercise all the powers and jurisdiction of the surrogate's court, as follows: 1. Where the surrogate is precluded or disqualified from acting with respect § 34 THE COURT AND THE SURROGATE 35 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 surrogate is dis- abled 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 disability ceases, as the case may be. - j '^tM "' Former § 2486 of this Code. See L. 1881, c. 535; L. 1893„c. 686; L. 1895, c. 946. Logically, reference should here be made to §§ 2507 arid 2508, quoted in § 39 below, q. v. § 2481. Proof of authority. The authority of another officer, or, in the county of New York, of the supreme court, to act as prescribed in the last three sections, must be proved in one of the following modes: , 1. Where the surrogate is disqualified or precluded from acting in a particular matter, that fact may be proved by the surrogate's certificate thereof. Where the suiTOgate is temporarily absent, 'that fact may be proVed by the certificate of the surrogate, or of the gjerk of the surrogate's court, or of the county clerk. 2. The fact that the surrogate is disabled by reason of sickness, or lunacy, or that the office is vacant, and alsp the authority of the officer, or of the couj-t, as the case may be, to act in his place, may he proved and are deemed conclusively established by an order of a justice of the supreme court of the judicial district embracing the county. , > j ii Former § 2487 of this Code. See L. 1887, c. 684; L. 1893, c. 686; L. 1895, c. 946. § 2482. Id., when and how made. An order may be made as prescribed in subdivision' second of the last section upon or without notice, as a justice of the supreme court of the judicial district embra-cing the county thinks proper. It must recite the cause of the making thiereof , tod must designate the officer or court enipowered to discharge the duties of the office of surrogate. It may, in the discretion of the justice, require an officer to give security for the due discharge of the duties therein. Where the office of surrogate is vacajat, or the surrogate is disabled by reason of lunacy, the attorney-igeneral, if directed by the governor must, or the district 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 graint the order upoin the application of a party or a person about to become a party to any special pro- ceeding in, the surrogate's court. . Where the surrogate is sick, the _ granting of an order rests in the discretion of the justice, and its effect may be qualified as the justice thinks proper. Fbrmer § 2488 of this Code. From same sources as §2478, ante. Am'd by L. 1889, c. 495' §'l. ' ' §2483. How atUhority superseded. Where an or4er,is made by a, justice of the supreme coiu:t of the judicial district embracing the county, as prescribed in the last two sections, or an appointment is made as prescribe in section ^484 of this chapter for any cause except a vacancy in the office of surrogate, it rhay be revoked, without prejudice to any proceeding 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 improvideritly made, or that the cause of making it h?,s become inoper^ative. Such an order or appointment, made upon the ground that the surrogate's office is yacant, is super- seded without any formal revocation, by the filling of the vacancy. After the order of appointment is revoked, or the vacancy is filled, ^ the case may be, the unfinished ' business, in any proceeding taken by virtue of the' order or appointment, must be 36 surrogates' courts § 35 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. Former § 2489 of this Code. See L. 1889, c. 495, § 3. § 35. Temporary Surrogate. — Temporary Surrogates are special ju- dicial officers, appointed under special circumstances set forth in § 2484, below, to perform, the duties of Surroga,te for a limited time. If the Surrogate is disabled by reason of sickiless and there is no special Surrogate, or special county judge {Matter of Frye, 48 N. Y. St. Rep. 572) of the coimty, the board of supervisors (this applies to any county except New York) may, in its discretion, appoint a suitable person to act as Surro- gate until the Surrogate's disability ceases; or until a special Surrogate or a special county judge is elected or appointed. The SUpreihe Court also possesses the power to appoint sUch temporary officer, by virtue of its succeeding to all the powers of the chaiicellor. 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 coimty, 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 the end of 1881, and not for a full term through 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 lipon the occurrence of a vacancy. As to New York county there would be no temporary Surrogate, as the supreme court is directed to act until the vacancy is filled. See § 2480, Code Civ. I?roc. (This is unUkely now to occur as there are two Surrogates.) Moreover, these decisions would probably govern in view of the manifest intention of the new constitution as to uniformity of terms in cbuHty offices. Acting and temporary Surrogates must not be confounded. The one is usually an existing officer-^the other need Qot be. The acting Surrogate unless directed so to do by the supreme court need not give additional security for the performance of his duties. Code Civ; Proc, § 2482. 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, § 2484) and must file an oath §§ 36, 37 THE COURT AND THE SURROGATE 37 of office. The Code expressly differentiates between them — for in provid- ing for their coiifipensation 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 § 2484) "appointed by the board of supervisors, who acts as Surrogate of any coimty during a vacancy in the office, or in consequence of disability." Code Civ. Proc, §2485. § 2484. Temporary surrogate; when board of supervisors may appoint. In any county, except New York, if the surrogate is disabled by reason of sick- ness, and there is no special surrogate, or special county judge of the county, the board of supervisors, or in the counties embraced within the city of New York, the board of aldermen, may, in its discretion, appoint a suitable person to act as surrogate untU the surrogate's disabiUty 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. , Former § 2492 of this Code. From 2 R. S. 79, § 54; L. 1830, c. 320, § 21; L. 1893, c. 686.„ § 36. Surrogatje's alternate .^Prior to the adoption of the new constitu- tion 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 niatter regarding whiph the Surrogate is pre- cluded 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 Codehas' been amended (chap. 946 of I^aws 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 coimty judge is also surrogate, may be held at the time and plap^ at which the county court is held; and the jury in atteniiance may c;onstitute the jury fqr the. trial of any issue arisiag in the sur- rogate'* court. §, 2605, Code Civ. Proc. § 37. Compensation. — The compensation of "acting" or "temporary". Surrogates is covered by the Code, by the differentiation between "officer" and "person" in § 2485, Code Civ. Proc: 1" § 2486. Compensation, of person acting as surrogate in case of vacancy^ disfiibilUy or disqualification. „ ., . An officer, or a" person appointed by the board of supervisors, or board of alder- men, who acts as surrogate of any county during a vacancy in the office, or in con- sequence of disability, as prescribed in, this title must l^e paid, for the tim^e during which he so (fcls, a compensation equal pro rafajo the salary of the surrogate; or, in a county wheije the county judgeis also surrogate, to the salary of the county judge. The amount pf his compensation must be, audited and paid in like manner as the salary of the surrogate, or of the county iu4ge, a? tlie case may be. Where an officer of the county performs the duties of the surrogate with respect to a particular 38 surrogates' courts § 38 matter wherein the svirrogate is disqualified or precluded, froua actijig, the super- visors of the county, or board of, alderijiea, must allow him a compensation equal pro rata to the salary of the surrogate to be audited and collected in the same manner. ' ~ Former § 2493 of this Code. From L. 1871, c. 859, § 8. He lis to be paid for work actually done and time actually occupied. Matter of Tyler, 60 Hun, 566. This does not mean that, if he is appointed January 1, and superseded June 1, he will be paid for six months. 'Moreover, if there be a special Surrogate, his compensation, fixed as elsewhere noted, is in conteniplation of his acting in 4ny emergency pre- scribed by la^y. Therefore, he is not entitled io additional compensation under § 2485. People v. Sup. Oneida ,Co.,, 82 Hun, 105, See, also, as to m.ilea,ge,'etc.i ToiunisendvjSupervisors, 73Misc.5&d. > § 38. Formalities, jurisdictional.---^The practitioner is concerned, if such a case present itself, in haying the alternate duly designated. So is the alternate, or acting Surrogate. Under § 2485, his coinpensa- tion may hinge upon it. Matter of Tyler, 60 Hun, 566. The nature of the emergency determines who should act, or move for the designation. ' i Where the office of Surrogate is vacant,' or should he be disabled by lullaey the' attorney general, if directed by the governor, must apply for th6 order. Or the district attorney may do so, upon his own motion. Upon either application the justice to whom the apphcation is made, that is, a supreme court justice of the judicial district embraciiig the county, must grahtit. ' ■ ' ' '■'" ' It is proper for a party to any special proceeding in the court of a Surro- gate 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. Th& justice may grant it onsuoh application. i,. ' Where there is no special Surrogate in a county, but there is a special county judge, it is prbjier to designate the latter where the Surrogate is temporarily absent and unable to act. See Matter of Prye^A?> N. Y. St. Rep.' 572;^"' ■ •" ■ ■ i" '-'■''• ■ ,-,,.„. ,.■-•^'M . The f61l6^h^ precedents are suggested': In Surrogate's Court, Certificatie under County of ' ■ v ' section 2479. Title. I Surrogate of the County of hereby cer- tify, thait I ain precluded, {or disqualified) from Etcting witti respect to the above entitled matter by reason of {here state the reason why he is disqualified or pre- cluded, ivflether g^/i&rally as a jiididal bffic&r, or spedaUy under iWe)'.' '"" ''■ ^' §38 THE COURT AND THE SURROGATE 39 Note. The Surro- gate of New York county cannot be designated, but it need not be an "ad- joining" county. , , ; See also Forms 1-2, post. And I further certify that there ia no officer designated in section 2478 of the Code of Civil Procedure, within this county, qualified to act therein, and I do accordingly pursuant to the provisions of section 2479 of the Code of CivU Procedure desig- nate the Hon. the Surrogate of the adjoining county of {note) to act in my place and stead, in the above entitled proceeding. (Dated.) (Signature.) Pipof of authority under section 2481 of the Code of Civil Procedure. Note. See § 2482 as to promovent. Note. Or describe particular matter, or status, as due to va- cancy ip oflSce,. etc., reading §§2478 and 2482 before drafting. Supreme Court, County of. In the matter of the application of for an order estabUshing the authority of {here insert name of officer or court to he designated) to act in the place and stead of Hon. Surrogate of the County of in (give title of proceeding). To the^Supreme Court of the State of New York: The petition of {note) of respectfully shows to this court: I. That late of • and County of in the State of New York departed this life on the day of 191 leaving his last will and testament. n. That your petitioner is named as executor in said last wiU and testament, and has accordingly begun a proceeding for the probate of said will (note), in the Surrogate's Court ia the said County of and has filed a petition praying 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 believes that the Hon. Surrogate of the County of is pre- cluded or disqualified from acting with respect to the probate of the said will {here state cause of disqunlifkatOm, whether general or special under section 2476, 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 2478,. what officer in the County is qualified to he designated or to act in the place of the Surrogate except in New York County; see section S480). Wherefore your petitioner prays an order of this court, establishing the fact that the said Surro- gate of rthe County of is disqualified {or precluded, orr that he is disabled, or that the office is vacant) and further es- tabUshing the authority of the Hon. {Specifying the. proper officer under section 2478, 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 dis- ahled, 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 disabiUty of the said Surrogate ceases). , {In cases of the Supreme Court "to exercise all the powers and jurisdiction of said Surro- 40 surrogates' courts §'38 gate's Court" until the vacancy is filled or the disability Ceases, Note. Since there note.) " ' are two Surrogates (Whsre the application is for the designation of a special officer in New York County to act as Surrogate, aM, and that said- order fix the security to it is not probable be given by said for the dlie discharge of his'duties that the contingen- in said matter), or for the exercise of the powers and jtirisdiction cies provided against of said Surrogate.) i are likely to occur. (Dated.) , (Signature.) (Verification.) Where the justice of the supreme court requires notice of the appHca- tion to be gi^n 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 obtained, in which case, however, an additional aflS^avit should be presented stating the reason why an order to show cause is asked for. Caption. Order under sec- Title. tion 2482. See Form 2, III. On reading and filing the annexed petition of . . < duly verified the day of 191 , {and where thi certificate is annexed to the petition add, together with the certificate of JEIon. Surrogate of the County of the day of 191 ) 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 j {here stale nature of proceeding) and it further appears that the Hon. the Surrogate of said County, is disabled by - reason of ' {or that the ofiice 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 general or special reason of disqualification): - Now, on motion of attorney for the petitioner, it is hereby Ordered, that {here designate the special officer in- dicated by the petition under section S478 or in the County of Nem York the Supreme Court) be and he (or it) is hereby designated and empowered to discharge the duties of the office of said Sur- rogate 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 exercise the powers and jurisdiction of the said Surrogate's Court until " {here specify the filling of the Vacancy, or the ceasing of the disability). Where an officer is designated add a further clause. And IT IS Further Ordered that the said {desig- nating the officer) before exercising ariy of the powers or per- forming any of the duties of said Surt-bgate execute and file a bond {here describe the character and amount of bond under § ^483). (Signature of Judge.) §§ 39-40 THE COURT AND THE SURROGATE 41 • § 39. During disability. — While the vacancy or disability continues there is no exceptional situation presented as to proceedings, or practice unless thercihas resulted a transfer to the Supreme Court. In that case the Code provides: ^2507. \. Proceedings in supreme court regulated. In a special proceeding cognizable before a surrogate, taken in the supreme court, as prescribed; in section 2480 of this chapter, the seal of the court in which it is taken, must be used, where a seal is necessary. The special prdceeding must be entitled 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 ia, citation may be directed, and any order intermediate the citation and the decree may be made by a judge of the court. ' form^ § 2490 of this Code. From 2 R. S. 79, § 52; L. 1895, c. 946. § 40. Retransf er of matter.— The practitioner, hiinself , must apply for the order,, and should see to it, for the,sake of regularity that the "en- tries" necessary to conaplete the record in the Surrogate's Court not only be directed by the Surrogate^, but actually made. , § 12608. Id.; tranter of proceedings to surrogate's court. Tlie court may, at any time, in its discretion, upon being satisfied that the reason tor 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. Immediately after such a transfer, or after the revocation of the order of the justice of the supreme court as prescribed ia section 2483, the surrogate must cause entries to be made in the proper )?po'k in his office referring to all the papers filed, and orders entered, or other proceedings taken in the supreine court; and he may cause copies of aniy of the orders or papers to be made, and recorded or filed in his office, at the expense of ! ' ! the county. i . Former § 2491 of this Code. See L. 1895, c. 946. The, following precedent may be followed : Supreme Court , ., i i , Caption. Present: Hon. 'Ordei' fern it ting "i Justice. I^oceediiigs to' Sur- Title. rogate's Court tinder section 2608. This proceeding having been transferred to me {or, to this court) from the 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 order), and it appearing to my satisfaction that the reason for the exercise of the powers and jurisdiction of said Surrogate's ' ' Court by this couxt has ceased to operate, now, pursuant to section 2508 of the Code of Civil Procedure, it is Ordered that the above entitled proceeding be and the same is hereby transferred back to the said Surrogate's Court of the County of (Signature.) 42 surrogates' courts ! '§41 Such an order operates to transfer the proceeding, and all .subsequent proceedings must be entitled in and acted on by the Surrogate's Court.i It is hardly necessary to suggest a precedent for the order of > revocation described in § 2483. § 2609. Proceedings, etc., of acting surrogates, where and how recorded/.' x > Where an act is done, or a proceeding is taken by, before, or toy: authority of, an officer, or a person appointed by the board of supervisors, or by the board of aldermen, temporarily acting as surrogate of any county as prescribed' in this chapter, 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 were done or taken by, before, or by authority of the surrogate of the County; and the offieer or person so acting, or the clerk of the surrogate's court, must sign the certificate of probate and any letters so issued, and must certify the record thereof in the book. Former § 2494 of this Code. From 2 R. S. 80, § 53. Under this section it is intended that he must sign with his proper official designation. Should he omit to do so, held, the jecord may be subse- quently amended. Munro's Estate, 15 Abb. Pt.'SQS. § 41. Disqualification.— We have noted that, the disqualification call- ing for an alternate to act may be general or special. The general disquali7 fication is that " as a judicial officer," the special is as Surrogate. The former is defined in the Judiciary Law, art. II, §§ 15 ei'seg., under "interest," "consanguinity," "affinity." Being a polidy holder in an in- surance company litigant, or a taxpayer pi a municipa,! litigant,., is, not ground for disqualification. ,, ., The latter is defined in § 2476, which reads : In addition to his general disqualifications as a judicial officer, a surro;^ate is disqualified from acting upon an application for tihe probate of a will where 'he is a subscribing witness, or, is necessarily examined or to be examined as a witness. A surrogate is also disqualified in any matter in his court where he files a certificate that his relations . '' . ' : to the parties or the subject-matter are such tha;t it is improper forhlm to ia,et. Former § 2496, modified. This voluntary disqualification is deemed a matter of discretion^ even if a party objects to its exercise. In general, therefore, the appellate court will not interfere in the matter. Matter o/ iVewcombe,. 45; ^t,^ .Rep,', ..^06. The omission of matter in former § 2496, is claimed to be insignifiQa^t as being covered by the Judiciary Law, g. f. . . ' - The former section read: "''*5'- '■" A surrogate is disqualified from acting upon an application for probate, or for letters testamentary, or letters of admiMslration, in each of the following cases: 1. Where he is or claims to he, an heir or one of the next of kin to the decedent, 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 mU. 3. Where he is named as executor, trustee or guardian, in any will, or deed of ap- pointment, involved in the matter. , Assuming, however, that another had probated the will, I doubt whether §42 THE COtntT AND THE SURROGATE 43 the Judici'ary Law would, or intends to, bperate to jirSvent his acting on an application for letters, which would be governed either by the will or by the statute. But "interest," or "consanguinity" would doubtless cover subd. 1 and 3 omitted. Th^ topic requires no extended discussion, He .shall not tjy as Sii^ro- gate any proceedings in which he is a party, or interested; bi^t where, by stipulation of thp attorneys, moneys were paid in to the Surrog9.tp to await the; result of a litigation and the ^urrog3,te took possession accoirdingly, held this was not an interest to disquahfy him (Matter of Hancoqk, 91 N. Y. 284, reversing 27 Hun, 78; Matter of TSffwco^he, 63 Hun, .633^ see 1^ N. y. Supp. 549); nor may he try j^roqeeqlings in which he has beep attorney or counsel {Darling v. Pierce, 15 Him, 542) ; or where hj^^ is,rel,£^ted by consanguinity or affinity to ai^y party tp.jbh^ controyersy within ,the sixth degree. Jud. Law, § 15. Marriage to a legatee not a party tp the proceeding held not to disqualify. HqpJci'j^Y. Lane, 6 Dem. 12. In Underhill y, Dennis, 9 Paige, ^02, it was Jbeld a Sjirrogate might, ap- point a relat:iye guardian Oidiimji^.. So, in AI,atter of Van TFagforien, 69, Ilun, 365, it was held, fqllowing tlie case in. 9 Paige, that, whatever might be said of thcs, ethical proprieties of such appointment, the fact th9,]b such guardian was the Surrogate's brother .would not disquahfy hi^.from acting. See also Matter o/ Hopper (a lunatic) ,j 5 Paige, ,489.., ,, I .;,., . Former § 2496 wa§ h^ld. npt to disqijalify a Surr-Oga-tp T|p;liq,was warden in a church to which a legacy was given by a will, from entertainipg proceed- ings fp:;its probate. Hopkins v. Lane, 6 Deiji, 12, aff'd IJ N. Y. ^t.Rep. 677. Aside from the statiitqry,, causes for disqia.ajifi^atipn,; a, Surrogate ni^st us^ his dis,cre|;i.on ,in dieclining tp^.act ;in a giysn, cas,e. ; M,att£(r,..gf ^^cmS)e, supra. ,,See,as to personal interest, MO/^er of Bingham, 12^ N.,Y.,29€!v § ,42. Satne ; Waiver.r--jAii aclialt, party can waive objectjoji to the power of a. Surrogate to, a^t.T.he objection may b,e urged at, any time before issue is Joined by that party; "or, .wber^, an|.issu^|in.^iitiug jsnot framed, at or before the submission of the maitter, ii^qiiepjtion tp. the, Sur- rogate." TheprOivisioni^iasJfpllows: ,; ,, ,- . ,, .,/. , ,,. i An objection to the powenof a surrogate to iact.i based upon a diaqkialifeatioa, is waived by an adult party to a special proceeding,, unless it is, taken at or. before the join(ier;of issue by that party; o?. where an issue is iiot fi;amed, at or before the submission of the matter or question to tte surrogate. ,§2477, Code Civ. Prpc. (Former § 2497.) ' ' ' ' ''^' .„ TJndef, the old section. .such waiver ,comW n/otbefid^ofthejhfee objections presentable -under former ^ ^49,6. ' .s c , i - / > As for infants, their rights are not prejudiced. The acts/of a disqualified Surrogate in proceedings in which their rights are involved arfe void as to th^mi,, The^ failure of a special guardian tp interpose objection cannot be taken as a waiver, nor does it bind the infant. See Wigand v. I)e Jonge, 8'Abb.'N.'e:'260.-" ■'■ ■■■ '-■'— ^'' --'f^ ,-'...:'^! !■ -,.i -:,- i :,W/ .,i § 2474. Surrogate, when not to be aninsel. . A surrogate shall not be counsel, solicitor or attorney in a civil action of special 44 surrogates' courts § 43 proceeding for or against., any executor, adpinistrator, temporary ^idpijnistrator, testamentary trustee, guardian or infant, over whom, or whose estate or accounts, he could have any jurisdiction by law. ' Former § 2495 of this Code. From 2 R. S. 223 (Part 3, c. 2, tit. 1), § 13, as am'd byL. 1893, c. 686. ' : This is germane to, though' not in the statutory' context of, the general subject of disability. Theoretically, he oiight nOt to practice at all. But the Cbnstitution, Art. VI, §20, only prohibits aiiy Surrogate, thereafter elected, in a county, haviiig a, population exceeding 120,G00,.from practicing in any ' ' court of record ' ' in the State, and from acting as referee. The Surrogate of Westchester county, taking office January 1, 1901, did So act as referee, and' a motion was made on the ground he was without j)ower 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 ceiisus of 1892 dr'thfe Federal census of 1900 would gbvern; 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. BroviM, 64 App. Div. 5441 Ste afeo Matter of Silknian, 88 App. Div. 102, where a second application was made to disbar the then Surrogate ftom practice during his terrni Three opinions were Written. The motion was denied on the ground that if he had offended the constitu- tion he had offended as Surrogate and not as a lawyer; and on the further ground that in the court's opinion of what the word "population" meant it did not affirmatively appear the county had a populatioh exceeding 120,000. See opinion of Woodward, J., pip. 106-123. If a Surrogate has beeii acting ascfoiinsel or attorney befbi-e his election and undertakes to pass on proceedings iriitiated by hini as counsel or a,t- tomey, as tor example in making an order of sale based on a judgment re- covered by him, or in passing ain executor's accounts, prepared under his personal advice^ his acts are void. Darling v. Pierce, 15 Him, 542; Wigand V. De Jon^ei 8 Abb. N. C. 260. In Matter of Merrill, 151 App. Div. 785, a Surrogate did Sd abt, and was paid by. the executor $600. He was required to repay the amount to the estate. (See three opinions.) § 43. Seal. — I,t is characteristic of a court of record that it have a'Seal. 'Tlbis is covered by the act. § 2473. Seal of the sy,rro^gq,te an(t surrogate's court. The seal ot the surrogate of each county shall contimie' to be the seal of the surrogate's court of that county, and must be used as such by anxfficer who dis' charges the duties of. the surrogate. . A; description of each Of such seals must be deposited apd recorded in the office, of i ^hei secretary of state, unless ijt has already been done; and must remain of record. , , , i , ; .FoiTner § 2507 pf this dode. From 2 R. S., .§§ 3, 4, 5, as am'd by L. 1909, cj 65, It will have been noted, above, that while a matter is transferred to the supreme court under § 2480, the seal of that court must be used, when a ^«!p,l is necessary, ^pe §,2^07, Code Civ. Prpc. § 44 THE COURT AND THE SURROGATE 45 § 44. Books and records. — The following sections are formal and self- explanatory: § 2486. Books to be kept by surrogate. Each surrogate must provide and keep the following books: 1. A record-book of wills, in which inust be recorded, at length, every will re- quired by law to be recorded iii his office and the decree admitting it to probate. 2. A record-book of letters teStamentairy, letters of administration and letters of guardianship, 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, testamentary trustee, or guardian is settled. 4. A book containing a minute of ev«ry paper filed, or other proceeding taken, relating to the disposition pf the re,al property of a deQ^ent, and, a record of every order or decree made thereupon; w^ith a memorandum of every report made, and, other proceeding taken, founded upon a decree for such a disposition. 5. A book containing a minute or record of every decree or order, the record of which is not required by this section to be kept elsewhere; together with a memo- randum of each execution issued, and of the satisfaction of each decree recorded therein. 6. A book in which must be recorded; upon the a/pplication of any person, all instruments acknowledged, or proved, and duly certified, settling estates or accounts or assigning, mortgaging, charging or releasing any interest in any estate or fund. 7. A book known as the Court and Trust Fund Register. 8. A book in which all bonds and undeirtakings filed in his court must be recorded'. The expense of providing the books required by law to be kept and used by the surrogate is a county charge, and such books must be open at all reasonable times to the inspection of any person. ' Former § 2498 of this Code, modified, with parts of §§ 2499, 2502, 2509. From 2 R. S.-222 (Part 3, c. 2, tit. 1), § 7; Id., 110 (Part 2, c. 6, tit. 4), § 60; L. 1837, c. 460, §3. See below in chapter on Clerks, special provision § 2503, as to the Court and Trust Fund Register mentioned above in subd. 7. § 2487. Books to be indexed; notation on margin as to certain decrees. 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 tound. The surrogate may keep two or more books for a further division 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 or judgment affecting a will, its probate or construction, 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 subse- quent decree is recorded. Former § 2499 of this Code. From 2 R. S. 222 (Part 3, c. 2, tit. 1), § 7; L. 1837, c. 460, § 2. § 2488. Papers and books to be preserveS and bonds filed. The surrogate must carefully file and preserve in his office every deposition, affidavit, petition, report, account, voucheri or other paper relating to any pro- ceeding in his court and deliver to his successor all the papers and -books kept by him, except that vouchers may be returned to the accounting party after two years, or destroyed after five years from the date of the decree which allowed the payments represented by them. 46 surrogates' courts § 45 iFormer § 2500 of the Code, From 2 R. S. 223, § 8; Id., 102, § 13; L. 1837, c 460, §2; L. 1893, c. 686. ' § 2489. What papers to be transmitted to secretary of state or state comptroller; expenses thereof. ; A surrogate who admits to probate the will of a person who was nofe a resident of the state at the time of his death, or grants original or ancillaiy letters testa- mentary, upon such a will, or original or ancillary letters of administration upon , the estate of such a person, must, within ten days thereafter, transmit to the secre- tary of st,^te,;to be filed in his office, a certified copy of the will or letters.- The surrogate must, within ten days after granting letters of administration to a county treasurer, transmit to the state comptroller a certified copy of such letters. Forwer § ,2503 of this Code. From 2 R. S. 80 (Part 2, c. 6, tit. 2), § 59. § 45. The court; terms of.— The following sections of the Code regu- late the holding of court for the disposition of business: § 2504. Surrogate's court; when to be opened; times and places of holding court. The surrogate's court is always open for the transaction of any business within its powers and jurisdiction. The surrogate may, from time to time, appoint, and may alter, the times and places of holding said court for the traiisaotion of any business which may come before it. ■■ The surrogate may sign orders, decrees, letters testamentary, of admin- istration and of guardianship, and approved bonds wherever he may be at anytime. From former §§ 2504, 2505' of this Code, in part. § 2606. When and' where court held by county judge. Proceedings where county ! 1 judge is also surrogate. 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 the jury in attendance inay constitute the jury for the trial of any issae arising in the surro- gate's court. ~ : ' Former § 2506 of this Code, in part. From L. 1847, c. 280, § 32. The diffeirentiation of New York county is emphasized by special and more detailed provisions. , / ! , § 2606. Terms of surrogates' courts in New York county and powers of surrogates. The surrogates of the county of New York, from time to time must appoint and may alter the times of-holding 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 appoifatedi In case of the inability 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 tertn of that court held at the chambers shall dispose of all business except con- ' tested probate proceedings; all contested probate proceedings shall be disposed of at the trial term. An appointnient must be published in two newspapers published in thei city of New York during or before Ihe first week in January in each year. All the powers conferred by law upon the surrogate of the county of New York may be Zeroised by either of the surrogates of the said county. 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 aU appraisers, transfer tax appraisers, special guardians, referees and temporary administrators, which either surrogate shall have designated or appointed during the preceding week together with the names of the proceedings ■ in which they were appointed and the dates of said appointments. . Former § 2504 of. this Code, in part. From 2 R. S. 221 (Part 3, C. 2, tit. 1), § 2; L. 1893, c. 9; L. 1899, c. 605. CHAPTER III CLERKS — OFFICERS— POWERS AND DUTIES § 46. Court and office clerks, appointment. — Mr. Redfield was of opinion (7th ed.,§ 4) that the language of the Code differentiating between the Surrogate's Court and the Surrogate, and the powers of one and the jurisdiction of the other, did not raise any distinction at least of jurisdic- tional importance. That is probably so. We have, however, in discussing the enlargement of both powers and jurisdiction, in their relation to con- stitutional limitations, emphasized the differentiation. It exists — and it exists,, in tjie present context, between the court and the office of the Surro- gate. The following sections we accordingly italicize, in part, to point the matter. § 2491. Clerk and deputy clerk of surrogate's court, and clerks in surrogate's office; appointment; salary. 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 counties of Monroe and , Etie the surrogate may also appoint a deputy clerk of said court. Each suiTOgate may appoint, and at pleasure remove, as many other clerks for his ' offixx, to be paid by the county, as the board of supervisors of his county, or in the , , cjty of New York the board of aldermen, authorize him so to appoint. The board of supervisors or, in the counties embraced within the city of New , ,,, Yprk;, the board of aldermen, as the case requires, must fix the compensation of the clerk or clerks appointed under this section; and may authorize them, or either of , them, to receive, for their or his own use, any legal fees permitted to be charged by . Jaw. A surrogate may appoint, and at pleasure remove, as many additional clerks to be paid hy him as he thinks proper. Former § 2508 and part of § 2509 of this Code, consolidated and amended. The last paragraph of this section was former § 2508. It was repealed so far as said section related to the county of New York by Laws of 1884, chap. 530, § 11, which contains express authority for appointments in that county. In the table of Laws Repealed in 6 Birdseye*s C. & G. Con- solidated Laws, p. 6785, it appears this § 11 is repealed. By chap. 775, L. Wll, the Board of Aldermen and the Board of Estimate and Appor- tionment both ceased to control the N. Y. Surrogates, their office or em- ployees. The Surrogates had the right to appoint and fix salaries which "shall be a county dharge." . § 2492. Chief clerk of surrogate's court of Kings county; compensation of clerks and officers. The surrogate of the county of Kings may appoint a chief clerk of the court and office oi such surrogate, who shall hold office for five years unless sooner removed by , the sliiTPgate for cause, after trial, upon charges duly served upon him and an op- § 46 47 48 surrogates' courts §§ 47, 48 portunity to be heard and defend. Whenever a vacancy exists for any cause in such office, the surrogate shall appoint a person to fill such office for the full term of five years. Such chief clerk shall, before entering upon the performance of his duties, take the constitutional oatl^ of office and shall file the same with the county clerk of Kings county, together with a bond in the sum of ten thousand dollars, with sureties approved by the surrogate, conditioned for the faithful performance of his duties as such chief clerk. Such chief clerk shall perform such duties as now pertain to the office of chief clerk and clerk of the svu^gate's, court in such county, and such other duties as the surrogate may from time to time by rule of the court or otherwise impose upon him. The compensation of such chief clerk and of the ■ other clerks and officers of the court and office of such surrogate shall, notwithstanding any other provision of law, be fixed by the said surrogate, and the same shall be a county charge. The compensation of the chief derk shall not be decreased during his term of affice. Former § 2509a of this Code. From L. 1911, c. 688. §47. Surrogate's liability- Section 2475 proAddes: A Siirrogate hereafter elected or appointed, and the sureties in his official bond, are liable for any act of the clerk or deputy clerk of the Surrogate's Coiirt in the discharge of his official duties, during the Surrogate's term of office, as if the act were performed by the Surrogate. The Surrogate may take security from the clerk or deputy clerk, or either of th^m, to indemnify him against the liability created by this section. (Former :§2511.) ■ " ' §48. Functions and powers.— This subject has been condensed and restated in th,e Act of 1914, as follows (split up, for convenience in noting changes, in the law) : § 2602. [Am'd, 191S-] Clerk of surrogates court; deputy clerk of surrogate's court; their powers. The clerk and deputy clerk of the surrogate's court may severally exercise, con- currently with the surrogate, the following powers of the surrogate: 1. He may certify and sign as clerk of the court, or as depiity clerk of the court, as the case may be, any of the records of the court, and the records and papers specified in subdivision nine of section 2490 of this chapter. The fornier section (2509) included also the power to sign the certificate under former § 2629 (now § 2621) that an original will had been admitlied to probate as a will valid to pass real or personal property, or both.! This power is now written into § 2621 itself. 2.' He may issue any citation, subpoena or other mandate to which a party is entitled. as of course, either unconditionally or on the filing of any paper; and may sign, as clerk of the court, or as deputy clerk of the court, as the case may be, and affix the seal of the court to any letters or mandate issurai from the court. The new power extends to the issuance of citation and subpoena. ; Qur discussion, in former editions, of mandates which the clerk could, ^n and those he could not is still pertinent in that the qualification is preserved "to which a party is entitled as of course." See Matter of HurUmt, 4& Hun, 311 {dictum, but true); also Mouran v. Hawley, 2 Dem. 396. The distinc- tion is usually indicated in the Code by words indicating some preliminary § 48 CLERKS — OFFICERS — POWERS AND DUTIES 49 scrutiny by the Surrogate of the appUcation, whereupon, if he he satisfied, then citation may issue, etc. That is to say: 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 involves the exercise of judicial power by the Surrogate; such powers can- not be delegated through any of his subordinate's. The word mandate, even formerly, unquestionably included a citation (see § 3343, subd. 2, and also §2522, Code Civ. Proc, which says, "A citation or other mandaie 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 proceedjing. To it and th§ statute the respondent is bound to look for information 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 authorizing the clerk of the court to sign Surrogates' decrees. And a decree not signed by the Surrogate has no validity. Munro's Estate, 15 Abb. 363; McNaughton v. C have, 5 Abb. N. C. 225. 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 Surrogate 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 invaHd letters had no protection, and could be made to pay to the representative of thp estate having valid letters. Roderigas v. E. R. Sm. Inst., 76 N. Y. 316. The duty of the Surrogate's clerks to mfike and certify searches is, in the inscrutable wisdom of an all wise Legislature^ set forth in § 961 of the Code, q. V. . 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 adjpum to a definite time, not exceeding thirty days, any matter, when the surrogate is absent from his office, or unable, by reason of otheir engage- ments, to attend to the same. 5. He may administer oaths, take affidavits and the proof and acknowledgment of deeds and all other instruments iii writing and certify the same with the same force and effect as if taken and certified by the county judge; and in any proceeding of which the court has jurisdiction, he may administer oaths, take affidavits, testi- mony and depositions, .and certify the same at any place within the state df New Yort, with the same force and effect as if taken in his county. 6. The clerk of the surrogate's court of each of the counties of Kings, Bronx, Queens and New York may, with the approval of the surrogate or surrogatiEs of his county, authorize or deputize one or more of the other clerks, employed in tl»e surrogate's office of his county, to sign his name, and exercise such of the other powers conferred upon him by this section, as he shall designate. The surrogate may prohibit the clerk and deputy clerk, or either of them, from exercising any 80 surrogates' courts !!■ §§49,50 'i , , .powers specified in tbis subdivision, but ,the prohibition does not affect the validity of any act of the clerk or deputy^.clerjt done, in disregard .ojE the prohibition. ,, . 7. The clerk or deputy clerk or qther person employed in any capacity.in a surrogate's office, shall hot act ap appraiser, as attorney or counsel, or as referee, or ' -special guardian, in any matter before the surrogate. '' ' " ' , Sees bglowfor ^iscusaon, of Disajailities pf ^Qlerkg. ^, 8; The clerk and deputy cleik of the surrogate's Court,i and in the county of Kings two other cterks and in the .counties of Bronx and of Queens One other clerk, , , to bfr" designated by the surrogate, in addition to the powers above enumerated may exercise, concurrently vith the surrogatOj of the county, the poTSfer to take lihe proof of a wiilj.unless demand be made for an oraj examination or qross-examin^tion of the^bsdribirig witnesses,' or objections to such Jirobate are pending. Former §§ 250^, 2510 of this Code, consolidated. Am'd by L: 1915,= c. 61 (in ^..effectMarch.ll, 1915). ' .. '■■ '■■-■. > '■ ■; ...i: . ; J: ; § 49. Trust ^und register. — Section 2486., subd, 7, prescribes a Court and Trust Fund Register as oiie of the "Bopks" required by law to tie kept by ijhe Surrogate... The following section relates to its contfents: I §2603. Clerk to keep court aridtrust fund register^. i , . <■ ..Whenever there shall be filed in the office of the. surrogate any decree or qrder , of the surrogate or of the surrogate's court directing the deposit of mdney, either ' afctually iii thetands of some pel-soh or persons or thereafter arising from tte sale of real estate' described' in any such decree or order, with the county treasurer of his county; or with the chainberlain of the city of Newi York, or upon the filing in i.'thje sfiid surrogate's office of any treasurer's pr chamberlain's receipt stating; that fl sum pf money .has been dej)Qsited with such treasurer or chamberlain, ^in accprd- ance with a decree or order of any such, surroga,te'8 court, the clerk ,of the.surrogatje's ' court shall enter m the court and trust fund register, the title of the proceeding, or the name of the estate in which such decree 6i order was inade, together with a statement of the amount so deposited, or oirdered to be- deposited, if iaid decree or order iContains the amount of same, and; the' name of i the pferson or perspiis, if any,! to whppi s^di money is ordered to be,paJ,d,jaiid,the 4^te,of,,the filing pf tlj«e, same or of such receipt as herein mentioned. From § 2509 of this Code, in part, modified. § 50. Disabilities of clerks.^ — By § 2502 already quoted the clerk or ahjr other person employ'ed in any capacity ih a Surrogate's office is prohibited frona- acting as appr,aiser, 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 thepartiesj 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- gatej could not properly a,ct except upon written consent of the parties; this cp,se wtas ,4epj|d|ed in 1889. Eripr.tp that decision there was .a decision by Surrogate Rollins in 1885 {Benedicts. , Cooper, 3 Demi,362) resting upon the decision' in the EstaOe of Thome, 4 Law Bull: 48.' The learhed Sur- rbgatecoiisti'ued- former §2511 in eonhection with §90 of thei Cpde which by '§i3355 are declared to, have been enacted simultaneiously. S^ctipn, 90 was ., transferred to .the J.udiciary La\y,. becoming § 251 thereof, and refers to "Clerks pf courts of recprd in,N. Y. cpunty." It prohibits § 51 CLERKS — OFFICERS — POWERS AND DUTIES 51 their appointment as referee, etc., "except by the written consent of all the parties to the action or special "proceeding" 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. It may there- fore be stated to be the existing rule, "that upon written consent, the pro- hibition of section 2502 may be waived," and it is submitted that the deci- sion above cited would be a sufficient authority for a special guardian in a proper case to join in the necessary written consent. In probate proceed- ings 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 testi- mony; he is also given power by section 2536 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 authority to appoint his assistant to take and re- port the testiinony, 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 language which explains the purpose of the act. . Even if the Code of Civil Procedure be abolished, the Judiciary Law would stand, and the reasoning of the cases would seem still to govern. §51. Stenographers. § 2496. Stenographer for surrogated courts in New York, Kings, Erie, Albany, Westchester amd Queens counties. The surrogate of each of the counties of New York, Kings, Queens, Erie, Albany and Westchester must appoint, and may, fpr cause, remove, a stenographer for his court. In the counties of New York and Kings such stenographers shall receive a salary fixed by law, to be paid as the salaries of clerks in the surrogate's office ar6 paid. In the counties of .Erie, Albany, Westchester and Queens the salary of said stenographer shall be fixed by the board of supervisors, or by the board of estimate and apportionment, as the case may be, and the payment of such salary shall be provided for by such board in the same manner as other county salaries are paid. From former § 2512 of this Code, in part. §2496. [Am'd, 1916.] Id.; in oth^ counties. : I , The surrogate of each county, except New York, Kings, Brorjx, Albany,: West- ,, Chester, Hamilton, Queens, Richmond, and Erie may, in his discretion, appoint, and at pleasure remove, a stenographer for his court, who, except in Sullivan county, shall receive a salary to be fixed by such surrogate, not exceeding in counties having a population less thali thirty thousand, eight'hundred dollars per ahnuin; in counties havinga population of thirty thousand andnot more than fifty thousand, not ex- ceeding one thousand dollars per annum, and in counties having a population ex-, ceeding fifty thousand, not exceeding, twelye hundred dollars per a,nnum, except that in counties in which are located cjties of the second class, or in counties in which are located three cities of the third class, such salary shall not exceed eighteen hun- .^ dred dollars per annum; and in any county wholly containing a city of the first i class, such salaries shall not excised two thousand dollars per annum. The popu- lation of the several counties shall be determined by the last preceding census. 52 surrogates' courts - §§ 52, 53 If a regular stenographer, is appointed in Sullivan county, his salary shall be five hundred dollars per annum. The board of supervisors shall provide for the pay- ment of such salary in the same manner as other county salaries are paid. When not actually engagal in the discharge of his duties as stenographer,, he shall Tperform such clerical dviies in connection mith the surrogate's court as the surrogate , directs. In counties wherein the surrogate is also county judge, the stenographer so appointed shall be the stenographer of the county Court, and shall perform the duties pertaining to a stenographer of the county court without additional com- . pensation. 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 rea^nable 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. When the regular stenographer appointed under this or the last section is sick, absent, on his vacation, or unable to act tor other good cause, the siirrogate may " designate a stenographer to act temporarily in his place, who shall be paid by the county a reasonable compensation certified by the surrogate. From former § 2513 of this Code, in part. Am'd by L. 1915, c. 221 (in effect April 5, 1915). ' § 52. Duties of a stenographer. — The primary duty of this officer is to report, and transcribe notes of, all proceedings in which oral proofs are taken. § 2497. Duty ofsVmogrkpker, The stenographer of a; surrogate's court must, under the direction of the surro- gate, 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 when required by the surrogate; and the minutes thereof, as so written out, must, after being authenticated, as prescribed in the next section, be filed in the surrogate's office, and in all cases his stenographic books must be so filed and remain in the surrogate's office five years. Former § 2541 of this Code. From L. 1871, c. 874, § 1. Section 2496 prescribes {swpra), that in certain counties this officer "shall perform" clerical duties, as the Surrogate directs. Otherwise, the law governing these officers, generally, will apply. § 53. Charges for services, usual or extra. — Stenographers aTe entitled to the legal rate for furnishing official copy to counsel. The legal rate is fixed by § 3311, Code Civ. Proc. The usual legislative infelicity is dis- played in that section. It pi-escribes a special rate for record copy in the Surrogates' Courts of New York, Bronx, Erie and Kings counties, in con- , trast to other " courts of record," and then provides after a semi-colon: "and the Surrogate may order that the fees- for such record copy be paid out of the estate to which the proceeding relates." This obviously relates only to the three courts named. See § 2500, below, which the Reviser's note states was intended to make the fees "same in all counties." If so, § 3311 should have been concurrently amended. The words "except when special provision is made by statute" do not include in general provisions ; cover- ing all Surrogates' Courts when these four courts are thus specifically provided for. In § 2746, Code Civ. Proc, under-Costs, it is provided that §§ 54, 54a CLERKS — officers — powers and duties 53 after conte3ted probate, the Surrogate may order a copy of the stenogra- pher's minutes to be furnished to "contestant's counsel," and charge the ex- pense thereof to the estate, if the contest was, in his judgment, made in good faith. § 54. Duties; rights. — In McCarthy v. Bonynge, 12 Daly, 356, it was held that an agreement to expedite deUvery of copies of minutes for an advance on the legal rate would not be enforced. See Wright v. Nostrand, 58 How. Pr. 184; Guth v. DaUon, id. 289. laCavanaghv.0'Neill,20Misc. 233, it was held that a stenographer could be pxmished for contempt of wrongful refusal to deliver minutes, i. e., except on receipt of excessive fees. And in Hall v. McDerpwtt, 7S Misc. 52, the appellate term held that in such a case^ the stenographer was subject to an action for treble damages, under § 67, PubHc Officers' Law. The "person aggrieved," who may sue, in- cludes the attoi^nfey who personally advances the money. (See cases cited.) However, the court can protect its stenographer. This includes the stenographer of the referee of the court. Thus, the Surrogate may enter- tain the appHcation of a stenographer, e. g., who has reported an account- ing 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. Dec. 1894, p. 329; Estate of Philip. McDowell, Surr. Dec. 1896, p. Id9; Matter of Henry W. Andress, Surr. Dec. 1898, p. 396. § 54a. 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. lUd. Strictly speaking, the representative and other parties are individually liable, Russell v. Lyth, 66 App. Div. 290; BoUome 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- sentg,tive individually. See Bottome v. Neely, 54 Misc. 258 (App. Term) ; 124 App, Div. 600. See also Harry v. HiUon, 11 Abb. N. C. 448; Kesler v. Bell,A8 Misc. 428. The attorney's stipulation binds the chent. Bottome v. Neely ^ sup-a. 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 lie may acquiesce therein, by not opposing, and leave the Surrogate, on taxation, to dispose of the matter. The stenographer may so bind himself by the form of the stipulation as to release the representative personally. Bottome v. Neely, su,prd. If he thus agree to look to the esljate then the expenses do not become a fixed 54 surrogates' courts ' § 54a charge thereupon until the Surrogate has passed upon their reasonable- ness. Ibid. § 2498. How minutes of testimony authenticated and bound. The minutes of testimony written out as prescribed in the last sectiori, or taken by the surrogate, or'under his direction, while tie witness is testifying, must," before being filed, be authenticated by the signature of the stenographer, referee,' the surrogate or the clerk- of the surrogate's court, as the case may be, to the effect that they are correct. . - . T?he miniites of testimony written, out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorse,d "Steno- graphic minutes," and numbered consecutively. Former §§ 2542, 2543 of this Code. From L. 1877, c. 206; L. 1881; c. 535. §2499. Fees for copying' or recording papem: ;- • The clerk of the surrpgat^is court may,charge,and receive to the use of the county the followipgiees, except that wlf^re thie board 9|f, supervisors or ,boaiid pf, aJdefimen have allowed him to receive fees for his own use the same may be received and -re- tained by said' clerk: ' ' ' 1 I. ■ 1. For furnishing a transcript of a decree to be filed in the county clerk's office, ' 'fifty cents. ^ ;' ^ .■, ■ . 2. For making a cc^y of the .proceedings and evidence in any matter, six cents ,, .per ^olio. . ., . ^,, j , . ,^ ^ , ;., .r ;•.-,■■■; i^i .,,';! . ; 3. For recording agreements settling estates or accounts, releases, assignments, or mortgages of, or liens upon, any interest in ah estate or fund; wills probated in another coiihtjr' or state, and the papers required to be recorded tterewith, ten cents for each folio. ■' 4. 'For a certificate, other, than, a icprtificatesthat a paper, for ithe copying of which be .is entitled, to a fee, is, a copy, twenty-five cents, .i i 5. For making and certifying a copy of a wiU, or paper on file or recorded in such oiSice, ten cents for each ^olio. "6. For comparing and certifying that a paper 'is 'a copy of'a record or paper on file, twenty-five cents and five cents for each folio; and for comparing and certifying . a case on appeal where priuted copies thereof . are preseiltedtby any, party to any proceeding, one cent for each folio. ,; .. . , , ,^ , /^ .,. I : 7. For recording the official bond or undertaking of an executor,, administrator, guardian or trustee, ten cents a folio, exc^t that wbere the clerk receives a salary as' full compensation for his services no 'fee sliall be charged for Such recording. ' ■ , ,, , The board of supervisors, or board of; aldermen, may fix a different rate of com- pensation, ajid may .require the clerk. to keep an account of all such fees aiid make repprt jthereof yyieney^r requested by spch board. On, the appointment pf a. guardian, if it appears that the application is made for ' the purpose of enabling the minor to receive bounty, arrears of pSy or prize money, or pension due, or other dues or gratuity from the federal or state government, for th^ services of the parents or brother of such minor in the mihtary or naval service ' pf theiUnited, States, no feiBs.^haJEl be charged pr .received, i,, ; F5omformer§§2501, 2502, 2503, 2567 pf this Code, p part... , . _. ,, § 2600. Fees of stencigrapher actirig or taking testimony in surrogatei's court.' A stenographer,' appointed or acting pursuant to Sections 2496 and 2497 of this act, may charge and receive a sum riot exceeding six cehts per folio for furnishing a copy of the minutes, proceedings and testimony taken in surrogate's court to any, person who applies for thp same, ' i , i , ; . Frpm former § 2513 of this Code, in part. See discussion above, as to effect of § 3311. § 55 CLERKS — OFFICERS — POWERS AND DUTIES 55 ■ §2601. Expenses of' surrogate vr detk. -<: -nf Where), upon -the application of any party, the surrogate', or the olerk :of the surro- gate's court, goes to a, place other than a surrogate's p^fipe, or ^^le court, room where surrogate's court is regularly held, in,or4er totake fe^t^onjr, he shall be, paid by such party his actual and necessary. expenses ' ' From fonnei: § 2567 of this Co'dte, in part. §55. Officers and attendants. — There is an unnecessarily elaborate, differentiation without much difference prescribed in this particular in the following section : § 2493. [Am'd, 1916.] Appointment of court officers and attendants. The surrogates of Kings county may appoint, and at pleasure remove, all at- tendants, 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 him by the surrogate. The surrogate of Erie, Bronx, Queens and Richmond counties may severally appoint, and at pleasure remove, as many attendants, messengers and court officers in their courts, to be paid by the county, as the board of supervisors of Erie county or the board of estimate and apportionment of the city of New York, respectively, authorize them so to appoint. The court officer' or officers so appointed shall possess all the powers of officers designated by sheriffs to attend upon courts, and shall per- form whatever services may be required by the svirrogate. The surrogate of any other county may appoint, and at pleasure remove, one or more court officers to attend his court and to perform such duties in respect thereto as the said surrogate may prescribe, who shall be paid by the county treasurer upon the certificate of the surrogate, a sum not to exceed three dollars per day for the days actually spent by him in attendance upon a session of the surrogate's court. Such officers shall also have all the powers of officers designated by sheriffs to attend upon courts of record. The first part of this section is taken from former § 2512 of this Code; the rest is new. Am'd by L. 1915, c. 546 (in effect Sept. 1, 1915). • Just why the new section is so drawn is not made to appear. The Re- visers have intimated that the last paragraph was necessary in order to provide generally "for a court officer or attendant to preserve order, look after books and papers, and in some counties to look after fires and lights, and to open and close the room!" 1 Heaton Surr. Pr.. § 10. § 2494. Interpreters in surrogate's court of Kirigs county. The surrogate of Kings county must from time to time appoint and may at pleasure remove an interpreter to be attached to the surrogate's court of said county. Such interpreter shall receive a salary of eighteen hundred dollars per annum to be paid by the comptroller of the city of New York, in monthly instalments, and shall, before entering upon his duties, file in the office of the clerk of the county of Kings the constitutional oath of office in which there shall also be incorporated language to the effect that he will fully and correctly interpret and translate each question propounded through him to a witness and each answer thereto in said courts. The compensation for the above interpreter to be taken out of the amount appro- priated for the support of the said surrogate's court, or from any other contingent city fund. Former § 2513a of this Code. From L. 1909, c. 65. There is nothing express in the Judiciary Law, §§ 198, 382-385, that 56 ,, , surrogates' courts § 55 covers interpreters in Surrogates' Courts, but they must be deemed in- eluded in the term "any court of record" in § 388. If § 2494 was deemed necessary to secure in Kings county an interpreter in the Surrogate's Court then simila,r additional provision would be iieeded in other counties. Apart from § 388, under the general powers given the Surrogates in New York county, by chap. 775, Laws 1911, they can designate the duty (rf such an officer and fix his compenssttion as a " county charge." ' CHAPTER IV JURISDICTION AND POWERS § 56. Differentiation. — The act of 1914, infelicitous as its construction contededly is, contains a well-defined contrast between general and special jurisdiction and between jurisdiction of the court and its powers, and the powers of the Surrogate. If this differentiation be made clear at the outset, doubts as to the nature and extent of the new powers and the pro- priety of the legislative purpose in conferring them should be once for all eUminated. This necessitates a discussion of various sections quite oUt of their order of sequence in the Code. § 57. § 2510 Code, General jurisdiction; nevertheless limited. — The words "general jurisdiction" must be read in their limited meaning. The jurisdiction of the Surrogates' Courts has always been limited, statutory, special. In the Matter of Thompson, 184 N. Y. 36, 41, the contrast is embodied in this definition: "Surrogates' Courts in the State of New York are courts of record, possessing a special and limited jurisdiction, which extends generally over the probate of wills, the ad- ministration and distribution of decedents' estates, and the protection of the interests of infants." The Judiciary Law, § 2 (formerly § 2, Code Civ. Proc.) includes them as courts of record. Matter of Runic, 200 N. Y. 447. (See p. 454, as to development of powers.) Prior to 1877 they were not such. People v. Carr, 100 N. Y. 236, 241. In respect to certain matters the special juris- diction of the court is concurrent with that of other courts of record, Sta.te and Federal. In no case that I have found is it contended that the existence of such a concurrent jurisdiction in one court, derogates from or in any- way impairs the jurisdiction of the other tribunals. (See below, §§ 85 et seq., for enumeration of cases of concurrent jurisdiction.) This special jurisdiction may also be an exclusive one. (See below, §§67 et seq., for enumeration arid discussion.) In this sense it may be general, but none the less statutory and limited. Within these liinits we may examine § 2510. §58. Same subject. — The section about to be dis6ussed is entitled "General Jurisdiction of Surrogates' Courts," and is a substitute for former §§ 2472 and 2472d, and reads as follows: § 2610. General jurisdiction of surrqgat(i!p, eourt. Each guiTogate 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 few, jurisdiction, as follows: §§ 56-5^ ' 57 58 surrogates' courts § 58 To administer justice in all matters relating to the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding, or between any party and any other person having any claim or interest therein who voluntarily appears in such proceeding, or is brougl^t^in by supplemental citation, as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires. And in the cases and in. the manner prescribyd by statute: 1. To take the proof of wills; to admit wills to probate; and to take and revoke probate 'of heirship. :■ '" ;; i! ' ' '■ • , i .. ' / .-.- '; ' ■",>■(•(• .i i , 2r To grant and revoke letters tpstanientairy and letters of administratipn, and .; ;to,appoint a sjt^ccessor in place of a person whose letters have been revoked, i , 3. To ^irect and control the conduct, and settle the accounts, of executors, ad- ministrators, and testanientary trustees; to remove testamentary trustees, a.nd to appoint a' successor in place of a tfestamentary fmsteei t ■ ■ ' ' "i. To enforoe^the payment of: debts and legacies; the distribution of the estates of decedents; and the payment or delivery, by executors, administrators, and testa-, mpntary trustees, >of money qrpthejP.propprty in their possession, belonging to l;he estate or fund. , , , 5. .To .di];ect the disposition of real property, and interests in real property 6t ' deceSeSlis',' and the dispositioii of IKfe proceedis thereof. ' "" ' - ■ ' 6.' To 'appoinit and Temoveiguardians for!infaiits;toi compel the pajrment an^' delivery by them of money or pth6r property belongingito. th^E .wards; to direct ' and control their conduct,, and se^tlei their ,acGOuntp. ,, i,. 7. To settle. the accounts of a father, mother or other. rela,tiye having the rights, powers and, duties of a gua,rdiah in socage, and to compel the payment and delivery of mohey or other pifoperty belonging tlo the "ward. ' ^ ■•■ 8'. ' To determine the validity; construction or effect of any -disposition of property contained in any virjll .proved; in; his: court j whepever ia; sptjcial proceeding is brought for that purpose, or whenever it is necessary to make such determination as to any will in a proceeding, pending rbef ore, him, or whenevpr any party to a. proceeding W the probate^ of any will, ,who is interestea thereundet, demands such determina- tion in suck ^ro'ceedibg. ■ " . . ■ Forriier §~§ 2472, 2472tf of this' Code, modified. S'rom 2 Ri S. 220 = (Part 3,' c. 2, , .tit. 1>, ilrL' 1871, c. 482; L. 1874^ c. 267; L. 1903; o. 407; L,. 1910^ c. 576. ' .,,In .a^rec^t case: (Feb., 1^1^).,, M after, o^ ^olzv^qrtJi, 166 App. Diy, 150, tb^,cQurt,,assujpQed i^ti,e ,existefl,,ce pf.thej general etjuity power in thp firsit^ general p^r^grapb of .tlys j^ectipi^; .but, fipding, the proceeding before it to be one of tho^e,, specifigf^^ 9.S "in,th^,cases and in the manner prescribed by stiatujie" required tlj^,t the ,Surroga,te prppeed; according to the letter qf the pitatyt^ and denied? his piower .to exercise equity power in sucih special case.. This, ^^ believe ,is tfie.proper interpretation of § 2510. Former § 2472a marked the first step towards the a,ct .pf 1914. It was added, ij? IQlQf ,In cas^^ of "accounting" and, "payment of legacies"! it cpnferr,ed pcjTyer:, ■ ~! ),,,,. .i.,,,, ,;, , , ,. :'..',,, ...;'m'i; to ascertain title to a legacy, or distributive, sh^re; , - , , (,.- to offset a debt against the same; to affect accountant with a cohfetructive trust; &n^ioexeT(Ase.aU other' 'jp(noi,r, legal 6r equitable, ned^ssdi'ij to the complete disposition of the matter. , .. In Junet^lQll, the new powers were construed in two cases: Matter qf § 58 JURISDICTION AND POWERS 59 Clyn^, 72 Misc. 593, Ketcham,Surr., and in Matter of Thornburgh, id. 619, Fowler, Surr. The latter announced that the constitutionality of the act would be presumed in a court of first instance, and the Surrogate deter- mined the issue presented, i. e., that certain assignments of legacies were void, as being usurious. In the former case, Ketcham, Surr., sharply litnited the application of the final clause above) t3,bulated, as being corollary to the matters specified, namely, "accoimtings" and "payments of legacies." The accountant in the Clyne case asked a decree that she be subrogated to the rights of the mortgagee of lands which were of her decedent, since as trustee of de- cedent's, wife (in which capacity she was not a party) she had discharged in part said r^ortgage made,by. her decedent. This the Surrogate decUned> to do, and we quote from his opinion since it emphasizes the distinction between the powers of a court of general equity jurisdiction, and the equi- table powers of a court of limited jurisdiction. At p. 597, he observes: " If the 1 question of subrogation were disposed of in this proceeding, the dis- position could not proceed beyond the. empty finding. There is no mech- anism in ihe^Surrogate'jS Court for effectuating .such result. A couft of equity would not content itself with a mere declaration of the right of subrogation. It would cancel the satisfaction of the mortgage, clear the record of the embarrassment which the satisfaction piece imposes,, and proceed to the enforcement of the mortgage in favor of the person subro- gated, and the foreclosure of all subordinate rights." He dismissed, with "faint praise," the interpretation put upon the new section by "poets and philosophers" who had engineered and furthered, its enactment, and who, construed it as enabling the, court "to exerjeisei all power, legal or equil^able, necessary to the complete disposition of an accounting." , He a][spjimited,,the applicatipn of the jury trial provision of the same section. , , Section 2510, therefore, on "general jurisdiction" was drawn with, this judicial construction in view, and, is phrased in two, parts, , or rather three; 4 ■ ,• .' a court which has (in addition tp the fowers conferred ..upon it, or upon the Surrogate, by special provision pf law) juri^iction as follows : , ; B. "To adniinister justice in all m.atters,reilajting:to the affairs of de- cedents." This is from former section 2472, subd- 6, and omits the words, "according to the pro*risions of the, statutes relating theretq,", ,,, . r .-, "And, upon the return of any process, to try.and d^tCfnpiiie, all.questi^s, legal or, equitable, ari^sing between any or a^U of the parties tq any proceeding or petwcen any party and. any other person, haying any claim or interest therein, i . yfhf^ voluntarily appears in such proceeding, or ,is bj;ought in by supplemental citation.", , , , , An|d both the f pregoiag are qualified, or rather illjiminated by thp addition ' "as to any and all matters necessary to be determined in order to make, 60 surrogates' courts § 59 a full, equitable and complete disposition of the matter, by such order or decree as justice requires." Here there is no uncertainty of language. "Upon the return of any process." " 4 ZZ questions, legal or equitable." "Between any or all parties" (original or secondary). "As to any and all matters necessary to be determined." " To make full, equitable and complete disposition." It is obvious that had the Clyne case come up under this section the Sur- rogate must have, at least, decreed that the payment by the a.ccountant on account of the mortgage be allowed to her. If the mortgagee could be cited, then under this section rieUef could be awarded between such mort- gagee and the accounting party voluntarily appearing as trustee of the wife's estate, claiming subrogation, i. e., full relief inter personas could be given. Query? Could he have cleared the record by his decree? Neither the Thornbilrgh nor Clyne cases were reversed. They establish two rules for interpreting the new act. The one that it will be presumed constitutional, the other that the immediate context determines the extent of any grant of new powers. C. This leads us to the very significant grouping of the rest of the powers enumerated in § 2510 (supra). There are eight subdivisions, prefaced by the words "and in the cases and in the manner prescribed by statute. " These words had they been prefaced to the earlier paragraph of the section would have emasculated its enabling power. Their position is thus decisive, at least on the question of the legislative intent in granting the general powers. § 59. The attitude of the courts since the act of 1914. — Before con- tinuing to enumerate the statutory powers, or to discuss § 2490, entitled "incidental powers of the Surrogate" it is vital to note how the Suri-ogates themselves have treated the new act. Section 2771 of the new code chapter provided "nothing in this chapter shall repeal . . . nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect, and such pend- ing action or special proceeding shall proceed under the practice estab- lished, the same as though not affected by this act." Thus in October, 1914, Schulz, Surr., refused to grant, in a probate pro- ceeding, brought before September 1, 1914, an application for a trial hy jury of controverted issues of fact. Matter of Spooner* 87 Misc. 170. In the supreme court. Matter qflovinella, 88 Misc. 224, Van Kirk, Surr., held siniilarly that, in a probate proceeding, pending before September 1,. an order by the Surrogate of Schenectady county, ordering a jury trial under the new act was unauthorized. Again, in Matter of Scovill, 88 Misc. 364, the Surrogate of Livingstone county declined, in an accounting, to order a jury trial, and proceeded to determine a creditor's claim, stipulated to be heard by the Surrogate under the former practice. §59 JURISDICTION AND POWERS 61 In Matter of Harden, 88 Misc. 420, Fowler, Surr., paid his respects to the new act in a searching opinion dealing with the new power to construe a will and the right to a jury trial. This case is discussed later in its peculiar connection. But the court declined to act "merely for the purpose of re- moving the doubts of the parties" and unless "the necessity" for a present construction appeared in the moving petition. He observed : " the temerity and the technical inadequacy of the new legislation under review is unex- ampled in the history of law making." He defines the new power (i. e., to determine the validity, construction, or effect of any disppsition of prop- erty, both real and personal, contained in any will) as involving powers formerly committed to courts of law and courts of equity. He calls the limitations of the grant both "obvious" and "inherent." At p. 425, he says, " Certainly it cannot confer a power or jurisdiction on the Surrogate to determine the validity of any title by devise, where the prior remedy was an action at law, or one in the nature of ejectment, or to try title." Citing Brady v. McCosker, 1 N. Y. 214; Chipman v. Montgomery, 63 id. 221; Weed v. Weed, ~94t id. 243; Anderson v. Anderson, 112 id. 104, 114; Corky v. McElmeel, 149 id. 228, 236, 238; Jones v. Richards, 24 Misc. ,625; Whitney v. Whitney, 63 Him, 59; McKinley v. Van Dusen, 76 id. 200. He emphasized the lack of power to make a decree that would have validity if the right to a jury trial were not expressly waived, and held that a special guardian for an infant party had no power to give a binding waiver. In other words, he holds that "where any party taking under a will has a right to try his title by jury" the Surrogate cannot without his consent, i.e., embodied in a waiver of that right, determine the vaUdity of the testa- mentary disposition. At any rate, he holds, he will not use the new power to decide moot ques- tions, not leading to immediate results or relief; nor will he substitute his discretion for that imposed in trustees or representatives. In the Matter of Wolf, 88 Misc. 433, the same Surrogate discussed his power to determine imder former § 2472a whether a husband, convicted of manslaughter (killing his wife while intending to kill another) should in equity be debarred from his right of succession in her estate in distribu- tion. This power he states would have been, but for the section, in the former court of chancery, or the present supreme court. The opinion is worthy of careful study in its historical review of the authorities. At this precise point it is significant only in that the Surro- gate did exercise the power invoked. Cohalan, Surr., in Matter of Cunningham, 87 Misc. 172, held that the taxation of costs was controlled by the statute in force at the time of taxation, and that the limitation in the act of 1914 as to proceedings theretofore begun and pending did not apply. His reasoning was ap- proved and followed by Ketcham, Surr., in Matter of Union Trust Co., 88 Misc. 456; citing also Matter of Greer, N. Y. L. J., Oct. 21, 1914. He accordingly directed an aUowapce of $600 to a special guardian under new '62 STTRROGATES' COURTS § 60 §"2748, refusing to be influenced by the doubts expressed in Matter of Seabury, 87 Migc:'241; Matter of Stevenson,!!^. Y/L: J., Nov, 7, 1914; Matter of 0' Day, 88 Misc. m: ' " , The doubts expressed in New York county were as to the power to direct payment of compensation to the infant's special guardian, beyond statutory costs, where there was no fund to which the infant was presently entitled, i. e.'j'td appropriate the property of A to pay B. ' In Matter of Bovchbux, 89 Misc. 47, Ketcham, Surr., being asked to cbnstriiie a will under new § 2615, analyzed the new power in an illumi- nating opinion; limited it by the provisions of §2510, and also held " all that he (the Surrogate) takes is the same duty which in a like case would rest upon the Supreme Court. It is a fixed theory that a grant of jurisdiction, over a prescribed subject-matter, to a court in which the matter was not previously ciognizable is inevitably accompanied and characterized by all the requirements to which the subject-matter and proceedings affecting it have been made obedient in the past." See Jones V. Hamersley, 4 Dem. 427, 435. He dismissed the procfeieding on the express ground that in the supreme court itself it could not be maintained. He Tefers to the Mount case, 185 N. Y. 162, 167, above discussed, and Cillefa, Ch. J.'s remark that the scope of the equity power in the Sur- rogate's Court was larger than previously resided in the courts of equity. In Matter of Catlin, 89 Misc. 93, Fowler, Surr., being invoked to exercise his power to act under § 2615 and to determine a question of title by con- struing the will refused to do so. He pointed out that neither the person seized nor the person in possession was joined; that no description of the property involved was given which would give, and alone give, jurisdiction to 'a local court or a court m dtce, and went further than in the Harden case, stipra, 'by holding that a general guardian had nO power over the real property of the infant, further than concerns the reiits and profits; .citing Oenet v: Tallmddge, 1 Johiis. Ch. 561 ; Pond v. Curtis, 7 Wend. 45, and said : " I doubt if even a general guardian can waive the infant's right to a deter- mination! by a trial by jury ih respect to his freehold." It was specifically held that the new power was not to be deemed a sub- stitute fOr an action in partition. § 60. Same. — In £t recent case. Matter of Roberts, 2l4 N. Y. 369, the court of appeals held, under the former Code, § 2755', that the Surrogate had 'powfer in a pi-odeeding to sell decedent's realty to pass on an equitable defense to a creditor's claim. The appellate division, 162 App. Div. 922, had held that "the relief could only be had in a court having equitable jurisdiction. This the Surrogate did not have." Of this language Bartlett, Oh. J., says, at p- 377, "It impKes, if it does not assert, that . . . the ex- istence of a,ri equitable defense may be wholly disregarded because the Surrogate's Court has no jurisdiction in equity. Such is nOt the law, To bar the' proceeding; however, the equitable defense must be one which is available against the claimant,'" i. e., the court must have jurisdibtion §61 JURISDICTION AND POWERS 63 of all the parties. Under the wording of the new act, this decision is en- lightening. §, 61, Historical origins often determinative.^f this discussion of the jurisdiction of ithe Surrogate be read in direct connection with the intro- ductory discussion of the development of that jwrisdiction, it will be found that there is another element to be kept in mind which has been most ably condensed into the following language by Fowler, Suit., in Matter of TFor^, 76 Misc. 403,, 405: The present jurisdiction of the Surrogate while often said to be statutory (ilfaWer of Camp, 126 N. Y. 390; Maltef of Runk, 200 id. 447) is sometimes only partly de- pendent on statute, while at others it is wholly dependent. ■ This is a distinction often lost, sight of.by thpse, who deal with this subject. If the statu(;e conferring jurisdiction on the Surrogate refers to an established and older probate jurisdiction, which is not statutory, the Surrogate's jurisdiction cannot be said to be purely statutory, and courts must take some account of this distinction. 'It is only when ' a statute is the exclusive and original source of the jurisdiction that a- court is statutory in the true legal sense. The eommonTlaw jurisdiction of the supreme court, for example,: is given priiaarily by the constitution of the state; it is, in other words, organic or recognized by the fundamental law of the state. Nevertheless much of the jurisdiction itself is derivative or historical, although the immediate source is the constitution Of government. Anyone famiUar with this topic recog- nizes that th& jurisdiction of the fundamental commOn-law courts was transferred to the supreme court, and without that the jurisdiction of the supreme court would, be.very different from what it is.: , What is recognized as true in the instance of the supreme court, which is the great general court of original jurisdiction in this state, is equally true of the, courts of the Surrogates. The immediate source of the jurisdiction of the courts of the Surrogates is, of 'course, the statutes 6( the state; but whenever a statute confers an histOnoA and Teady-made jurisdictidn- vf other ages and other places, the real source of the jurisdiction is then historical, and due reference must be made to this fact or error, sometimes grave, ensu^., Salmond's critical work on jurisdiction takes great note of this distinction in its compendium of legal sources, although not specially in reference to, the subject of jurisdiction. But the application of the distinction concerning sources Of law is apparent, in any discussion of the origins of jurisdictions. When general probate jurisdiction is conferred oh Surrogates by statute,-without any definition whatever of probate jurisdiction, it, is necessary toihave recourse to the meaning of these terms in the system of l^,w which by constitutional reservation has been made the fundamental law of this state. By siich reference it becomes apparent that the real source Of tte probate jvirKdictiori, in fact,' is historical, al- though the real source is often treated as deistitute of legal recognition because in terms it is conferred by a statute which is only the more immediate authority for the jurisdiction. One of the most important.of inecjliums'for the!' transfer of the common law of an older- state to a newer political d^endeney is the translation of established jurisdictions to the officers of ttie new government. Wheii such a jurisdiction is transferred, it carries with it a great body of applicable law. Had the original commissions to probate officers of New York exjiressed, for example, that they were to have the jurisdiction of the Roman praetor,' instead of the juris- diction of the delegsite of the Ordinary of ,the Ecclesiastical Courts of England,, how _. , idif^erent would fee, the existing law felatiye to judicial powers and jurisdiction in probfite proceedings. . . . _ Biit while some branches of the Surrogate's jurisdiction are only indirectly de- pendent oh modem staitutes, a large comer Of the existing jurisdiction of the Surro- gates, as already pointed out, is wholly statutory,, and there the^ statute must be 64 surrogates' courts §§ 62, 63 followed with great precision, or the proceedings, like all statutory proceedings in courts of first instance, are coram rum judice. § 62. Conclusion.-^-From this summary review it is safe to conclude that the Surrogate's Court has a jurisdiction purposely undefined by the constitution, but left expressly for statutory definition and capable of enlargement. That it has been repeatedly enlarged, and that in the direc- tion of the enjoyment of equity powers. That nevertheless, it has not, and cannot, save by constitutional amendment, become a court of general jurisdiction, but remains a statutory court in respect of all its powers, express, general, limited, exclusive, concurrent, whatever they may be. That, when it is endowed with powers formerly residing in a court of general jurisdiction, it must exercise them in the cases and in the manner such court would have exercised them; except where the cases or manner are specified in the enabling act, § 63. Incidental powers. — The Revised Statutes, as originally adopted and taking effect in 1830, after conferring specified powers upon the Surro- gates, declared (2 R. S. 221, § 1, last clause) that the powers thus con- ferred should be exercised in the cases and in the manner prescribed by the statutes of this State, adding, "and in no other; and no Surrogate shall, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given by some statute of this State." This restriction gave rise to much difiiculty, and seriously embarrassed the due exercise of the functions of these courts, and was consequently re- pealed in 1837. Laws 1837, chap. 460, § 71. In the language of Chancellor Walworth, Pew v. Hastings, 1 Barb. Ch. 452, "it was found that the exer- cise of certain incidental powers by courts, was absolutely essential to the due administration of justice, and that the revisers and the Legislature had not, by their care and forethought, been able to take the case of these Surrogates' Courtp out of the operation of the general rule." The effect of this repeal of the restrictive clause was, of course, to restore to these courts substantially the same powers which they possessed before the enactment of the Revised ' Statutes, except so far as they had been meanwhile specifically restricted by statute, and thus to restore to them such powers as were incidental and necessary to a proper discharge of the functions of the court. Sipperly v. Baucus, 24 N. Y. 46; Brick's Estate, 15 Abb. Pr. 12; Dohhe v. McClaran, 41 Barb. 491; Campbell v. Thatcher, 54 id. 382; Pew v. Hastings, supra. The powers which Surrogates' Courts possessed before the eiiactment of the Revised Statutes, and which were continvied by the provisions of 2 R. S. 220, § 1, as amended by Laws 1837, p. 536, chap. 460, § 71, were as follows: (1) To take proof of the Execution of wills, and to admit them to probate. (2) To grant letters testamentary and of administration. (3) To swear executors or administrators to the truth of the inventories and accounts exhibited by them, (4) To call ad- ministrators to account; to decree the just and equal order of distribution after the payment of debts and expenses; to compel administrators to observe and pay the same; and to enforce it by execution against the § 63 JURISDICTION AND POWERS 65 person. (5) To hear and determine any cause touching a legacy or bequest in any will; to decree the payment of it, and to enforce it by execution against the person. (6) To order the admeasurement of dower, upon the application of the widow, of any heir, or of the guardian of a minor. (7) To order the sale of real estate for the payment of debts, when the personal estate was insufficient, and when the real estate proved insufficient, to di- vide the proceeds, after the payment of expenses, proportionally among creditors; to confirm all such sales, and direct conveyances to be made by executors or administrators, and to order the mortgaging or leasing of the real estate of any testator or intestate for the same purpose, where infants are interested. (8) To appoint guardians for infants, as the chancellor might, do. (9) To record all wills proved before them, with the proofs thereof, letters testamentary and of administration granted by them with all things concerning the same, or ordets or decrees made by them for the sale of real estate, and all instruments, writings, or documents of a like nature, left unrecorded by their predecessors, and to complete the unfimshed business of their predecessors. (10) To institute inquiry respect- ing the personal estate of intestates, not delivered to the pubUc adminis- trator, nor accounted for lawfully by persons into whose hands it was sup- posed to have fallen. (11) They had authority to compel the attendance of witnesses, the production of wills, documents, 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 authorized to proceed according to the course of the court having, by the^ common law, juris- diction of such matters, except so far as they were restricted by statute; and they had such incidental powers as were necessary to carry those which were riecessary into effect. (Brick's Estate, 15 Abb. Pr. 12.) The foregoing enumeration was substantially superseded by the express provisions of the statute conferring or preserving most of these and also additional powers. See Code Civ. Proc, particularly former §§ 2472, 2481, 2538, and 3347. Clause (11) was partly embodied in Code Civ. Proc, former § 2481, subd. 11, but with some material modifications. The principle of the inherent necessity of incidental power had been asserted, not only with respect to incidental powers, such as inhere by reason of necessity in the exercise of the judicial function, but also with respect to matters of jurisdiction, to supply a casus omissus in those provi- sions of the statute which attempt to enumerate, or define in detail, the genetal jurisdiction over estates. Thus, it was held that the provisions of the former statute (2 R. S. 73, § 23), declaring that the surrogate of each county shall have sole exclusive power, within his county, to grant ad- ministration in specified cases, was not to be regarded as covering all the cases in which he might grant administration; and, in a case within the general principle of i jurisdiction, he should not decline to exercise that jurisdiction because the mode was not prescribed by the statute. Kohler V. Kridpp, 1 Bradf . 241. And see Campbell v. Logan, 2 id. 90. The decision in Kohler V. Knapp seems to border closely' upon judicial legislation; but 66 surrogates' courts §63 th^ necessity for so liberal a ruling, in respect to the provision construed ill that case, was removed by the phraseology of Code Civl Proc, foriner § 2476, which remedied a notable defect in the origiiial statute. The Code of Civil Procedure as well as the new act of 1914, however, both drew a new statutdry distinction. We have already noted the distinction between the "genei-al" powers given in § 2510 and the powers given in the eight subdivisions of tha,t section which are preceded by the words "and in the' cases and inthe manner prescribed by statute." ' ' yVe have in new § 2490 a rephrasing of former § 2481 entitled " Incidental powers of the Surrogate." It reads as follows : ■ : ; ; §2490. Incidental powers ^ the surrogate. ' :'.• : , i. ■■ ' A surrogate, in or out of court, as the case reqvjitgs, has power: . : , ; . i , i , j i „ i : 1 1. To i^ue citations and other process authorizefi by law to parties, ip ai)y, matter; , within the jurisdiction of his court; and, in a case prespribed by law, to compel the attendance of a par^y. 'i i- . '^. i. ^ 2. To adjourn,' frdm time to time, a hearinig or other proceeding in Ms couft'j and where all persons who are necessary parties have not been cited or ndtifiedj and citation or notice has not been waived by appearance or otherwise,, it, is his duty, before proceeding further, so to adjoiu-n the same, and toi^^ue,a supplementf|l : 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 requiring the attendance of a witness, or of a persbn, residing or being in any part of the stite, for examination as to any matter or subject about which it is necessary or proper fori the surrogate to inquire in order that he may properly perform any duty imposed upon him by law} or a subpoena duce? tecum requiring such attendajnce and the production of ^ bool^ or paper material to an inquiry pending in the court. 4. To enjoin by order, an executor, administrator^ testainentary trustee or guardian j to whom a citation or other process has been duly issued from his court, from actiiig as such until the further order of the court. i, 5. To require, by order, an executor, administrator, testamentary , trustee, or guardian subject to the iurisdiction of his court, to pprform 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 fraiid; newly dis- covered evidence, .clerical 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 jurisdiction , exercises the same powers. : , ,,7., To punish any person for a contempt qf his court,- civil or criminal, in any case where it is expressly prescribed by law thjit a court of record iiiay punish a person for a similar contempt, and in like manner. '8. Subject to the provisioiis of law relating to the disqualification of a, judge in certain cases", to complete any unfinished bu^nesS pending before hi^ predecessor in tiie office, including proofs, accountings and examinations. , ; i ' 9. To complete and certify and sign in his own name, adding to his signature 1 1 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. ■ ; i 11. With respect to any matter not expressly provided for i^.the for^ping sub- , divi^pns. of this peptifln, to proceed, in all ma.tters subject to the cognizance of hia court, according to the course and practice of a court having by the common law § 64 JURISDICTION AND POWERS 67 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. , ., ■ i,, ,r 12. A surrogate 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 effiect as if taken and certified by a county judge; and in any proceeding of which he has jurisdiction, he may administer oaths, take affidavits, testimony and' depositions, and certify the same at any placfi' within the state of New York, with the same force and effect as if taken in his county. Former § 2481 of this Code. From 2 R. S. 221 (Part 3,'c. 2, tit. ,1), §§6, 11; L. 1837, c. 460, §§ 9, 61; L. 1870, c. 74, § 2; U., cl 359, § 1; See L'. 1871, c. 424, § 2; L. 1874, c. 9; L. 1909, cc. 65 and 510, § 1. '•' , ■ . . ■ . ,,'',■■•-,/ • •>■ (iis. , ., . Subdivision, 11 contains the n^st significant grant of incidental power, "to exercise such incidental powers as are necessary to carry into effect the. powers expressly conferred." These ' §§-25,10 and ,2490. were, inte?ided to make the jurisdiction of; the Surrogates': ; Courts effectual to th,e ','full„ equitable and complete disposition" of "all niatjters. relating to the, affairs of decedents." ;, ; ; , i,. ; We only remark, in passing that if,, to that, epd, in any proceeding Ltti which trial of jury is a matter of right, it be accorded under § 2538, ,and, the persons interested in the question to be, .determined are,, or can be brought, before, the court under i§j2511,. the court .will become an authori- tative tribunal and its decrees will a,ttain, the, conclusiveness which it has long been the object of thq people, to, secure., lA broad. hberal in* terpretation of these four sections, and an assertion of ■. power ]tq ; try issues, even i amounting to those in ejectment or partition, would more speedily settle estates, would be binding qnthe parties, and wpuU quiet, litigation in other forums, the relief of, which has been prominent as an, element-in the legislative purpose and; intent. i,,,; ,; ;. , § 64. The provisions of the constitution. — Article VI, § 15. Surrogates" Courts; Surrogates, their power and jurisdiction; vacancies. , The existing Surrogates' Courts are (iontinued, and the Surrogates 'now in office shall hold their offices until the expiration of their terms.' ; Their successors shall be chosen by the electors of their, representative counties,, and ;thei.r .terms of offioe!^, shall, be six, years,- except in ^^he county .of New York, ^here they shall continue to be fourteen years. Surrogates and Surrogates' Courts "shall nave tjie jurisdiction, and powers which the Surrogates and existing Surrogates' Courts no^ possess, until otherwise provided by the legislature. The co'unty judge shall be^ Stirrogate of his county, 'except where a separate Surrogate has been or shall' be elected. ■ In counties , having a population, exceeding, forty thousand, wherein therp.is no separate Surro- gate, thfe legislature may provide for the election of a separate officer to Jje Surro- gate, whosp term of office shall be six years. When the Surrogate shall be elected as a separate officer, bis salary shall be established by law, payable out of the county trbasury.' No county judge or Surrogate shall hbld Office' longer than until and in- cluding the last day of December next after he shall be seventy years of age. - Var cancies occurring in the office of county judge or Surrogate shgJl; be filled in. the same manner as like vacancies occurring in ,the supreme court, , TJh^e compensation of any county judge or Surrogate shall not be increased or diminished during his term of office. For the relief of Suryogaties' Courts 'the' legislature ' may confer upon the '' sii^rerhe court in any county having a population exceeding four hundred thousand. 68 surrogates' courts § 65 the powers and jurisdiction of Sun"ogales, with authority to tiy isau,es (jf^fofit by juiy in probate, cases, 7d., § 15.,,, When we say a court is a eonstitutionaj court we mean that the Legisla- ture may not abolish the court. People v. Carr, 86 N. Y. 512^ If the con- stitution define its powers, they may not be enlarged by the Legislature. If it merely describe its powers as subject to legislativje control, there the Legislature may "otherwise'' provide, by enlargement or restriction. These assertions are illuminated by Lewkowicz v. Queen Aeroplane Co., 207 N. Y. 290, holding upconstitutionall Laws 1911, chap. 569, which at- tempted to enlarge the jurisdiction; of the city court of New York from $2,000 to $5,000, that is, in excess of the limit of the county courts' jurisdic- tion, expressly set end in the constitution as a jurisdictional 'limitation. See Const., Art. VI, §§ 14, 18. § 65. Powers specially conferred by statute. — In order to the fuller comprehension of' the eight subdivisions of § 2510, "in the cases prescribed by statute" we take into accourit: a. The various specific subjects over which the court exercises jurisdic- tions under Chapter XVIII, which are discussed below, in appropriate context. b. Additional statutory powers. AmOng the powers specially conferred by statute referred to in former § 2472, was the power to administer oaths a;nd take^ acknowledgments. This was given by Laws 1900; chap. 510, § 1. It is now embodied as subd. 12, «Mpra, in § 2490. > ' 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, former § 2153. Now covered by § 54 of the Debtor and Creditor Law, q: v. See Matter of P. Sherryd, 2 Paige, 602, "where the chancellor held, prior to the statute, he h^d no power to permit a trustee to petition for such discharge. He hap 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. JurisdicjiioP is also given, by the Tax Lawj chap. 24 of the General Laws (Laws 1896, chap. 908), art. X, over taxable transfers. See part VI, chap. V, poMi' He may determine what is taxaible; the amoimt of the tax, and its colliection. A Surrogate has also power to give leave to issue execution against an executoi^ or administrjator in his representative capaicity, upon a judgment for a sum of money. In fact no such execution can issue without such permission by order of the Surrogate from whose court the letters issued specifying the sum to be collected, and indorsed with a direction to collect t^atsum. Code Civ. Proc, §§ 1825 e< seg. See post. He may also authorize an executor or administrator to prefer certain §§ 66, 67 JURISDICTION AND POWERS 69 debts (see Code Civ. Proc, § 2682, see post), and to compromise or com- pound claims, on application, for gpod and sufficient cause. Id., § 2683. 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 ioi 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, §§ 2671 and 2735, see post. He has power in certain cases to receive surplus moneys and distribute the same. See Matter of Gedney, 30 Misc. 18. Code Civ. Proc, § 2699. He may, under ^ 1380 of the Code, q. v., make a decree granting leave to issue ah execution ag3,inst 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 jiiirisdiction, we pass to the examination of the nature of that juris- diction. The jurisdiction to admeasure dower, formerly enjoyed, has beeii taken away, and can now only be invoked in a civil action vmder Code Civ. Proci §§ 1596-1625. ' § 66. Nature of jurisdiction — ^The jurisdiction of a Surrogate's Cbuit may be I. Exclusive of all other courts. II. Exclusive of other Surrogates' Courts. III. Concurrent with other courts. § 67. Exclusive jurisdiction is vested in Surrogates' Courts in the State of New York, over the probate of wills and the issuance of letters testa- mentary 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. This matter is fully covered in Matter of Connell, 75 Misc. 574, where Fowler, Siirr., observes (in part) as follows: "Neither a court of law nor a court of equity has any authority to lo6k at a testamentary instrument disposing of personal estate, unless it has been first admitted to probate. In this department the jurisdictibh of the courts of the Surrogates is exclusive (Anderson v. AnM^rsoh, il2 N. Y. 104, llS; Matter of Will of Kettiim, 50 N. Y. 298; Vanderpoelv. Van Valken- burgh, 6 N. Y. 190, 198; Sfdne v. Forsyth, 2 Doug. 707, cited in Tdtnallv. Hankey, 2 Moore, P. C. C. 351; Alien y. McPherson, Ho. of Lords, 1 CI. & Fin. 207; see note to 2 Lee, 541), and the sentence is binding on all dther courts until reversed (Herstv. Beach, 5 Madd. 351; Matter of 'Carter, N. Y. L. J., October 23, 1911)." And again at p. 579 in view of the plea in that case that a siit)reme court judgment "finding intestacy was-a bai-," he says: Whether the fact that wUls of real property are now the subject of probate,, and yet that the devise before probate may be adjudicated void by a court of law, altera .7,0 surrogates' courts § 68 what I conceive to be, the old rule, that the Sjurrogate cannot ordinarily consider, a plea of estoppel by record in a proce^ing for. probate, ip the doubt in this cause. Yet the SehtenCe of the Surrogate in a; pi'oceeding for probite of a will containing a ' devise goes only to the due execution of the script or factum of the will, and it can never determine the validity of the devise itself, at least, until some constitutional ' statute. to that end shajl ao authpjn^e the Surrogate (Anderson v. Avder^on,^ 112 N. Y, p. 115; [former] sees, 2623 and 2624, Code Civ. Proc.) The judgment of a court of law on the validity or invalidity of a devise, and the sentence of a surrogate, sitting as a probate judge, that the script propounded containing such devise is or iS not a last ' will dhd testamelit, have few pointsLof resemblance. A devise in a will may be void and yet thewill itself be a vAlid testamentary act. Such judgments operate on diffra-- ent subject-matters, and the, spheres of, judicial, actiop, are entirely different in the different tribunals. {MqUer p/ WiUof Merriam, 136 N. Y. 58, 60; Matter of De Witt, 113 App. biv. 7^0; Anderson v. Anderson, 112 N. Y. 104; Bailey v. Stewart, 2 Redf. 212,'23^; JWalipjit'i^(JjOW, .spthiseixclusive jij.ri^|3iction is limited. It may depend upon,3;p41ti?i9Qpditifwpd by: 1. Mpd.e of execution; 2. Place pf execution; 3,. Residei^GEs.ptl^e^ta^or; 4. Locus (or situs) Qf^pr<^eEty,wille(i.- § 68a. MiOdSipf execi;tion,7TT-S,^rroga,tes may, grant probate of wills, f(ay When ,expcu^tif4i?^;prescribg^ by, the laws of the State, whether they be wills of real or personal property. i , , : .0). 41^o,ffi^ls.of,pers,opaLpropertyj executed, in other States, or in Canada or in Great Britain or Ireland, apipre^cjribed l?y,, their respective la,^?^, (c) Also wills of personal property of non-residents, executed according ip the law of testator's residence. 1:69 JURISBICTION AND POWERS 71 , This appears (a) from the Dpcedents' Estates. Law, §§23-25, forinerly § 2611 of the Code. .; , . ; § 69. Same; other excejptional jurisdiction as to probate of wills. — Generally, therefore, the Surroga.te's Court possesses jurisdiction, exclusive Qf every other court within the State, to grant probate of wills and issue letters thereupon; The Surrogate must, upon an application for probate, determine all questions of fraud, imposition, undue influence, mistake, and other circumstances' relating to the factum of the instrument propounded; and, in general, mistakes and variances between the will, as prepared, and instructions for lireparing it, can be reformed only by him. Burger v. Hill, 1 Bradf. 360. See Yjieeland v. McClelland, id. 393. Before the Revised Stat- utes of 1830, probate of "wills of real property could be had only in the supreme court Oir county common pleas. For the statute regulating proof of wills of real property before the R. S., see 1 R. L. of 1813, 365, § 7, and Chapter I, ante. But those statutes conferred jurisdiction to take pro- bate of such wills, (not lost or destroyed) upon Surrogates' Courts. 2 R. S. 58, 59. ■ Until 1870, lost or destroyed wills, whether of real or personal estate, could not be proved in these courts. Bulkley v. Redmond, 2 Bradf. 2S1; Hook V. Pratt, 8 Hun, 102. T?he remedy was by a proceeding in the supreme cpurt, under the statute. 2R. S.,67, §63. In that year, the Surrogate of New York county was authorized to admit to probate a lost or ^destroyed will qf real or personal estate, Lays^s, 1870, chap. 359, §8, a,nd the. Code of OiyiLPrpcedure extends this power to all Surrogates. Code Civ. Proc., §26:13, f9rmeriy§ 2621. , jTbe provisions of the Decedents' !^states La,w are: ' § 2S. A will of real or personal property, executed as prescribed by the laws of the, stat^, or a will of personal property executed without the state, and within the United States^ the.dpraimon 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 exe- cuted, 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 prdbdte in this stale. [This is a. material amendment. It used to read "may be proved as prescribed in this article."] • , § 24. The right. to hav^ aj 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. The last two sections apply only to a wiU executed by' a person dying after ' ' "April; eleven, eighteen hundred knd seventy-six, and they do not invalidate a will executed before; that date, which would have been valid but for the enactment of eectipns one anfi two pf chapter one hundred, and. eighteen, pf the laws of eighteen . hundred and, seventy-six, except wherej such a will is revoked or altered by a will \5^hich those sections rendered vahd, or capable^of being proved as prescribed in artidle fi]?St' of title third of chapter teighteentih of the Code of Civil Procedure. ' See, Matter of Ryhens, 128 App. Diy. 626 (^st Dep't. 2 dissents) ,aff'd 195 N.,y.,527,.|will of i one residing in; France executed, not according to Frenpli laWjbut ours, property in, this State.] 72 surrogates' courts § 70 It appears (6) from former § 2705 of the Code, now § 2608, fortnferly chap. 731, Laws 1894, which is as follows: Admission 0/ will 0/ norir-residents to probate, etc.' The last will and testament of any person being a citizen of the tTnited States, or, if female, whose father or husband previously shall have declared Iris intention to become such citizen, who shall have died; or hereafter shall die, \irhile 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 jurisdiction, 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 flie 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. Letters testamentary on such last will and testament shall be issued to the persons named therein to be the eixec- utors and trustees, or either thereof, or to those of them who, prior to the issuailce of such letters, by foiroal renunciation, duly acknowledged or proven, and duly certified, shall not have renounced the trust therein devolved upon them; pro- vided, that before any such will shaJl be admitted to probate in any county of 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 wSl 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. § 70. Same. — Under the first subdivision (a), in the last section 68a, any will is entitled to probate, whieresoever and by whomsoever executed", whatever the nature of the property whose disposition it seeks tO effect, and wherever such property may be situated, proiriaed it be shown to have been executed in conformity with the laws of this State. Matter of M'Mulkin, 5 Dem. 295, 297. Thus, where testatrix died in Glasgoliir, Scot- land, 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 defective 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 (b), adds to the hst 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 vaUd under the laws of the place in which it was made, the testator changed his doinicile it might result in intestacy. Thus in 1856 a will was offered m 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 the fediiirement of the laws of that State. Subsequently the testatoV 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 § 71 JURISDICTION AND POWERS 73 decigaon was followed until the amendment of 1893 to then § 2611, Code Civ. Proc, above quoted. This section was a consolidation of old §§ 2611- 2613, apd 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, withput awaiting action by the corresponding tribunals of the othei, ,^atp or country. Booth y._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, § 970, was admitted to probate in New York county as a wiU of personal property. Matter of Cruger, 36 Misc. 477. See liistory of the law in Matter of Seixas, 73 Mi^c; 488. The mode of execution and its coiiformity to the foreign law are facts to, be proven. Ibid., and cases at p. 492. But this section gives uo jurisdiction to a Surrogate over the probate of wills of real property unless executed according to the New York laws. Matter of Gaines, 84 Hun, 520. Note that no will executed un,der either (6) or (c) of req.1 prop- erty is provable here. A wiU of realty to be effectual to pass lands here mus,t. have been executed in conformity with the New York statute; prior to the amendment in 1893 to § 2611 the validity of execution of a will made tiy a non-re^^ent 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 Stpry on pp. 404, 405) the court said: "It would be plainly absurd to fix uppjj any prior domicile in another country. The one which attaches to him at the instant when the devolution of property takes place, is mani- festly th^e only one which can haye anything to do with the question." The amended section applied "only to a will executed by a person dying after April 11, 1876, and it does not invalidate a wiU executed before that date, whicli would have been valid but for the enactment of sections one ^ijd two of, chap. 118 of the Laws of 1876, except where such a will is revoked or alt^ered by a will which those sections rendered va)id or capable of being proved as prescribed in this article." Code Civ. Proc, former §2611, amesnded 1893. See § 25, Dec. Est. Law. §, 71- TJlie place of execution may also determine, the question of juris- dictipn — ^this appears partly from the foregping sections. If the will pre- sented to the Surrogate was executed in this State it must have been exe- cuted in Qonformity 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 Sta,te 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 74 surrogates' ' courts §§ 72-75 executed in conformity with the laws Of the place of testator's residence when he executed it. § 72. Residence of testator. — Conceding the will to have been executed so as to be provable in this State under either of the. fbregoirig' sections the Surrogate's jurisdiction is further conditioned by the Residence of tes- tator. If he was, at the time of his deeea.se, a non-resident of the State the rule is that laid down above (and see § 73, infrCi, 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, § 2515 (formerly 2476). See James V. Adams, 22 How. Pr. 409, to effect that it is not the process under which parties come before the Surrogate that gives him jurisdidtion; but the residence of the decedent. § 73. Locus of property willed is a most important eleineUt in detei*- mining jurisdiction, but it is more properly to be treated under the iieXt Siib-topic. 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 Stkte,' leaving pei*-^ sonal property in the State either at his death, or which after his death conies into the State and remains unadtiiiriistered. Or, (2) where the decedent died without the State, but leaving persoh&l prdperty 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 Object to disposition for the payment of his dtebts, and which is situated within a county of thfe State, provided no petition has been pre- sented under either of the two just mentioned cases in ajny other Surro- gate's Court. Code Civ. Proc.-, § 2515, siibd. 4. § 74. Other questions exclusively within Surtdgatels jurisdiction. — It may be added that the Surrogate's Court has fiirther iexclusive jurisdic- tioli to determine all questions of fraud, imposition, undue inflUehcie, 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; 503i See opinion Clark V. Fisher, 1 Paige, 176, and cases dted; Coltim V: Ross, 2 /d. 398; Muir y. L. & W. Orphan Home, 3 Barb. Ch. 477. So also mistakes and variances between the will as pi'epared and the instruction^ given fbr* pre- paring it can obly be reformed in this court; Story's Equity, §^179; Burger V. Hill, 1 Bradf. 360, 372. See Matter of Bomar,18 N. Y; Supp. 214, and Matter of Meyer, 72 Misc. 566, as to potver to expunge scandalous matter from a will. ' ' ! ; . Of course, jurisdiction to assess and determine the transfer tax is exclu- sive imder the act. • , § 75. Jurisdiction exclusive of other Surrogates' Courts. — Sectioii 2515, fijriherly 2476, bf'the Code provides that: ' '■ ' '" i § 76 juRisbictioN And powers 75 The Surrogate's Court of each county has jurisdiction, exclusive of evfery other Surrogate's Court, to take the proof of a will, and to grant letters testamentary , thereupon,; or to grant letters of administration, 3s thp case requires, in either (sid) of the following cases: •> • .■ ■ !■.■ •, : ii ! >■' 1. Where the decedent was, at the time of his death, a resident of th^t county, whetW his death happened there or elsewhere. 2. Where the decedent; nbt being a resident of the state, died: withiii that courity,' leaving personal property withim the state, or leaving personal property which has, since his death, come into the state, and remains unadministered. , . i i . i - ; - i 3. Where the decedent, not being a yesideint of the state, died without the ^tatq,, leaving personal property within that county and no other; or leaving pergonal property which has, since his death, come into that county, and no other, and re- mains unadministered. ' ' ■'' ' ■ '-■ 4. Where the decedent was not, at the time of his death, a Resident of the state, and a petition for ptotate of his will, or for a grant of letters of adtninistratioh, under subdivision second or third of this section, has not ,been filed, in any surror gate's court; but real propei:ty of the decedent, to which the will relates, or which is subject to disposition under the title fourth of this chapter, is situated within that county atid no other. § 2515, Code Civ. Proc. Consequently in any. case covered by the, four subdivisipns of tMs se.Cr. tion, tjie; petition must.b^ presented to the Surrogate of the county haying this exclusive jurisdiction. . . . , . ; , We note, under subd.,^,, TThijs, the. Surrogate first; issuing letter3 an- cillary, on a nqnrresi^eRt's pstate,, acquires .exclvjsive jurisdiction to, ap- point transfer tax .appraisers. Matter of, Hathaway, 27. Mjisc. 4,74. : ^ . , ,^ Under subd. 3. This gives jurisdiction not only to, issue, letters ; buif even.if nope .tje issued); the, Surrogate may assume jurisdiction to assess the transfer tax, ,if. the property, so ,withiQ,the county, he taxable.^ Moi^ q/',/!YicA,'l60N.,Y. 87, 93. ,,,,.,,,',,, ,, ,:," '.\ ^'i'^'i ',C[^ Under subd, 4. See Metier of Buckley,. 41 Hun, ,106; Matter, of Taylor, 13N;,T,St. Rep.,'l76. ', ,' ^ ,,',', '^ ," ' ' " ''■'[ ,.'.'■, ..V ' ' JDRISDICtlON ONCE ASStTMBD IS EXCLUSIVE ' ,l Jurisdiction once duly exercised over any matter by d, surrogate's court, exclude the subsequent exercise of jurisdiction by- another surrogate's court,' over the saine matter, and all its incidents, except as otherwise specially prescribed, hyilaw. , iWhere, a guairdi^^i h^^been jiuly appointed by,, or letters testatnenj^ry or ofi adflij^istratipn^ have been duly issued from, or any other special proceeding has been duly com- menced in, a surrogate's court having jurisdiction, all further proceedings, to be taken in a surrogate's court, with respebt to'^he same esti'te' or matter, niikst be taken in the same court. § 2614, Code Civ. Proc. Former § 2475- of this Codej " ; i ■ See also § 2516, belo\v; under " jurisdiction concurrent with other Surro- giates," and how it becomes exclusive! ' ' § 76. Jurisdiction of Surrogates ovei' wills of resideiits.-^The pritiikry distinction indicated by § 2,515 is, between resident and hon-tesident de- cedents. Jurisdictibn'to take proof of the will bf a deciedent. Who w;as a resident of the cbuiitj^ at the time of his death, is wholly iiidependent of assets. Matter of Td^tor, 13 N. Y. Sti' Rep. 176. But it ihay be hebeissary ' for the Surrogate to deterinine the fact of i-esidence, which he has poWer and which it is in fact' his d\ity to do.' Boltoh v. Schriever, 135 N. Y. 65. 76 surrogates' courts § 77 Where decedent was a lunatic, andi 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 CoflSn held that her residence at d|eath was in the latter county. Hill v. Horton, 4 Dem. 88, 92. While the domicile of the father is that of the child (Von Hofman v. Ward, 4 Redf. ?44, 259; Kemnedy v. RyaU, m N. Y. 379, 386)> it is not changed by a mere sepj^ration of the father and mother, there being no legal dissolution of the relation of husband and wife, yet the domicile of thie husband' is not necessarily that of the wife, if they have separated. Matter of Florence, 54 Hun, 328, The original donaicile will be presumed to continue until a new one is acquired (Von Hofffnan v. Wa^d, supra; Depuy y. Wurtz, 53 N. Y. 556), and a new one can be acquired /only by actual residtence coupled with the intent there to abide. Graham v. Public Administrator, 4 Btadf. 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, 4p J^. Y. St. Rep. 12. Where there is doubt as to the decedent's residence the will may be re- sorted to, for the words of description may be significant in disputed cases as fixing whether at the time Of its execution his dbrhicile of origiri had changed. Matter of Stover, 4 Redf. 82, 87. " Where the petition contains distinct allegations as to testator's resi- dence', aiid the allegations are practically substantiated by proof, the de- cree admitting the will tO probate is conclusive, and cannot be collaterally attacked. Bunistead v. Read, 31 Barb. 661. So, if a petition is filed, containing a distinct allegation of residence in that bounty, the Surrogate of siicJh county acquires exclusive jurisdiction under § 2514 to, try the question of residence. And if a petition is filed in another county, allfe^ng residence there, the Surrogate of that county acquires no jurisdiction unless the Surrogate first acquiring jurisdiction determines the residence of decedent not to have been in his own county. Matter of Buckley, 41, Hun, 106. § 77. County residence not state residence the test of jiwis^ction. — Section 2515 expressly hinges the Surrogate's jurisdiction in case of resi- dents upon the residence of I3ie decedent at the time of his death within re asserted a right to jurisdiction in certiain cases arising between citiT. zens of different States involving the vaUdity. ^aad construction of wills.. 84 surrogates' cottrts § 87 Still it is, if I may so express it, a concurrent jtlrisdiction "once removed." It is really concurrent with that of the state courts of equity. They do not, and caniiot, 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 proceeding in rem, whicli does not necessarily involve any controversy between parties. In its initiatibn all persons are cited to appear who are interested, regardless of the State Of which they may be citizens. So the United States supreme court has Said in this connection: "From its na- ture, and from the want of parties, . . . the proceeding is not within the designation of cases at la,w or in equity between parties of different States of which the Federal courts have Concurrent jurisdiction with the state courts under the Judiciary Act." Gdiries v. Fuenies el al., 2 OttO (92 U. S.), 10, 21. And the court continues: "But whenever a controversy in a suit between such parties arises respecting the validity or constructibn of a will, or the enforcement 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 con- troversy between the parties." Ihid.,^.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 re- ceived to probate by a state court of competent jurisdiction, is conclusive of the contents and vaUdity of the will in this court." See Fouvergne v. City of New Orleans, 18 How. 470, 473; Bradley v. Palmer, 193 111. 15; Palmer v. Bradley, 142 Fed. Rep. 193, aff'd 154 Fed. Rep. 311. Mr. Rice in his work on "American Probate Law," p. 21, says: "Jurisdiction as to wills, and their probate as such, is neither included (in) nor excepted out of the ^ratit of judicial power to thie 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 jurisdiction by reason of citizenship." In SoMiivorlh v. Adams, 23 Alb. L. J. 36, it was held an action to estab- lish a lost will, brought in a sfetfe Court \^as removable. But an original bill cannot be sustained in the Fedei-al 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 i^hich the juriMiction over testamentarjy^ mattters is committed as cbnclusive of the validity And contents of a will." Fmivergne v. New Orleans, just cited. § 87. (2) With otheir state courts. — We have already discussed "an action to establish a will" as the nearest approach to probate jurisdiction which courts, other than Surrogates' Courts, enjoy in this State. § 87 JURISDICTION AND POWERS 85 LOST WILLS The supreme^ourt used to have jurisdiction (the power to take, proof of a lost or destroyed mil at first resided solely in thp 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; Biickley v. Redmond, 2 Bradf. 281, 286; Timon v. Claffy, 45 Barb. 438; Voorhis v. VoorMs, 50 Barb. 119, aff'd 39 N. Y. 463) which the Surrogates' Courts did not have to prove a lost or destroyed will. Since 1870 (Laws 1870, chap. 359, § 8; also 2 R. S. 58, § 67b) a lost or destroyed will can be admitted to probate in a Surrogate's Court (Code Civ. Proc, § 2613, formerly § 2621) ; but only in a case where a judgment establishing the will could be rendered by the supreme court, as prescribed in § 1865 of the Code, which reads: "But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this airticle, unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime; and its prpvisions 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. VII.) ADMINISTRATION Mr. Pomeroy in his treatise on "Equity Jurisdiction" divides the differ- ent States into three classes as regards the question of equitable jurisdic- tion over administration. The third, in which he includes New York, he says is where the "equitable jurisdiction is not concurrent, but is simply auxiUary or ancillary and corrective. The probate court takes cogni- zance 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 jurisdiction, or for which its methods an,d reliefs are imperfect and inadequate, or where its prpceedings have miscarried and require correc- tion." Pomeroy'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 administrator, being sole next of kin, is claimed to have made a gift causa mortis to another of *he entire estate. The estate must first Tt>e ad- ministered in the Surrogate's Court. Dickinson v. Col. Trust Co., 33 Misc. 668. See Bankers' Surety Co. v. Meyer, 146 App. Div. 867, where equity^ intervened in aid of holder of decedent's notes maturing successively oyer a period beyond that of normal administration so that rights had to be safeguarded and the estate as it were impounded pro tarda. Scott, J., in his opinion points out the diflSculty that appeals to equity. Sep Matter of Henshaw, 37 Misc. 536, for illustration of the very danger equity may guard against. The following remarks of Mr. Larremore (N. J. L. J., December, 1911), are noteworthy: "Regret has often been expressed that our court of last resort declined to affirm the action of appellate divisions in Roberson v, Rochester Folding Box Co., 64 App. Div. 30; 171 N. Y. 538, and Marlin Fire Arms Co. v. Shields, 68 App. Div. 88; 171 N. Y. 384, 86 surrogates' counts § 87 wherein it was sought to administer equitable remedies to situations which, although novel, were of strong intrinsic merit. In those cases the partipji- lar remedy applied for was Injunction, and it is to be sai# that' 'there has been a disinclihatioh on the part not only of large sections of the people, biit also of many judges of excellerlt ability, to extend the scrips' of that summary remedy. Itl the pfiiicipal case an ordinary injunction is not asked for arid the objections that seemed conclusive to a majority of the court of appeals are not applicable. The sequestration of specific funds in the hands of a trustee ii^ brdeir to satisfy claims is a, well-established groimd of Chaiicery intervention." ACCOUNTINGS See Part IX, 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 relations thereto. Wood y. Brpwn,i4: N, Y. 337, 345, citing Rogers y. King, 8 Paige, 2io. Thus, where aii 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 a,Gtion of a tr|Ustee„ can exercise its jurisdiction and call upon him to account. For, sofar as the property is effectually disposed of by the will, the exec'utpr holds it in trust for the legatees or beneficiaries, and, according to the law of this country,, if there is any part of such |)roperty or any interest therein not effectually disposed pf by the will, he holds it in trust for those who are entitled to it unde;r the statute of distributions. Wager v. Wager, 89 N. Y. 162, ,166, citing Bowers v. Smith, lO Paige, 193; Williams on Executors, 294; 2 Story's Eq. Juris., § 1208; Hays v. Jackson, 6'Mass. 153.^ ,.,_ . : •' " , Theseal of ti|e cojurt, of probate is conclusive evidence of the factum! of a will, but any court of equity, has jurisdiction, to construe the, will for the purpose of enforcing a, proper ^erformaiice of ariy trusts arising thfiVe- under. However, "where complete relief can be obtained in the. Surro- gate's Court, a court of equity may, in its discretion, decUne, on that ground, to entertain an action for an accounurig or other, relief against executors." ,- ^ager y, Wager, supra, p^ 168; Ludvng v. Bungart, 48 App. Biy. 6l3/rev'g 33 Misc. l77; Chipman v. Montgomery, 63 N. Y. 221. See (Jhiids^ V. Childs, 68 !]\iisc. 473. See question ably reviewed by Werner, J., mMatter'ofRunk,'20Q'k.Y.'4^7. ' The iijatter rests;in the discretion of the court, arid should be determined in the cpurt of fifst instance. Lawrence v. Little field, 2\6 N. Y. 561, 584; Matter' of Srnitli, \2Q App. Div, 199; Bankers' Surety Co. v. Meyer, 205 N,,Y. 219/224/" ' ,'""■ ' ' ',';" ' : 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 cdur'ts) although it has been sb § 87 JUKISDICTION AND POWERS 87 treated. Under former § 2624 of the Code ias amended in 1910 (by dropping the limiting word "personal") the Surrogate was directed to try an issue, raised as to the validity, construction or effect of any disposition of prop- erty coritained in the will of a resident of this State executed in this State. It has now beeii rewritten as § 2615 to give fuller relief. It is discussed, more fully in its direct relAtion^-but should bfe quoted here, for information in this connection. § 2616. Construction of will, haw obtained. '• . -An ekeeutor, administrator with the will annexed, or any person interested in obtaining a, deljerpoination as to the validity, construction or effect of ,any, disposi- tion of property contained in a will, may present to the surrogate's court in which ■ such will was probated, a petition setting forth the facts which show his mteresl, the names and post-office addresses of the otHer parlies interested, and In part from former § 2624 of this Code. From Lr 1870, c. 359, § 11; L. 1910,, c.,584. , ..,,:.,.,■ ^i lender § 1866 of the Code an action may be bi:oughl to determine ,tjhe validilSy, construction or effect of a testamentary disposition, of 'reaZ prop- erty within the State, or of an interest, therein which would descend to the heii; of an intestate. These sections are interrelated by reason of a provi- sion that the latter section "does not apply to a case, where the question in controversy is determined by the decree of a Siirrogiate'4 Court^ duly rendered upon allegations for that purpose, as prescribed in article first of title tiird of chapter eigHieeriifi Of this act, where the plaintiff' was duly cited in the special pf'oceeding in the Stirrogate's Court, before the coin- riierieeihent of the action." Code Civ. Proc, § 1866. This itaUcized cross reference should have been amended in 1914. The reference is to former §2624, which is now §2615, and is in article second of such title third. ■ - - •: Then we have § 47 of the Decedient Estate Law. "This provides, first: a differentiation as to the law to be applied to a testamentary disposition of real or of siaf other property hierfe, conditioned by' the residence qf testator at time of death. But iri I9l0, by chap. 244,, it was enacted : '"Whenever a decedent, being a citizen of the United States, wherever resident shall have declared iii his will and testament that he elects that such testamentary dispositions shall be construed and regulated by the laws of 'this State, 88 surrogates' courts § 87 the validity and effect of such dispositions shall be determined by such laws." Now it will be seen iiha,t these sections refer to the vaUdity not of the will itself but, of the testajnentary disppgition made in the ^ill. The court of appeals hap expressly denied jurisdiction oyesr the fornier, except i^l, actions to egtablish the wiU as prpvided in the Cq^p. Anderson v. Avderson, 112 N. Y. 104, 113. The policy of the court has been to, deny, jurisdiction 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 claiming to be entitlpd to personal property as beneficiaries under an un- probated will, against a person claiming title to such personal property under a subsequent unprobated will of the decedent and also imder a trans- fer executed by the decedent, to obtain an adjudication that the subse- quent will and transfer were obtained by fraud and undue influence, and to require the defendant to account to the plaintiff for such personal prop- erty, where it does not appear that th,e testatrix had any real property or that there are any circumstances which would prevent the Surro- gate's Court from passing upon the question as to the vaUdity of the two wills. The general policy of this State is and has been to comnait to the Surro- gates' Cojirts the decision of qijQstions upon the due execution of an al- leged will. Anderson v. Anderson, 112 N. Y. 113; Higgvns v. Union Trust Co., 32 N. Y. St. Rep. 197, aff'd 127 N. Y. 635. See as to cases when real property is involved, Norris v. Norris, 32 Hun, 175; Wallace v. Ppifne,, 14 App. Div. 597. The former cases limiting the Surrogate to construing wills of personalty only are by the amendiment of former § 2624 no longer pertinent, nor are they restored by the language of 2615. It may now be said (a) that the two courts have concurrent jurisdicr tipn to construe a resident's will executed within the State disposing of property. (&) W^e noted, tjefore the act of 1914, that the supreme court alone can construe a non-resident's mil as to realty here or apply our law to 'the dis- positions of a will contemplated by § 47, Dec. Est. Law, and as to which court will exercise the power in a given case the reasoning is still pertinent th^t is us^ in regar<| to taking cognizance of accountings of testamentary trustees. See Ludwig v. Bungart, 48 App. Div. 613, where it was held the supreme cojart would not refuse juri^dictipn merely because the Surrogate's Court hgd concurr^iit jurisdiction; but only in case it had already assumed to, act itj tJie premises (rev'g 33 Misc. 177), and, see Mq^ of Runk, 200 N.Yi-^t ,460,. ,il(fa«er o/Leat)i«, ^^^^^ But thj? new act leaves out the words " contained in the will of a resident of tj^e State, executed within the State." The provision relates now, generally, ,to " any dispositipn of property contained in a will" §§ 88, 89 ' jr^iSDicTiON and powers 89 PREVENTING PROBATE We_^have said that the Surrogates' Courts have exclusive jurisdiction over probate of wills. Nevertheless, where testatrix had made an irrevo- cable will of certain property to one who had given it to her in her life- time in consideration of svjch will, a complaint was sustained which asked for a judgment restraining an executor nartied in a later will from proving it, and directing that the former will be adjudged irrevocable and entitled to probate. Cobb 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 pa/rties, it is held are not applicable to Surrogates' Courts (Matter of Watsorif 2 Dem. 642). Section 2534 now controls, modifying former § 2530. See Maiter of Bolton, 159 N. Y. 129, 134, where the court discusses carefully the Hmits on the Surrogate's power over infants' interests. See Part VII, post. § 88. (3) Concurrent jurisdiction of Surrogates. — Subdivisions 3 and 4 of § 2515 quoted, ante, suggest the possibility of a case where personal property comes or real property is found to be situated in another county or counties of the State. In such c^e, while the Surrogates of such counties have concurrent jurisdiction, exclusive of all others than them- selves, the one first assuming jurisdiction of the probate pi^oceedings has a jurisdiction exclusive of every other Surrogate. This is by virtue of §2516. 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 cir- cumstances 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 aidministratioh, as the case requires. But whei-e a petition for probate of a will, or for letters of administration; has been duly filed in either of the courts so possessing coiicurrent jurisdiction, the jurisdiction of that court excludes that of the other. § 2516, Code Civ. Proc. , , § 89. Jurisdiction of persons. — This new heading is the result of the revision of 1914 which amalgamated old § 2528 as to "appearances" with other provisions related to the acquisition of jurisdiction of the person. Now § 2511 is headed: Jurisdiction, 0/ persons; when and how obtained. The surrogate's court, in aiiy proceeding before it, shall have iuTisdiction of the following' described persons: 1. The petitioner. , ; 2. Parties who have been duly cited, including all those described as being persons belonging to a class, or connected with the decedent, or as interested in the property or matter in question, whether designated by their full and correct names or not. 9,0 subrogates' courts § 90 3. Persons of full age who have not been judicially declared to be incompetent to manage their affairs. ' I a. Who shall, either before or a^ter the filing of %bp peJ,ition, wa^ve the^ issue or service, or both, of the citation by an instrument .in writing signed, acknowl- edged, or proved and duly certified. ' ■ " b. Who, whether named in the petition or citation or nxJt, shall appear personally in court and file written signedi notice of appearance acknowledged, or proved,, and . r - 4uly certified, < , , ^ ' i ; ; , I , j c. Who, whetlier named in the petition or citation or npt, shall appear by attorney whose authority in writing to appear, so, signed, acknowledge^, or proved, and duly certified, shall be fUed. § 2611, Code Civ. Proc. ' i ■ s' From former §2528 of this Code (iij part) and provisions found in various other sections in relation to obtaining jurisdiction of the person. The various subtopics of "Parties," "Attorneys," "WAirER," "Ap- pearance," etc.^ posi, wiii' sufficientlir cover the discussion under this section. ' . The former rule w_y^, generally, that upon the presentation' of the peti- tion, the court acquired jurisdietipii to do "any act which iriay be done before actual' service of' the citation" (former §2516). Btit to get the benefit of the sectioHJ the'citation had 1;o te served within a given tiriie to' give jurisdiction of the party. So it Was held that waivers executed before- hand' had' no vaUdity. Matter of Graham^ 39 Misc. 226; MatCer of Gregory, 13 Misci 363. : , • , '.. . Subdivision 3a now opehs a reasonable way of expediting the proceeding j Subdivisioii 3c is discussed fully below, under Parties and Attorneys. > § ^0. Miscellaneous illustrations of jurisdiction before the act of 1914. ^^-^Merely to illuminate the discussion of the enlarging, effect of the new act on 'the prior jurisfliction , we cite instances of powers conceded or denied by decisions prior to its enactment, marking with an asterisk several inore i:e,c,?nt cases, as qualifying- the discussion. , „ : , .TJie coiu-ts have . sustained, the power and jurisdiction of Surrogates' Gourts in' the following cases: ' ,: ' , ,i n, To' rWokfe i)rblf)ate upon, discovery of a later will. Campbell v. Logan, 2 Bradf, 96,1^3;;', ,, ,;.''! ^ ,. ,; "' ,, ' "'.,,. " '■;'; ., To. inquire, intQilegit,iw9'py 9^ childreii, by virtue of its, power to deter- mine and direct, the distribution of, an estate> Matter. of Laramie, 6 N. Y. Supp.' 175i Matt^ of Schmidt, A2 Misc. 463. And, similarly, topass on the validity of a marriage, or bf a divorce! Matter of Hall, 61 App. Div. 2e6;Wditer.©/ McGarreriy 112 App. Div. 603i' Matter 0/ Gamer, 59 Misc. 116:' •.■ii.r.i.v,.i_, . - ,-; ' "' , . ' ',.,;. To. determine whether onei is an fiadopted child,"' in compliance with statute; or is entitled to a child's share, under agreement with_decedeiit. See, post. Adoption. , , ., , ^ ;. To set aside an irrfegular, or, unauthorized order. Vred&nHmrgh v.: Calf, 9 Paige, l^S; Shidmore v. Dairies, 10 Paige, 316, also iProcfor v. Wanamdker, 1 Barb. Ch. R. 302, holding that independently of the' statute of' 1837, the Surrogate had, power, to revoke letters of administration Which liad been irnproperly abtEi,ined,!tipoji f*Is]?,sugge?ti,9n ,9^ matters p]F fact, citing C,oj;fiish § 90 JURISDICTION AND POWERS 91 V. Cornish, 1 Lee's Ecc. Rep. H; Burgis v. Burgis, id. 12l;0gilvie v. Hamil- ton, id. 418; Lorct Trimbleston v. Lady T., 3 Hagg. Ecc. Rep. 243. Thus, to vacate an order of adoption made, originally,, without jurisdiction. * Matter of Johnston, 76 Misc.. 374. See also * Matter of Malme, ,150 App. Piv. 31. , ; ,, .. ,: ;., :-\:.\' '.,y: , - ■. • Hence a court of equity should not intervene if, by exercise ,of this power, the Surrogate can give full relief. * Costelloy, Costellf^, 152 App. Div. 280. To open decrees for clerical error, or mistake. — ^Not for judicial error, which is remediable by appeal., Matter ofPech,. 131 App. Djv. 81. To prove a foreign will {I sham v. Gibbons, 1 Bradf. ,69, 79,.and,,ap,t of 1837, § 77), and hereunder a will of a foreigner executed iri this State ac- cording to its forms {Catherine Robert's Will„ 8 Paige,, 519), and a will of a fpredgner, dying in the coimty, leaving no assets, but wherC; assets come into the county afterwards. Kohlerv. Knapp, 1 Bradf* 241, 246, To open default on an accounting and allow a contest. Pew v. Hastings, IBarb. Cli. R. 452. , , . ;: ; To approve, or, disapprove, upon an accountiixg, a settlement inadeby the .one accpunting with his decedent's partners. Matter of Meyer, 95 ^pp. Div. 443 ,:; ^ To enter an .order nunc pro ty^nc. Butler, v. Emmett, 8 Paige, 12, 21 (dic- tum)'. Seenow§,2490, C. C.P., subd.6, To relieve parties, in a proper .case, from a stipuUtipn. Matter, of Rich- ardson, 118 App. Div. 164. To entertain proceedings for probate of an unattested will although it is not produced and offered, .when a fpreign eomt declines to surrender the docunient. Matter of Delaplai:ne,- 5 Dern. 398, and ^ee Russell, y. Hartt, 87 N. Y. 18. This is, not such a case as is contemplated by §1861 pf, the Code providing for an action to establish a will. \ To issue a commission to take testimony in foreign countries. Russell v, Hfirtt,STN.Y. 18. ; / :,, It seems it may grant naturaUzation. Matter of Harstrom, 7 4-l?j^' N. C. To direct executors to pay counspl for services., Gilman y, Qilnififi, 6i3, N. Y. 41 (but see Devin v. Patchen, 26 N. Y. 441) ; Reed v. Reed, 52 !n. Y, 651; Inre Bailey, 14 N. Y. S. R. 3^^; Clock v. Chadmgrfe,. IQ Hun, 97. ,See under former §, 273p, Matter of O'Brien, 145 N, Y.' 379, ^ 384^ i .- , , ; , To compel a purchaser of real estate to take, or rplieve hini from taking. Matter of Lynch, ^3 Hun, 309, To approve or disapprove, inypstpients by executors pr testamentary trustees, /ones y. i^ooger, 2 De,m. 1^. , ,; .. To pass on the vahdity of an ante-nuptiat agreeinent (Jn re Jong's EM.j^ 3 Misc. 586), and enforce it {Young v. Hicks, 92 N. Y. 235) pf course where it, is necessary to determine the rights of the parties. Matter of Davenport, 37 Misc. 179; Ma^ of Bostwick,^^ Misc. 186. But, he cannot enforce siiqh a contract by denying probate to a lal^er wilj. tl^an the one made pur- suant tp sui^h, agreement. Adams V. Sunft, 169 App. Jyiv. 802. -W|iere the contract was that A shoiild^haye his wife's personalty ifili^e, 92 surrogates' courts § 90 survived her, it was held that his right wassubject to due administration. Foehner v. Hvber, 42 App. Div. 439. To take an accounting by an executor of proceeds of real estate sold under a testamentary power. Baldmn 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 modify a transfer tax order, and exempt a beneficiary. * Matter of Tdwnsend, 153 App. Div. 85. To try the question of a decedent's inhabitancy. People v. Waldren, 52 How. Pr. 221; Bolton V. Sdirievef, 26 Abb. N. C. 230. To dismiss or discontinue suits. Heermans v. Hill, 2 Him, 409; Matter of Fridell, 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 ClIims against Estate. To judicially construe a will of real and personal estate. See § 2615, Code Civ. Proc, and chapter on CoNSTRtJCTioN op Wills. To determine whether an applicant for a revocation of pi-obate 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 monejr^to pay creditors when there has already been a Surrogate's decree directing sale of real property to pa^ decedent's deibts. Matter of Stumjyf, 4 App. Div. 282. To determine if a woman is "lawful widow " of testator. Matter of Ham- iltdn, 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 a;ction. tbid. To ascertain whether a person is an heir or belongs to any class desig- nated in the will — such as next of kin, devisee, etc. Matter of Verplanck, 91 N. Y, 439, 450; Purdy v. Hayt, 92 N. Y. 446; Riggs v. Cragg, 89 N. Y. 480; Cr(ykse v. Wilstin, 73 Huh, 353, 356. For example r to determine whether a certain grandchild is capable of taking a given legacy, and inci- dehtaUy of passing on question of residence of such grandchild. Garlock V. Vandervwt, 128 N. Y. 374, 377. To determine whether a savings bank account beloiigs as assets to a decedent's estate, and, incidentally, to decide whethei* decedent, in life, made a gift thereof. See post, Assets. But Surrogates cannot acquire jurisdiction where not conferred by stat- ute, althou;gll the parties all appear, assent and submit the questions at issue. T>akin v. Demming, 6 Paige, 95; Tucker y. Tiicker, 4 Keyes, 136; Matter of fhornlmrgh, 72 Misc. 619; Matter of Smith, 41 N. Y. St. Rep. 337; Matter of Walker, 136 N. Y. 20, 29, citing Chemung Canal Bank v. JuHson, 8 N. Y. 254; Bedrdslee v. Dolge, 143 N. Y. 160, 165; Metier of Zerega, 68 Hun, 505; Matter of Redfield, 71 Hun, 344^ 348; Bevan V. Cooper, 72 N. Y. 317, 329; Matter of tlnderhtll, 117 N. Y. 471, 479. Noi* can juris- diction be accfuit-ed by consent of attorneys.' Dury6a v. Mackey, 151 N. Y. § 90 JURISDICTION AND POWERS 93 204. It seems the rule is different as to jurisdiction of the person. Matter of Bingham, 127 N. Y. 296; Myers v. American Loco.Co., 201 N. Y. 163. 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. Sanders v. Sautter, 126 N. Y. 193; Matter of Randall, 152 N. Y. 508, which reviews the whple subject; Matter of Irvin, 24 Misc. 353. Nor have they power to compel an administrator to bring an action in another court. Matter of McCdbe, 18 N. Y. Supp, 715. But they can stay proceedings in their own courts pending determination of material issues, not triable by them, in another court. Rutherford v. Myers, 50 App. Div. 298, 300. Nor to entertain a motion for a new trial of issues after ju- risdiction 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 Patter- son, 63 Hun, 529, 531. Nor to pass on questions of title raised between a claimant and a representative of testator's estate. Matter of Walker, 136 N. Y. 20, 29. Unless, the express power be given as by former § 2472a of the Code in respect to a legacy or distributive share. * Matter of Delgado, 79 Misc. 590. He cannot pass on validity of assignnient to representative of mortgages of testatrix. But he can, on accounting require the executor ~ to accouiit for such mortgages as an asset. Matter of Ammarell, 38 Misc. 399. In * Matter of Carey, 77 Misc. 602, held he could determine the valid- ity of an agreement of settlement of an estate when entered into by the legatees. But he could not direct an executor or administrator to dehver up to a claimant property in the representative's hands which claimant asserts is his. Case v. Spencer, 86 App. Diy. 454, and cases reviewed. Nor to decide whether a decedent's transfer of property was made in fraud of creditors. Matter of Bunting, 98 App. Div. 122; Matter of Schnabel, 136 App. Div. 522, aff'd 202 N. Y. 134 and cases at p. 524. Nor for many years to decree the payment'of a claim rejected by the executor. Matter of Perry, 5 Misc. 149; Lamhert v. Craft, 98 N. Y. 342; McNulty v. Hurd, 7?N. Y. 518; Glacius 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. (But see post.) Nor to direct a satisfaction 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 pur- pose of being 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; Matter of Roberts, 72 Misc. 625. When confronted by an act or instrument he is generally 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 wiU treat it as a bar. Matter of Wagner, 119 N. Y. 28. See also Sanders v. 9^ stjrrogjVtes' courts ' § 91 Sautter, 126 N. Y.' 19'3; Matter of U':'S: Trust Co.; 17S N*. Y. 304. See cases in dissenting opinion fey Vann, J., P- 31^. But under new po-Wefs given by § 2472a, C. C. P., added 1910, whe're title to 'a legacy wal^' claimed by an assignee; Fowler, Surr., passed dn defense of usUi*y in determining to whom legacy was payable. Matter of Thornburgh, 72 Misc. 619. "'The devfelopihent of its' powers is traced in certain carefully written opinions. See Matter of Runk, 200 N. Y. 447, Werner, J.; Matter of Cornell, 75 Misc. 514:'] Matter of Wagner, 75 Misc. 419; both by Fowler, Surr. ' § 91. Effect of change in county lines. — Where the boundaries of a county are changed or a new coimty constituted, the Code formerly pro- vided against the apparent confusion of jurisdictibn likely to aristel This was by former section 2479, which read as follows: Wh^re a new ccpuaty has !:)een heretofore, o^is hereafter, erected, or territory has Ij'een heretofore, or is hereafter, transferred from one coupty to aijother, the jurisdictioii of the surrogate's court of each of the counties affected' thereby, to take the proof of a wffl,'cyr 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 case naay be, iwhich determines jurisdiction. ; If, before the erection of the new coujity^, or the ;tra)n3fer, of the territory, letters have been granted, upon the ^ound that the decedent died or resided within the county, the surrogate's court from which they were issued has exclusive juris- yiction of th6 estate, and of all matters incidental thereto; and if the place where the decedent died' or resided is embraced within another county, certified copies ■ ,;i of ; any papers or proceedings, filedj i entered^ or recorded. in the surrogate's court thereof, must be furnished, on payment of the fees therefpr, bythp proper officer, to any person, interested in the estate; and, upon the latter's retjuest and payment 01 the fees' therefor, the. proper pfiicer 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 resi- dence within the county, the jurisdiction of the court from which they were issued, remai^unaffefited by apy change in the territorial limits of its county. This provision hafe now been repealed. The act erecting a new county can, in such rare instances, provide by similar, but general, terms for the transfer of matters pending at the tinie. Hence we preserve the discussion of the old section as illuminating in case similar questions arise. Thus in regard to this section it had been held that the words, "when the petition 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 d^&mines the jurisdiction of ' the Surrogate), refer to the time when the petition is presented to the Surrogate upon the return of the citation and nbt'to the time when the. petition is filed in his office. Matter of McGinnis, 13 Mi^c. 714. So that if a new county should be' erected or a transfer of ierril6iy be made sufesequent to the fifing of a petitioii and before the returiiMay of the 'di&tion issued thereon, the naatter should be brought Oi'i'foi' a hearing before the Surrogate having jurisdiction Under this section and if iiecesfe'^ty the proceeding re-entitled in the proper court. (But see Matter of McKedn, 26 Misc. 464, where, part of Westchester county having §§ 92, 92a JURISDICTION and powers 95 been annexed to New York county, Silkman, Surr., Held it wag annexed for municipal purposes, qnly, and did not affect his judicial right to grant letters on estates of residents of such annexed distnct.) Accordingly where one pf the phanges occurred contemplated by former § 2479, after- .|;he filing of a petition, but prior to the return day of thp citation, it was necessary tp procure. a formal; order tran^ferripg the proceeding to the. Subrogate j of the county i^ which the matter is triable by reason qf the; chaiiige, Thjs need not be on notice, but lAeriely upon an affidavit showing the occurrence of the; change of which presumably the Surrogate would take judidal no- tice, but showing thejurisdictipnal f^^ts that ^ither the ,pr6pertiy,t|he loca- tion, of which determines the jurisdiction, or tl^e ev^ot. the occurrence of which determines the jurisdiction, is located, or occurred in the territory erected into a new county or transferred frpi|i one county to the other. The, Surrogate upon these,, facts being niade satisfactorily, to appear, had tfl.make an order transferring the proceeding tp the court pfthe pther Surrogate. This was by virtue of former § 2480, which was also repealed, but read as foUows: A special proceeding pending in a surrogate's court, whose^urikliction to €n- tertaiii the same is taken awa^ by the provisions of the laSt sebtion, or in consequence ; lOf the erection of a new county,- or the alteration of the territorial limits of a county; , .after this act takes effect, must be ; transferred, by order of the court, in which it is I pending, to the surrogate's court having .juripdictpn; arid the latter court has the same jurisdiction, power, and authority with respect thereto, wfiich the former court would have had, if the territorial limits of its county had not been changed. GENBBAIi PROVISIONS § 92. Presumption of jurisdiction. — Section 2513, formerly 2473, of the Code provides that "where the jurisdiction Of a Surrpgate's Court to make a decree or other detefminatioli, is drawn in question coUatferally, the jurisdiction is presumptively, and in the absence of'fraudo^coUUsion, conclusively, established, by an allegatipn of the jurisdictional facts, .con- tained in a written petition or answer;, duly verified, used in the Surrogate's Court. The fact that jurisdiction of the parties was obtained -is presump- tively proved, by a recital to that effect in the decree." Laws of 1870; ch. 359, § 1. Laws 1910, chap. 576. See Poioer v. Speckman, 126 N. Y. 354; BumsteHd y. Read, 31 Barb. 661. | The.presumption of service of cita- tion from such recital may be negatived, especially in.case of, infancy pf one cited.. Hood Y.Heod; 85 N. Y. 561, 578. .- § 92a. Jurisdiction not lost by defect of record.^The act of 1914 modified old § 2474 to read as new § 2512 as follows: ' ' ' § 2612. Jurisdiction of subject-maiteii objettibn to defedl'in redord. The surrogate's court obtains jurisdictioii in every case to make a decree or other 'determination by the existence 6{ the jtirisdictionalfaets prescribed by statute. When the decree or other determination fails to recite the existence or proof of a jurisdictional fact, and such fact actually existed; or when any party has faQed to take any intermediate proceeding required by law to be taken, an objection to ''' such decree or determination based thereon is available only upon appeal, and 96 surrogates' courts §§ 93-95 the surrogate's court may, in its discretion, allow such a defect to be supplied by amendment. I^onher § 2474 of thi^Code, modified. See L. 1869, ic. 260, § 1; L. 1870, 6. 359, § 1; L. 1872, c. 92. * § 93. Continuity of jurisdiction. — Once acquired, jurisdiction contin- ues. This was so under former § 2516. It is so still, even though when it is a divestible jurisdiction under § 2518 (see sub pleadings), it continues until divested by the statutory contingency of failure to serve the citation or process in time to avoid the Statute of Limitations in a proceeding commenced by filing a petition in time. It is so under present § 2516, where the first Surrogate acting (of two or more having concurrent power) acqiiires a continuing and exclusive jurisdiction. The primary reason is that proceedings are generally in rem, and controllable as to continuity by the 6ourt, not the parties. So failures to take formal adjournments, inadvertent or intentional, may not impair the court's power to control the matter. Gilman V. Oilman, 1 Redf. 354; Matter of Spreen, 1 Civ. Pro. Rep. 375. This is discussed more in detail, further on. § 94. Eyi4en:tial yf»lue pf recjQ;r4a,— Section 955, Code Civ. Proc, gives to the records of the Surrogate's Court of New York county of twenty years' sta,nding the character of presumptive evidence of their contents, and makes such adnaissible in evidence in any court, between any parties. E. g., faqt and, date of death proyed by petition for letters of administration, £^nd certain wa,iy^rs so filed. Lalor v. Tooker, 130 App. Div. 11. § 95. Effect of adoption of Code. — The act of 1914 closes with these sections controlling the application of the act. They declare the applica- bility of the, pro;v[i?pns,of the cjiapter in matters of jurisdiction. § 2769. Applicdiion of chwpter; canfiimaUon of previous acts. Ea^h proyi^pn. of tilis chapter, relating to the jurisdiction of the surrogate's cpjirt, tp, take-l^lje proof of a will, and, to grant letters testamentary or letters of administration or regulating the mode of proceeding in any manner connected with the estate of the decedent applies, unless otherwise expressly declared 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 any uncertified records of wUls- and of ^ other proofs and exam- inations taken in the proceedings of prpba>te thereof, before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pfe-existiiig statutory requirements. Former § 2482 of this Code. From 2 R. S. 68 (Part 2, c. 6, tit. 1), § 68b; L. 1893, c. 686. § 2770. Certain proyi^p^ maifi applicable to proi;eedings in surrogate's courts. Except where a contrary intent is expressed in, or plainly implied from the con- text of, a provisipUjOf this chapter, all other portions of this act, and the general lujes of practice apply to surrogates' courts and to the proceedings therein, so "far as they can be applied tp the substance and subject-matter of a proceeding without lega^rd to its form. Fonner § 2538 of this Cpde. § 2771. [Am'd,, 191S.] Effect of this chapter. Nothing in this chapter shall repeal, amend or modify any existing law specially § 95a JURISDICTION AND POWERS 97 applying to any county, which is inconsistent with any section of this chapter, nor in any manner a£fect any litigation, action or special proceeding pending at the time when this act takes effect, except as hereinafter stated, and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act; provided, however, that the provisions of this chapter relating to the trial by jury of controverted questions of fact shall apply to all such pending actions or special proceedings. New. Am'd by L. 1915, c. 274 (in effect April 13, 1915). It is; of vital importance also to keep in mind § 3347, which makes ap- plicable to certain courts or to "all courts of record" certain specified sections. See, for example, subd. 6 making §§ 810-816, applicable to all courts. This affects matters covering undertakings and sureties, as to which Chap. XVIII may be non-informatory. § 95a. As to acts of deceased predecessor. — Section 2769, quoted above, is explicit and retains the language of former § 2482 in this regard. When a Surrogate dies, leaving matters undetermined, cases on appeal un- settled, decrees unsigned, etc., the successor Surrogate may complete such business or continue such proceedings. See §§ 52 and 997, Code Civ. Proc, and Matter of Johnson, 27 Misc. 167; Matter of Lawrence, 58 N. Y. Supp. 597; Matter of Taylor, 62 Misc. 442; Matter of Nestell, 72 Misc. 331, 335; Matter of Baird, 74 Misc. 34. The jurisdiction is of the court, and the in- terruption of continuity in judicial administration by death of its officer cannot be allowed to impair or defeat the rights of parties to the proceeding. PART II PROCEEDINGS IN SURROGATES' COURTS; PARTIES; HEARINGS AND TRIALS; DECREES AND ORDERS; APPEALS. CHAPTER I PROCEEDINGS IN SUBROGATES' COURTS §96. No action in Surrogates' Courts. — Surrogates have iib jurisdic- tion over civil actions. The Code's distinction is not clearly drawn be- tween actions and special proceedings. It defines civil actions, pf 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. IMd., § 3334. Section 3343 on Definition, merely says that "special proceeding" means a civil specia,! proceeding. This appears to make the distinction 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. See People, v. Co. Jvdge, &c., 13 How. Pr. 398; People V. Colborne, 20 id. 378; People v. Lems, 28 id. 159; Belknap v. Waters, 11 N. Y. 477. A clearer idea of the difference can be had. A civil action must begin with a summons. By its issuance the court may acquire a divestible ju- risdiction 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 jus- tice 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 appKcations ioi 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 pro- ceeding, 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 98 § 97 PEOCEEDINGS IN SURROGATES' COURTS 99 the case of an application for the appointment of a temporary administrator pending a long contest. Here a citation issued after petition is not neces- sary. But the motion for an order making such an appointment must be made by a party to the original proceeding, that is, the primary probate proceeding, and notice given to every other party thereto. Section 2596, Code Civ. Proc, covers this; but also covers the case where "no proceeding is pending," in which case the appHcation "shall be by petition and a citation." The practice imder the Revised Statutes included,. in two cases,^ the issuing of a summons, i. e., in compelling return of an inventory; 2 R. S. 8-5; and compelling an executor to appear and quahfy ; 2 R. S. 70. This process is long since abolished. Citation, or order to show cause, is now the Sur- rogate's process. The analogy in the case of a civil action is almost exact. Section 416, after saying that the action "is commenced by the service of a summons," continues: "But, from the time of the granting of a provisional remedy, the court acquires jurisdiction. . . . Jurisdiction thus acquired is condi- tional, and liable to be divested ... in certain cases." See also § 399. So a petition may be filed in the Surrogate's Court, and a conditional or divestible jurisdiction may be secured of the petitioner and of the rem; but it may fail if certain further steps are not duly taken. § 97. Order to show cause. — There are cases where, the Surrogate's power to act may be invoked by motion or by order to show cause. When analyzed, they justify the general statement. A special proceeding is not origiri&ted theireby but it may serve to revive one, as for purposes of "reopening," and is operative alone on original parties of whpm the court has previously already had jurisdiction. That is to say, jurisdiction of the person cannot be originally acqu^ed by the order as a substitute for process. See § 2511, Code Civ. Proc. "Jurisdiction of persons." See next section, as to the substitutional value of an order to show cause, uilder § 2518, to affect the runnfog of the Statute of Limitations. In Matter ofMoran, 58 Misc. 488, it was flatly held that a special 'proceed- ing could not he begun by affidavit and order to show cause. In Matter of Baldwin, 158 N. Y. 713, it was held that the Surrogate's determination on the return thereof was a discretionary order and not "a final prder in a special proceeding " ; so, not appealable to that court. In Matter of Smith, 65 Misc. 417, Thomas, Surr., held this practice the proper way to apply to correct an erroneous tra,nsfer tax decree. He cited Cluff v. Tower, 3 Dem. 253; Furman v. Furman, 153 N. Y. 309; C. C. P., §§ 1282-1283. But in the Smith case, a foreign legatee never previously within the jurisdiction by any process whose only notice was the mailed copy of the moving papers, appeared specially and objected to the jurisdiction of his person, and asserted that no order directing him personally to pay any further tax could be binding. The correctness of such contention is supported by Bullowa V. Provident Life, &c., 125 App. Div. 545. ^ee also Filler's Estate, 20 N. Y. Supp! 427. In Matter of Tilden, 98 N. Y. 434, it was', however, 100 ■ subrogates' courts § 98 held that a proceeding to open or vacate a decree is a special proceeding. If so it must have begun with citation, and end in a final order, under the former practice. As an incident of practice, i. e., to shorten time of notice of an application, the order to show cause is used in Surrogates' Courts under the same rules that apply in other courts of record. FiUey's Estate, supra. Some uncertainty is introduced by the remarkable act of 1914, which, in §2522, entitled "Process" defines "process" as "a citation to show cause,, an order to show cause, and such other process and mandate as the Surrogate is or shall be authorized to issue and employ." The commis- sion's note simply states that there had heretofore been no definition of process. If this be the whole intent, the cases above discussed still state the law. § 98. Proceedings, how commenced. — But, so far as initiating a pro- ceediQg is concerned it is not the process but the petition that "com- mences." The Code is explicit in this regard: § 2618. Proceeding commenced hy petition; statute of limitations. ' Every proceeding in surrogate's court shall be commenced by the filing of a petition. In any case where the time in which to begin such proceeding is limited, a citation, or an order to show cause, on such petition must, within sixty days there- after, be issued and be served, as prescribed in this chapter, upon the adverse party, or upon one of two or more adverse parties, who are jointly liable, or otherwise imited in interest; or, within the same time, the first publication thereof must be made pursuant to an order made as prescribed in this chapter. From former §§ 2516, 2517 of this Code. We note, first, that an order to show cause may be resorted to, after the filing of the petition, to obviate the Statute of Limitations. The " publi- cation," doubtless, refers to the citation— and not to the order to show cause. We note second, in the same context, that the citation or order must not only be issued within sixty days, as formerly; but must be served as well. The Revisers had in mind, doubtless, the cases discussed under "Order to show cause," in saying that under § 2516 (repealed) "it was a question whether a proceeding without citation was ever commenced. The filing of the petition now commences the proceeding. The former § 2517 read: "The presentation of a petition is deemed the commencement of a special proceeding. ..." The statutes limiting time for such com- mencement prescribed various periods. Thus the petition for revocation of probate was limited to a period of one year. Held, Pryer v. Clapp, 1 Dem. 387, 389, where petition was duly filed, i. e., within the year, but citation not served within the next sixty days, that jurisdiction was lost. Effectual jurisdiction of the person, within the time limited must be had. Waiver or appearance, under § 2511, subd. 3 (post), can secure this result. But if it depend on the citation and its service, the cases formerly applicable are still controlling, if we note that service and not mere issuance is now the statutory fact to be eniphasized. Thus, where the original citation § 99 PROCEEDINGS IN SrilROGATES' COURTS 101 was defective, or there was a failure to serve, the Surrogate could issue p, supplemental citation. If that were served or publication commenced within sixty days after the supplemental citation was issued, the proceed- ing was held regular. Matter of Will of Bradley, 70 Hun, 104, 110. This case cited Matter of Will of Gouravd., 95 N. Y. 256, and professes to overrule the case of Pryer v. Clapp, above cited. There is, however, a distinction, for in that case it appears that the citation was hot served within sixty days of its issuance and that the party had to suffer for his own lack' of due vigilance, while in the tw;o cases of Bradley and Gouraud the citation ap- pears to have been served properly, but there was delay in issuing it by the Surrogate, for which delay the petitioner it was held could not well be made answerable. This case further overruled Fourdain v. Carter, 2 Dem. 313, which held that former § 2517 gave the Surrogate no power to ex- tend by order the sixty days referred to. It further overrules In re Bonnett, 1 Connoly, 294. The Gouraud case was decided before § 2517 was enacted. So the authority of the Bradley case rests not on it but on the provisions of former § 2481 of the Code under which the Surrogate had 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. I am of opinion that the reasoning of these cases applied to new § 2518 makes sixty days from the filing the maximum period for citation, supplemental citation, pubUcatipn and all. It is hard to agree with the idea that a statutory limitation of time within which to act could be extended even by the court's delay. , § 99. The petition; no oral pleadings. — The petition, being thus the initial step in the special proceeding, and, under § 2511, , giving upon its filing, instant jurisdiction to the court over the person of the petitioner,, acquires a more distinct importance. Oral pleadings are now, sensibly, abolished. See Matter of Sheldon, 158 App. Div. 843. In 1912, the ques- tions that might emerge on an oral contention, whether it were to be styled an answer, objection, or exception, were thoroughly reviewed by Fowler^ Surr., in Matter of Work, 76 Misc. 403, 404. There the preliminary objec- tion was made: (a) Petition insufficient on its face to warrant rehef sought. (6) Statute, under which relief sought, unconstitutional. The court held the contention could not be deemed a demurrer as it was unknown in Surr rogate's Practice. Treating it as an exception he reviewed the history of the rule permitting oral issue to be raised. He referred to it as a power exercised by Bradford, Surr-, independently of statute, citing Van Vleck V. Burroughs, 6 Barb. 341; Carle v. UnderhiU, 3 Bradf. 101; Foster v. Wither, 1 Paige Ch. 537, 540. See also Smith v. Remington, 42 Barb. 75. The requirement of written pleadings is in the title of § 2519, and by inference, in the body thereof. § 2619. Written pleadings required. AU petitions, answers, and objections shall contain a plain and concise statement of the facts constituting the claim, objection or defence, and a demand for the decree, order, or other relief, to which the party supposes himself to be entitled. 102 . surrogates' courts § 100 and shall be duly - verified. The surrogate may require that a copy thereof be served upon any person interested in such manner as he, may direct. A party who fails to comply with such requirement may be treated as a party in default. Former § 2533 of this Code, modified. § 2620. VerificaUori thereof. 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 he so applied in substance, without regard to the form of the proceeding. Former % 2534 of this Code. Following the argument of the court in the Work case, swpra, this §.2519 may be said to define the onljr pleadings, as § 2522 does the only process, in Surrogates' courts. The cross reference to sections of the Code relating tb civil actibns, will, in the event of the repeal of the Code of Civil Pro- cedure, qua procedural nuisance, be substituted by a reference to the pro- posed Civil Practice Rules, or whatever they may be called. The rule stands that substantial compUance with the Code requirements as to verifications is sufficient. See Matter of Macauley, 94 N. Y. 574, 577. 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 § 525, by the attorney. Moorhouse v. Hutchinson, 2 Dem. 429, 434; Lamar's Estate, 20 Daily Reg. No. .113. When so made it must conform tb the requirfenients of § 526, that is, it must set forth the grounds of his behef, as to all matters not stated upon laiowledge, 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 assign a reason why the party did not verify it was merely an irregularity. Betts v. Krindell, 20 Abb. N. C. 1; Ross v. Longmuir, 15 Abb. 326. Surrogate Rollins held {Moorhouse v. Hutchinson, supra) that where "the attorney of record who signs the petition alleges in his affidavit of verification 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 behoves 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 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 Conversations With them, it is to be held a substantial com- pHance with the statute." Attention may properly be called to Penal Law, § 1626: "An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false." In Shaw v. N. Y. Cent. R. Co., 101 App. Div. 246, held that a petition was not verified, where venue was in county A and notary was commissioned in another county. The objec- tion of lack of proper verification, must be timely raised. It cannot be raised for the. first time on appeal. Matter o/ Mahoney, 88 App. Div. 140. § 100. Form of petition. — The new a(!t reframes the provisions govern- ing the contents of a petition in a new section, general and comprehensive. § 101 PROCEEDINGS IN SURROGATES' COURTS 103 § 2621. General contents of petition. A petition must substantially set forth: 1. The, title of the proceeding, the name and residence of the person to whose estate or fund the proceeding relates, and the name and residence of the petitioner. 2. The facts upon which the jurisdiction of the court depends to entertain the application and grant the reUef asked for. 3. So far as they can be ascertained with due diligence, the names and post-office addresses of all the persons interested in the proceeding who are required to be cited upon the application, or concerning whom the court is required to have information; and if the name or post-office address of any of such persons is unlcnown, the facts which show whit effort has been made to ascertain the same. 4. That there are no other persons than those mentioned interested in the ap- plication or proceeding. 5. A request for the reUef or action of the court to which the petitioner deems himself entitled. Before any process shall be issued on a petition the petitioner may be required to show by his petition 'or otherwise the following matters: If any person named be an infant there shall be set forth: a. His age, and whether or not he has a general or testamentary guardian. b. Whether or not his father, or if he be dead, his mother is living, giving the name and post-office address of such person. c. The person with whom such infant resides and his post-office address. If any person named be an adjudged, or an alleged, incompetent there shall be set forth: a. The name and post-office address of the committee, if any, and the name and post-office address of the person or institution having the care or custody of such incompetent. b. The facts regarding his incompetency, and the name and post-office address of a relative or friend having an interest in his welfare. If any of such persons be included in a class, and his name be unknown there shall be set forth: The names and post-office addresses of those persons of the class who are known, and a general description of all other persons belonging to such class, showing their connection with the decedent or fund and their interest in the property or matter in question. If any of such persons be unknown or his name be unknown there shall be set forth: A general description of such person showing his connection with the decedent or fund, and his interest in the property or matter in question. New. See former §§ 2518, 2662 of this Code. The special rules of the various Surrogates' Courts are not in contrar- vention of this section. In fact, many of them anticipated its enactment; e. g., N. Y. Surr. Ct. Rule XIV. This new § 2521 is more specific than § 524 of the Code, which governs averments in "ordinary" pleadings. It is, for that very reason, certain to work satisfactorily. The practitioner cannot well err, if he conform to its requiremeiits, and, hence, the Surrogate is not so liable to be annoyed by inexact, defective, careless petitions. The first five subdivisions relate to averments conditioning jurisdiction. The rest are in aid of definiteness, and the formal are none the less to be insisted upon. § 101. Same. — This new section defines the practitioner's duty. It 104 - surrogates' courts § 102 shows what the Surrogate may require in the form. It does not limit his general power over the pleading. Section 2519 states what he can order in respect to its service, and the effect of default in compliance with such order. The Code is silent as to his power to permit amendment. It is inherent in his power as a judge to "administer justice" under § 2510, and in his power imder § 2490, subd. 11, "to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court having, by the common law, jurisdiction of such matters." § 102. Amendments; variance.^Accordingly, the Surrogate can per- mit amendments. Section 723 of the Code, permitting amendment of "any pleading," "at any stage," "in furtherance of justice," "on such terms as it deems just" has been held applicable to all courts. Matter of KorpoUnski, 84 Misc. 96. Section 3347, subd. 6, makes § 723 applicable to all courts. Section 2770, quoted ante, also warrants the statement just made. , The petition must not contain inconsistent claims; that is to say, im- properly unite causes of action. Hood v. Hood, 1 Dem. 392. See Cocks v. Barlow, 5 Redf. 406, where petitioner asked to have executors removed for misconduct and also asked that they be directed to invest certain funds as directed in the will. The rule of consistency runs through the record, except where there is statutory authority for cross rehef. Thus, if an an- swer prays for relief, which on the petition the court has no jurisdiction to grant, the court will on motion disregard the cross-prayer, and proceed to determine the proceeding before it. McClure v. WooUey, 1 Dem. 574. 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. Pppham, 5 Redf. 425. So can variance between original citation and a copy served. Pryer v. Clapp, I Dem. 387. In Matter of Soule, 46 Hun, 661, aff'd 109 N. Y. 662; citation was amended by adding representative description to names of cited respondents. See Matter of Hurlburt, 43 Hun, 311, when guardian signed and verified petition without his official designation. 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 with- out leave, or those which change the nature of a proceeding to which par- ties have been brought in by citation are discountenanced. Matter of Shel- dqn, 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. A failure to subscribe a petition is in a proper case, curable, nunc pro tunc, by amendment. Matter of Swift, 20 Daily Reg. 100. ■ The form^ of petition in various proceedings will illustrate § 2521 better than any ex- tended general analysis. §§ 103-104 PROCEEDINGS IN SURROGATES' COURTS 105 § 103. Citation, or process. — The act of 1914 gives a new definition of process, and concise direction for its issuance and return. § 2622. Process; how exeaded and returnable. The process of the surrogate's court shall be a citation to show cause, an order to show cause, and such other process and mandate as the surrogate is or shall be authorized by law to issue and employ in the performance of the duties imposed on him and in the enforcing of his orders and decrees. A citation or other mandate of a surrogate's court must, except where it is other- wise specially prescribed by law, be made returnable before the surrogate's court from which it was issued, and may be served or executed in any county. A warrant of attachment must be directed to the sheriff of the surrogate's county, who may execute it in any county, and must convey the person arrested to the place where it is returnable. Former § 2515 of this Code, in part. From L. 1837, c. 460, §§ 66, 67. § 103a. The citation. — Instead of preceding the petition, as the suniT mons does the complaint, the citation is prayed to be issued in the petition. Upon the filing, then, of the petition the Surrogate issues a citation. This citation is a mandate of the court directed to all the necessary parties to the proceeding requiring them to show cause why the reUef demanded by petitioner, which should be specified therein,. should not be granted. The former citation "to attend," equivalent to "to appear" is no longer used. In lieii thereof, § 2511, on jurisdiction of persons, has careful provision for appearance in person or by duly empowered attorney. The relief described should be identical with that claimed in the petition. Should it inadvertently appear otherwise, application 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 § 2770, which reads: Except where a contrary intent is expressed in, or plainly impUed'from the context of, a provision of this chapter, all other portions of this act and tiie general rules of practice apply to Surrogates' Courts and to the proceedings therein, so far as they can be appUed to the substance and subject-matter of a proceeding, without regard to its form. Hence, in respect to mistakes, omissions, defects and irregularities, and in respect to service of papers, except as the sections about to be examined show a contrary intent, the Surrogate is guided as would be a supreme court justice under, for example, §§ 721-730, or 796-809 of the Code. § 104. Contents of citation as a general rule ; and in special instances. — The new act sensibly restates the statutory rules: § 2623. General contents of citation. A citation must substantially set forth: 1. The name and residence of the petitioner, and of the person to whose estate or fund the proceedings relates. 2. The names of all the persons to be, cited who have not waived its issue and service, or have not appeared, so far as the same can be ascertained. 3. The time and place when the citation is returnable, which time must not be more than four months after the date thereof. 106 surrogates' courts § 105 4. The object of the proceeding in regard to which the persons cited are required to show cause. 5. The date when the citation issues. , 6. It must be attested in the name of the surrogate, and by the seal of his court. New. See former § 2519 of this Code. § 2624. General contents of citation; persons constituting a class; persons unknown or whose names or parts of names are unknown. In addition to the requirements of the last section, a citation must substantially set forth: 1. Where the names of some persons to be cited comprising a class are unknown, the names of those persons of the class who are known, and a general description of all other persons belonging to such class, showing their connection with the de- cedent and their interest in the property or matter in question. 2. Where the persons to be cited are unknown, a general description of such persons showing their connection with the decedent and their interest in the prop- erty or matter in question. In either of said cases where the petitioner is ignorant of the name of a person to be cited, he may designate that person in the citation by a fictitious name or by so much of his name as is known, adding a description identifying the person intended. 3. In every case where it appears that there is no heir-at-law or next of Idn, as •the case may be; or that it is not known whether or not there be such; or when all of the parties interested are non-resident aliens, the citation shall be issued to the attorney-general of the state. Former §§ 2518, 2616 of this Code, in part. From 2 R. S. 74 (Part 2, c. 6, tit. 2), § 26; L. 1908, c. 272. § 105. Same. — The old "order for citation," a useless formality, In re Merritt's Will, 5 Dem. 544, is no longer requisite. The citation is itself the act or mandate of the court, as is its "order to show cause." It may be safely asserted that, as the rules governing petitions in respect to their jurisdictional and formal averments apply, irrespective of whether there issue thereupon a citation or an order to show cause — so, equally applicable, in substance, are the requirements as to contents of a citation to the con- tents of ^n order to show cause. "In substance" means so far as is sen- sibly applicable. The purpose of both is to give notice to the respondent, and to advise him of the time when, upon his default, the specified reUef would be asked. But, if the "process" desired be an order to show cause, it would hardly seem that the seal of the court need be affixed under § 2523. On the other hand, it is certain such order would have to be served, not as a citation, but as an order to show cause, i. e., original order and signature exhibited when copy served, &c. The practitioner, particularly when jurisdiction may be lost imder a statute of limitations by failure to make due service under § 2518 in a given time after filing the petition, must be as careful to see his citation is jurisdic- tionally perfect, as he should be to see that his order to show cause, or indeed the petition itself is objection-proof. But he may not himself pre- pare, or alter, the court's mandate, Boerum v. Betts, 1 Dem. 471, 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 neces- sary party was not named therein, and his name was thereupon inserted, § 106 PROCEEDINGS IN SURROGATES' COURTS 107 but not by the clerk who had prepared the citation, it was held that the Surrogate acquired no jurisdiction over such party. Ibid. The citation runs in the name of the People, is addressed to the parties required to be cited, by name, or, as provided in § 2524, 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 them to show cause before the Surrogate who issues the mandate why the particular relief prayed in the petition should not be granted. The citation itself must "substantially set forth" . . . "the object of the proceeding in regard to which the persons cited are required to show cause." It used to be customary to add a clause, whenever any of the persons cited were infants, requiring them to appear by .their guardians, if they had 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 would appoint one to protect such infant's interest. See Price v. Fenn, 3 Dem. 341, 345. But now, the facts as to infants must be set forth in the petition, in obedience (see ante, § 100) to § 2521 q. v. These facts being thus made known, the Surrogate •makes an order, under § 2530, discussed later, designating a person to receive citation "in behalf of said infant." The citation must be attested by the seal of the Surrogate's Court in the name of the Surrogate himself. But he is no longer required to sign it personally. Section 2502, subd. 2, gives the clerk power to sign, attest, and seal it. § 106. Precedent for citation. — The form of general citation, corre- sponding with the requirements of the new act, and in use in the county of New York, is as follows (interlineations as Note excepted) : FACE OF CITATION THE PEOPLE OF THE STATE OP NEW YORK BY THE GBACE OF GOD FREE AND INDEPENDENT To {Note. See subd. 2 of § 2523.) SEND geeeting: Upon the petition of who resides at (Note. Under § 2523, subd. 1.) You and each of you are hereby cited to show cause (Note. See § 2522.) before the. Surrogates' Court of New York Cpunty, held at the Hair of Records in the County of New York on the day of 19 , (.Note. Siibd. 3 of § 2523.) at half past ten o'clock in the forenoon of that day, why Set forth the object of the proceeding and the name and last resi- 108 SUREOGATES' COURTS § 107 dence of the person to whose estate or fund the proceeding relates (§ 2523). (Note. I. e., subds. 4andl.) In Testimony Whereof, (Note. § 2523, subd. 6.) We have caused the Seal of the Surrogates' Court of the said County of New York to be hereunto affixed. Witness, Hon. a Surrogate of our said County, at the County of New York, the day of (Note. subd. 5 of § 2523.) in the year of our Lord one thousand nine hun- dred Clerk of the Surrogates' Court. (Note. The clerk signs, attests, and seals under subd. 2 of § 2502.) The reverse of the blank is as follows (omitting the title endorsement to be filled in when folded) : Note. The original citation must be ' returned to the Clerk of the Surrogate's Surrogate's Court, Court before 1 o'clock p. m. on the County of New York, day preceding the return day, with proof of the due service or admission of service duly acknowledged. 'ntle. 1 State of New York, 1 County of J of being duly sworn, says that he is over the age of eighteen; that he made due service of the within citation in the above-entitled special proceeding on the persons named below, whom deponent knew to be the persons mentioned and described in said citation, by delivering to and leaving with each of thenr a true copy of said citation as follows: On the day of 1 19 ) on at (Jurat.) (Signature.) § 107. Service of citation — ^within the state. — The new act is sensible and explicit in this regard § 2626. CitaMon; hmo served within state. Personal service of a citation within the state shall be made as foUowa: Upon an adult person, or upon an infant of the age of fourteen yeajB or upwards, by delivering a copy thereof to the person to be served. Upon an infant under the age of fourteen years, by delivering a copy thereof to § 107 PROCEEDINGS IN SURROGATES' COURTS 109 the infant in person, and to his father, mother or guardian; or if there be none within the state, or if the infant does not reside with a parent, to the person having the care and control of him, or with whom he resides, or in whose service he is em- ployed. Upon a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, or upon a corporation by deliver- ing a copy thereof 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. Upon a public officer by delivering a copy thereof to such officer, or to one of his duly constituted deputies. Where it appears, by affidavit, to the satisfaction of the surrogate from whose court a citation is issued, that proper and diligent effort has been made to serve it as hereinbefore prescribed in this section upon a resident of the state whose place of residence or place of business is known, and that the person to be served cannot be found at his residence or place of business, and cannot be elsewhere served within the state within a reasonable time, 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 this act; and ihe provisions of that section and of section 437 of this act, relating to the service of a sununons, apply to the service of a citation, pursuant to an order made as prescribed in this section. Where it is necessary in any special proceeding to cite known creditors, and it appears that the number of creditors or persons claiming to be creditors, residing within the state pf New York, upon whom citation is required to be served, exceeds fifty, service thereof may be made upon them by publication thereof in such news- paper or newspapers and for such a length of time as shall be fixed by the surrogate, and by the mailing of a copy of such citation to each of them by deposit of a copy thereof in the post-office, properly enclosed in a postpaid sealed wrapper addressed to each of them at his last known post-office address as stated in the order, at least twenty days prior to the return day thereof. From §§ 2520, 2521, 2526 of this Code. We have already noted that the petition must show, under § 2521, whether any party is an infant or incompetent, etc. In such case, provision is made to secure proper representation on the return day, analogous to the rule in § 427 in respect to service of summons. § 2630. Id.; upon infant, etc.; additional requirement in certain cases. Where a person cited, or to be cited, is an infant, or where the surrogate has, in his opinion, reasonable grounds to beUeve, 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 affairs, the surrogate may, in his discretion, with or without an application therefor, and in the interest of that person, make an order requiring that a copy of the citation be deliverfed, in behalf of that person, to a person designated in the order and that service of the citation shall not be deemed complete until such deUvery. Former § 2527 of this Code, modified. See L. 1872, c. 693. This order is discretionary. See Maiter of Stephen, 2 N. Y. Supp. 36. But, siQce the one designated is almost certain to be made special guardian, it is almost invariably required. The following is the accepted form for such order with itaUcized modificar tions for purposes of this commentary: 110 surrogates' courts § 108 At Chambers of the Sur- rogate's Court held in and for the County of New York, at the Hall of Rec- ords, in the County of New York, on the day of in the year nineteen hundred and Present: ' Hon. Surrogate. Title. Order designating person to receive citation. Code of Civil Procedure, Sec. 2530. Note. It is custom- Upon the petition of , of the Estate of ary to- appoint the late of the County of New York, deceased, and it appearing person designated as by the petition (or from which it appears to the satisfaction of special guardian on the the Court) that is an infant (or modify to meet the return day. If the or- particular exigency under the section). der of designation is made, then it becomes . It is Ordered that a copy of the citation herein be also de- a part of the jurisdie- livered to and left with Esq., Counselor-at-Law, tional formality. It of the City of New York, in behalf of said infant at least eight must be served as pro- days before the return day of said citation, and that the service vided. Otherwise the of said citation shall not be deemed complete until such delivery, decree may be re- opened if the interest of the infant, Potter v. Ogden, 136 N. Y. 384, or of the incompetent, Matter of Toulon, 66 Hun, 199, so require. § 108. Waiver. — Before passing to forms of service other than per- sonal within the State we turn to the equivalent, so far as giving jurisdiction of the person under § 2511, by waiver. It has been noted that subd. 3, a, provides for such waiver "by an in- strument in writing" signed and acknowledged or proved and duly certi- fied, which may be executed "either before or after the filing of the peti- tion," and may waive either the issue or the service, or both, of the citation. Hence, 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 the Code and consent to the granting of the relief prayed in the petition. If this be done before filing the petition the fact should be alleged in the petition, because the citation, see § 2523, must name, "those who have pot waived," or have not appeared. Accordingly, Matter of Gregory, 13 Misc. 363, holding that waiver of servicie cannot be accepted in lieu of the issuance and service of citation, no longer applies. 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 ineligible by § 109 PROCEEDINGS IN SURROGATES' COURTS 111 reason of having any interest adverse to the infant's. For no special guardian ad litem is appointed until the citation has actually been served on the infant (see Ingersoll v. Mangam, 84 N. Y. 622; Davis v. Crandall, 101 id. 311-321; Crouter v. Crovier, 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 no longer bad practice since 1911, when former § 2528 was amended, to secure waivers before the proceeding is begun. In Matter of Graham, 39 Misc. 226, Silk- man, Surr., had held that waivers antedating the petition were invalid, and that the Surrogate's jurisdiction depended upon strict comphance with the statute. Such a waiver is now permitted by the amendment of 1911. See Matter of Post, 30 Misc. 551, as to former rule. See post, as to waiver in probate and as to foreign consuls' right in case of foreign infants. This waiver can be used "in any proceeding." As a precedent the fol- lowing, used in accountings is adequate: Surrogate's Court, County of New York. In the Matter of the Judicial Settle- ment of the Account of Proceed- ings of Sis of To the Surrogate's Court of the County of New York: the undersigned being person interested as in the estate or fund of do hereby waive the issue and service of a citation in the above-entitled matter, and consent that a decree be made settUng the account of said Dated 19 ■ State of County of Be it known, that on the of one thousand nine hundred and before me a in and for the State of duly com- missioned and sworn, dwelling in the {Note. This is now requisite.) personally came and appeared to me personally known, and known to me to be the same person described in and who executed the above waiver and consent, and acknowledged the same to be act and deed. * In Testimony Whereof, I have hereunto subscribed my name AND AFFIXED MT SEAL OF OFFICE, the day and year last above written. § 109. Appearances. — Section 2523, supra, provides, as we have seen, thatthecitationmustsetforth, i.e., be addressed to, "all the persons . . ." who "... have not appeared." The petition, under §2521, sets forth their interest, age, competency, etc., as well as, subd. 4, "that there are 112 STJEKOGATBS' COURTS § 109 no other persons than those mentioned interested in the application or proceeding." Section 2511, in "jurisdiction of persons," in subd. 3, provides for ap- pearances by: a. "persons of full age who have not been judicially declared to be in- competent to manage their affairs." b. Who, whether named in the petition or citation or not, shall appear personally in com^;, and file written signed notice of appearance, ac- knowledged, or proved and duly certified. c. Who, whether named in the petition or citation, or not, shall appear by attorney, whose authority in writing to appear . . . shaU be filed, so signed, acknowledged or proved, and duly certified. But, more explicitly, the matter is set out in § 2533 which provides: § 2633. Appearance; how mads and effect thereof. In a surrogate's court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, appear and 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 tiim for con- tempt, or where he is required -to appear in person, by special provision of law, or by a special order of the surrogate. An appearance must be evidenced by a notice of appearance signed by the party or by his attorney, and filed in the surrogate's court; and where no citation has been served on the person appearing, such notice must be signed by him and be acknowledged or proved, and duly certified. Former § 2528 of this Code. See L. 1870, c. 359, § 2; L. 1896, c. 670; L. 1911, c. 330. The context of this section should have been with the section on juris- diction of the person, or under Process. It has always been the rule that sane, adult persons might appear in any court in person. See 1 R. L. 1813, p. 416, § 1. Or he might appear by attorney. Formerly, following the practice in the English ecclesiastical courts, the attorney was styled Proctor, but the term is no longer in use. Appearances by proxy, i. e., by attorney, in all courts of record, must be through a professional attorney. By Laws 1847, chap. 470, § 46, it was enacted that "any person of good moral character, although not admitted as an attorney" "might manage, prosecute or defend . . . provided he was specially authorized for the purpose, by the party. ..." But this was declared unconstitutional, McKoan v. Devries, 3 Barb. 196, and has been repealed. Laws 1880, chap. 245, § 1, subd. 24. In 1870, a party was prohibited from appearing in the Surrogate's Court of New York county except in person, or by an attorney of the supreme court. Laws 1870, chap. 359, § 2. See Matter o/ Spicer, 1 Tuck. 80. With this exception, previously to the adoption of chapter 18th of the Code of Civil Procedure, it was the general practice to allow any person to appear and act as an attorney in Surrogates' Courts, [Revisers' note to draft Re- vised Statutes,] those courts being then courts not of record. It is provided by the Judiciary Law, Cons. Laws, 1909, chap. 35, § 472 (formerly Code Civ. Proc, § 2529), that a Surrogate's father or son shall not practice or §§ 110-112 PROCEEDINGS IN SURROGATES' COURTS 113 be employed- as attorney or counsel, in any case in which his partner or clerk is prohibited by law from so practicing, or being employed. See Cons. Laws 1909, chap. 35, § 471 (formerly Code Civ. Proc, § 50). The mode and effect of the appearance in Surrogates' Courts, and, appar- ently, the status of attorneys appearing therein, have now been placed on the same basis as in other courts of record by the present Code. A general appearance is not a waiver of an objection that the citation was not served within the time [see § 110 below] required by the statute. Pryer v. Clapp, 1 Dem. 387; Matter of Hurlburt, 43 Hun, 311. Answering the petition on its merits is equivalent to a general appearance, and a waiver of all irregu- larities in the service of the citation. Matter of Macaulaij, 27 Hun, 577; aff'd„94 N. Y. 574. To the same effect see Everts v. Everts, 62 Barb. 577; Board v. Board, 4 Abb. Pr. 295; Boerum v. Betts, 1 Dem. 471; Peters v. Carr, 2 id. 22; Grossman v. Grossman, id. 69; Matter of Porter, 1 Misc. 489. In New York county a consul may appear personally or by attorney for any non-resident citizen of his country, in proceedings instituted by. the public administrator. Laws of 1898, chap. 230, § 19. § 110. Same. — 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 therefore the service was void, it was held that a personal ap- pearance without objection by the non-resident would have obviated this defect. Matter of Porter, 1 Misc. 489, 490. This is overruled in Matter of Washburn, 12 Misc. 242, as to such service being void. But, inasmuch as the jurisdiction of a Surrogate or of his court is statutory a voluntary ap- pearance 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. Glapp, 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. Garr, 2 Dem. 22, citing Hoag V. Lamont, 16 Abb. N. S. 91, 96; Sawmill Co. v. Dock, 3 Dem. 55; Matter of Hitchkr, 21 Misc. 417. § 111. Non-resident — appearance for. — Even before the act of 1914, an attorney appearing for a non-resident was, in New York county, required to file written proof of retainer, or authority to appear, or his appearance would be ignored, and service of citation required. Matter of Dusenbury, 33 Misc. 166; Estate of Weiss, Surr. Dec. 1896, p. 597. § 112. 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 114 surrogates' cdiJRTS §§ 113-114 represent non-resident subjects of his government. For example, he may petition in probate, or for letters in intestacy, or he may appear and exe- cute waivers and consents. See discussion under "right to administer," also Rocco V. Thompson, U. S. Sup. Ct., N. Y. L. J., March 19, 1912. The case cited denied the right to administer, construing the Argentine treaty. But Day, J., seems to hold that "intervene" in that treaty means the right to appear. This decision was on writ of error from California, but the New York cases are reviewed. The whole subject is more fully discussed under Administration, but see Matter of Peterson, 51 Misc. 367; Matter of Davenport, 43 Misc. 573; Matter of Lobrasdano, 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; Matter of Silvetti, 66 Misc. 394; Matter of^Nyahay, ibid., 418. In Matter of Bristow, 63 Misc. 637, Ketcham, Surr., set aside the appointment of a special guardian upon the appearance of the Itahan consul for alien infants. § 113. Special appearance. — A party to a special proceeding in a Surrogate'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 encum- bered with any plea to the merits, as no protest of Umited appearance can in 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 Macaulay, 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. Crossman v. Grossman, 2 Dem. 69, 80, citing Allen V. Malcolm, 12 Abb. N. S. 335, and Morrelly. Dennison, 8 Abb. Pr. 401. § 114. Mode of service; substituted service. — Before passing to service without the State, or by pubUcation, we return to § 2525, to cover "mode of service." Section 2529 provides that "any person over eighteen years of age, although a party to the special proceeding, may serve a citation." Section 2525, already quoted, prescribes how he may serve it. Section 2529 again (post), prescribes when he must serve it. Service by an executor, or a legatee, has been upheld. Wetmore v. Parker, 7 Lansing, 121, aff'd 52 N. Y. 450. •How the service is to be made is divided into three heads. Personal. Substituted. § 115 PROCEEDINGS IN SURROGATES' COURTS 115 Publication. I. Personal. Former § 2520 permitted a service, under this head, by an alternative for personal deUvery "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." II. Substitided. But under § 2525 the service, where not personal, upon one 'whose resi- dence or place of business here is known, (1) but he' cannot be found, or "elsewhere served within the State within a reasonable time" or (2) "if found, that he evades service, so that it cannot be made, then the Surro- gate, by appropriate order may proceed under §§ 436 and 437, relating to the service of a summons. These sections provide: § 436. The order must direct that the service of the summons be made by leaving a copy thereof, and of the order, if the defendant is a domestic corporation or joint-stock or other unincorporated association at its principal office or place of business, or if a natural person at the residence of the defendant, with a person of proper age, if upon reasonable application, admittance can be obtained, and such person found who will receive it; or, if admittance cannot be so obtained, nor such a person be found, by affixing the same to the outer or other door of the defendant's said place of business or office, or of his residence, and by depositing another copy thereof properly enclosed in a postpaid wrapper, addressed to the defendant at its said principal office or place of business or to him, at his place of residence, in the post-office at the place where he resides, or where said office, place of business or residence is located; or upon proof being made by affidavit that no such residence can be found, service of the summons may be made in such manner as the court may direct. § 437. 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 according to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by pubUcation. . . . These sections confer the same authority upon the Surrogate as is pos- sessed by a judge of a court of record. Scharmann v. Schoell, 38 App. Div. 528. Therefore, upon proof of service of citation as provided in this sec- tion the court acquires jurisdiction of the person, and may enter an effectual order. For example, the order so made, if not complied 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 Him, 68; Continental Nat. Bank v. Thurber, 74 Hun, 632. III. Publication. This requires separate, extended discussion. § 115. Service without the state. — It thus appears how jurisdiction of the person may be secured: 1. By personal or substituted service within the State. 116 surrogates' courts § 116 2. By proper waiver. 3. By duly authorized attorney. There are three sections deaUng with service personally without the State, or by publication. They are §§ 2526, 2527 and 2528. The first prescribes the cases where such service may be made: § 2626. Service personally without the state, or by publication; when ordered. The surrogate from whose court a citation is issued may ma;ke an order directing the service thereof personally without the state, or by pubhcation, in either of the following cases: 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 is a resident of the state, and substituted service upon him cannot be authorized as provided in section 2525 of this chapter. 3. Where it is to be served upon a party, or a person required to be made a party, whose name, or residence, cannot be ascertained. 4. Where it is to be served upon one or more unknown creditors, next of kin, heirs, legatees or other persons, either individually or included in a class, to whom a citation has been directed, designating them by a general description, as prescribed in this chapter. From §§ 2522, 2523, of .this Code. We must note, as not previously discussed, and indeed as not calKng for more than reference back to § 2525 (last paragraph), which is very explicit, that service by publication may be made where the class of creditors, resident, and requiring to be cited, number over fifty. It is ob- vious from that paragraph that the publication must be pursuant to an order, for the Surrogate must designate the papers and fix the length of publication. It. is to be assumed that the practice therefore is similar to that under § 2526. The order of the Surrogate is now usually based on the petition, namely, on the averments to be made under § 2521, in its various subdivisions. But under that section, we note in its second half that the petitioner "may be required to show" by his petition "or otherwise" facts as to infants, or incompetents, or persons of a class, or unknown. Hence the necessity for the publication where creditors are over fifty in number would appear in the petition. But inability to serve a resident, under § 2525, is made to appear "by affidavit." This emphasizes the propriety of requiring the street address to be given in the petition. It enables the court to deter- mine the hkelihood of actual notice being thereby effected. See Dennin v. Duffy, 83 Misc. 523. § 116. Applying for order. § 2627. Application for order permitting service by publication or personally with- out the state. Application for an order permitting service of a citation by publication or per- sonally without the state of New York must be made upon the petition, or upon an affidavit, which must set forth to the satisfaction of the surrogate the facts which show that the case is one of those specified in section 2526 of this chapter and that the petitioner has used due diUgence to ascertain the names and post-office addresses of the parties whose names or post-office addresses are unknown. From former § 2524 of this Code. § 117 PROCEEDINGS IN SURROGATES' COURTS 117 This section is new. But it does not, nor does the preceding section, modify the rule that the order is discretionary. Matter of Washburn, 12 Misc. 242. He is not bound to order it, merely because there are non- residents. In fact, the following § 2528, assumes the possibility of denying the apphcation, and, even if granted, it "shall not prevent the personal service of such citation within the State," if it can, after all, be had. If the party be a necessary, or even a proper, party it is to petitioner's in- terest to press for the order. See Matter of Killan, 172 N. Y. 547, rev'g 65 App. Div. 312, where a decree settUng an account was held void against noa-cited "unknown" persons interested, who might have been cited by such pubUcation. §117. The order. Precedent. — The formalities prescribed for the order and the cases in which it may be variously framed are set forth as follows: § 2528. Order, when and how made; contents thereof. When an order, directing the service of a citation personally without the state, or by pubUcation, is made, if the order authorizes service by publication, it must direct that the citation be served upon the persons named or described in the order, by publication of the citation in two newspapers, therein designated, unless from the petition or affidavit filed it appears that the estate or fund amounts to less than five thousand dollars, in which case only one newspaper shajl be designated, for such specified time as the surrogate deems reasonable, not less than once in each of four successive weeks, and by maiUng a copy of such citation as provided in sec- tion 2529 of this chapter; except that the order may dispense with such mailing to persons whose names or addresses are alleged in the petition or affidavit to be unknown. If the order authorizes personal service without the state of New York, it must direct that service be made upon the parties named therein in the maimer prescribed in section 2529 of this chapter. The order may authorize both modes of service at the option of the petitioner, or may direct that service be made by either mode without embodying the other. The granting of an order for service by publication, or personally without the state, shall not prevent the personal service of such citation within the state. Fol:mer § 2524 of this Code, in part. See L. 1881, c. 664; L. 1899, c. 606. In Matter of Reed, 171 App. Div. 21, a proceeding to sell decedent's realty, held that § 440 does not apply, viz., that publication be "once a week for six successive weeks," since the language of former § 2524, now § 2528, was "once in each of six successive weeks." It now reads "four" instead of "six." See also SteinU v. Bell, 12 Abb. Pr. N. S. 171, 176; Wood v. Knapp, 100 N. Y. 109. The following form may be adapted: Caption Present: Hon. Title. \ Surrogate. Upon filing the verified petition late of the County of New York, deceased, by which the petitioner has made proof to my satisfaction that (Note. In probate, say heirs and next of kin; or if necessary say "creditors.") legatees or next of kin of said deceased, and that 118 surrogates' courts § 117 not resident of this State, and that personal service of the citation herein cannot with due dihgence be made upon within the State; and by which said petition the petitioner has also made proof to my satisfaction that there are other legatees or next of kin (or ''and heirs" or "creditors") 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 {same as above) legatees or next of kin of said deceased, and that their places of residence are unknown and cannot after diligent in- quiry be ascertained by the petitioner. Now, on motion of of coimsel for the said -, petitioner, Ordered: that the service of the citation in the above-entitled matter, upon the aforesaid persons, viz.: be made by publication thereof in two newspapers, to wit; in the pubhshed in the County of New York, and in the published in the County of New York, once in each of four successive weeks; or, at the option of the petitioner , by delivering a copy of the citation to the above-named person , in person without the State. And it is further Ordered and Directed, That on or before the day of the first publication, the petitioner deposit in the post-office at the County of New York, cop of the citation, each contained in a securely closed post-paid wrapper, directed to the following person respectively, at the place designated below: And it is further Ordered, That service of citation in the above-entitled matter upon those persons whose names and places of residence are unknown, and cannot after diligent in- quiry be ascertained by the petitioner herein, to wit: (follow § 2521, i. e., "general description" of class show- ing their connection with the decedent or fund, and their interest in the property or matter in question.") 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 published in the County of New York, and in the published in the County of New York, once a week in each of four successive weeks; or, at the option of the petitioner , by deUvering a copy of the citation to the above-named person in person without the State. {Add, if proper.) And I being satisfied by the said petition that the petitioner cannot with reasonable diligence ascertain a place or places where the said legatees or next of kin would probably receive matter transmitted through the post-office, hereby dispense with the deposit of any papers therein. See "Parties," post, as to description of persons as a "class." The point is, to bind the persons. To make this clearer, suppose petitioner knows §§ 118, 119 PEOCEEDINGS IN SURROGATES' COURTS 119 that his intestate had a brother known to be deceased. He may know that such brother left issue, but be ignorant 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. Section 2513, 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. § 1 18. Publicatioii Continued. — 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 volun- tary appearance by adults. As the provisions of the section are very similar to those of § 440 relating to the order for pubKcation of summons, decisions under that section are appUcable. Thus see Smith v. Wells, 69 N, Y. 600, where copy summons and complaint was deposited in post office but addressed differently than required in the order. And Brisbane V. Pedbody, 3 How. 109, where publication was made in a paper other than one designated in the order, and see generally notes to § 440 in Stover's Code, 6th ed. The directions of the order must be strictly followed. Mailing "papers" and serving "process" by mail are covered by differ- ent Code sections. Sections 796-801a, C. C. P., are not applicable to service of "process." See § 802, C. C. P. This is most vital in relation to use of "post-office," i. e., in § 440 or § 444 and "post ofl&ce box regularly main- tained, etc." i. e., in § 797. See § 2531, C. C. P. By c. 447, Laws 1916, § 2768, the "definition" section is amended in subd. 18, so as to add to "post-oflice" the words "branch post-office, sub-station." The subdivision as amended, reads: § 18. Whenever in this chapter a citation, order, notice or paper is directed to be deposited in the " post-office " or in a " specified post-office," such deposit may be made or directed to be made in any post-office, branch post-office, substation or letter box maintained and exclusively controlled by the United States govern- ment. See for differentiation Gay v. Ulrides, 136 App. Div. 809, opinion by Burr, J., and cases discussed, from which it appears that service by mail of papers is good if they be deposited in the general post-office, a branch post-office, a street box, or an office building "chute" box if "regularly maintained." But as to process, the order must specify a post-office and the citation can then be deposited as permitted by § 18 just quoted. § 119. 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 directs publication of a citation, or the service thereof by publication, the 120 surrogates' courts § 119a publication must be published in a newspaper published in the county. This is in obedience to the following: § 2532. PvhlicaUon of citation, et cetera. Where a provision of this chapter, or an order made pursuant to such a provision, directs the publication of a citation, notice, or other paper, or the service thereof by pubhcation, the pubUcation must be made in a newspaper pubUshed in the county. The surrogate may, also, in his discretion, direct the publication thereof in any other newspaper published in the same or another county, as he deems proper, for the purpose of giving notice to the persons intended to be served or noti- fied. If no newspaper is published in the county, the citation, notice or other paper, must be published in the newspaper printed at Albany, in which .legal notices are required by law to be published. Former § 2535 of this Code. From 2 R. S. 107 (Part 2, c. 6, tit. 4), § 40; L. 1874, c. 437. 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 pubUcation is complete, proof by affidavit of the pubUshers, printers, or foreman, or one of them, of the pubhcation 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 publication. But delivery is not compulsory in case of private persons until payment of the bill for the publication. Laws 1884, chap. 133, § 7. § 119a. Time and manner of service. — The former provisions are now brought into one section: We itahcize the time requirements. § 2629. When service of citation shall be made; manner of service without the stale or by 'publication. Any person over eighteen years of age, although a party to the special proceeding, may serve a citation. Service of a citation upon a resident of the state, or upon a rfon-resident within the state, must be made, if within the county of the surrogate, or in an adjoininy county, at least eight days before the return day thereof; and it in any other county of the state, at least ten days before the return day thereof. Service of a citation personally without the state of New York, pursuant to an order therefor, must be made in the same manner as is required by this chapter for the personal service of a citation within the state, by delivering a copy of such citation, if within the United States at least twenty days, and if without the United States at least thirty days before the return day thereof. Service of citation by publication must be made by publication of the citation as prescribed in such order, and by the deposit, on or before the day of the first publica- tion, in a specified postofEce, of a copy of the citation, contained in a securely closed postpaid wrapper, directed to the person to be served, at a place specified in the order; and if the person to be served is an infant under the age of fourteen years, a further copy, likewise contained in a securely closed postpaid wrapper directed to the father, or the mother, or the guardian, and the person with whom such infant is sojourning; unless by the terms of the order maiUng is dispensed with. From §§ 2520, 2524, 2525 of this Code, combined and modified. See L. 1837, c. 460, § 8; L. 1840, c. 384, § 1; L. 1863, c. 362; L. 1864, c. 71, § 3; L. 1881, c. 664; L. 1882, c. 399; L. 1899, c. 606; L. 1913, c. 535. § 120 PROCEEDINGS IN SURROGATES' COURTS 121 § 120. Same — in relation to return day. — The clerk, at the instance of petitioner, fixes the return day, taking into consideration: Waivers or appearances in hand, Resident parties. Non-residents (in other States or abroad), Unknown, infant and incompetent parties. So that time may be had, if necessary, for the formalities of substituted service or publication. 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 Surrogate or an adjoining county, a return day will be fixed so that the citation may be served at least eight days prior thereto. 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 ten days before the return day; see Matter of Wash- burn, 12 Misc. 242, overruling Matter of Porter, 1 Misc. 489, and if out, of the State, such a return day must be fixed as to enable personal service thereof to be made at least twenty days before the return day (or, if service be necessary without the United States at least thirty days); where service is to be by publication, the return day must be fixed at least fpur weeks off. See In re Merritt's Will, 5 Dem. 544; Matter of Koch, 19 Civ. Pro. Rep. 165. But it is not necessary that the last publication be complete eight days before the return day. Matter of Denton, '86 App. Div. 358. The allegations of the petition are the primary 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. The former periods were longer than those now required, except the minimum of eight days. The theory of computation is unchanged. So, the former decisions apply, mutatis mutandis. The Code provides as a minimum time during which the publication must continue "not less than once in eaclj of four successive weeks." Section 2528. And in § 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. Under the six weeks' rule the pubHcation is not complete until the expiration of forty-two days from the first publication excluding the first day. Richard- son 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 pubUcations 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 410 provides for publication for a specified time, 'not less than once a week for six successive 122 surrogates' courts § 120 weeks.' The number of weeks is specified and not the niunber of times; section 441 declares that the time shall be complete upon the day of the last pubhcation, and section 787 that the period of publication must be completed so as to include the day which completes the fvM period of publication. It will be perceived that the publica,tion 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 pubhcation six times within six weeks, but 'for a time not less than once a week for six successive weeks.' The pubhcation 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. Accordingly, if we substitute a, four weeks' requirement or twenty-eight days, the rule is theoretically as stated in Matter of Reed, .171 App. Div. 21, cited in § 117, supra. An illustration will make this distinction under the Reed case between publication of a summons under § 440, and of a citation under § 2528, very clear. Under the old rule an attorney under an order for pubhca- tion published a citation Satm-day, January 5; Friday, January 11; Thursday, January 17; Wednesday, January 23; Tuesday, January 29, and Monday, February 4, 1895. Here are six pubhcations — once a week and in six successive weeks — and yet tmder the then decisions, insufficient, for instead of giving six weeks' or 42 days' notice to the person pubhshed 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. See Estate of Koch, 12 N. Y. Supp. 94; Matter of Denton, 86 App. Div. 358. In the latter case. Church, Surr., 40 Misc. 326, differentiated the notice given by a return day fixed, and the requirement in a summons under § 441, C. C. P., to appear, etc., within six, or twenty, days after service. ' 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 number of weeks, provided due 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 pubhcation, al- though the service would not be complete until the time prescribed for the pubhcation has expired; that is to say, personal service without the State," under an order for service by pubhcation, is only equivalent to publication. Fiske V. Anderson, 33 Barb. 71. So also § 2528 provides, as already noted, "The granting of an order for service by pubhcation, or personally without the State, shall not prevent the personal service of such dtaiion within the State. By "not prevent" is meant that if such personal service be achieved it independently, if timely made, gives jurisdiction of the person. § 121 PROCEEDINGS IN SURROGATES' COURTS 123 Where publication must be in two papers, it has been held, under § 440, that publication must be continuous in each, not necessarily concurrent. 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, aff'd 130 N. Y. 625. § 121. Proof of service. — The statutory rule is concise and unam- biguous although it refers to the sections applying to summons and its service : § 2631. Proof of service of citation, subpcena, or other process. Proof of service of a subpoena, citation, or other process, issued from a surrogate's court, must be made by the certificate of the sheriff, when served by him, and in any other case by the affidavit of the person so serving it. In every other case, proof of service must be made by affidavit; or, where the person served is of full age and not incompetent, by a written admission signed by him, accompanied with proof, by acknowledgment, affidavit or otherwise, of the genuineness of his signature. Proof of publication and deposit in a post-office may be 'made as prescribed in section 444 of this act. From former §§ 2525, 2532 of this Code. From 2 R. S. 223 (Part 3, c. 2, tit. I), § 9; L. 1837, c. 460, § 9; L. 1916, c. 445. If personal service has been made, proof of such service is made by the affidavit of the person who delivered the citation; 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 properly required to be served with it "by deUvering to and leaving with him a copy thereof together with a copy of the petition" on which the same was issued. Where the party served is an infant or incom- petent, the additional service required must be alleged. Proof of the pubhcation of the citation must be made by the affidavit of the printer or publisher, or his foreman, or principal clerk. Proof of deposit in the post- office, of a paper required to be deposited must be made by the affidavit of the person who deposited it. Code Civ. Proc, §§ 444, 2531. We repeat here that the meaning of "post-office" is amplified by chap. 447, Laws 1916, amending subd. 18 of § 2768 to read: 18. When- ever in this chapter a citation, order, notice or paper is directed to be deposited in the "post-office" or in a "specified post-office," such deposit may be made or directed to be made in any post-office, branch post-office, sub-station or letter box maintained and exclusively controlled by the United States government. The practitioner will of course, in a given case, consult the local rule. In some counties, as above hinted, a copy of the petition, or moving affi- davit, must be served with the citation, or order. Or, the proofs of service may be required to be filed one, two or four days before the return day. These non-statutory rules, of doubtful validity, after all are in the interest 124 surrogates' courts § 121 of expedition, in order to making up the calendars of the court's business, or that the papers on which the court is to act may be scrutinized as to regularity^ — and such rules must be complied with, or delay ensues. We say of "doubtful vaUdity." By this is meant that where the Code pre- scribes a mode of service it is a question whether the court can make that mode more onerous. To illustrate : Former Rule 3 of the Surrogate's Court of the county of New York laid 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: Citation to attend probate, to revoke probate, on application for ad- ministration, for intermediate account^ to attend judicial settlement, to temporary administrator to account, to principal in a bond to give new sureties in place of siireties who apply to be released, order to temporary administrator to make deposit, order to executor to appear and qualify, order requiring the executor or administrator to file inventory. Fowler, Surr., in Matter of Contested Will of Jacobs, N. Y. L. J., Febru- ary 17, 1912, held that the rule circumscribed the statutory rule under former § 2516, C. C. P., and had no force — and upon proof of service of the citation alone overruled an objection to sufficiency by reason of omission to serve petition also. The rule is no longer in force. CHAPTER II' PARTIES § 122. In general. — In a Surrogate's Court, under the act of 1914 "parties" means primarily the "petitioners" and the "respondent" or respondents. [See § 2768, subd. 16.] The petitioner invokes the furisdiction of the court. The respondents are "all the persons interested in the proceeding" who are "required to be cited." Section 2521, subd." 3. Therefore, who they may be will depend upon the Code provision regulating the particular pro- ceeding. Matter of Kenny, 92 Misc. 330. But, they come imder various general nomenclatures. Adults, competent or incompetent, husband, wife, widow, infants, heirs, devisees, legatees, next of kin, creditors, execu- tors, administrators (whether in chief, or temporary, or ancillary, or c. t. a.) "successors," trustees, guardians, whether by will or by deed, sureties, "unknown," persons belonging to a "class," children, issue, etc. (legiti- mate, or illegitimate, or adopted), and, very commonly, "persons in- terested." Attorneys may also be treated in this general context. We have noted, previously, that jurisdiction of the person (§ 2511) may be obtained of both the petitioner (by the very act of invoking jiirisdiction on filing his petition, or applying for an order to show cause or other "man- date") and of each respondent, whether by due service of citation or other process (§ 2522) or by due waiver thereof and appearance properly exe- cuted, or by attorney, duly authorized. The relation to the particular proceeding, of a particular party, can only be adequately appreciated after a preliminary examination of the cases defining these various descriptions of parties, or of the Code provisions, giving a readymade definition of some particular party or class of parties. In the second place, there is a distinction to be made between necessary parties, who must be cited, and proper parties, •^ho may be cited or who appear voluntarily. Again, in Surrogates' Courts, a person though of a "class" cannot prose- cute a proceeding "for.himself and others similarly situated" as in courts of general equity jurisdiction. Nor can one defend for all. If persons constituting a "class" are required to be cited all must be cited for all are "necessary parties." Sections 2511, 2521, 2524. Again a respondent may be variously described as "contestant," e. g., in probate contests, as an "objectant," in a contested accounting, as "exceptant" to a referee's report. And, recently, applicants for relief have been sometimes styled "pro- mo vents," which hke "proponent" is self-explanatory. § 122 125 126 surrogates' courts § 123 Under "infants" of course may be treated the topic of special guardians ad litem. § 123. 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 be repre- sented by guardian; this is manifest from the wording of § 2534 of the Code of Civil Procedure. See also Matter of Watson, 2 Dem. 642. Section 2534 is as follows: § 2634. [Am'd, 1915.] Special guardian; when to he appointed. 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 conunittee; or where any party is an infant, or an habitual drunkard, or for any cause is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, 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 habit- ual drunkard, appears by his committee, the surrogate must inquire into the facts, and must, in hke manner, appoint a special guardian, if there is any ground to sup. pose that the interest of the general guardian or committee 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. Where there are unknown persons, or persons whose whereabouts are unknown, the surrogate may, in his discretion, appoint a special guardian for such persons. A person cannot be ap- pointed such a special guardian who is -nominated by any party; but this prohibition shall not preclude an infant over fourteen years of age from nominating his own special guardian. Before entering upon his duties such special guardian shall file his consent to so act. Former § 2530 of this Code, modified, see 2 R. S. 100 (Part 2, c. 6, tit. 4), § 3; L. 1837, c. 460; L. 1863, c. 362, §§ 1, 6; L. 1870, c. 170, § 4; L. 1872, c. 693, § 2; Am'd by L. 1915, c. 315 (m effect September 1, 1915). Failure to appoint a special guardian entitles the infant at majority to attack the proceeding. See Matter of Becker, 28 Hun, 207; Matter of Bowne, 19 St. Rep. 895; Matter of Cooper, 51 Misc. 381; Matter of Jones, 54 Misc. 202. That is, the proceeding is not void, but voidable. The infant may file a petition; e. g., if he be named executor of a will to be propounded. The petition is entertained despite the infancy; and on the return day his special guardian will be appointed. See Matter of Brooks, 71 Misc. 102; Matter of Denyse, 62 Misc. 595; Matter of Watson, supra. In Matter of Nyahay, 66 Misc. 418, the Austro-Hungarian Consul as- serted his right to appear for foreigners, regardless of their infancy, virtute officii under treaty privilege. Held, Millard, Surr., that foreign infants could have by treaty no greater right than Americans and that issuance and service of citation to and upon infants cannot be waived or dispensed with. In Matter of Bristow, 63 Misc. 637, Ketcham, Surr., recognized the Italian consul's right to appear for alien infants, and set aside as improvi- dent an order appointing a special guardian. The general guardian if the infant has one, Gunning v. Lockman, 3 Redf. 273, is entitled to represent his wards unless their interests require that § 124 PARTIES 127 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. 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 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. But see Rule XV in New York county which seems to put the burden the other way about, i. e., the Surrogate will act unless the guardian proves absence of adverse interest, etc. If it is intended where there is a general guardian, to apply for the appointment of a guardian ad litem, notice of such apphcation 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 § 2534, then the Surrogate must appoint a special guardian. If a special guardian be appointed and, subsequently, a general guardian qualify, the special guardian is not thereby superseded. Matter of Monell, 22 Civ. Proc. 377. 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. See local rules to same effects § 124. 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. Section 2534 permits such an infant to nominate his own special guardian, and prohibits one under fourteen from doing so. Former Rule 10 of the Surrogate's Court in the county of New York provided: "No special guardian to represent the interests of an infant in any proceeding in said Surrogate's Court will be appointed on the nomina- tion of a proponent or the accounting party, or his attorney, or upon the application of a person having an interest adverse to that of the infant." See Matter of Henry, 2 How. N. S. 250. The rule is now changed, and appears in Rule XV, which reads: "Where an infant appears by his general guardian or where a lunatic, idiot or habitual drunkard appears by his committee, the general guardian or the committee shall show that such general guardian or such committee is competent to protect the rights of the infant or incompetent and has no interest adverse to that of the infant or incompetent, and is not connected in business with the attorney or counsel of or any party to the proceed- ing. It must appear whether or not such general guardian or committee is entitled to share in the distribution of the estate or fund in which the 128 surrogates' courts § 124 infant or incompetent is interested, and if • the general guardian or com- mittee is in any way interested in the estate or fund the nature of such interest must be disclosed. Where a general guardian appears for an in- fant, the name, residence and relationship to the infant of the person with whom the infant is residing must be disclosed, and also whether or not the infant has a parent living, and if a parent is living, whether or not such parent has knowledge of and approves such appearance, and such knowl- edge and approval should be shown by the affidavit of such parent. If the infant has no parent living, like knowledge and approval of such ap- pearance by the person with whom the infant resides must be shown in like manner. "If the foregoing provisions of this rule are not strictly complied with, the Surrogate will appoint a special guardian for the infant or incompetent, as provided in § 2534, C. C. P., notwithstanding the appearance by the general guardian or committee." The final clause is the emphatic part. It, may be noted, passim, that, under the new practice of designating a person to receive the citation in behalf of an infant "respondent," the "person designated" will have been selected in contemplation of his prospective appointment as such special guardian. Section 2534, however, requires that "before entering upon his duties, such special guardian shall file his consent to act." Instead of quaHfying as formerly, the Surrogate's selection of him as a "competent and responsible person" is sufiicient. But the decisions as to who are not proper persons to appoint are still controlling. In fact the Surrogate's responsibihty in making imaided selection, except where an infant over fourteen nominates, is largely enhanced. First. He will only appoint a member of the bar. This was held to be the rule in Story v. Dayton, 22 Hun, 456; Matter of Spicer, 1 Tuck. 80. And, second, Rules 49 and 50 of the General Rules of Practice are ap- plicable in principle. The latter rule makes it the " duty of every attorney or officer of the court to act as the guardian of any infant defendant," and provides for his compensation and defines the extent of his duty. Section 2770 makes these rules applicable "except where a contrary intent" ap- pears in Chapter XVIII. See, for example; Suffolk Rule 14. The local rules embody various elements of the general rule as to com- petency, responsibihty, no adverse interest, etc. For example: "No party to a proceeding." Bronx Rule 6. No appoint- ment "on the nomination of a proponent petitioner or accounting party, or his attorney." Chautauqua, Rule 8; Erie, Rule 6; Seneca, Rule 4. "Shall thoroughly examine all matters . . . affecting the interest of the infant." Cattaraugus, Rule 11; Herkimer, Rule 10. Same in substance, Rockland, Rule 14; Steuben, Rule 6; Tompkins, Rule 7. Most of the courts expressly state that no application can be made by "any person having an interest adverse to that of the infant." Chau- tauqua, Rule 8; Franklin, Rule 7; Monroe, Rule 9; Queens, Rule 19. §§ 125, 126 PABTiES 129 But see also Matter of Ludlow, 5 Redf. 391, 392. § 125. Surrogate's power. — The Surrogate has the right to appoint upon his own motion, and may disregard a nomination made by the infant. It is not necessary, where there are infant parties, that any application should be made for the appointment of a special guardian, either prior to or on the return day. In fact a prior application is premature. Matter of Leinkauf, 4 Dem. 1. (See next section.) If, on the return of the citation, no application for the appointment of such a guardian has been made by anyone voluntarily, whether by the infant (if over fourteen) or by his next friend, or any other person, the Surrogate may of his own motion appoint a person to protect the interests of the infant; in such a case it is immaterial whether the infant is under or over the age of fourteen, 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 appoint the guardian ad litem is an irregularity, if the ob- jection 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 irregularity 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 infant's rights. Matter of Bowne, 6 Dem. 51. He may not, by a jurisdiction so defectively achieved nunc pro tunc be barred of his right, at majority, to avoid the proceeding. 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. See Matter of Feeley, N. Y. L. J., May 13, 1890. Decisions under former § 2531 as to notice to the infants are no longer in point. They deal with the practice of application, not by the infant, but in behalf of infants under fourteen. 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 invaUdate 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. § 126. When application should be made. — It is manifest in the first place, that no appointment of a special guardian in the Siu-rogate'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, i. e., before the return day. 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 130 surrogates' courts § 1^ 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. See ante. The first rule, therefore, to observe is, that the infant must be a party to the pro- ceeding before the appointment ^can be made. Therefore if the infant is not the petitioner in the proceeding, an application for the appointment of a special guardian is premature. Matter of Leinkauf, 4 Dem. 1, 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 special guardian was actually appointed. See Hogle v. Hogle, 49 Hun, 313; Davis v.- Cran- dall, 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 §§ 468 to 477 of the Code, regulating the mode in which infants may bring and defend actions, do not apply to special pro- ceedings in Surrogates' Courts. See § 3347, subd. 3. 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 applica- tion by an infa,nt party for an appointment of a special guardian, made bfefore the return day, was premature for this reason. Matter of Leinkauf, siiprd. This decision, however, should not be extended so far as to prevent thB "making of the application by the infant if over fourteen or by some person other than the infant before the return day. Where the infant is over fourteen years of age, and desires to nominate his guardian, it is proper to file the petition looking to such appointrhent after the infant shall have been duly served with the citation. The proposed order should be sub- mitted with the petition, and will usually be signed by the Siu"rogate upon the return day. But the local rule as to which "strict compliance" is exacted must be consulted and will control. Similarly where it proves necessary to serve the infant with the citation by publication an appoint- ment of a special guardian prior to the expiration of the time during which pubKcaition must be made, is premature and irregular. Darrow v. Calkins, 154 N; Y. 503. The person who is entitled to appear as general guardian §127 PARTIES 131 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 proceed- ing, even in good faith, the rights of the infant are in no respect concluded, nor can the Surrogate 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 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 infant 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. § 127. Formalities of appointment. — Where the infant or some one upon his behalf applies for the appointment of a guardian ad litem, the application may be made by petition duly verified substantially as follows : Surrogate's Court, County of ' Title. Petition by infant over 14 years of age for the appointment of special guardian. See Form 73 also. To the Surrogate's Court of the County of 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 beUef that on the day of 19 Note. Where the petitioning infant has a general guardian, state the facts in ref- [Here state the nature of ^,he 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 saii will is a will of real (or of personal) property (or of real and personal property) and pro- ceedings for the proof of such will are now pending before said Surrogate.] in. 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 living (or that your petitioner's father or mother is the only living parent) and that petitioner resides at in the State of with IV. Your petitioner therefore prays the appointment of Esq., counsellor at law of as his special 132 surrogates' courts §§ 127a, 128 erence to such guard- guardian in the above-entitled proceeding, to appear for the ian. petitioner and to protect his interests therein (add, if the local rule require, special averments, e. g., and he has not been in- fluenced in making this application for the appointment of such special guardian by any person). V. That no previous application for this relief has been made {or if previous application has been made, state the facts and the action of the Surrogate). Wherefore 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.) § 127a. Adverse interest. — Unless the rule against appointing one who has, or may have, an interest adverse to that of the infant, be rigidly ad- hered to, the primary purpose of the appointment may be defeated. Singularly enough, kinship, which ought to be the fountain of loyalty, proves in proceedings affecting distributive shares and family accountings to be the root of collusion and a fount of fraud. Relatives, unless already clothed with general guardianship letters and chained by official bond are highly mistrusted. Moreover, there is a doctrine of "imputed unrighteousness." Thus, where the mother of an infant 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. Dec. 1898, p. 387; Estate of F. Schaeffer, Law Journal, March 10, 19QD; Estate of I. Meyer, Surr. Dec. 1901, p. 18. So the rule of "adverse interest" operates to forbid selection of an at- torney " connected with " the attorney for an adverse interest. See as to effect of such appointment unadvisedly made: Heuel v. Stein, 165 App. Div. H. If one, be it a relative or an attorney, be improvidently appointed, the Surrogate may vacate, the appointment. Matter of Van Beuren, N. Y. L. J., January 19, 1891, case of an attorney. Matter of Graham, ibid., May 29, 1891, case of the petition having been made by a mother having adverse interest. § 128. Qualification by nominee. — Since infants over fourteen can still nominate, the competency of the person sought to be appointed as special guardian is still to be shown by means of the consent and affidavit required of the person nominated to be filed with the apphcation or at or before the time of entering the order appointing him. In Matter of Steven- son, 150 N. Y. Supp. 423, held that Laws 1914, chap. 443, i. e., "the act of 1914" did not contain any repealing clause, except as to provisions inconsistent with the amended chap. XVIII. Hence, I assume former § 2530 is operative to the extent of the papers to prove that a competent and responsible person has been nominated. The following forms are sug- gested accordingly: § 128 PARTIES 133 Surrogate's Court, County of Consent of special Title. guardian. I counsellor at law, hereby consent to be appointed by the Surrogate of the County of the special guard- ian of an infant over fourteen years of age, for the sole purpose of appearing for and taking care of his interests in the above-entitled proceedings, and I hereby state that I have no interest in said proceedings adverse to that of said infant and am not connected 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, although in New York county the blank provided does not call for it; 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 pro tunc validated the appointment, it 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, of whose per- son jurisdiction had not been had. This affidavit may be subjoined to the " consent." Affidavit by special County of \ ss. : guardian as to his competency. being duly sworn says: I am a counsellor at law in having an office at I reside at Note. This may nb I am the individual who signed the foregoing consent. I am longer be requisite fully able and competent to understand and protect the in- but, where required by terests of an infant party to the above-entitled local rule, is sufficient, proceedings; I have no interest adverse to that of said infant; I am not connected in business with any party to this proceeding, or with the attorney or counsel of any such party. (The follow- ing may be used if required by a local rule.) ' I am of sufficient ability to answer to said infant for any damages which may be sustained by reason of my negligence or misconduct in this pro- ceeding; and am worth the sum of dollars, over and above all debts and liabilities, besides property exempt by law from levy and execution. (Jurat.) ■ (Signature.) Where the application is made by an infant over fourteen years of age it is proper to submit also the affidavit of parent or person with whom the infant 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: 134 SURROGATES COURTS §129 AiBdavit of parent or person with whom infant resides Surrogate's Court, County of Title. State of New York County of being duly sworn deposes and says: I reside in I am (stale 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) ; / have not influenced my in any way as to the appointment of a special guardian or in this application; but he has made such appli- cation of his own volition and viithout 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 ac- quainted with said and beUeve him in every respect competent to protect the interest of my said in the proceedings pending. (Jurat.) (Signature.) It has been suggested that the averments above itahcized are on their face unhkely to be true. The infant in the nature of things must have been so influenced. Accordingly, it may develop that the provision per- mitting even infants over fourteen to nominate will be repealed, or at least modified by changing the age to eighteen. § 129. The order. — Upon the return day the Surrogate may make the order appointing the special guardian substantially in the following form : Order appointing special guardian. Present: Title. Hon. Surrogate's Court Caption. Surrogate. It appearing to my satisfaction, by the verified petition herein of an infant over the age of 14 years or . It appearing to my satisfaction upon the return day that said one of the heirs at law (or next of kin) of the above-named decedent is an infant having no general guardian (or is an infant having a ^neral 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 repre- sent 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 § 130 PARTIES 135 for the said infant for the, sole purpose of taking care of his in- terests 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. § 130. Qualification and function of a special guardian. — It has been held that special guardians are the most important officers in a Surrogate's Court, their responsibihty 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 pro- tect 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. The Code merely requires that he be a "competent and responsible person." The statute thus fails to prescribe definite qualifications, 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 How. Pr. N. S. 250. The word "responsible" means that he should be of suflacient ability pecuniarily to answer to the infant for any damage which may be sus- tained by his negligence or misconduct. See Spelman 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 proceedin ; in that court, and that if an appeal was necessarj'' 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, 202; 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. At that time the Code, § 2573, provided 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 has 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 running only 136 surrogates' courts § 131 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 amy appeal from the Surrogate's decree. Present § 2755, is to the same effect in this context, " each party who has appeared in the special proceeding in the Sui-rogate's Court muM be made a party to the appeal." § 131. 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. See, e. g., form of report required in New York county in probate cases. Title. Venue. being duly sworn, says that he is a counselor at law; that since his appointment as special guardian hereip, he has to the best of his ability made himself acquainted with the rights of his ward , and that he has taken all the steps nec- essary for the protection of such rights, to the best of his knowl- edge and as he believes; that he has examined into the circum- stances of the case, the instrument offered for probate, the petition and other papers herein; that he has attended on the return of the citation and examined the testimony given by the subscribing witnesses. and that he has found no objections to the probate of said instrument, aiiS that it appears to be for the best interest of his ward that the same should be admitted to probate. Sworn to before me this ) day of 19 J > Special Guardian. Assistant to the Surrogate, New York County. ■ 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 examination of papers or the performance of specific acts, his report should contain a specific statement in regard to such examination and* his con- clusions 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 litem. 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 meticu- lous 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 Surrogal^e can always overrule his objections, but his affidavit of qualification is a sort of bond § 123 PAKTIES 137 or undertaking of responsibility. See Matter of Parr, 45 Misc. 564; Edsall V. Vandemark, 39 Barb. 589. The rule stated in the Parr case should be amended by adding the words used above "if the infant's share be affected." He must not act as stalking horse for adult parties appre- hensive of costs "taxed personally." So, again, in probate, he may safely contest a will even though it has a clause recalling bequests to a benefi- ciary contesting the same. Such a provision will not be enforced against an infant. It would be against pubUc poUcy. 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 default as to infants in a Surrogate's Court, and that no decree will usually be made affecting an infant party, except upon prima fade proof that that infant's interests have been conserved. See, e. g., Rule XI in New York county. Under the head of stenographers' fees, ante, it is noted that special guardians may acquiesce in but should not consent to stipulations as to fees on references. The compensation of guardians ad litem is discussed under the topic Costs and Allowances, post. § 132. Adult parties — ^Necessary and proper parties. — There are no peculiar 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. Neces- sary parties 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 pro- ceedings, 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, pro- vides in part (Code Civ. Proc, § 2609), that any person designated in the will as executor, devisee, or legatee, testamentary trustee or guardian, 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 tljie foregoing designations may become the petitioner, or proponent. The persons who must be cited upon such petition are, if the will relates, for ex- ample, to both real and personal property "the husband, or wife, if any, and all the heirs, and all the next of kin of the testator." See Code Civ. Proc, § 2610 as to other parties. The first noticeable point is that "nec- essary" parties often,, if this example be a proper criterion, are designated 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 used in connection with an estate, or a fund, includes every person entitled, either absolutely or con- tingently, 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- 138 surrogates' courts §§ 133, 133a wise, except as a creditor." Code Civ. Proc, § 2768, subd. 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 suSi- cient of themselves without further reference. An examination of the authorities covering each class will be of great assistance. It is held that when the statute requires that "next of kin" be cited they must be cited although they may have assigned their interests or exe- cuted releases to the estate. Matter of Joslin, 74 Misc. 332, citing Matter of Wood, 38 Misc. 64; Matter of Walton, 38 Misc. 723. The Surrogate in the Wood case merely held that the terms of then § 2728, differentiating between "creditors", who need not be cited if their claims were paid, and "next of kin", as to whom the section makes no limitation of continuing interest, required their being cited. This differentiation is preserved in §2730. i § 133. 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 teres I'i- ventis. 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 opera- tion of the 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 casti 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. § 133a. Children.— Among lineal heirs must now be reckoned: First, adopted children; and second, illegitimates, duly legitimatized, or if not, inheriting (from mother) in default of lawful issue. I. Adopted children. (See post, Adoption, for full discussion.) The person adopted takes the name of -the foster parent, .Aiid 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 Domestic Relations Law, chap. 19, Laws 1909, am'd L. 1915, c. 352.) § 133a PARTIES 139 An adopted child is one "duly adopted," pursuant to the statute, dis- cussed, Tpost. II. Illegitimate children in default of lawful issue [Laws, 1855, chap. 547, IV Rev. Stat. (8th ed.) 2468]. See Descent and Distribution, post. Illegitimate means "begotten and born out of lawful wedlock." Miller V. Miller, 18 Hun, 507; Bollerman v. Blake, 11 Wkly. Dig. 555. "§ 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." In 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 chap. 531, Laws of 1895, which act legitimatized all illegitimate children whose parents had before that time, or might 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, now chap. 19, Laws 1909), § 18 of which declared that "an illegitimate child whose parents have heretofore in- termarried, or shall hereafter intermarry, shall thereby become legitunate 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 chap. 725, Laws of 1899, the amendment protecting trusts created at the time of the remarriage, as well as estates or interests 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 aU 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 clg-uses 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 parent. 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. We note that a " child " is not to be precluded, if an "heir" imder the statute, from its inheritance by the alienism of the ancestor. See Cons. Dec. Est. Law, § 95. So a child "after born" or "post-testamentary," has rights making it at times a party. See post. 140 subrogates' courts § 134 § 134. Surrogate to determine status. — It may be said in this connec- tion 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. Thus, under the new act, it- was held. Matter of Fox, 166 App. I)iv. 718, that, where A petitioned to compel B to account as trustee, and B answered setting up a waiver and release, and A replied that they were secured by fraud, the Surrogate must pass on A's status, and under § 2510, had power to pass on this issue of fraud, citing Matter of Cary, 77 Misc. 602; Matter of Delgado, 79 id. 590. 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. 552, 564. It certainly creates no occasion for appealing to the equity jurisdiction of the supreme or any other court. See Grouse 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 Icin," the court seeking not so much for exact definitions as to carry out the intention of the testator. Tilman v. Davis, 95 N. Y. 17; Matter of Sinzheimer, 5 Dem. 321, 322. See post, "Construc- tion of Wills." In the Matter of McGarren, 112 App. Div. 503, it was held that a Surrogate, to whom a woman petitioned for letters as "widow," could examine the record of an annulment action, in the supreme court, to determine whether the decree therein, annulling her marriage to de- cedent, 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 ex- amine 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 merely as such in real estate or its proceeds, or to divide the proceeds according 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 §§ 2701, C. C. P. et seq. The foregoing states the rule prior to the act of 1914. This has been modified in Art. Ill, tit. IV, by adding to the pur- poses for which real property may be sold, and proceeds distributed the §§ 135-137 PARTIES 141 following § 2703, subd. 6: "For the payment and distribution of their respective shares to the parties entitled thereto, where any or all of said parties are infants, proven or adjudged incompetents, absentees, or per- sons unknown, whenever in his discretion the Surrogate may so direct." § 135. Survivors)iip. — A party may assert a right based on survivor- ship. Into this the Surrogate may inquire as survivorship is an issuable fact, to be proved by the one asserting it. Circumstantial evidence is ad- missible. The issue may be referred. See Matter of Laffargue, 142 App. Div. 426, aff'd 202 N. Y. 614, modifying Fowler, Surr., N. Y. L. J., Febru- ary 9, 1912, and see opinion of Fowler, and see generally. Matter of Lett, 65 Misc. 425; Matter of Wells, 113 N-. Y. 396; St. John v. Andrews Institute, 104 App. Div. 460, and s. c, 191 N. Y. 254, 275; Newell v. Nichols, 12 Hun, 604; 75 N. Y. 78; Y. W. C. A. v. French, 187 N. Y. 401. § 136. Next of kin. — The Code definition has been given in full in § 132, supra. By its terms reference is necessary to the Statute of Distri- bution which governs every case. [See Decedent Estates Law, article III, and see post, under "Administration" and "Distribution of Estate." The proper primary significance of the words is "those related by blood who would take personal estate of one who dies intestate." Tilman v. Dams, 95 N. Y. 17, 25.] For "party" purposes the meaning set forth in the statute governs, not the various definitions by the courts of the term as used by testators or draftsmen of wills. For, in wills, and so in the cases 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 Distribution, including those claiming per stirpes or by representation." Church, Ch. J., in Murdoch v. Ward, 67 N. Y. 387, 389. The latter has been held to be the correct meaning. Slosson v. Lync\ 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. Conomenting on this Chancellor Kent says: "It would seem to be more proper to say that he takes under the statute of distribu- tion as husband, with a right in that capacity to administer 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 sajdng "next of Idn 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 relationship such as brothers and sisters, together with children of a deceased brother or sister, included by "representation." See Dec. Est. Law, § 98. See Matter of Healy, 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. Davis, 95 N. Y. 17. For purposes of citation, and of making them parties to proceedings, the nearest of kin are to be ascertained. § 137. Husband or wife. — A surviving husband or wife is not within 142 surrogates' courts §§ 138, 139 this designation. Section 2768, subd. 12, 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; PlcM 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. See Nester v. Nester, 68 Misc. 207, 228. The will may, however, clearly set out an intent to include such survivor in such category. Ibid, and Keteltas v. Keteltas, 72 N. Y. 312; Tillman v. Davis, 95 N. Y. 17. It includes only 1. Children and their descendants. 2. Father. 3. Mother and brothers and sisters and the legal representatives of de- ceased brothers or sisters. 4. Collateral relatives. But such husband or wife should be cited in the proceeding for, the Statute of Distribution makes them distributees in certain cases. [See § 144, below.] In construing a will, the same rule holds, unless the testator's intent be clear to include the husband or wife in the term next of kin. Murdoch v. Ward, 67 N. Y. 387, distinguishing Merchants' Ins. Co. v. Hinman, 15 How. Pr. 182; 4 Abb. Pr. 313; Knicherbacker v. Seymour, 46 Barb. 198; Dewey v. Goodenough, 56 id. 54; Luce v. Dunham, 69 N. Y. 36; Keteltas v. Keteltas, 72 id. 312; Tillman v. Davis, 95 id. 17; Matter of Devoe, 111 id. 281; 63 N. E. Rep. 1102; Hannin v. Osgood, 1 Redf. 409, 417; Snider v. Snider, 11 App. Div. 171; 42 N. Y. Supp. 613; U. S. Trust Co. v. Miller, 57 Misc. 500; Matter of Schnitzler, 61 Misc. 218. § 138. Divorced husband and wife. — As a husband, on the dissolution of the marriage, at the suit of his wife, has no interest in her property, he is not a necessary party to a Surrogate's proceeding touching the adminis- tration of her separate estate; but where the dissolution was at the suit of the husband, his rights, and interests in her property are not impaired; and, therefore, he may be a necessary party in such a proceeding. More- over, in the latter case, the wife, however innocent, is not entitled to a distributive share in the husband's personalty, and consequently need not be cited in a proceeding touching his will or estate. Matter of Ensigri^ 103 N. Y. 284, and Code, §§ 1759, 1760. But, the words "next of kin" in a will do not include a wife, if merely followed by a reference to the intestate succession laws. PJatt v. Mickle, 137 N. Y. 106; 50 St. Rep. 91; Matter of Devoe, supra. § 139. How ascertained. — 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 representatives." 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 controlled in such matters, as a part of the common law. Sweezy v. Willis, 1 Bradf . 495^97. Consanguinity is* the connection or relation of persons descended from the stock or common ancestor. Lineal consanguinity is reckoned in the § 139 PARTIES 143 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 Distribution 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 opin- ion of Surrogate. Under Distributioi^, post, the matter is elaborated ; but it is pertinent here, in view of the importance of concluding all necessary parties by actual citation. 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 ancestor is the intestate, who is therefore two degrees only removed from the aunt. The importance of this is great, as under the common law aunt or grand- father are within the same degree of nearness, while under the civil law the aunt is one degree further removed, which is very important when ques- tions of rights to administration, or to a distributive share, are concerned. 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' Inswan.ce Co. v. Hinman et al., 15 How. Prac. R. 182. 144 surrogates' courts § 140 § 140. Persons interested, — In addition to the definition in § 2768 (quoted above) of this phrase, there are several adjudications as to who isj and who is not a person interested in the sense of the statute. Thus lega-? tees of a deceased legatee of a testator have been held to be "persons inter- ested" in that testator's estate. Fisher v. Banta, 66 N. Y. 468, 481. So also a residuary legatee under the wUl 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 subd. 11. In re Rogers's Estate, 16 N. Y. Supp. 197. Where the Code provides that a, "person interested" may "object to an appoint- ment 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. Proc, §2768, subd. 11; Bonfanti v. Deguerre, S Bradf. 429. The sworn statement of interest gives the person making it a prima fade standing. The Surrogate by virtue of his power to pass on "status" 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 denial 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 not try it, and would entertain the petition on the prima fade standing of the petitioner. See also Matter of Clute, 37 Misc. 710, 714; Matter of Randall, 152 N. Y. 508. If, in answer to one petitioning for relief, a release is al- leged 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 Gds, 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 alleged by the respondent, or party re- quired to be cited, and the verified allegation of petitioner gives him a prima fade 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 reMing to an action to determine the "validity" of a will, under which the proofs were limited to the factum of the will, the words used are " any person interested in a will or codicil oifered for pro- bate." This has been held not to include anyone who does not take under § 141 PARTIES 145 the will, not even a child. Lewis v. Cook, 150 N. Y. 163; Whitney v. Brittm, 16 App. Div. 457. The right formerly given by § 2472a to ascertain title to a legacy or share is said by the revisers to be "substantially" in § 2510. The former right was in order to the making of a decree on "accounting" or "payment of a legacy." To whom should payment be made? To decide that the Surro- gate was given this new power. Section 2510 has no similar power, in special connection with these two proceedings, but its first paragraph is ample to cover the exercise of the power in order to pass on status and to administer justice. I am of opinion the new section was intended to ob- viate the situation arising in the Bonfanti and other cases just discussed. § 141. 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, § 2768, 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 Rollins, 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 apphcants were 'creditors' would entitle them to the relief asked, unless that allegation were denied, but that in the event of such denial, the ap- pKcant 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 propoimding 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. Cf. Greene v. Day, 1 Dem. 45. Creditors may be petitioners or respondents as the case may be. The 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. Heilman v. Jones, 5 Redf . 398, 400. The word "creditor" has a wide significance under the Code. Sec- tionL2768, subd. 3, after defining "debts" as including "every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be rendered in an action," continues that "the word 'creditor' includes" (1) every person having such a claim or demand; (2) any person having a claim for expenses of administratioh; or (3) any person having a claim for funeral expenses. Formerly only one "having such a claim or demand" against the deceased was deemed a creditor. See Matter of Underhill, 117 N. Y. 471; Matter of Redjield, 71 Hun, 344, 346; 146 surrogates' courts §§ 142, 143 Duncan v. Guest, 5 Redf . 440. The new language extends it to the two ad- ditional cases specified. 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. On accountings creditors are a most important class of parties. The '. question of their claims, and how they may be litigated before the Surro- gate or his referee is better discussed later under §§ 2680 and 2681, making out of date the prior discussions of this subject. Suffice it to merely assert here that if a creditor's claim be allowed, or even if it be paid, it may be hti^^ated on the accounting and that on the groimd of fraud or negligence. If, however, the claim be rejected, a short statute runs (as formerly imder § 1822 now repealed and embodied in § 2681) and if no action be brought, the claim shall be tried and deter- mined upon the judicial settlement. Both creditors, or persons interested in an estate, may, under proper. circumstances and although not cited, appear {Marline'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,- Master of Kendrick, 107 N. Y. 104) and make themselves parties to a given proceeding, such as, for example, a proceed- ing for judicial settlement of an executor's account initiated by an executor under § 2729. Nor is this right lost by omitting to present creditor's claim pursuant to executor's notice. Greene v. Day, 1 Dem. 45, and see cases chronologically arranged in decision. But, it seems, they can appear only "upon the hearing." Estate of Wood, 7 N. Y. St. Rep. 721. See " Account- ing" for effect of recent amendments of Code. § 142. 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 mil prior in date to that ofi^ered for probate may come in and oppose pro- bate of the subsequent will. McClellan's Practice in Probate Courts, p. 55, citing Matter of Will of James Malcolm, Dayton's Surr., 3d ed. 159. § 143. Assignees. — If a devisee or legatee or creditor assigns his in- terest he loses his right to be a party, and while the assignee or receiver of a legatee or devisee may not always be entitled to stand in his shoes and become a party to the proceedings 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 petition for an accounting. It has been held that § 143 PARTIES 147 such an assignee should be cited to attend the proceedings on account- ing and distribution. Estate of GilUgan, 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 re- ceiver 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 intervene, citing Gibbons v. Shepard, 2 Dem. 247. See also Matter of Kennedy, 143 App. Div. 839. In Matter of Losee, 119 App. Div. 107, B assigned his dis- tributive share and died. In a subsequent proceeding it was held (a) his representative had no standing; (b) that as the proceeding was an appUca- tion for letters involving question of priority of right the assignee had no standing, since the validity of the assignment was disputed, and the Sur- rogate could not pass on such an issue. This is not now the situation. I; Section 2486, subd. 6, requires the Surrogate to keep a book in which must be recorded all instruments . - . assigning, mortgaging, charging, or releasing any interest in any estate or fund. II. Assignees are included in the Code definition of "persons interested," "where it is used in connection with an estate or a fund." This alone seems conclusive. III. The decree must direct pajTnent to persons "entitled, according to their respective rights." Section 2735. IV. It is conclusive on all parties "of whom jurisdiction was obtained" and " all persons deriving title from any of them at any time." Section 2742. V. A debt is assignable and a creditor can prosecute it. If his assignee is to be bound by the decree in the proceeding then he has a right to be a party thereto. VI. Finally, § 2510 in its general paragraph intended to give jurisdiction "to try and determine all questions, legal or equitable, arising," not only between any or all of the parties . . . but "between any party and any other person having any claim or interest therein," who voluntarily appears, or is brought in ". . .as to any and all matters necessary to be deter- mined in order to make a full, equitable and complete disposition of the matter." Thus all questions of title to and quantum of a legacy or distributive share are now triable by a Surrogate who has all legal and equitable powers neces- sary to the complete disposition of the matter, since the enactment of former § 2472a of the Code, in 1910, and certainly under § 2510 which supersedes it. So in Matter of Guck, N. Y. L. J., March 15, 1912, Ketcham, Surr., held a legatee entitled, treating an assignment of his interest as void for usury. Attention must be called to chap. 692, Laws 1904, which affects the status of assignees of interests in decedents' estates. Every such transfer must be in writing duly acknowledged. Recorded (a) if affecting per- sonalty only, in the Surrogate's office; (6) if affecting realty only, in the Cpunty Clerk's office; (c) if affecting both, then in both; (d) in special 148 surrogates' courts § 144 index under decedent's name, in special book. This is now j'eenacted a. as § 32, Personal Property Law; h. as § 274, Real Property Law. i § 144. Interest of individuals not of a class; surviving husband or wife. — [See §§ 137 and 138 above]. Persons may be necessary or proper parties to proceedings in Surrogates' Courts, not only beciause they belong to one of the classes just enimierated, 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 proceed- ing, 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 hus- band or wife require particular mention in this connection. By subd. 12 of § 2768, they are bpth distinctly excepted from the definition of "next of kin." By subd. 11, however, they are declared to be persons interested. Either may petition for probate, and each is entitled to citation, being named before heirs or next of kin in the sections relating to probate. 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; Luce v. Dunham, 69 N. Y. 36. But where the court is satis- fied 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; Betdnger v. Chapman, 24 Hun, 15, 18, aff'd 88 N. Y. 487, and cases discussed. If a wiU specifies a "wife" of A or B, it means the then wife. If he says "widow" it means the wife surviving A or B. Meekir v. Draffm, 201 N. Y. 205, 209. 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, iKeteltas v. Keteltas, 72 N. Y. 312, 316. See the numerous cases cited by appellant therein on pp. 313-314. For what is primary meaning see preceding sec- tions, and Tilman v. Dams, 95 N. Y. 17, 24," whereunder see examination 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 hini 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, chap. 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 imder the statute of distribution. The rights of a sur- viving husband or wife and their status as parties may be materially af- fected by the fact of a divorce formerly granted to or from the decedent. (See § 138, above.) The Code provides (§ 1759, subd. 3, as amended by § 145 PARTIES 149 chap. 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 con- trol, 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 decease 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 judg- ment." And per contra % 1760 (action brought by husband), provides, subd. 2: "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." Subd. 3. "Where judgment is rendered dissolving the marriage, the de- fendant (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 de- cedent 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, however, 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 in view in allowing and fixing her alimony. Matter of Estate of Ensign, 103 N. Y. 284; Kade v. Lavber, 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 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 marr5ring in another State, or even in this by consent of the court: "Suppose that, with unusual activitj^ 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 Gamer, 59 Misc. 116. § 145. Executors or administrators, whether one or several, are looked 150 surrogates' cotjbts § 146 upon as one, so far as being parties is concerned. Code Civ. Prop., § 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. Townsemd, 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' & Mechanics' Bank, etc., 24 N. Y. 424. This unity is representative merely. Thus if A and B are coexecutors, A cannot sign for B virtute officii. Matter of Ehret, 70 Misc. 576. § 146. Same — ^Foreign representatives. — We have already observed that an executor or administrator appointed in another State had no right, before § 1836a, L. 1911, c. 631, to sue in this State, without taking, out letteifs here. Matter of Butler, 38 N. Y. 397; Petersen v. Chemiqil Ba;nk, 32 id. 21 : Stewart v. O'Donnell, 2 Dem. 17; Taylor v. Syme, 162 N. Y. 513; Flandrow v. Hammond, 13 App. Div. 325-. The guardian of a limatic, ap- pointed by a foreign court, cannot intervene in an accounting in which the ward is interested. Weller v. Suggett, 3 Redf. 249. But assignments of claims by foreign representatives, valid where made, will be recognized here. Petersen v. Chemical Bank, supra; Guy v. Craighead, 6 App. Div. 463. So, before § 1836a, a foreign executor could not be sued in our courts, though it were alleged he has assets in his possession here. Ferguson v. Harrison, 27 Misc. 380. But see Smith v. Central Trust Co., 7 App. Div. 278; Stone v. Demarest, 67 App. Div. 549. Where a substituted trustee was appointed by a foreign court, having Jurisdiction, which gave him powers established by the supreme court of the foreign State interpreting its own statutes, the trustee may, by virtue of that appointment, sue in the courts of this State. English v. Mclntyre, 29 App. Div. 439; 51 N. Y. Supp. 697. An administrator of a resident of this State appointed by a foreign court may intervene in a subsequent proceeding here for the probate of, an alleged will of his decedent. Matter of Davis, 182, N. Y. 468. An ad- ministrator appointed in California, who has not taken out letters here, has no standing in a court of this State to invoke its aid in acquiring pos- session of his intestate's property here. Matter of Jones, 3 Redf. 257,, and cases cited. See Duffy v. Smith, 1 Dem. 202. An executor is, as such, "a person interested in the estate" of a decedent, under whose will his testator was a beneficiary, so as to entitle him to petition for an accounting ,by, the first decedent's executor.. Edwards v. Edwards, 1 Dem. 132. Section 1836a added in 1911, giving to foreign executors or administra- §§ 147, 148 PARTIES 151 tors, complying with its requirements, the status of litigants here, i. e., the right to sue or be sued "in any court in this State," refers to actions and proceedings, and is thus made to apply to Surrogates' Courts. At any rate they would be entitled to appeal to that court, as creditors or claiming as distributees in their representative capacity. § 147. Intervening. — Proceedings in Surrogates' Courts being chiefly in rem intervention is favored, in order to conclusiveness. Section 2511 is very Uberally drawn with this very purpose. Thus, 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 sus- taining or defeating the will, may appear, and, at his election support or oppose the appUcation. A person so appearing becomes a party to the special proceeding. See Lafferty v. Lafferty, 5 Redf. 326, 329, citing Booth V. Kitchen, 7 Hun, 255, 259, 260, 264; Walsh v. Ryan, I Bradf. 433; Marvin 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. Before the act of 1Q14 the party, having the neces- sary interest, must petition the Surrogate for leave to come in, and in every proper case such leave was given; otherwise he might become a mere "interloper " and his claim of rights be disregarded. Matter of Garner, 59 Misc. 116; Matter of Hamilton, 76 Hun, 200. Now he comes in by duly executed "appearance." 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 appUcation that as to him the Statute of Limitations has run if the cotu:t has jurisdiction of the res. Matter of Ibert, 48 App. Div. 510; Matter of Bingham, 127 N. Y. 296. If anyone already a party to a pro- ceeding in a Surrogate's Court dies, his representative 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 quasi in rem, does not abate by the death of a party, whether proponent or contestant or even of all the parties. Lafferty v. Lafferty, 5 Redf. 326. The proceeding Uves, 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, RolUns, Surr.: "It seems eminently proper, even if it is not essential, that one who is the acknowledged representative of a party de- ceased, and who asks as such to intervene, should be allowed to do so." The new practice as to appeals emphasizes the rule as thus stated. Sec- tfon 2755 provides that a person not a party may be brought in by order of the Appellate Court. The same was allowable under former § 2573. See Peck v. Peck, 23 Hun, 312; Wilcox v. Smith, 26 Barb. 316; Matter of Thompson, 11 Paige, 453; Jauncey v. Rutherford, 9 Paige, 273. § 148. Mode of intervention. — The former practice of intervention, 152 surrogates' courts § 149 by order of the Surrogate upon the appUcant's petition, or upon his ap- pearance in open court, on the return day, and fiUng a sworn claim of interest, is now happily changed to simple submission to the jurisdiction of the court by appearance under § 2511, subd. 3. Should the status of one intervening by such appearance be put in issue, the Surrogate can, as always, determine the question. It should be disposed of before _pro- ceeding to the merits. Matter of Hamilton, 76 Hun. 200. In such case, 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; Matter of Hamilton, 76 Hun, 200. A claimant, not entitled to be cited as heir-at-law or next of kin, may become a party to an accounting proceeding by presenting his claim and fihng a consent. Matter of Ingrakam, 35 Misc. 577. Former § 2617 is now superseded by § 2511 and by § 2617. It is ob- vious the old practice of fiUng a petition or moving for leave to intervene is intended to be done away. Hence the forms or precedents on such appli- cation are omitted. In case a person becomes a. necessary party on appeal under § 2755, he may be brought in by an order of the aj^ellate 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." Ibid. See Matter of Marks, 128 App. Div. 775. . And it had been held before the act of 1914 that when the appeal is pending the Surrogate's Court has no longer power to make an order al- lowing, a party to intervene 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. N. S. 97; Matter of Wood, 5 Dem. 345. Section 2755 makes its provisions exclusive now. Formerly, 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 had 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, might intervene and appeal. 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. Former § 2569. See Foster y, Foster, 7 Paige, 48; Marvin v. Marvin, supra; Delaplaine v. Lawrence, 10 Paige, 602. Now, however, § 2754, gives "any person aggrieved" the right to appeal. , Even under the old practice^ these precedents were only necessary where the proponent's attorney put in issue the right of the petitioner to be made a party. If this right to intervene were not put in issue, the supple- mental citation issued on consent, without the formality of an application- to the court. § 149. Order not necessary. — It was not necessary even under the old practice that an order be entered on the intervenor's petition, granting his §§ 150, 151 PARTIES 153 request. The same result was secured by issuing a citation to him, and proof of service of such citation upon him was sufficient proof of his regular standing as a party to the proceeding. This is the right practice, anyhow, where the "person interested" is an infant. For the right to appear, i. e., to voluntarily give "jurisdiction of the person" under § 2511, is limited to " persons of full age." It is clear a general guardian is not that. His status is representative, and the one he represents is not "of full age." Hence, the Surrogate, of his own motion, if he discover that anyone, a necessary party to a pending proceeding is a minor, will bring him in, and will ap- point a special guardian. It is quite immaterial how he ascertains that such a one is a necessary party. Matter of Odell, 1 Misc. 390; Mowry v. Peel, 7 Abb. N. C. 196; Munscm v. Hmuell, 20 How. Pr. 60. 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 guardia,n appointed. Saltus's Estate, 1 Tucker, 230; Matter of Feeley, N. Y. L. J., May 13, 1890. If the petitioner discover that a necessary party has been omitted, of course the correct practice is the same. He applies for a supplemental citation. § 150. Effect of death of 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. Matter of 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 to special proceedings, but not in Sur- rogates' 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 ma}'' 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 before the expiration of the time within. which the appeal may be taken, or the motion is to be made, the court may permit it to be done by the heir, devisee, or personal repre- sentative of the decedent, at any time within four months after his death. This indicates that certain special proceedings in Surrogates' Courts abate on the death of a party, and that others may not. § 151. Where proceeding is in rem. — 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 parties, or even of all the parties. Lafferty v. Laf- ferty, 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 Surro- gate's function is not to determine issues or rights between parties, and if the will is contested the issues then raised are deemed incidental to the 154 surrogates' courts § 152 general inquiry as to its probate, but whether or not the instrument pro- pounded 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 proceeding 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. Hemns, 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. This rule is sustained, under the new act, by Fowler, Surr., in Matter of Herr- mann, 91 Misc. 464 (Aug., 1915). 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 s^ems 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 substituted as proponents. In re Covers, supra, the theory being that the proponent's executor is imder the duty of seeking to reduce to possession that which his testator is entitled to imder 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 iu. So if one is named an ex- ecutor in a will and ia that capacity offers it for probate, and dies pending 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. § 152. Where proceeding is in personam. — But if the proceeding be in personam then the death of a. party may materially change the situation. Thus a proceeding to compel the judicial settlement of an executor's ac- count could not, before the Act of 1914, § 2725, 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; § 152 ■ PAETIES 155 Montross v. Wheeler, 4 Lans. 99; Farnsworth v. Oliphant, 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 pro- ceeding abated and could not be revived. Herbert v. Stevenson, 3 Dem. 236. See Matter of Fergusm, N. Y. L. J., Dec. 23, 1911, and case cited. But § 2725 covers this very situation, prevents abatement, and allows the matter to proceed to decree. See Accountings. In Stewart v. Franchetti, 167 App. Div. 541, it was held that a decree of a Surrogate's Court declaring a trust invalid, but entered after the trustee's death, he being a party, was not binding on anyone claiming through him. But this is without prejudice to the right given by the amendments of 1884 and 1891 to the Code, former § 2606, now retained in § 2725, under which an executor or administrator of a deceased executor, administrator, guardian, or testamentary trustee, may be compelled to account for property for which his decedent could have been compelled to account (see Accountings) which is a new remedy, pursued in an in- dependent proceeding. See Matter of TredweU, 85 App. Div. 570, where executor died pending his accounting, and his representative being re- quired to account .for his decedent's acts sought to revive original pro- ceeding. (See post. Accountings.) The right to revive is a substantial right, or, as Mr. Redfield called it, a valuable right. Thus in Matter of Armstrong, 72 App. Div. 286, held, the Surrogate had no power, of his own motion, to enter an order of abate- ment. "Such an order, being void, may be attacked collaterally, when-^ ever brought in question." 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, chap. 8, §§ 755-766, also § 786 in connection with subd. 6 of § 3347. The fact that the §§ 755, etc., were amended in 1891 does not make them appHcable to all special proceedings. They are still subject to the limita- tions 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 765, C. C. P., applies "to all courts," § 3347, subd. 6. It reads: This title does not authorize the entry of a judgment against a party, who dies before a verdict, report, or decision is actually rendered against him. In that case, the verdict, report, or decision is absolutely void. Section 766 of the Code provides that where ... a special proceeding 156 surrogates' courts ' • § 153 is authorized or directed by law, to be brought by or in the name of a pubKc 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 con- tinued 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 adminis- trator 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 § 2710 of the Code that, "The death, removal, or disqualification before the complete execution of the order of all the executors, or administrators, does not suspend or affect the execution thereof; but the successor of the person whoihasidied, been removed, or become disqualified, must proceed to complete all un- finished matters as his predecessors might have completed the same. . . ." See also Matter of Camp, 81 Hun, 387. § 153. Attorneys. — The attorney who represents a party is, in every case, an officer of the court; and in many cases is a petitioner for rehef or may be respondent in an application to control or direct his conduct. It is proper to discuss, in the context of "Parties" the topic of the attorney's status in the Surrogate's Court. We have already quoted § 2474' which prohibits a Surrogate^ f rom bang "counsel, solicitor, or attorney in a civil action or special proceeding for or against any executor, administrator, temporary administrator, testa- mentary trustee, guardian or infant, over whom, or, whose estate or ac- counts, he would have any jurisdiction by law. " We also quoted § 20 of art. VI of the constitution, and its prohibition against a Surrogate's practicing law at all in coimties having a population over 120,000. Gn the other hand, as a judge he may not try cases where he has been attorney. Darling v. Pierce, 15 Hun, 542. And, ethically, a relative of a Surrogate ought not to try causes before him. See Matter of Van Wagonen, 69 Hun, 365. Nor may clerks or other employees in a Surrogate's office practice before him. Section 2502, subd. 7. But, over the attorneys who do practice before him he exercises the powers of a judge of a court of record. This is no longer open to question. He has the power to direct substitution of one attorney for another, CMt- field V. Hewlett, 2 Dem. 191; and as incidental thereto to determine the terms and conditions upon which the substitution should be made. Sur- rogate Coffin in 1883, Hoes v. Halsey, 2 Dem. 577, doubted the power of the Surrogate to prescribe the terms on wh'ch a change of attorneys could be effected. The better rule, however, had been laid- down by Surrogate Rollins the year before, Chatfield v. Hewlett, supra, in a well- reasoned opinion basing the power claimed upon the Code of Civil Procedure gener- ally and in particular upon § 17 ' which authorized the gener^-l term jus- ' Section 17 of the Code, repealed by L. 1909, c. 35, and now in Judiciary La,w. § 154 PARTIES 157 tices of the supreme court with certain chief justices of the superior city courts to establish rules of practice to be binding upon all courts of record. The learned Surrogate pointed out that it was doubtful whether the Surrogate could lawfully have exercised 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 commonly known as the "Court Rules" was the following: Rule 10. "An attorney may be changed by consent, or upon application 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 other- wise." 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, chap. 416. Section 17 of the Code above re- ferred to went into operation on September 1, 1877. There can be no ques- tion, 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. 115, 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. § 154. 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. 725; 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 (Laws 1899, chap. 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 client's cause of action, claim or counterclaim. The section is now removed to the Judiciary Law, §§ 474r^75. Compensation of attorney or counseUi/r. The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law. From the commence- ment 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 client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come; and the lien cannot be affected by any settlement between 158 surrogates' courts § 155 the parties before or after judgment or final order. The court upon the petition of the cUent or attorney may determine and enforce the lien. See notes to Judiciary Law, §§ 474-475 in 3 Birdseye's C. & G. Cops. Laws. So money in the hands of an administrator applicable to pay a judg- ment creditor, is subject to Uen of attorney who secured the judgment. Matter of Tiemey, 88 Misc. 347. 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 settUng his account. There was no proceeding pending to which a decree as to the hen could have been made an incident. If the proceeding were one to compel payment of a legacy, the lien would attach to the amount decreed to be paid; but, pari ratione with Matter of Birdseye, 165 App. Div. 898, not on anything above the amount of his claim. He cantiot, that is, hold up the client by impounding the whole fund, if his fee is a liquidated sum. See as to protection of contingent fee under contract of retainer, Andrewes v. Haas, 214 N. Y. 255 (can recover only for value of services) and Restivo v. Bradley Cont. Co., 166 App. Div. 809 (on substitution court, while not bound by fee contracted for, is not required to allow a less sum, if attorney discharged by cUent). § 155. 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), aff'd 192 N. Y. 574, on opinion below of Ingraham, P. J. The decision in Matter- of Krakauer, 33 Misc. 674, is not in confUct. It was there held only that there was no proceeding pending in which this incidental power of protection could be exercised. No order for substi- tution of attorneys can be made-, and the lien of the first attorneys pro- tected 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 chent's favor under §66. The question was not squarely before the com^t whether the case would be different if, first, the claim was imliquidated, or second, the cUent was able to respond pecuniarily apart from the proceeds of the attorney's industry. Actual notice of the lien must, of course, be given. Marshall v. Meech, 51 N. Y. 140; Matter of Tiem&y, 88 Misc. 347. The Surrogate has power, pending his determination of the merits of § 156 PARTIES 159 the question of substitution or of lien to order the attorney to deposit the moneys of the estate or chent 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 coUusively settled with the chent behind the attorney's back. The client executed withdrawal of objections and consent to a de- cree. The Surrogate continued the proceieding on the attorney's petition 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 com- pelled 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 dis- sented (see p. 293). In Matter of Tyndall, 117 App. Div. 294, it is held that where an attor- ney 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 in- fant 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% pajTnent. 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. § 156. Same. — The Surrogate's control is also exercisable in the ju- dicial settlement of accounts. Therefore, it can be exercised by the referee to hear and determine the issues. These are not cases of lien. The attor- ney either is a creditor of decedent, as in Matter of Brown, S7 Misc. 541 (bill for drawing decedent's wills) or he may have rendered services to the accounting party. Ibid. This case, opinion by Ostrander, is illustrative, in that it rehearses the services, the value claimed, and the opinions of the "expert" witnesses who testified for and against. 160 surrogates' courts § 156 If the attorney's bill is pursuant to contract made with the representa- tive the contract must stand unless fraud or undue influence was practiced on the representative. Matter of Fitzsimmons, 174 N. Y. 16. In Matter of D'Adamo, 94 Misc. 1, expert evidence as to reasonableness was offered. Held competent only if claim for fees was based on the quantum meruit theory; citing Morehouse v. Brooklyn H. R. R. Co., 123 App. Div. 680; Werner v. Knowltoa, 107 App. Div. 158. CHAPTER III HEARINGS AND TRIALS § 157. Practice similar to that in all courts of record. — Practice in Surrogates' 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 § 2490 {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 jurisdidtion of such matters." And § 2770, supra, provides: "except where a contrary intent is expressed in, or plainly impUed from the context of, a provision of this chapter, all other portions of this act, and the general rules of practice apply to Surrogates' Courts, and to the pro- ceedings therein, so far as they can be applied to the substance and sub- ject-matter of a proceeding without regard to its form." This would be true except for § 3347 in Chapter XXII, which hmits "all other portions of this act" by making portions applicable "to all courts"; portions "to aU courts of record," portions "to actions," etc, etc. This merely empha- sizes the inconveniences resulting from continuing the differentiations of practice between the supreme court and these great Surrogates' Courts of our State. 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 discussion in § 97, supra, so far as acquiring jurisdiction of parties under the new definition of "proc- ess" in § 2522 is concerned. See Filley's Estate, 20 N. Y. Supp. 427; Cluff V. Tower, 3 Dem. 253, where Judge Rolhns held (imder subd. 6 of former § 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 juris- diction would exercise the same power) might be begun either by a notice of motion or by an order to show cause. So also it was held in Matter of Smith, 65 Misc. 417. It would seem to be correct as to persons already duly made parties to the proceeding sought to be reopened^over whom the court has jurisdiction. But in Matter ofTilden, 98 N. Y. 434, it was held that a pro- ceeding to open or vacate a decree is a special proceeding, i. e., it begins with citation and ends in a final order. Hence if the proceeding be in per- sonam and the person be a non-resident not already served in the original proceeding, he cannot be affected by anything done on mere order to show §157 " 161 162 surrogates' courts § 158 cause. The reasoning in Bullowa v. Provident Ldfe, etc., 125 App. Div. 545, proves the learned Surrogate to have been wrong in the Smith case, which was a motion to reopen a transfer tax proceeding, to assess additional tax and collect it against persons residing in England, never served with process. But, generally speaking, it is correct to say that Surrogates' Courts, having once acquired jurisdiction of the parties and of the subject-matter of a proceeding, possess, in the matter of conducting trials or hearings, the ordinary common-law powers necessary to the discharge of their judicial functions. The section of the Code (§ 3347) which declares to what courts, etc., various divisions of that act apply, makes no specifica- tion in respect to the ninth chapter, entitled "Evidence." Accordingly all the provisions of that chapter, except those which expressly state other- wise or which are obviously inapplicable, govern Surrogates' Courts in common with the other courts of the State. Those provisions include the rules concerning the competency, disquahfications, and privilege of wit- nesses, §§ 828-841a; the administration of oaths and affirmations, §§ 842- 850, the issuing and enforcement of subpoenas, including subpamas duces tecum, §§ 852-869, and the production, competency, and effect of docu- mentary evidence, §§ 921-962. § 158. Same. — Thus, 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 exaniined are to be regulated by the generic rules. For example, in regard to impeaching a witness, in Matter of Joel, N. Y. L. J;, February 7, 1912, Fowler, Surr., observed: "The only objection in the first instance to proponent's proof oi factum of will went to the competency of one of the attesting witnesses, Anna Lang, by reason of her non-age. She was then some eighteen years of age. Prior to the present Statute of Wills, an infant over fourteen, if able to write, was a competent witness (James Wilson on Wills, 34; Schouler on Wills, § 352; 1 Redf. Wills, 352, note). The existing statute makes no change in the old law in this respect (§ 21, Decedent Estate Law; Robins V. Coryell, 27 Barb. 556). Anna Lang was competent by our statute to make a wiU passing personal property (§ 15, Decedent Estate Law), and it would be absurd to hold that she was incapable of acting as an attesting witness to the will of another. The contestant, who is a brother of the testatrix, on the hearing attempted to impeach the evidence of one attest- ing witness by proof of her statements out of court to the contrary of her evidence. This course is permissible in respect of attesting witnesses (3 Redf. Wills, 45), although admissions of legatees, miless sole, are not com- petent against other legatees {sic). But the difficulty in this matter is not with the rule of law, but with the facts proved. The testimony of the attesting witness as to factum was not impeached, even if the impeaching §§ 159, 160 HEARING AND TRIALS 163 witnesses are to be believed. Not every interpreted statement out of court can impeach the evidence of a witness in court under oath. ,So much for proponent's affirmative case on the issue of factum. The contestant did not establish a single one of his objective allegations by competent proof, even though the burden of proof in a probate cause may be said to rest always on a proponent. When contestant came to go forward with the proofs of his written allegations against the wiU he signally fell. short of impeaching the validity of thfe testamentary act at issue before me. § 159. Same — Coercive procedure. — We have alreadyseen that among the powers of the Surrogates is the power to issue subpoenas, or mhpamas 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 appli- cant." 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 substantiail right they ought to be con- strued as inappUcable to proceedings pending before they went into effect; but as regards mere incidental 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. § 160. Special provisions as to Surrogates' proceedings. — Chapter XVIII, title 2, art. II, now contains rthe sections particularly regulating proceedings in Surrogates' Courts. We have already discussed in a more logical context § 2533, as to appearance, and §.253!4 as to special .guardian. Section 2535 relates to avoiding a, multiplicity of proceedings by "consoli- dation.'* The most common instance is, of course, the consolidation of voluntary with involuntary accountings, the issues being, presumably, identical in whole or in part. It reads;: ,§ 2C36. ConsglidBtioniof proeeedings. , ,, ■ At any time when two or more proceedings are pending r involving, .in :whole, or in part, the same matters, the surrogate may, in his discretion, consolidate such pro- ceedings upon such terms as shall appear to him to be equitable and just; biit with- out prejudice to the power of the surrogate to make any subsequent order or decree in either or any of ithem. New. See former |§ 2606, 2727 of this Code. The remaining sections fall under four heads. References, Trial by Jury, Evidence and Decrees. The latter will be treated in a separate chapter. 164 surrogates' courts § 161 i. references § 161. References and referees. § 2636. Surrogate may refer questions of fact. In a special proceeding other than one instituted for probate of a will, and subject to the right of trial by jury of any question of fact, 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 de- termine 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 settlemen]t 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 iS an action; and the provisions of this act, appUcable to a reference by the supreme court, apply to a reference made as prescribed in this section, so far as they can be applied 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. Former § 2546 of this Code. Prom L. 1870, c. 359, § 6; L. 1881, c. 535; L. 1887, c. 701; L. 1889, o. 506; L. 1895, c. 796; L. 1899, c. 607; L. 1908, c. 128. The Reviser's note reads: "This section, now that a jury trial is pro- vided for, enables the Surrogate to refer a contested claim, and that pro- vision in § 2718 wUl be repealed." Former § 2718 was headed "Ascertain- ment of debts," and the reference was after a rejection of the claim to "two or more disinterested persons." This was the reference that became, on filing the order, "an action in the supreme court." The Reviser's note becomes more clear if § 2681 be referred to, which takes the place of former §§ 1822, 27l8, 2718a. It embodies the new short statute of limitation on a rejected claim. If the action is not commenced within either of the two periods therein prescribed the action is barred, but, "in such case said claim shall be tried (N. B. not may) and determined upon the judicial settlement. We shall discuss, elsewhere, the effect upon this keeping alive of issues as to creditors' claims of § 2680 which deals with claims allowed by' the representative. Suffice it here to say that if the claim is allowed^ or even paid, it may be attacked on the accoiinting. If then rejected, and dis- allowed in the decree, the time reopens to bring suit thereon since "the time between thie presentation of the claim or the commencement of the action where the claiiii was not presented, and the time of such determina- tion shall not be a part of the time limited in this act for commencing an §§ 162, 163 HEAKINGS AND TRIALS 165 action thereon." It would take the pen of either of the Surrogates of Kings or of Oneida county to do justice to such a legislative tour de force. § 162. Analysis of § 2536. — A. Probate proceedings are not referable, except in New York county, where, on written consent of all parties ap- pearing, a referee, or Surrogate's assistant, see Matter of All&rhann, 1 Connoly, 441, may be appointed to take and report testimony, without authority to pass upon the issues. See also § 2502, subd. 8, as to power of clerks in uncontested probate. B. In any other proceeding subject to right of jury trial of any question of fact, a referee to take and report evidence or to examine an account may be appointed. C. In an accotmting proceeding, a reference to hear and determine may be held subject to confirmation or modification of the Surrogate. D. But no referee of either class may be appointed in accounting pro- ceedings unless estate exceeds $1,000 in value or imless items objected to aggregate over $200. E. Supreme court rules and practice govern references in the Surrogate's Court "so far as they can be appMed in substance without regard to the form of the proceeding." See Matter of Russell, 3 Dem. 377; Matter of Leffingwell, 30 Hun, 528. F. To prevent unconscionable delay the general provision closes the section: If Surrogate does not act within 90 days of submission the report is deemed "confirmed as of course." § 163. Surrogate's power. — Under the Revised Statutes, before the Code, the Surrogate had to determine all "issues and questions raised" in a special probeediag, except in the single instance of an accounting by executors or administrators; The new act reserves the right to a jury trial. B^it §2537 declares it to be waived unless it is seasonably demanded. Assuming it to be waivM, we discuss the exercise of the pgwer to refer. Where the power to appoint a referee to hear and determine exists, and an order is inadvertently drawn "to hear and report" it may be amended nunc pro tunc. Matter of May, 53 Hun, 127. Under a reference to "hear and report" or to "take and report," as the section phrases it, the Surro- gate may require the referee to add his "opinion on the evidence." Matter ofFerrigan, 42 App. Div. 1, aff'd 160 N. Y. 689; Matter of Walker, A3 Misc. 475. Such referee may pass on questions of evidence. Ibid. The better practice in such case, adopted by certain referqfis to preserve the. rights of the parties, and resorted to where the question of admissi- bility is a close one, is to take the doubtftil testimony, "subject to a motion to strike out," and then to strike it out, giving an exception to the ruling; whereupon the Surrogate can, if the ruling be error, restore the testimony, which is in the record, and make his determination without a new or further reference or inquiry. , The Surrogate may only need the service of , a referee's report on a "specific question of fact," His jurisdiction to act at all might, e. g., turn on a question of decedent's residence, or the transfer tax may be condi- 166 surrogates' courts § 164 tioned thereby. That question alone in such case is referable. Matter of Hyde, 169 App. Div. 568; Matter of Bishop, 111 App. Div. 545; 188 N. Y. 635. So would be the question of whether the statute of limitation had run, so as to destroy the party's status, to petition or to raise an issue. See Matter of Hoes, 54 App. Div. 281. Since the order of reference determines the scope of the inquiry it should be precise. See Matter of U. S. A. v. Leary, 1-38 App. Div. 857; Matter of Wood, 34 Misc. 209. § 164. The referee and the heairmg. — A referee to hear and determine is, ad rem, the alter ego of the Surrogate. He controls the "calendar," may grant or refuse amendments or adjournments, and is to judge the issues. Therefore, he must be free' from the disqualifications which would prevent the Surrogate himself from trying the' cause or hearing the evidence. See § 1024, C. C. P., "Qualifications of a Referee." An order of reference which involved passing on a contested counsel fee was returned by a referee in New York County, because he had testified in another case, as expert, on ihe gross overcharges made by the attorney in question. The referee must be sworn, aKihough when there are no infants, and the parties pro- ceed without objection, it will be deemed an irregularity. Mason v. Dud- dington, 56 How. Pr. 172. Reasonable notice to proceed with the reference is sufficient. MaMer of Ferrigan, 42 App. Div. 1, 4. The referee himself may fix the date of the first hearing, on notice to the attorneys for all parties who have appeared. It is his duty to proceed to a report, "with all convenient speed." The trial is a trial in effect before the Surrogate and "actually engaged" before the Surrogate's referee is an actual engagement in cowrt. In references to "take and report" the testin^ony of witnesses must be signed by them. See General Rules of Practice, XXX, and Matter of Russell, 3 Dem. 377. But this may. be waived by stipulation, or by failure to exact it. See Matter of Hirsch, 116 App. Div. 367, 373. Section 1019, as to terminating a reference, if referee delay his report, applies to Surrogate's referees to "hear and determine" only, Matter of Santos, 31 Misc. 76, citing Patterson v. Knapp, 83 Hun, 492, not to refer- ence to "take and report." Matter of Robinson, 53 Misc. 171. If the party duly serve a notice- of such election, and nevertheless, the report is subse- quently made and filed, his right to raise his objection of invalidity is not affected by his fifing exceptions to such report. The two positions are supplementary to, and not inconsistent with^ each other. Ibid. But, in Matter of Robmson, 53 Misc. 171, Church, Surr., held § 1019 to be inapphcable, certainly not to a reference to hear and report. He cited Matter ef Bennett, 21 Abb. N. C. 238; Doyle v. Mayor, 26 Misc. 61; Bennett v. Pitman, 48 Huny 612; Godding'V. Porter, 17 Abb. Pr. 374. These cases certainly apply only to such references, styled references "imder the approval of the Starogate;" But under the language of § 2536, referring to teferentees in the supreme court the rule in th© Santos ease seems cor- rect in regard to Surrogate's references to hear and determine. § 164 HEARINGS AND TRIALS 167 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. If not waived, the referee loses his right to fees. Bottome v. Neeley, 124 App. Div. 600, aff'd 194 N. Y. 575. The referee's power over the proceedings is similar to that of any referee; he may compel the parties to proceed promptly, arid 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 proceedingspersonaUy upon the offending parties. Matter of Williams, 17 N. Y. St. Rep. 839, Ransom, Surr. See also Matter of OdeU, 1 Connoly, 94; Matter of Niles, 47 Him, 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 of F. W. Mer- tens, N. Y. Law Jour., November 26, 1901. And the Surrogate's Court will enforce his mandates. Ibid., citiag § 856, C. C. P., and Estate of Benj. Webb, N. Y. Law Jour., May 18, 1901. As, e. g., by directing a warrant for commitment 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; Estate of PenfleU, N. Y. L. J., Feb. 17, 1912, citing Matt^ of Byrnes, 100 N. Y. Supp. 12, 114 App. Div. 532; Estate of Fithian, 14 N. Y. Civ. Proc. 52; Lounsbury v. Sherwood, 53 App.' Div. 318. The dubious language of the court of appeals in the Matter of Clark, 119 N. Y. 427, "that (former) 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 imder 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 theiraccount. 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 sus- tained in the Matter of Munzor, 4 Misc. 374, Ransom, Surr., where, when a contested account was pending before a referee, and coimsel for the accountant moved before the Surrogate for leave to file an amended ac- coimt, 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 appUcation 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 168 surrogates' courts §§ 165, 166 to grant such an amendment as the Surrogate himself might grant upon a trial," citing Estate of Odell, supra; Estate of Williams, supra. '.'..; , In an accounting before a Surrogate the accounting itself. is the subject- matter of the proceeding and any amendment may be allowed which does not include a transaction subsequent to the return day of the citation," citing Price v. Brmon, "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 supplemental 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 character 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. § 165. Findings — Report. — Section 2536 prescribes that "the provi- sions of this act, appHcable to a reference by the supreme court, apply to a reference made as prescribed in this section, so far as they can be applied," etc. This refers to chap. X, title 2, which covers "trials by referee." Section 3347 makes chap. X, title 2, appUcable "only to an action com- menced in a court of record." Under the rules for statutory construction the act of 1914 amplifies § 3347, subd. 7, as being a later repression of legislative' intent. Hence, the practitioner must examine in particular § 1018, C. C. P., entitled "Gen- eral powers of a referee upon a trial,'.' and § 1022 entitled "Report of referee — upo'n trial of the whole issue of fact." It seems to be taken for granted that § 2541 which refers to Surrogate's trial without a jury is not con- trolling on the referees of the Surrogate. This section eliminates the making of findings of fact or conclusions of law, and denies to the party the right, after the close of the trial, to request a finding upon any question of fact, or a ruling upon a question of law. Whether the mtent of the Legis- lature was merely to preclude the untimely presenting of requests "after the close of the trial " is immaterial so far as referees are concerned. That is a detail or formality. The opinion seems to be general that the referee is not to render the "short form" decision of a Surrogate, which goes up on appeal with the force and "effect of a general verdict of a jury." Sec- tion 2541. Assuming this to be the case, we proceed. § 166. Requests to find. — With regard to findings of fact and conclu- sions of law, the same rules applicable to trials by supreme court referees, apply to references in Surrogates' Courts and the referee when requested to make such findings must do so. Matter of Mellen, 56 Hun, 553. See Matter of U.S.A. v. Leary, 138 App. Div. 857; Matter of Schroeder, No. 2, 113 App. Div. 221. 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- §§ 167, 168 HEARINGS AND TJRIALS 169 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 responsibiUties, 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 find- ings 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 without evi- dence, they should be sustained. Matter of Odell, 1 Connoly, 94. See Matter of Neslell, 72 Misc.. 331. Fowler, Surr., review of referee's power. There is, from the view point of efficiency, propriety in this differentia- tion. The trial before the referee is usually extended, however he may endeavor to expedite the matter. Unless, therefore, with the minutes of the testimojiy he presents separate findings with reference to the foHos of the minutes the labor of the Surrogate, upon application to confirm or to modify the report, is not diminished at all. He might as well have tried the issues himself at the outset. The practice in the Surrogate's office appears to be that, if exceptions be filed, an assistant goes over the report, and its folio references, in order to ascertain whether the findings are sus- tained by the testimony or exhibits. § 167. 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 counties. The rule as to referee's report in the particular county naust be referred to. In New York county it is, Rule XVI.— Referee's Report A referee shall file with his report all the testimony taken and all the papers and , exhibits that were before him in the proceeding in which the report is filed. • When a referee's report has been filed said report shall be confirmed as of course unless ex;ceptions thereto be filed by a party interested in the accounting or pro- ceeding within ten days after a written notice of such filing and a copy of such ' report shall have been served upon the opposing party; and in ease exceptions shall be so filed, any party m^y bring on the hearing of said exceptions on any stated motion day on the same notice that would be required for the hearing of a , motion. ^ The best practice is to have the referee's papers under one cover, oath, stenographer's minutes, index of exhibits, certificate of accuracy of minutes, opinion, if any, report. Then the papers received by the referee from the Surrogate are to be returned. Then the exhibits, separately and in proper sequence of numbering. § 168. Confirmation or modification of the report.— rThe prevailing party serves a copy of the report and a notice of its filing. This starts the time within which exceptions may be filed. (See local rules.) The pre- vailing party himself may desire some modification, in which case he also should except. 170 surrogates' courts § 169 A referee's report, on conflicting evidence should not, it is said, be dis- turbed, unless it be clearly against the weight of evidence or is not supported by any evidence. Matter of Odell, 1 Connoly, 94; Matter of Bradley, 17 St. Rep. 836; Matter of Plumb, 24 Misc. 249. The Surrogate may confirm or modify the referee's report. The term "modification," of course, includes the refusal to confirm, confirmsttion 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 boimd 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 jus- tice to direct an order for confirmation to be entered, Matter of Leffingmell, 30 Him, 528, 530; and exceptions filed after the Surrogate has so acted upon the Teport are unavailing, provided of course the ten days, within which exceptions may be filed, shall have expired before the making of the decree. . The Surrogate must consider the referee'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 Bradley, 17 N. Y. St. Rep. 836. § 169. 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 ten days after a written 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 limited 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 Bdrefleld, 177 N. Y. 387, 391.' In the latter case the Surrogate drew absolutely contrary conclusions of law from the re:5pree's findings of fact. The court of appeals held the last clause of former § 2546 (now 2536) 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 Schaefer, 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 ex- ceptions 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 certainly 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. § 170 HEARINGS AND TRIALS 171 There is no testimony returned; simply notes here and there of something sworn to. The attorneys on both sides should have requested the referee to take all the testimony and caused it to be signed by each witness^ If he neglected or refused to do this, apphcation should have been made to the court for his removal." § 170. Time within which report must be acted on. — Where exceptions are filed to the Tef creeps 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 § 2536 " 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 pro- ceeding upon two days' notice." But, as just noted, in spite of the intent of those who framed this ameildment, the court of appeals has held, four to three, that there is no confirmation by operation of the statute, until and unless a party Luterested 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 providing he acts before any partj' moves. Matter qf 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 acquiescence in the Surrogate's decree made after the ninety days.^ See also Matter of Hoffman, 136 App. Div. 516. The Clatk case is followed and reasserted in Matter of Barejield, 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 dedsionand decree by the Surrogate, His decree is the "first binding adjudication," from which alone can an appeal be taken. Matter ofBare^ field, swpra. The Surrogate must consider the exceptions in detail {Ex parte Bedford, 30 Hun, 551), and if he is Mt 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 Pdlock, 3 Redf. 100; Matter of Bayer, 54 Hun, 189. But for appeal purposes, the Surrogate, and never the referee rules on requests for purposes of exceptions. Matter of NesteM, 72 Misc. 331. 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, Parker, 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. The reasoning in Kinsila v. Skubert, 160 App. Div. 8, is in point. Exceptions to the report in that case adequately presented the ^ Parker, J., in his dissenting opinion correctly states the intent of this amendment, drawn by the author as counsel to the committee of the Assembly that investigated the Surrogate's Coui't in NeW York county. , . 172 surrogates' courts §§ 171, 172 questions for appellate. review. Nor will the report be sent hack merely because there is a conflict 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 amomits to a finding unsupported by evidence. Matter of Odell, 1 Connoly, 94. A Surrogate may serid a matter back for addir tionalf report where there- thas:- been some aediden;tali omission rendering the report incomplete or unintelligible. Aberconibie, v. Holder, 63 N. Y. 628. § 171. Filing new objections to account before referee. — It is to be noted that where a disputed account is deferred, -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, Bcmghton v. FUrdj 74 N. Y. 476, that the auditor had no judicial powers but was employed simply to said 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- pUeable 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 Matter of Penfield, N'. Y. L. J., Feb. 17, 1912, and cases cited. See, part VIII, Accountings. See Matter of Gearns, 27 Misc. 76, and cases cited; Matter of Frank, 1 App. JDiv- 39. The case of Eldred v. Eames, 115 N. Y. 405, was a case of reference of dis- puted claim under the Revised Statutes^ and is not, I think, authoritative. It is obvious that if the accoimt itself is amended before the referee, the objectant' cannot be deprived of his right to object to any different item. So if a claimant makes a proper case, he may be allowed to amend, even by claiming a larger amoimt. Lounsbury v. Sherwood, 53 App. Hiv. SIS. . § 172. 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 § 2752 of the Code, which is as follows: § 2762. Fees of . . . referee . . . and witness. A referee, juror, or witness, is entitled to the same fees, for his services and for traveling, as is allo\ved for like services in the supreme, court. 2 R. S. 69, § 19, former §§ 2565, 2566, pf this jpode. 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- § 173 HEARINGS AND TRIALS 173 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! wi1«h the statute, "ai or before the commencement of the trial." Griggs V. Bay, 135 N. Y. 469; PhiUnn v. Patrick, 22 How. Pr. 1. A stipulation 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, 6 Misc. 171. The referee is entitled to charge for every day occupied in the hearings, and also for the time spent in the ipvestigation and consideration of the case after its submission. Berg v. Rottek, Daily Register, Dec. 28, 1899. This of course means a reasonable time and must be determined 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 certificate or 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 incorporated in the decree and the executor directed to pay the referee a specffic sum, an appellate court will not disturb the Surrogate's allow- ance; for no question as to its propriety is in such case presented. Han- cock V. Meeker, 95 N. Y. 528; Kearney v. McKeon, 85 N. Y. 136; Brawn V. Windmuller, 4 J. & S. 75; ShuUz 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 stipulation be made upon the referee's minutes that the referee shall be paid such simi 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 GiUman^ 12 Civ. Proc. R. 179. In New York county, under Rule XX, 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 affidavits or de- tailed 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 element of his charge particularly if the parties stipulate to pay "for each and every hour." The new rule permits the affidavit of another than the referee. § 173. 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. Munro, 47 N. Y. 360; O'Bnen v. Jackson, 167 N. Y. 31; 174 surrogates' courts § 174 Shaffer v. Baeon, 35 App. Div. 248. The right to fees may be lost if report be withheld over sixty days. Bottome v. Neeley, 124 App. Div. 600, aff'd 194 N. Y. 575. The Surrogate has no power to (1) compel the referee to file his report in advance of his being paid, nor (2) to compel any party to pay the referee before his report is filed. Matter of Kraus, 4 Dem. 217. If a, party pay the fee and take up the report, the payment is taxed as costs in the decree, which may direct reimbursement of such party from the estate or by the party charged with costs. Matter of Hurd, 6 Misc. 171. § 174. How to collect referee's fees. — Before the Code it was held ttiat an auditor could not withhold his report imtil 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 tennination of the reference in case he fails to file or dehver 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. See Hierman v. Hapgood, 1 Den. 188; 0' 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 include his and the stenographer's he may become personally liable to the stenog- rapher himself, since he has destroyed his right against the parties. Ibid. Where within the sixty days, a referee, having completed his report, gave written notice to the attorney for the prevailing party that his report was ready for dehvery upon payment of his fees, but it was not filed or dehvered until after the sixty days,, and after a notice of termination had been served, the tender of the report was held not to be a deUvery within the intent of the Code. Little v. Lynch, 99 N. Y. 112. There is a pecu- harity regarding references in the Surrogates' Courts, due to the fact above noted, 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. Geibv. Topping, 83 N. Y. AQ; Perkins v. Taylor, 19 Abb. Pr. 146; Matter of Kravs, 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 proceeding, for the payment of thos& fees by such of the parties hereto as may be found justly chargeable therefor. And if any one of the parties shail pay the referee, and it shall, at the termination of the proceeding, appear that § 175 HEARINGS AND TRIALS 175 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 pajonent 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 report. 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 a,nalogy, that where a reference in a Surrogate's Court is necessary, as for example, 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 deUvery of the report the payment of his fees, and the court will sus- tain the attorney of the successful party in pajdng the same in order to secure the report;. and lays down the rule, that the attorney in the event 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 J., October 24, 1890. The Surrogate's Rules in the county of New. York, provide explicitly that, where a party to a decree shall deem himself entitled to tax dis- bursements for referees' and stenographers' fees, such disbursements 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 madp the basis of a claim for an allowa'nce. If the case is not one where the Surrogate may properly direct the ref- eree'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 com- mon-law action to recover them. Ldttle v. Lynch, 99 N. Y. 112, 114. § 175'. Compelling parties to proceed. — It may be, however, that the party accountiijg refuses to proceed. The practice iii that case is thus defined, in Matter of Kenny, N. Y. Law J., Oct. 24, 1890; Ransom, Surr., decided that "the report of the referee to the effect that the accounting party neglects and refuses to proceed is the proper method of informing 176 ( surrogates' courts §§ 176-, 177 the Surrogate of the cause of delay; but such report is not effectual as the basis of the referee's motion to tax his fees. Proper practice by the referee in such cases is to issue his subpoena and cause the same to be served on the accounting party, and, if necessary, a subpoena duces tecum, and to enforce obedience by commitment for coptempt: Thus the vouchers would be produced for examination, and the accounting party for personal examination; whereupon the referee should report the facts and the pro- ceedings with dates required by settled practice, for the taxation of his fees. On such report, a decree would be proper settling the accounts and fixing all costs, payment of which could be enforced. This proceeding is referred back to the same referee, who will proceed accordingly." II. TRIAL BY JURY § 176. Issues triable by jury. — The most satisfactory work of the Revisers of Chapter XVIII is in systematizing the jury trial provisions and extending the court's power to conducting such trials without awarding a feigned issue to be tried in the supreme court, as under 2 R. S. 102, § 11. Also in repealing § 2653a, the action to determine validity of probate, the existence of the remedy under which tended to make contested probates mere fishing excursions. The parties would feel out each other's strength in the Surrogate's Court, and even if probate were decreed there would still be a period, of uncertainty in anticipation of the supreme court action. By giving a right to jury trial in the Surrogate's Court in probate cases (and other proceedings) the conclusiveness of that court's decrees is made completer, and the approximation of its jurisdiction to that 'of the supreme court ^ade nearer. The writer has since the first edition of his work seen one suggestion after another of reform of procedure, particularly in the direction of ample powers and increased efficiency, gain support and come into operation. The great desideratum remains: that the court become the probate divi- sion of the supreme court, or that its Surrogates become probate division judges, with the full panoply of powers effectual to really carry out the purposes set forth in the first paragraph of § 2510, and to dispose, in any one proceeding, for ever, of every issue, between any of the parties, by one decree. § 177. Same. — Formerly the Surrogates could order a trial of specific issues by jury in two cases alone. The one, under former § 2547, 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 might be so dealt with by any Surrogate in the State. But issues of fact arising in a probate proceeding could only be transferred by either of the Surrogates of the county of New York. In the first case, that is, of a proceeding for the disposition of a decedent's real property, the proceeding itself was not transferred to the supreme court but the Surrogate's order specified the controverted question or questions of fact, which in his discretion he determined should be tried by a jury §§ 178, 179 HEARING AND TRIALS 177 and only those issues (which must be plainly and distinctly stated) were to be so tried. But the Code, in the second case, that is, a special proceed- ing for the probate of a iwill pending in the county of New York, provided that it be transferred as a proceeding to the supijpme court and thereupon the issues of fact arising in such proceeding "shall be heard and deter- mined by the supreme court." Then in 1910, § 2472a enlarged the power, by providing that, where a party had a .constitutional right thereto, and seasonably demanded the same, a trial by jury must be ordered of the "controverted question of fact" in the proceedings therein dealt with, to-wit: judicial accounting, and proceeding for the payment of a legacy. See Matter of Clyne, 72 Misc. 593 (entertaining commentary on legisla- tive amendment); §178. Same. (Sec § 258 below.)— The act of 1914 now extends the relief by new § 2538. The itaUcs indicate the points of emphasis. § 2538. [Am'd, 1915. \ Trial hy jury. In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the proliate of a will in which any controverted question of fact arises, the surrogate, must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same, andira any pro- ceeding in iohich'any controverted question of fact arises, of which any party has, or has not, constitutional right of trial by jury, the surrogate may, in his discretion', make such order without such demand. The surrogate in such order must direct that such trial be had either before hirnself and a jury, or at a trial term of the supreme court to be held within the county, or in the county court of the county. Either of the surrogates oi' {hs county of New York, may, in his discretion, malce an order trans- ferring to the supreme court any special proceeding for the probate of a will pending in said county. If the trial shall not take place in the surrogate's court the order must state distinctly and plainly each question of fact to be tried, arid shall be the only authority necessary for the trial of such question. The verdict, if not set aside by the judge before whom the question is tried, sha.ll be certified to the surro- gate's court by the clerk of the court in which the trial took place, and shall be conclusive except upon appeal. Former § 2547 of this Code modified. Prom 2 R. S. 102' (Part 2, c. 6, tit. 4), § 11; L. 1847, c. 280, § 45; L. 1886, c. 119; L. 1895, c. 946; L. 1910, c. 576. Am'd by L. 1915, c. 275 (in effect April 13, 1915). § 179. Waiving the right. — Before discussing the section just quoted, it is to be noted that the right may be waived,' and in any event is to be seasonably demanded. § 2537. Right to trial hy jury preserved, how waived. Whenever in any proceeding in the surrogate's court, the order or decree of the court wiU determine any issue or fact as to which any party has a right of trial by jury in any court, such trial shall be deemed to be waived, unless such party, per- sonally, or through his attorney, guardian, committee, or special guardian appears and seasonably demands the same, in which case such trial shall be had according to the practice of such court. And whenever such trial "te demanded, the same may be waived in any of the modes prescribed with respect to the triaL of an action in section 1009 of this act. New. Section 1009 provides four modes of waiver. 178 surrogates' courts § 180 .1. By failing to appear at the trial. Giberton v. Fldsehel, 5 Duer, 652. 2. By filing a written waiver. 3. By oral consent in open court, to be entered on the minutes. 4.. By moving the trial ^thout.a jury, or failing to assert his right before the production of any evidence at the trial. See Barker v. Barker, 166 App. Div. 863; Kmney v. Apgar, 93 N. Y. 539. Section 2537 adds another mode, negative to be sure, but effectual. It is by the words "unless . . . appears and seasonably. demands the same." It would have been easy to add, in this general context, the words, "in his answer or objections." This would have been too definite and certain for a revision. In probate cases such explicit mode of seasonable demand is prescribed by § 2617: "if a jury trial of any issue is desired the same shall be demanded vn'the objections." A failure to do so was held to constitute a waiver in Matter of Holme, 167 App. Div. 237 (April, 1915). This case held, further, that it could not be avoided by moving to amend the objec- tions so as to insert such a demand. See opinion of Clarke, J. Of course the demand should specify the issue so that the court may decide whether the constitutional right in fact exists. See McKeon v. See, 51 N. Y. 300. § 180. The jury trial. — Section 2538 is to be studied in context with the next section: § 2639. Trial by jury; power of surrogate; motion to set aside, veirdiet and for new trial. The surrogate has jurisdiction to conduct a trial by jury in any case in which he is permitted or required by this act to order such trial, and in any case where he shall conduct such trial the same shall be had- before the surrogate and a. jury, and the trial shall proceed in the same manner as if such trial were had in the su- preme court at a trial term thereof held in and for the county of such surrogate. The provisions of this act relating to trial by the court and a jury, or to a motion for new trial, shall apply to surrogates' courts and to the proceedings therein so far as they can be applied to the substance and subject-matter of such proceedings without regard to form, but the surrogate shall have no power to set aside a verdict or to grant a motion for a new trial in any proceeding in which the trial took place in a court other than the surrogate's court. New. To clarify the matter, we noted first the two cases formerly limiting the Surrogate's right. Then we noted the abortive operation, in 1910, of § 2472a, which was emasculated by judicial interpretation. Now, by the act of 1914, the intent is reasonably clear. We assume, in discussing the mandatory provisions: 1. A controverted question of fact; 2. In any proceeding; 3. The assertion qf the constitutional right to its trial by jury; 4. Seasonfibly; 5. That the right exists. There are three forums then available: 1. The Surrogate's Court, § 180 HEARINGS AND TRIALS 179 2. The supreme court, to be held within the county. 3. The county court of the county. This language emphasizes the "county" jurisdiction. Query? Would a change of venue be ordered, in the supreme court or the county court, if the usual occasions therefor were made to appear? We note next that the Surrogate under § 2538 has discretionary power, regardless of the existence of a constitutional right. to order a jury trial "in any proceeding in which any controverted question of fact arises" . . . "without such demand." It is asserted that these sections are not intended to give the Surrogate power to determine any issue dehors the general or special jurisdiction of his court under § 2S10. But it does complete the powers of his court, as to the modes of trial, assimilating them to those of " any court of record." Matter of Barlow, not yet reported, Ketcham, Surr., March 31, 1916. The provisions of course are inapplicable to matters pending prior to the date the act took effect. Matter of lovinella, 166 App. Div. 460. Sec- tion 2771, C. C. P. See also Matter. of Spooner, 87 Misc. 170. In such proceedings so pending, e. g., where the party had a right of action under § 2653a that section is kept alive for his benefit while repealed pro futuro. Ibid. Rule 7 relating to jury trials of probate cases in the county of New York provides that: "Within five days after a jury trial is demanded in the objections filed to the probate of a will, the party making the de- mand shall present on two days' notice of settlement to the attorneys of all parties who have appeared as attorney a proposed order directing such trial by jury. Such order shall state plainly and concisely the controverted questions of fact to be tried by jury. If a party demanding a trial by jury fails to serve and present a proposed order, as aforesaid, such order may thereafter be presented by any party to the proceeding." In a vefy recent case. Matter of Dorsey, N. Y. L. J., March 6, 1916, Fowler, Surr., reviewed, as to probate- proceedings, the practice where juries are demanded. We extract parts of the instructive opinion : " Fowler, Surr. The trial of the controverted questions of fact (put to the jury by an interlocutory- order dated November 1, 1915, based on the contestant's objections demanding a trial by jury of such controverted issues) came on for hearing before me and a jury, duly impaneled and selected for the purpose, at this trial term of this court. At the close of the evidence I direbted a verdict on all the questions so put to the jury, substantially in favor of the will. I then directed meo motu the proponent to move, pursuant to § 1233, C. C. P., for judgment at a late day in the term on the answers of the jury (duly subscribed by the foreman and the jurors), and at the same time I directed the contestant to move for a new trial at a day deferred on the minutes, pursuant to § 998, C. C. P. " I believe this is the proper practice, and that § 1233, C. C. P., should be held to apply to verdicts rendered by a jury on the controverted issues of fact put to them in this court, although, as I pointed out in Matter of 180 surrogates' courts , § 180 Plate, 156 N. Y. Supp. 999, the answers of a jury to questions are not a special verdict, and not a general verdict. But they more nearly resemble a special verdict, as defined by the Code, than a general verdict. The Code, to which we are referred in gross for guidance by the New Surrogates' Law, seems to contemplate only two generic kinds of verdict, and in this respect it is faulty. " It is necessary that the practice^ on trials with the aid of juries in the courts of the Surrogates for this county, should be speedily settled upon a rational basis. In my judgment, both of the sections of the Code indicated apply to trials with juries in this court for reasons I shall hereafter state at length. One other section also applies to such proceedings: Section 1185, C. C. P., when the trial of an issue by a jury presents only questions of law, the judge may direct the jury to render a verdict subject to the opinion of- the court. In that event the motion for judgment may be made by either party and must be made at a term of the appellate division of the supreme court, § 1234, C. C. P. . - . " The practice of moving for judgment in this court at a deferred day is consistent with the old practice in this county and in all courts of this character, as it gives ample time for that fuller, deliberate and requisite consideration on the part of the Surrogate, who remains the exclusive judge of probate under the new law, and who must be satisfied in his conscience, pursuant to § 2614, Code of Civil Procedure, before the law allows him to enter a decree of pltobate based on any verdict. . . . " The cross-motion for a new trial on the minutes, at a deferred day, is also essential, in my judgment, to the due administration of justice in this court under the new procedure. The record can then bedeliberately in- spected and considered. ' There is no other case tried with a jury which requires more readiness, technical skill and ability on the part of the trial judge than cases tried with a jury on the validity of wills. The truth of this will be perceived if we reflect that the common law of evijlence has been made mainly in two classes of jury cases; crimes and ejectments in^ volving the validity of wills. ... " The new manner of probate, allowed by the new Surrogates' Law, is a complete bouleversement of all prior principles of probate law and of the common law as well. A formei: probate proceeding was an inquisition, committed to the Surrogate as a probate judge, and his inquiry concerned that res incerta, a testameiitary script only alleged to be a will. To such an inquisition only a negation can be interposed. But on the inquisition of probate, by custom, certain affirmative pleas were of late years permitted to 'be interposed in probate courts. These were very few. On these per- mitted pleas there was a trial allowed, but the trial was conducted, as all the better authorities of this State show, according to the course of the civil law, formerly in theory dominant in courts of probate as in chancery. The new proceeding with a jury in this court is not a trial at law. A trial at law always concerns a res certa, or thing or right in esse. It never con- cerns a thing in posse only. There is no instance at common law of a trial § 180a HEARINGS AND TRIALS 181 over a res or right not in esse. A will is not in esse until probate. Before that it is only a script, or piece of paper, a thing in posse. : To regard the inquisition with a jury in this court as a trial at law is an absurdity and crass ignorance and contrary to all principles which underlie common- law procedure. Consequently the function of a jury in this court, in so far as the debatable res or unauthenticated script on paper is concerned, remains a,n inquisition in our system of jurisprudence and not a trial at law. In so far as the pleas are concerned, commonly called affirmative objections, viz., fraud, duress and undue influence, the issues are of fact and the trial of such issues, apart from factum, is possible according to the course of the common law which still regulates in this State all issues sjib- mitted to juries. But to extricate from confusion the two sets of conflict- ing principle^ applicable to the new compound proceeding, and to apply w;ith correctness the conflicting rules of evidence related to separate and opposed principles of law as a labor of magnitude. It was for this reason that I directed a motion for judgment on the findings to be made at a day deferred, so that I might inspect the record with proper circum- spection. . . . " The paotions for judgment and a new trial having come on to be heard after mature and deliberate examination of the record of the trial in this matter, I am convinced that there was no serious error and that it was my duty and judicial obligation to direct a verdict in favor of the will. Had I left the matter to the jury and had they found against the will, the verdict must have been set aside as against the weight, of evidence. Herring y. HoppQck, ,15 N. Y. 409; Storey v. Brennan, 15 N. Y. 524; Cogger v. Lansing, 64 N. Y. 417; Moore v. Bristol, 2 Week. Dig. 293; Birdsall v. Patterson, 51 N. Y. 43, 47, 48; Browne v. Murdoch, 12 Ahh, N. C. 360; Dobiev. Arm- strc(ng, 160 N. Y. 584; Hagan v. Sone, 174 ]^. Y., at p. 320. The mo- tion for a new trial must therefore be denied and. the motion for decree of probate on the findings of the jury granted- Settle~decree on two days' no- tice, in conformity with this direction, providing that the wiU propoimded for probate is the last will and testament of the testatrix, and, as such en- titled to probate,". In Matter of Plate, 93 Misc.. 423, Fowler, Surr., covers the practice, pre- liminary to a jury trial, on an order framing issue, in a contested probate proceeding. See opinion, pp. 427 et seq. § 180a. The motion to set aside a verdict. — The decisions that must be considered in this connection are: Matter ofDorsey, 157 N. Y. Supp. 662; Matter of Plate, 156 N. Y. Supp.«99; Matter of Eno, 157 N. Y. Supp. 553; Matter of Vetter, N. Y. Law Journal, April 11, 1916, which are decisions by Mr. Surrogate Fowler, and,which proceed on the theory that where the I jury trial is had in the Surrogate's Court the Surrogate is still the judge of I probate, and that it is the right of any party to ask for a direction of a verdict by the Surrogate when. the propf is altogether unilateral, but that even where the case goes to the jury, the answers of the jury to the ques- tions propounded to them are not made conclusive on the Surrogate, that 182 surrogates' courts § ISOa is, by § 2614 of the Code, the Surrogate cannot admit any will to probate until he himself is satisfied of the genuineness of the will and the validity of its execution, and that this being the great and cardinal fact in the law, in so far as it relates to probate, it "cannot be brushed aside by implication nor minimized by the violation of all the principles of interpretation of acts of the legislature." The learned Surrogate concedes that if the trial is had ia the supreme court then and in that case, the verdict of the jury being certified to him, he cannot deal with it; if it has not been set aside by the trial judge in the supreme court, he must enter the decree accordingly. The other decision is one of March 31, 1916, by Ketcham, Surrogate, in Matter of Barlow, in which, with characteristic phraseology he pays his respects to his fellow Surrogate and to his opinions "As the fruitage of an incomparable erudition and as the adjudication' of a court, dignified in its station and its person." But he undertakes to hold that the decisions in the abov^ cited cases were not dependent upon the truth or untruth of the observations as to the meaning of the law, and he undertakes to hold that "Since the verdict in the supreme court, if not set aside by the judge before whom the question is tried, shall be certified to the Surrogate . . . and shall be conclusive except upon appeal" and since § 253C provides with regard to the trial before the Surrogate and his jury that "the trial shall proceed in the same manner as if such trial were had in the supreme court . . . the provisions of this act relating to trial by the court and a jury, or to a motion for new trial, shall apply to Surrogates' Courts and to the proceedings therein so far as they can be appHed to the substance and subject-matter of such proceedings without regard to form. . . ." Then he proceeds to argue that the whole legislation in this respect in the act of 1914 must be so interpreted as to provide "A complete assm-ance to liti- gants in such cases of an adequate and serviceable chance to possess and enjoy all that is traditionally inherent in the right of trial TSy jury." He emphasizes this by reference to the provisions of § 2550 giving conclusive- ness to the decree of the Surrogate's Court that shall be entered after the verdict is received. Since, therefore, he argues, a decree in probate "is intended to exclude all further litigation in another court of the questions laid by such decree, it results that unless the procedure in this court, which the new act brings into being, affords a fully matched equivalent for the right which has long been enjoyed and which the ntew act abates, the scheme of legislation must be offensive to human rights and must come to ruin." The point before Mr. Surrogate Ketcham was -that if he set aside a verdict of the jury before him there would have to be a new trial; in fact the motion was that the verdict be set aside and that a new trial be granted, and it was held that a motion for a new trial has no reason for. its being except in the theory that the finding of the jury, if not set aside, was the sole adjudication upon which probate must be granted or denied. On the other hand, that if the motion to set aside the verdict was an ap- peal to the court on the theory of Surrogate Fowler that the court itself § 180a HEARINGS AND TRIALS 183 must then determine the issues as to factum and thereupon enter its decree, it was an attempt to avoid a new trial and to secure a decree conclusive of the facts on probate; and by an analysis of the structure of the Code provisions as to trials by jury he comes to the conclusion that no motion against the verdict shall prevail unless it involve the granting of a new trial by jury; that the only kind of jury trial in the Surrogate's Court which is contemplated in the language of § 2538 and § 2539 and in § 970 which is made apphcable, provides that the finding of the jury is conclusive in the action unless the verdict is set aside, or a new trial is granted. In Mat- ter of Plate, supra, Surrogate Fowler put his determination on his refusal -to abdicate his "most responsible functions as the judge of probate." In the Barlow case Surrogate Ketcham assumed that the provisions for jury trial in the new act were merely an acceleration in the order of procedure to the ultimate jury trial that might be had under the former practice upon reversal of the Surrogate in the appellate division, and that whatever the verdict of the jury, or the views or convictions of the Surrogate after such jury trial, he was bound by the verdict and had to decree accordingly. In this particular Surrogate Ketcham analyzing the "judicial satisfaction of mind " of a Surrogate after a probate trial, describes it as "The command of the law addressed to the loyalty and humility of its minister." It cannot mean that when the law has become satisfied the voice of .the law may refuse its service, "but that if all the matters which make for probate appear he has no discretion but is required to admit the will to probate." Matter of David, 182 N. Y. 468, 475. He concluded that the jury verdict was con^ elusive upon him; that he had the power to set aside, if well-recognized grounds for so doing were shown, but that there could be no interference with the verdict unless it were accompanied by an order for a new trial by jury, and that above all, if the verdict shall not be set aside there is no power in the court to proceed to decree in defiance of the finding of the jury. In other words, that appeal was the only method of reviewing the action of the jury and under the powers of the appellate court it could deal with that verdict as it could deal with the determination of the Surrogate himself, which is given the effect of a "general verdict" by the Code. Another fact in connection with the Barlow case, not appearing in the reported opinion, is that it is the rule in Kings county to require that issues be framed, but that the issues are framed in the language of the statute, and that the practitioner may not submit subsidiary or special issues, although he may limit himself to proof on such special or limited issues under the generic questions "Was the will duly executed?" or "Did the testatrix have testamentary capacity?" or "Was the execution of the will procured by undue influence practiced by ? " It is fair to quote additionally from the persuasive reasoning of Fowler, Surr., in Matter of Vetter, supra, "The pleadings in Surrogates' Courts by the Surrogates' Law seem to be merged in the questions directed to be sub- mitted to the jury. Matter of Plate, 156 N. Y. Supp. 999; General Rules of Practice, 31; Rule VII, Surrogates' Court, N. Y. County; Matter of Eno, 184 surrogates' cqurts § 180 157 N. Y. Supp. 553, and they do not figure on the trial of the contested probate proceeding before a jury. Contested probates carried on under the new Surrogates' Law of 1914, with the aid of a jury, thus offer a sin- gula,r anomaly to the course of the common law. The written pleadings in this court have no part in the trial. The issues framed for submission to th,e, jury are directed ito be in the shape, of questions to be answered by the jury. The questions are, by the new law, made a substitute for pleadings. ~ (There is now no statute regulating the procedure or burden of proof in contested probates before juries as was formerly the case under § 2653a (old Code of 1913). . The course of such a trial must therefore rest largely in the discretion of the trial Surrogate presiding at the trial term of this court in this coxmty, where jury tria.ls are most frequently demanded. By reason of the omission in the new Surrogates' Law I have felt it incum^ bent on me tg regulate the order of proof and the general procedure, on the trial in contested probate proceedings with juries. I require the proponent of the wUl, after a brief oppning on the part of counsel, pursuant to General Rule 29, to proceed to prove the requirements exacted by the Statute of Wills for testamentary, dispositions of property, and I hmit strictly the cross-exaipination of the attesting withesses to matter brought out on the direct examination. When the requirements of the Statutei of Wills are proven thp proponent ordinarily rests. If the will is not proved by propo- nent prima fade the trial necessarily comes to an end. If the will is proved ^rima facie, then the contestant takes up the burden of proceeding farther. Contest8,nt has first , an opportunity to disprove factum if he can, and next to establigh by proof the substance of his affirmative pleas,, or rather the-affirmative of the questions put at contestant's particular request to the' jury, for, as I said, there are no pleadings in this court in jury trials in . probate proceedings. When the contestant has rested the proponent then I offers his adminicular proofs, or his proofs in rebuttal, as the case may I require. The burden of proof and the summing up I regulate as best I can according to the real right to the stfiirmative positions on the questions to be submitted to the jury. In this way some sort of order and method of trial is preserved. If there is any binding authority or precedent for this course , indicated I have not found it, but it seems nevertheless; to- conform in sqn^e- nieasure with, the course of the common law, which, I take it, is a, necessary adjunct to trials with juries held seven in this court. Any other course than that indicated produces very bad results and may prove mqst imjust to. the testamentary power in general. ,A haphazard and; unregulated trial in a contested probate proceeding before a jury is full of danger to dispositions of property by last will and testament and should not be allowed. Where there is no dispute or disproof of the due f execution of the will propounded, the questions framed for the jury in- volving executiion should never fee submitted to the jury without an un- equivocal direction by tte Surrogate to answer them in the affirmative. If there, is no issue of fact on execution of the testamentary paper, to sub- mit to the jury such questions because there is another distinct, issue fop, § 181 HEARINGS AND TRIALS 185 them would be both illegal and confusing, and unnecessarily jeopardize the will propounded. I know of no judicial action more in conflict with , common-law principles than to submit to a jury some matter of which there is no disproof, or which is not really contested. Such an outrage upon legal order would call for summary vindication upon the part of some competent authority in any State based on law and order. If there is an affirmative issue of imdue influence, for example, and no issue of last will and testament, the ipsue of undue influence should alone be left to the jury. Any other course' is plain error under the established law not only of this State, but of all other common-law States. It is the right of any party to a contested probate proceeding to ask for a direction of verdict by the Surrogate when the proof is altogether unilateral, and it would be fatal error on the part of the Surrogate to refuse the direction. The answers of the jury to the questions propoimded to them in contested probate proceedings are not made conclusive on the Surrogate when the trial is in this court, as I showed in Master of Eno, 157 N. Y. Supp. 553, and Matter of Plate, 156 N. Y. Supp. 999. The Surrogate is still by the statute made solely responsible for the decree of probate (§ 2614, C. C. P.). The new Surrogates' Law expressly reserves to the Surrogate the duties and obligations of a probate judge. By the clear mandatory terms of the act he cannot admit any will to probate "until he himself is satisfied of the genuineness of the will and the validity of its execution" (§2614, C. C. P.). This is the great and cardinal section of the new law in so far as it relates to probate proceedings in this court. Section 2614, C. C. P., cannot be brushed aside by implication, nor can it be minimized without a violation of all the principles of interpretation of acts of the Legislature. The sections relating to the submission of issues to the jury are to be read in connection with § 2614. All sections of an act are to be read together and harmonized, if possible. None of them cari be construed disjunctively, abstracted from all the residue of the context of the act as if enacted separ- ately. Every legislative act must be read as a whole, and all parts given effect if possible. Allen v. Stevens, 161 N. Y. 122, 145; Clary v. Fitzgerald, 155 App. Div. 659, 664. There is nothing in the Code which makes a jury trial in a Surrogate's Court conclusive on the Surrogate in a probate proceeding unless the trial is had in the supreme court. Section 970, C. C. P., refers only to actions and not to special proceedings, which a contested probate proceeding is. It cannot be incorporated by relation in the Surrogate's Law, because it is inconsistent with § 2614, C. C. P., which is jurisdictional and mandatory in all contested probates in this court.- Matter of Plate, 156 N. Y. Supp. 999; Matter of Dorsey, 157 N. Y. Supp. 662; Matter of Eno, 157 N. Y. Supp. 553. In this matter there was no error on the trial, and the motion for judgitient on the findings of the jury must therefore be granted and the motion for a new trial denied. The decree will provide for the probate of the will as a will of real and personal property." § 181. Practical details re juries. — For general information we insert 186 surrogates' courts § 181 in connection with § 2540, the detail forms adopted by the Surrogates of New York county. The Code provides: § 2640. Jury in surrogate's court; how obtained; fees of jwwrs and officers. The surrogate may at any time order the drawing of a jury for service in surro- gate's court, upon reasonable notice to the parties who have appeared, stating the day, hour and place of such drawing. For the purpose of procuring the drawing and; attendance of a jury, the surrogate shall have' all the powers of a justice of the supreme court specified in sections 527 and 528 of the Judiciary Law and in sections 1171 and 1172 of the Code of Civil Procedure; and the clerk of the county of the surrogate shall, upon receiving the order of the surrogate, perform such duties in relation thereto as he is required to perform under a like order of a justice of the supreme court as specified in such sections. Such jury shall be. drawn in the presence of the surrogate, either in his office or in the office of the county clerk, and the minutes thereof shall be made in triplicate, and be signed by the surrogate and the county clerk, and one copy thereof filed in the office of the surrogate, one copy filed in the office of the county clerk, and one copy delivered to the sheriff of the county. The names of the jurors so drawn shall be returned to the jury box by the coimty clerk, but if any such juror is again drawn for service in any court, the fact that he served* as, a juror in surrogate's court shall, upon his request, be a sufficient excuse for not being required to again serve. In counties where by special act an officer other than the county clerk is desig- nated to draw juries and perform corresponding acts, such officer shall cause the necessary jurors to be summoned and drawn as though a justice of the supreme court had made such order. The provisions of law applicable to the summoning of jurors,, the return of the sheriff, the fees of the sheriff and jurors and their payment, in supreme court, shall apply where jurors are drawn and simamoned for service in surrogate's court; and where the county clerk is not a salaried officer, he shall be entitled for his services to such compensation as shall be audited by the board or body, entitled to fix his compensation. The number of days' service of each juror in surrogate's court shall be certified to the county clerk by the clerk of the surrogate's court. New. While the new act imposes extra duty and work on the Surrogate it seems he is not entitled to extra compensation therefor, even under § 76 of the Judiciary Law. People ex rel. Noble v. Mitchell, 170 App. Div. 379. I. order for extra panel of jurors Trial Term Caption Ordered, That the Clerk of the County of New York draw an extra panel of jurors, at o'clock, day of 191 , to be summoned, to attend this Part of the Trial Term, at the Court Room, in the Hall of Records, on the day of instant, at o'clock, A. M. Extract from the minutes. Clerk. §181 HEARINGS AND TRIALS 187 ir. NOTICE TO JURORS SURROGATE'S COURT— TRIAL TERM Part COUNTY OF NEW YORK New York, 191 Mr. Sib: You are hereby notified to attend Part of the Surrogate's Court — Trial Term, of the County of New York,, in the Hall of Records, to-morrow ( ) morning, at 10 o'clock precisely, to perform duty as a juror, pursuant to notice hereto- fore served on you. A failure to, attend will make you liable to attachnient for contempt of Court. By order of the Court, nr. JURY SLIPS SURROGATE'S COURT— CHAMBERS Name Occupation Residence' IV. JURY LIST SURROGATE'S COURT— TRIAL TERM Names of Jtjboks M. W. T. F. M. W. F. Present, agamst SEALED VERDICT At a Trial Term of the Surrogate's Court of the County of New York, held in anid for the County of New York, at the Hall of Records in said County, on the day of 191 Surrogate. Sealed Verdict. The Jury say that they find a verdict for When the Jury have agreed upon their verdict, they will add the word or and the amount found, if any. Each Juror will sign the verdict, and 188 SURROGATES COURTS §181 the Foreman of the Jury will then seal and take charge of it. All the jurors will be in their seats in the Court Room, on the opening of the Court, to-morrow morning at 10.30 o'clock. An envelope, addressed to the Surrogate, and endorsed with the same instructions, is furnished with this blank form. VI.. JXmOB'S VOUCHER SURROGATE'S COURT NEW YORK COTINTY This is to Certify that the term in Part New York, served as a Juror of this Court. 191 days during Clerk. VII. CERTIFICATE AND RETURN UNDER § 634, JUDICIARY LAW TJiis certificate is fourfold, with adequate ruled pages under each heading. A. First sheet, two pages. SURROGATE'S COURT for the county of new york Clerk's Office, To the Commissioner of Jurors for the County of New York: Pursuant to the provisions of Section 634 of the Judiciary. Law, I hereby return and certify, as follows: Of the Panel of Jurors summoned for -the Monday of to serve at Trial Term, Hon. , Surrogate, presiding, the following-named Jurors appeared and served: PANEL NUMBER NAMES OF JURORS RESIDENCES NUMBER OF DAYS IN ATTENDANCE FOR PURPOSE OF SERVICE NUMBER Of DATS IN ACTUAL SERVICE B. Second sheet, two pages. The following-named Jurors were Excused or Discharged, for the reasons stated: PANEL NUMBER NAMES OF JURORS RESIDENCES REASONS FOR EXCUSE OR DISCHARGE C. Third sheet, first page. 8 182 HEARINGS AND TRIALS 189 The foUqwing-named Jurors were fined, and their fines have not been remitted, as prescribed by Sections 646 and 649 of the Judiciary Law: PANEL NUMBEB NAMES OF JITRORS RESIDENCES AMOUNT OF FINE D. Third sheet, second page: The following-named Jurors were notified to attend, as shown by the return made by the Commissioner of Jurors, but did not appear or serve: * PANEL NUMBER NAMES OP JURORS RESIDENCES E. The whole certificate of return is endorsed. SURROGATE'S COURT FOB THE COUNTY OF NEW YORK TRIAL TERM RETURN Of the Attendance of Jurors and Non- Attendance of Jurors, and the Fines Imposed at the Term, 191 To Commissioner of Jurors. FILED 3,2. ^ 5- w ^ B s. CD S EO O El 2 CD & CD i:ir ■3 B g^ 2 t-l p c t3 k) B. IS a' S i'^s- 03 5- e B p 2 £? m pp. SL§ CD g; ° a O CD CD O P uj tj _ EO fE g. - 5 £+■. a. CD ^ S O £2. o " 2 Under the former practice, 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 fact 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 was 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, § 188 HEARINGS AND TRIALS 195 348, namely, that under former § 2546, where a reference had been ordered, it was 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 com^ plained 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 Surro- gate confirmed the report, he adopted the findings of fact and conclusions of law reported by the referee as his own, and in all respects comphed with the law. The same rule holds we think under the. act' of 1914, and applies equally 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 Barefkld,!!! 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, con- taining no findings of fact. Whereupon the appellate division reversed hina (82 App. Div. 463). But the court of appeals 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 ab- sence of separate findings by the Surrogate, coupled with the reversal of the appellate division not being stated to be on the faets, was to compel the presumption that all facts necessary to sustain the decree had' been duly found. See Matter of Nestell, 72 Misc. 3^1. ' But, under the new act, the Surrogate does not have to make findings and the reasoning thus is pertinent. The purpose of the former act was "to assimilate the practice upon appeals from a Surrogate's decree in the prescribed cases to that which regulated appeals from a judgmmt rendered by the court or a referee, and to substitute a system^ which would point out specific errors, and evolve the exact questions! intended to be reviewed." Angevine V. Jackson, 103 N. Y. 470, 471. In Matter ofiSchroeder, No. 2,' 11? App. Div. 221, it was held that a failure to- request findings constituted a waiver, and the court denied a motion to, recommit the report in order to findings. (But, see opinion of Clarke, J., showing pecuUar facts in the case.) This applies still, we think, if the "right" to request findings is asserted before "the close of the trial." ji , No exception need be made to awards of costs, e. g., to a special guai'dian. Matter of O'Keeffe, 80 App. Div. 513. Nor is an exception necessary for one who intervenes upon the appeal. Matter of Sullivan, 84 App. Div. 51. § 188. Exceptions must be made as prescribed in the Code. — The ap- pellant cannot secure a review of the Surrogate's decision by a mere excep- tion "to the decree and each and every part of it"; such an exception is useless. Angevine v. Jackson, suprw; Ward v.* Craig, 87 N. Y. 550; Hepburn V. 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 this rule is where, as has Occasionally happened, the Surrogate, although expressly, and timely, requested to make findings, refuses tO' do so or tomake a record of ihis refusal. If an exception to such refusal is duly taken it will raise a 196 STJEROGATES' COURTS § 189 question for the appellate court, and the decree will be reversed, Matter of Kaufrmtn, 39 St. Rep. 236, if it appears that this refusal is prejudicial to the appellant. Matter of Hicks, 14 St. Rep. 320. While the language of the Code still makes it the duty of the Surrogate to mafce these findings, the omission to-do so is a, mere irregularity, and will not avail the appellant if, before the close of the trial, he has not procured to be made, or attempted to procure to be madte such findings or refusals alnd had his exceptions duly noted. Matter of Hood, 104 N. Y. 103. . See also In re Hesdra's Estate, 4 Misc. 37; Matter ofO'BriM, 5 Misc. 136, 138. § 189. Procedure defined by the court of appeals. — The opinion of the court of appeals in Btn/rger v. Burger, 111 N. Y. 523, at page 528, is still 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 wiU to probate, brings up for review in the sup!reme court the question of sufficiency, weight, or preponderance of evidence, aixd 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 ques- tion whether it was justified by the facts found. If taken to a finding of facty it presents the question whether there was any evidence to sustain the finding. So, where the Surrogate refuses to make any finding what- ever 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 re- viewed 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 ap- pellant to have a' review,, first in the supreme court, and afterwards in this court, of the strictly legal question which it islthe office of an exception to present. Buti in the supreme court the facts are open for review without any exception. An application to a court for a nSw trial on the facts in no proper sense presents a question of law. It is an appeal to the eon- science of the court, aiid it is asked to consider whether, on the whole facts, a new trial ought not to be hadi 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 fidaeafringiin equity. This is quite clear f ronH [former] 1 2586 (now § 2'!!63) of the Code, which permits the general term>, on appeal from the Surrogate on the factSj to receive further tesibaflony Or documentary evidence and appoint a referee, and declares the appellate cburt has the same power to decide the qolestions of fact which, the SMarogatehadi''; As a matter of 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. MaUer of Wheeler, 28 N. Y. St. Rep. 638. This serves a' § 190 HEAKINGS AND TRIALS 197 double purpose; it enables the exception to his finoiings 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 ha« or haS not wrought injustice. ly. EVIDENC;? — WITNESSES § 190. Miscellaneous special provisions, uncontroverted verified averments. — There being no "contrary intent" expressed or implied, except as to the formalities or special practice about to be specified in the act of 1914, § 2770 makes it clear that trials in Surrogates' Courts proceed so far as evidence is concerned under the general provisions of the Code, and of the General Rules i of Practice, so far as the latter apply, e. g., in respect to affidavits and their efiEect Ln given cases. The first of these special provisions to note is: § 2646. Uncontroverted allegations constitute du^ proof. Except as otherwise provided by law, a petition, affidavit or account filed in a special proceeding Shall be due proof of the f a&tS "therein stated, unless controverted by answer, objection or other prodf. N^w. ' This being a new provision, it would have been helpful for the Revisers to have preserved a note of the cases excepted under the section. ^ For example, it is obvious, upon Teseai'ch, that § 2589 is one of these exceptions. It relates to a petition for letters of administration. This petition is not "due proof of the facts therein stated," for it is provide^: A citation shall not be issued, and a decree shall not be made (where a citation is not necessary), until the petitioner shows to the satisfaction of ihe Surrogate, the existence of all the jurisdictional facts, etc. 1 Probably, imder the wording of § 2596 (temporary administration) the same rule of supplemental testimony obtains. Section 2603 relates to letters c. t. a. It makes § 2588 apply, but not § 2589. Section 2606, ad- ministration de bonis non, follows the practice under § 2589. Probate, of course, is excepted — so far as requiring the testimony of the subscribing witnesses is concerned — and accounting for the absence of aaiy not pro- duced, " to the satisfaction of the Surrogate." Section 2630, ancillary letters, also requires "presentation ... of satis- factory proof." Section 2638, successor to testamentary trustee" appar- ently requires no supplemental proof if no answer or objection is put in. Section 2747, general guardian, requires the Surrogate "to inquire and ascertain " certain facts. Section 2654, ancillary guardian, is a mixed case. The petition is to be accompanied by certain exemplified documents, which taken together are "conclusive evidence of the facts therein set forth." Section 2658, guardian by will or deed, falls under § 2546. So does § 2687, proceedmg to compel payment of dfebt, legacy or distributive share, or dehvery of property, i. e., if no issue is joined. Same as to § 2689, where 198 surrogates' courts § 19J respondent is a trustee. Same as to § 2701, application by executor or administrator to receive realty rents. Same as to § 2720, accounting for proceeds of recovery in negligence action, i. e., brought for benefit of class named in the statute. Under, probate of heirship, §§ 2765 et seq., the Surro- gate "must hear the allegations and proofs of the parties." So much for evidentikl value of undohtroverted verified petition, affi- davit, or account. ' ■ •,■ • § 191. Testimony of witness — When taken. — We repeat that § 2770 provides that except where a contrary intent is expressed in, or plainly implied from the context of, a provision of chap. 18 of the Code, which relates to Surrogates' Courts, the following sections apply to such coUrts and to proceedings therein: §§;870-886,i q. v., relating to depositions taken and to be used within the State; §§ 887-913, g. v., relating to depositions taken without the State for' use within the State. It is added, that they shall apply 'so far as they can be applied to the substance an,d subject-- m£ttte^.o,f|a proceeding, without regard to its form." In this connection, therefore, we now turn to the. subject of taking testimony, before the Surrogate, before another Surrogate by him designated, or before a clerk, and before referees appointed by the Surrogate. And first, the Surrogate is not limited to taking testimony in his very court house. ' §2643. Testirmny of vritness; how taken. ' ;; ; Where it appears to the satisfaction of the surrogate, that the testimony of a , , , ^t,ness (is, material and, necessary,^the surrogate may, in his discretion, proceed to the place where. the witness is, and there, as in open court, take his examination. Such notice of the time and place of taking the examination, as the surrogate . prescribe?,, ,njust ib§ given, by the party, applying therefor. Former §2539 of tl^s Code, modified. From L. 1837, c. 460, § 12; L. 1841, ,c. 129, §§ 1, 2, 3. 'Former § 2639 limited the extra-mural inquiry of the Surrogate to the cases of aged, infirm and sick witnesses. It is said to be now intended that he may so take testimony in ahy case; at any place, and for any reason. But since provision is actually 'made fox securing such testimohy of a wit- ness iin another county, by § 2544, below discussed; and as well for "com- missions'" to take testimony out of court, i. e., under §§ 870-913, supra; to be taken within or without the State, it is patent that § 2543 will only be used by the Surrogate within the county limits. For the Surrogate has no extra-comitial jurisdiction, and it is very doubtful 'whether the travehng expenses of the Surrogate of Erie coimty,for example, would be collectible, Under § 2501, if he proceeded to Jersey City; N. J., to examine a witness. Nevertheless, the language of both §§ 2501 and 2543 is so broad that, in a given case, the Surrogate of Suffolk county took testimony in New York City, for the convenience of parties, witnesses, and counsel, and his ex- penses were duly paid, and taxed in the! decree. But a stipulation in that case that "the hearing be had with the same force and effect as if had in ■the County of Suffolk," was entered into and filed.' Matter of Chadwick, unreported. §§ 192, 193 HEARINGS AND TRIALS 199 I The Revisers' note is authority for this intention, though the reason is not convincing. " This section will now permit the Surrogate to take testimony anywhere in the State in any, case, and will save much expense and trouble where it is much less expensive for a Surrogate to go intp another county, than to send the Surrogate of another county many miles from his office." § 192. Same subject. — It is not likely, however, that the Surrogates will become peripatetic under the new act. They will, properly, refuse to "traipse around" except substantially the same exigencies of need be made to appear, as formerly. , , Therefore, some review of the cases under former § 2539 is recjuisite. When that section was in force it was 'held that, being special, it superseded the general provisions of the Code, §§ 870 et seq.. Estate of McCoskry, 5 Dem, 256. . But now, § 2543 is not mandatory, and, hence, if the Surro- gate refuse to "proceed" there is ample remedy under the general provi- sions. The former section was mandatory in proceedings for probate or revocation of probate. Since the new § 2543 begins "where it appears to the satisfaction of the Surrogate" it is clear an application must be made. In view of the notice to be given " as the surrogate prescribes," the best procedure will be by affidavit and order to show cause. However, it is proper to apply directly to the Surrogate for an order granting the application and merely prescribing the notice. § 193. Precedents suggested. — If the procedure be by order to show cause, the following. precedents can be used. They are easily adaptable to the other method. ,, Surrogate's Court, ' County of Affidavit to procure Title. examination of wit- ness "under § 2643 of State of New York the Code. County of See also Form 13, 1. ' being duly sworn,' says, that he is the at- torney for the proponent or {other party herein or specify the 'pi^ceeding); that is one of the subscribing witnesses (or, is a material and necessary witness in suppprt oi,gr, 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 infirmity {or, sickness), and is unable to attend before the Surrogate, to be examined in this matter. ' '" ' ' '; That the parties who have appeared herein, and their 'several attorneys with their residence or office addresses are as follows: That deponent respectfully asks the Surrogate, in his dis- cretion to proceed to ■ where said witness is, and there, as in open Court take his examination under § 2543 of the Code, and to' that end, apphes for the annexed order (to show cause) prescribing how notice of the time and place of taking the examination must be given, to the parties aforesaid. 200 surrogates' courts § 193a That no previous application has been made for this order. Sworn to before me this 1 day of 19 J (Signature.) A physician's certificate duly verified may also reasonably be required by the Surrogate. Surrogate's Court, County of Order for examina- Title. tion of witness which may be had under On reading and filing the affidavit of verified the § 2643 of the Code. day of from which it appears to the satis- See also Form 13, faction of the Surrogate, that the testimony of of II. No. street, in the city of (specify what counljy;) is material and necessary to prove the due execution of said will (flr specify proceeding and issue). And that the said is aged and infirm (/w sick, or any other good reason), and the Surrogate having good reason to believe that the witness cannot attend before the Surrogate of said county within a reasonable time: Now, on motion of the attorney for the proponent of said will {or the petitioner, ck a party, etc.) It is ordered, that * be examined before me 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. (// the Surrogate insists on order to show cause insert at *), the respondents herein show cause before me on the day of at M. at why should not &c. That day's written notice be given personally (or specify manner of giving notice) to the attorney^ of {adverse and other interested parties) of suoh examination. Or, That service of a copy of this order and of such affidavit on or before o'clock, m. of the day of , on all the parties who have appeared . herein or their respective attorneys, be deemed sufficient notice hereof. That aU proceedings herein stand adjourned tiU the day of 19 at o'clock m. § 193a. Delegating the power to examine. — The next section, 2544, providesior an ex parte examination, before another Surrogate of the State, in a proceeding in which issue has not been joined. § 2644. Id.; by the surrogate of another county. Where; the surrogate has good reason to believe that a subscribing or a material witness who is in another county of the state caimot conveniently attend before him, and no issue is pending therein, he may make an order, directing that the witness be examined before the surrogate of the county in which he is; specifying by an order the nature and manner of the examination. _ A copy of the order must be transmitted by him to the surrogate designated in the order, together with the original iwill, where the> testimony relates to the execution of a written will. The examination may be t^ken by one of the clerks described in section 2502 of this § 193a HEAEINGS AND TRIALS 201 chapter. The examination, after it is reduced to writing and subscribed by the witness or otherwise duly authenticated, together with a statement of the pro- ceedings upon the execution of the order, must be certified by the surrogate or clerk taking the examination, attested by the seal of his court, and returned without delay, with the original will, it any, to the surrogate who directed the examination, who must file the same in his office. A surrogate may appoint a referee to take the testimony, who shall report the same to the surrogate who makes the appointment. An examination so taken has the same effect as if it was taken by commission. Former § 2540 of this Code, modified. From L. 1837, c. 460, §§ 13, 14, 15; L. 1881, c. 535; L. 1911, c. 105; L. 1916, c. 446. The Kevisers' note points out as the purpose of this section the saving of ''large expense to estate, whose witnesses are doctors, nurses and lawyers who have moved away." It assumes to be a revision of former § 2540; but the changes made destroy the interrelation which that section sustained with former § 2539. The following phrases are determinative of the new section's appUca- tion to a given case. "No ISSUE PENDING." The proceeding is uncontested, and no notice is required to be given, unless it be assumed that this § 2544 was intended to begin with " Or^" and so be linked up to § 2543. This is the writer's view. That is: under § 2543, the Surrogate is applied to to examine a witness at "the place where the witness is." This he may do, as we have shown (1) in any proceeding, (2) if the testimony is material and necessary, (3) if he be satisfied that it should be done, (4) on notice to be prescribed by him. Now if the next section began "Or, where the Surrogate, etc.," we would have merely the qualification of "in another county of the State" where the Surrogate of that county, or his clerk (i. e., under § 2503) or his referee appointed ad rem, can act satisfactorily in lieu of the original Surrogate. This would make "no issue pending" intelligible. For where there is an issue pending the other Surrogate, his clerk, or referee would not be effect- ive substitutes, unless the whole record were transmitted for their guid- ance. Where there is an "issue," or "controverted question of fact" the original Surrogate must act under § 2543 or the usual machinery of com- mission be availed of. "SuBSCHiBiNQ OH MATERIAL WITNESS." The former practice of getting testimony in another county, assumed the proceeding to be for probate. If no objections were filed one had to proceed one way. If it was a contested matter then in another. Now, we are to gather that "subscribing or material" extends the opera- tion of this section to all proceedings; of course this could have been done without saying "subscribing" at all. But its use clearly relates to the later language as to transmitting the original will, so that the signatures Itereon may be properly identified. "May appoint a referee." It would have been easy to write, "either Siu-rogate may appoint a referee" or "the Surrogate designated in the order, to be executed may appoint." Either of these statements would have been explicit. The former section 202 surrogates' courts § 194 differentiated the two Surrogates as "latter Surrogate" or "said Surro- gate," so that the rule formerly set out was clear, to-wit: In proceedings other than probate (i. e., the other cases named in said § 2539) the Surrogate is not required to go in person, or to designate another Surrogate; but may, whether the witness be in his county or in that of another Surrogate, appoint a referee to examine the witness and report. See Matter of Gee, 33 N. Y. Supp. 425. But in the new section the referee is to report to "the Surrogate who makes the appointment," indicating that either Surrogate may do it, unless the final words, giving to the latter examination before the referee the effect of a conimission duly issued, executed and returned, limit the case. For of course the Surrogate designated in the order has no poWer to issue a commission. Moreover, the former section read "an examina- tion so taken. has the same effect as if it was taken before the latter Sur- rogate." The writer believes the last two sentences of § 2544, really mean "Or either Surrogate may appoint a referee to take arid report the testi- mony to. him, which testimony shall have the same effect, when used, as though taken by commission in the first instance." § 194. Beneficial interest no disqualification in will case. § 2546. Beguest, etc., does not disqualify, etc., mtness. . A person i^ not disqualified or excused from testifying respecting the execution of a will, by a provision therein, whether it is beneficial to him or otherwise. ' Former § 2544 of this Code. See 2 R. S. 57, 65 (Part 2, c. 6, tit. 1), §§ 6, 50. 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, chap. 6, title 1 of the Revised Statutes. Those sections were, sub- stantially, as follows: Section 6 provided that the creditor being a subscrib- ing witness 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 wit- ness 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 hke 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 ofkin, 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 ihim by the will."' Section 6 of the Revised Statutes was expressly repealed by chap. 245 of the Laws of 1880, and thereby rendered all interested witnesses, save those mentioned in §60, which was expressly excepted from the repeal, § 194 ,„ HEARINGS AND TRIALS 203 incompetent to testify as subscribing witnesses. Former § 2544, now un- changed but renumbered 2545, 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 repealed section, frirf all other possible cases where an interest in the event of a controversy over the pro- bate of a will, might, under the existing statute, 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 disqualification by reason bf interest. The language of the enactment seems to support this view. The evidence authorized to be given by the section 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 substitute for prior statutes that related to subscribing witnesses alone, and there was no reason for includ- ing other persons- in its provisions. The reason for exempting such wit- nesses from the application of the general rule of exclusion, made by § 829, is obvious, as their testimony is made indispensable; if obtainable, to the ' probate of a will. Sections 2611, 2612. Otherwise numerous wills to which legatees and others interested, who had, through ignorance, carelessness' or inadvertence, become attesting witnesses, would fail in their probate,' i 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 this section 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 respecting 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' Bmiuw, 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 i^, the subscribing witnesses. Matter of Eysaman, supra; Estdte 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. See also Burritt v. SilUmanyld N. Y. 93;Schoonmaker v. Wolford, 20 Hun, 166; Levy's Estate^ 1 Tuck. 87. > ' Surrogate Tucker held in 1867; that there could b6 no doubt but that & person named in a will as executor, who is also a subscribing witness, could be examined as a witness on thfe probate. Section 2545 in no 'respect' alters this rule. Rugg v. Rugg, SZ N. Y. 592; McDonough v. LmigUin^ 20 Barb. 238. The section contemplates by the words, "A provision therein . . . beneficial ... or otherwise," a legacy or a bequest. Con- sequently, not only is an appointment as executor not deemed to be a pro- vision 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' 204 subrogates' courts § 195 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 Wilsm, 103 N. Y. 374; Matter of Chase, 41 Hun, 203; Rugg v. Rugg, 83 N. Y. 592; In re Will of Huestis, 23 N. Y. Weekly Dig. 224; Reeve V. Crosby, 3 Redf. 74; McDonough v. Loughlin, supra; Children's Aid So- ciety V. Lovendge, 70 N. Y. 387; Matt^ of Folts, 71 Bwa., 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 testi- mony. Matter of Smith, 95 N. Y. 516, explained by Ruger, Ch. J., in MaMer of Wilson, 103 N. Y. 374, and see Lane v. Lane, 95 N. Y. 494. § 195. When witness can take. — Section 2545 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, or appointment made to either in the will is void under the statute." Mat- ter of WUl 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 dis- quahfied from taking under the will. Comwell v. Wooky, 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 wiU, there is no disqualification imder the statute. Cornwell v. Wooley, supra; Caw v. Robertson, 5 N. Y. 125. See also Matter of Beck, 26 Misc. 179, a£f'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; Cm^nwell 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 them were three subscribing witnesses to a will, and it appeared from the Surrogate's record, that is .to say, the record of the wiU 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 elicifc the material facts ordinarily shown by a subscribing witness, his legacy would not be avoided. Caw V. Bcibertsem, supra. See also ilfaWer of Owen, 48 App. Div. 507. When § 196 HEARINGS AND TRIALS 205 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. § 196. Issuing commissions.— Section 888 of the Code, which pre- scribes the cases in which a commission may issue, is, as we have just noted, made applicable to Surrogates' Courts by § 2770. See In re Plumb, 64 Hun, 317, affirmed in 135 N. Y. 661. They had such power, originally, under chap, 460 of the Laws of 1837, § 77, but it was repealed in 1880 (chap. 245, § 1), and the Code provisions thereafter governed. By amend- ment 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 § 2770. Atten- tion is called to this somewhat confusing method of enactment in the Code which compels the practitioner to search carefully for modifying provi- sions before he dares 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 n ^ Of course a party obtaining a decree is estopped thereby from attacking it. This kind of conclusiveness is irrespective of any Code provision. Chester v. Buffalo Car Mfg. Co., 183 TST. 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, 212 surrogates' courts § 203 the citation of all necessary parties upon such proceeding, and its jurisdic- tional validity. As to parties on whom it is conclusive the new section says "every person of whom jurisdiction was obtained." And the extent is " as to all matters embraced therein." No consent of parties as has been already noted can give validity to the decree if there was not jurisdiction to make it, but his decree upon a question within his jurisdiction is, gener- ally 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 Umited by the statute, a Surro- gate's decree is a decree in rem and, therefore, is conclusive upon the ques- tion covered by it, and no others. See Matter of Peck, 131 App. Div. 81; Matter of O'Reilly, 59 Misc. 136. Thus, where a Surrogate has jurisdiction to pass upon a claim, and decides adversely, his decree bars a subsequent suit upon such claim. Baldmn 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 Ball 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 estate. See opinion in Kirk v. McCann, 117 App. Div. 56 (followed in Sullivan v. McCann, 124 App. Div. 132), discussing binding effect of unre- versed 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 subse- quently accruing income. So Matter of Irwin, 59 Misc. 143. Such a decree used to be also conclusive upon the sureties in the administrg,tion bond; and this regardless of their being cited. See Official Bonds, post. See also Johnston v. Smith, 25 Hun, 171. Such a decree has been held wholly con- clusive against one of the parties interested in the fund, duly cited upon the accounting. Bu^hnell v. Drinker, 5 Redf. 581; Brown y. Wheeler, 53 App. Div. 6, 8, citing (rartocA; v. Vandervort, 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 reopen 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 accoimt de novo, his application may be denied, and costs imposed on him person- ally. Ibid. But this ruling was reversed, 172 N. Y. 547, holding the ap- plicant's right to an accounting was a substantial right, not so to be di- § 204 DECREES AND ORDERS 213 vested 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. The words in new § 2550, "as to all matters embraced therein" must in the light of the cases, and of the only purpose of the revisers be deemed to read, "as to aU matters validly embraced therein" or "properly sub- mitted for determination by the Surrogate and embraced therein." Sec- tion 2550 cannot enlarge the scope of the relief which the court can grant. If the decree exceed jurisdictional limitations it is pro tanto invalid, in- operative, and disobedience of a void direction would not be punishable in contempt, § 204. 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, see § 2730, C. C. P., 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., 6§ App. Div. 449), in the capacity in which he accounts. That is as to matters "necessarily involved therein," Joseph v. Herdg, 198 N. Y. 456, and cases cited. The words quoted are equivalent to "embraced therein." It has been held. Matter of Doheny, 70 App. Div. 370, that where A and B ac- counted as temporary administrators, the decree was inconclusive when later they accounted for the same estate as trustees. But where the Sur- rogate has jurisdiction of the parties and of the subject-matter, his decree is intended to have the same force and effect as the judgment of any other competent court. Garlock v. Vandevort, 128 N. Y. 374; Shimtml v. Morse, 57 App. Div. 434; Mutual Life v. Schwaner, 36 Him, 373, aff'd 101 N. Y. 681; Baldwin v. Smith, 91 Him, 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. 214' ^surrogates' courts §§ 205, 206 206; 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 prop- erty not involved in it. Frethey v. Durant, 24 App. Div. 58. § 205. Same; status. — So if the Surrogate once determines a party's status, his determination stands. Thus on petitioning for letters of adminis- tration it was held A was not "widow" of decedent. Therefore, in a later proceeding, when A bobbed up again, claiming as widow, held res ad- judicata. Matter of McGoughran, 124 App. Div. 312, 315; appeal dis- missed, 192 N. Y. 565. See also Matter of Goldsticker, 192 N. Y. 85; Matter of GvMranty Trust Co., 131 App. Div. 658. • § 206. Special conclusiveness of certain decrees. — Former § 2625 has been repealed. It provided for special conclusiveness of probate decrees. Three sections are now in force of this nature which we rearrange in im- mediate context. , § 2649. Decree or order; when evidence of assets. A decree directing payment by an executor, administrator, guardian or testa- mentary 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 executor 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. A decree charging a deceased executor, administrator, guardian or trustee with assets upon an accounting under section 2726 of this chapter, is not evidence of assets in the hands of such accounting executor, administrator, guardian or trustee. From former §§ 2552, 2606 of this Code. See 2 R. S. 116 (Part 2, c. 6, tit. 5, § 21).. This section is not new, merely adapted. Hence, it is still the fact, that this conclusiveness must stand the test of common sense. That is if the record itself, plus the decree, show there are not "assets in his hands" the section does not apply. So, in such cases, the fact could be shown, and urged, in defending contempt proceedings. Matter of Monell, 28 Misc. 308. So, under the last paragraph, see Matter of Seaman, 63 App. Div. 49. § 2665. Effect and contents of decree revolting letters. Upon the entry of a decree, made as prescribed in this chapter, revoking letters issued by a surrogate's court to an executor, administrator or guardian, his powers cease. The decree may, in the discretion of the surrogate, require him to account for all money and other property received by him; and to pay and dehver over aU money and other property in h^s 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; or it may be made without prejudice to an action or special proceeding for that purpose, then pending, or thereafter to be brought. The revocation does not affect the vahdity of any act, within the powers conferred by law upon the executor, ad- ministrator, or guardian, done by him before the service of the citation, where the other party acted in feood faith; or done after the service of the citktion, and before entry of the decree, where his powers with respect thereto were not suspended by service of the citation, or where the surrogate, in a case prescribed by law, per- mitted him to do. the same, notwithstanding the pendency of the special proceeding against him; and he is not liable for such an act done by him in good faith. Former § 2603 of this Code. From 2 R. S. 62 (Part 2, c. 6, tit. 1), § 38; Id., T7, 79, §§ 40, 46, 47. § 207 DECREES AND ORDERS 215 § 2666. The last section qualified. The last section does not affect the liability of a person to whom money or other property has been paid or deUvered, as husband, wife, next of kin, or legatee, to respond to the person lawfully entitled thereto, where letters are revoked, because a supposed decedent is living; or because a will is discovered, after administration has been granted in a case of supposed intestacy, or revoking a prior will upon which letters were granted. Former § 2604 of this Code. These sections are more pertinently to be discussed in their appropriate context. See Revocation of Letters. Cognate to this rule of special conclusiveness of a specific decree is the rule in § 2560 as to the conclusive evidence, of letters granted by a Surrogate, of the authority of the persons to whom they are granted. § 207. Conclusiveness — Direct and collateral. — A probate decree, for example, under §§ 2620 and 2621, discussed elsewhere, is recorded, and is given conclusiveness thereby. See also § 2623. Section 2550 gives every decree conclusiveness as above stated. Sections 2549, 2555 and 2556 also give a limited conclusiveness. But § 2513 assumes the rule we assert in § 206, and the general rule that the court can make no conclusive decree, unless it secured jurisdiction. For it assumes that the jurisdiction "to make a decree or other determina- tion" may be "drawn in question collaterally," i. e., as contrasted with a review thereof on appeal. The jurisdictional facts are established presumptively, and in the ab- sence of fraud or collusion, conclusively by averment in the duly verified • answer or petition. The jurisdiction of the person, i. e., under § 2511, is " presumptively proved, by a recital to that effect in the decree." So, under the former section (2473) it was held that though the record did not other- wise than by such recital show service of citation, such recital was enough. Sisdo'v. Martin, 61 App. Div. 502. But the word "presumptively" used as to jurisdiction of the parties means that while irregular service may not be used as a basis for collateral attack (see Wetmore v. Parker, 52 N. Y. 450), a total failure to serve or get jurisdiction under § 2511, may be. The doctrine of estoppel by former judgment is, of course, applicable to surrogates' decrees, ex- cept so far as the statute has expressly defined the extent of the evidential effect of such decrees, or has limited the operation thereof to particular persons. It Should be remarked, in the first place, that ^ -decrees which admit wills to prpbate, grant letters testamentary or of administration, direct the sale of real property to pay debts, and, finally, such as judicially settle the accounts of legal representatives, testa- mentary trustees, and guardians, and direct a distribution of the surpliis, are of the nature of judgments in rem as distinguished from those, in per- sonafn. They are judicial declarations of the state and condition of some particular thing or subject-matter, "by a court of exclusive, or at least of peculiar, jurisdiction; they are not founded on a proceeding against a per- son or persons, as such, but against the thing or subject-matter itself, and 216 surrogates' courts § 208 hence the general rule, that they are conclusive against the whole World, and not merely against the parties or their privies, as in the case of judgments in personam; provided, always, that the court had competent authority to make them, and that npticp, either actual or constructive, was given of the proceeding in which they were pronounced. Statutes which declare the effect, as evidence, of certain classes of decrees will, of course, supersede the general rule, whenever the evidential effect of that class of decrees is called in question, the rule being that when there is such a statute, a decree is coQclusive only so far as it is made so by the statute. Bank of Pough- keepsie y. Hasbrouck, 6 N. Y. 216. The statutes declaring the effect, as evidence, of certain decrees in Surrogates' Courts are mentioned but without any attempt to encompass the whole of this branch of the law of estoppel. Of, course the doctrine of estoppel has no application to a proceeding instituted for the express purpose of opening, revoking, or modifying a particular decree. Campbell v. Logan, 2 Bradf. 90; Kerr v. Kerr, 41 N. Y. 272; Post v. Mason, 26 Hun, 187; aff'd 91 N. Y. 539. Where a decree has been modified after the bringing in of additional parties for the purpose of enabling them, to present de novo all questions concerning their rights, the pri9r decree is np^ res adjvMcata as to the rights of such additional parties. Mc^ijipr o/ifeoff/i,, 126 App. Div. 285. § 208. Same ; collateral conclusiveness. — With regard to the collateral conclusiveness of 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 va- lidity. Qorwin v. Merrit, 3 Barb. 341, But see People v. Harman, 2 Sw. 576. ; This,§ 2513 npw covers, except for the instances therein specified or implied- The conclusive- efEect of a decree necessarily depends upon the power of the cpurt to pronounce it. A decree, which transcended the juris- diction of the, court to niake„may be a,tta]cked in all courts, either directly or collaterally, as being void fpr want of jurisdiction. Washbon v. Cope, 144 N. Y. 287,. Before a Surrogate, can acquire jurisdictipn pf the subject- matter;, the statute requires that certain facts must exist, such as the death of a person whose estate is sought to be administered, or his residence in the county of the Surrogate, pr the lpca;tipn of assets in that county. The statute provides, § 2512, that the Surrogate's Court obtains jurisdiction in every case, by the existence pf the jiirisdictipnal facts prescribed by the st,atute. If, by the npn-existence of any jurisdictional fact, the court had noX jurisdiction of the subject-matter, his decree is not merely voidable, subject only tp be, reversed on appeal or by a direct proceeding for that purpose, but it is absolutely vpid, and np rights can be fpunded therepn, D_q^n y. Demming, 6 Paige, .95; Tucker v. Tucker, 4 Abb. Ct. App. Dec.; 428; Dtidley v, Mqyf^^, 3 N. Y. 9; Van Deusen v. Sweet, 51 id. 378; Roderi- gas V. East River Savings Inst., 76 id. 316; Hoes v. New York, etc., R, Co., 173 J^. Y. 435; McCarthy v. Supreme Court of Foresters, 107 App. Div. 185; Ziemer v. .Crucible Steel Co., 99 App. Div. 169, 90 N. Y. Supp. 962. See § 209 DECREES AND ORDERS 217 Hetzel V. Easterly, 96 App. Div. 517; 89 N. Y. Supp. 154. It follows from the general rules of estoppel, that the proceedings 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 Ihgraham, JJ.) 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 chap. 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 ap- peared 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 jurisdic- tion 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 constitutional 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 proeeeding to which the heirs^at4aw were parties it was binding and could not be collaterally attacked. To same effect. Brown v. Landen, 30 Huh, 57, aff'd in 98 N. Y. 634; Roderigas v. E. R. Sav. Inst., 63 N. Y. 460; Same v. Sarae, 76 N. Y. 316; Parhan v. Moran, 4 Hun, 717. The gen- eral rule in this regard was stated by Marcy, J., in Johnson v. Robinson, 4 Wend. 437, 441. "However extraordinary or erroneous be the deter- mination and proceedings of a court of limited authority, if it acts within its proper jurisdiction as to the subjed-^natter, place and person, its judg- ment or decree cannot be impeached or invalidated in a collateral actioii.i" So also if a decree be acquiesced in by the parties for a long I time (as four years) it will not be disturbed in the absence of fraud. Matter of Waack, 5 N. Y. Supp. 522. In Drake v. Pechin, 58 Misc. 449, a probate decree was held conclusive against collateral attack by tenant resisting suit by dev- isee for rent. § 209. Same ; effect on form of decree. — Such being the case, the prac- titioner will draw his pleading so that the "jurisdictional facts" under- ling the particular proceeding are duly alleged. Thenihe will draw his decree, with § 2513 in mind, so as to recite, by appropriate words, jurisdic- tion obtained of the parties in the various modes set forth in § 2511. Note the contrast of " allegation " in a pleading to a " recital " in a decree. (People V. Harman, 2 Sw. 576, holding that recital of jurisdictional facts in the decree raised no presumption was before the original 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. 218 surrogates' courts § 209 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 adjudi- cated in his decree admitting a will to probate upon the validity of a dis- position of real estate in said wiU, acting under authority of § 11 of chap. 359 of the Laws of 1870, held, as above noted, that such a decree could not be attacked collaterally. Benseii v. Manhattan R. Co., 14 App. Div. ; 442. See also as td conclusiveness of a decree. People v. Towrisend, 37 Barb. 520; Curtis v. Williams, 3 Dem. 63; Matter of Kranz, 41 Hun, 463; New- come V. St. Peters Church, 2 Sand. Ch. 636; Scofield 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. ColumUa 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 fade sufficient proof of his repre- sentative status.. The court cited Belden v. Meeker, 2 Lans. 473, 47 N. Y. 307; Farley v. McConneU, 52 N. Y. 630; Weldi v. N. Y. Central, 53 N. Y. 610. In O'Connor v. Huggins, 113 N. Y. 511, the court of appeals sum- marizes 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 Subrogate 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- clysive 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 ab- sence of fraudj or collusion. (See Fulton V.Whitney, 66 N.Y. 54:8.) 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 application 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, § 210 DECREES AND ORDERS 219 prior to issuing the lettera, 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 in- testate was attacked because of the manner in which his letters were is- sued. 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 collaterally. (See opinion.) The cause of action, negligSitly causing death, it must be noted, did not arise here, but in the State from which the "assets" were imported. So also Pietraroia v. N. J., etc., Co.,^ 197 N. Y. 434, 438. But, we repeat, if it appear 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 purported to adjudicate upon a contested claim of a creditor over which the Surrogate had no juris- diction. 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 citation 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 McGcmghran, 124 App. Div. 312. § 210. Same; concluded. — Where, for probate purposes, a Surrogate determined that testator was a resident of his county: Held not open to collateral attack in action under § 1819. Flatausr v. Loser,, 211 N. Y. 15, 19; citing Bolton v. Schriever, 135 N. Y. 65. We discuss, below, the opening or vacating of decrees or orders, which involves some of the principles involved in this discussion of conclusiveness. But to summarize the matter in this context we have to note, first that 220 STJEROGATES' COURTS § 210 former § 2473 of the Code, now § 2513, prescribed the conclusiveness of decrees or other determinations, "in a case specified in the last two sec- tions." These were §§ 2472 and 2472a which defined the jurisdiction of the court. The present section omits this reference, and thus becomes general in its scope. We note, second, that the sections prescribing a special conclusiveness are, as shown in §206, supra, quite reframed — thus making academic many decisions formerly dealing with probate and accounting decrees, while making their reasoning generally applicable to any decree. We may rehearse a few of these, to iUuslrate: The primary distinction between the effect of former §§ 2626 and 2627 waa that as to the personal estate the decree was conclusive and as to real estate it was merely presumptive. Smith v. Hilton, 19 N. Y. S. R. 340. In Knox V. Jones, 47 N. Y. 389, the Supreme Court was asked to construe a will that in part related to real estate in California. Held: our courts have no power to determine validity of will effectually as to realty outside the State. This limita- tion wUl certainly be held to apply to the Surrogates. See 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 CoUier V. Jdley's Executors, 1 Bradf. 94, and cases cited; Burger v. Hill, 1 Bradf. Sur. 360; Brady v. McCosker, 1 Comst. 217; Dayton's Surr. 168; Pemberton v. Pemberton, 13 Vesey, 290; 1 Story's Eq. Jur., § 184; Gould v. Gould, 3 Story, 537; Tarver v. Tarver, 9 Petk 180; Gaines v. Chew, 2 How. (U. S.) 245, and cases cited; Armstrong v. Lear, 12 Wheat. 175, Story, J.; CoUon v. Boss, 2 Paige, 398; Bogardus v. Clark, 4 Paige, 623; Muir v. Trustees of Leaks arid Wails 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 still only as to the suflBciency of its execution, that is to say, its formal validity. Mailer of Gillman, 38 Barb. 364. Thus while we have seen that among the incidental powers of a Surrogate he has a right to determine upon a probate whether a person is an heir or belongs to any class designated' in the will, nevertheless the decree admitting to probate was not formerly 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 execution 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. But, now, on any matter necessarily determined in order to the final deter- mination the general conclusiveness operates. This is illustrated in Matter of McGoughran, 124 App. Div. 312, where the determination of "widow's" § 211 DECREES AND ORDERS 221 status was not incidental. If she was widow, the proceeding for letters must succeed. Hence, the decree then made was deemed conclusive as to her status, which was directly iavolved. In former editions we noted the distinction under old §§ 2626 and 2627, i. e., the probate was conclusive agaiast "all the world," except by appeal and by action under former § 2653a. But the determination in the probate decree of vaUdity of any "particular testamentary disposition" was con- clusive only upon the petitioner and each party who was duly cited, or appeared, and 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 ffo!// V. Hoyt, 112 N. Y. 493, 504, ''as to the personal property, if the person interested is not under disability or the Surrogate's discretion is not invoked for a sufficient cause under subdivision six of § 2481, the t>robate concludes all manMnd after the lapse of one year; in such event the disposition and distribu- tion 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." So the special conclusiveness was also limited to a decree admitting a will to probate, and we remarked: Consequently decrees refusing probate have been distinguished under the sec- tions now repealed, and the conclusiveness of such a decree is determined by the general rules hereinabove laid down. Thus, in Matter of Goldsticker, 192 N. Y. 35 (disting. Corky v. McEmeel, 31 Abb. N. C. 113) the court held that a decree refusing probate for improper execution and for lack of capacity was in thase respects con- clusive on the parties in subsequent controversies as to the personal estate. Of course refusal of probate to one will is no bar to probate of another though it appear to have been made the same day. Matt^ of Essig, 63 Misc. 612. We conclude, therefore, that, except as to the special conclusiveness re- tained in §§ 2551 (as to decree for money), and 2555 (as to decree revoking letters), Surrogates' decrees are governed by § 2550 as to its direct con- clusiveness, and by § 2513 as to its collateral conclusiveness. This discussion amounts, therefore, to this: that in Surrogates' Courts, as in any court of record the principle of res judicata wiU be applied. The same issue is not to be retried between the same parties on the same grounds, once it has been properly litigated and decided. See Matter of McGmighran, 124 App. Div. 312. Section 1866 provides for an action in the supreme court brought to determine the validity, construction or effect of a testa- mentary 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 detennined by the decree of a Surrogate's Court, duly ren- dered upon allegations for that purpose, as described ui 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 commence- ment of the action." § 211. The decree must be a judicial act. — It is always competent for 222, surrogates' courts § 212 a party to show, in impeachment of the decree, that, as a matter of fact, the Surrogate did not exercise his judgment in the matter; that he never acted;, that his seal is a forgery, WilHams on Ex'rs, 489 and cases cited) and that blank letters, signed and sealed, had been stolen, etc.; in fact, any jurisdictional defect, which does not impeach the Surrogate's decision, may be shown, to avoid the force and effect of the decree. It was accord- ingly held, that where a petition for letters of administration, though alleging all the necessary jurisdictional facts, was not presented to the Surrogate personally, that he never saw the petitioner, and never, in fact, acted upon the petition, and had no actual knowledge of it, nor of the issuing of the letters, but the petition was received by a clerk in the office, who filled up and issued a blank which had been signed by the Surrogate and left with him, and attached the seal, — the letters were absolutely void. The act of the clerk was not the act of the Surrogate, and judicial power cannot be delegated. Roderigas v. East River Savings Inst, 76 N. Y. 316. And see Powell v. Tuttle, 3 id. 396; Keeler v. Frost, 22 Barb. 400. To render a decision of the Surrogate on a jurisdictional fact conclusive, therefore, it must appear that he decided upon proofs presented to him by the party applying for process. If it appears by the record that no proof was pre- sented — e. g., where the petition for administration alleged the' death, "upon the best of the knowledge, informatipn, and belief" of the petitioner — the letters issued thereon are void; such an allegation is not "proof" within the meaning of the statute. § 212. Docketiiig, etc. — Surrogates' decrees may be given extra-foral effect throughout the state by docketing transcripts thereof with any county clerk. § 2661. Decree for money; how docketed; effect; assignment and discharge. ^ 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 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 appMcable 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 were such a judgment. Former § 2553 of this Code. Prom L. 1837, c. 460, §§ 63, 64; L. 1844, c. 104, § 2; L. 1867, c. 782, § 9. The decree thus docketed "has the same force and effect" as if it were a judgment of the supreme court. Sections 1245-1272 of the Code thus be- come applica;ble. The decree, to the extent of the simi of money directed to be paid may become a lien, in the county where docketed, against the property there of the person directed to pay the money, owned by him at the time of the docketing. Lafayette Trust Co. v. Beggs, 213 N. Y. 280. § 212 DECREES AND ORDERS 223 But to create the lien a levy must be made. Hulbert v. Hulbert, 86 Misc. 662.- The decree retains, however, its character as a Surrogate's decree, i. e., the Surrogate retains jurisdiction over its subject-matter. People v. Woodbury, 70 App. Div. 416. He records in his office, under § 2486, subd. 1, every decree admitting a will to probate; under subd. 3, every accounting decree, imder subd. 4, every decree relating to the disposition of a decedent's realty; and under subd. 5 a "minute or record" of "every decree or order the record of which is not required by this section to be kept elsewhere." With this is to be kept a memorandum of each execution issued; of the satisfaction of each decree. If the decree be met in installments, or only partially, record thereof is made as follows: § 2662. Decree; partial satisfaction of. Upon the application of any person interested, there may be recorded in the surrogate's office any instruments acknowledging payment of moneys pursuant to the provisions of decrees for the judicial settlement of accounts of executors, ad- ministrators, testamentary trustees and guardians. Every such instrument to be recorded shall be acknowledged, or proved and duly certified, and the record thereof, or a certified copy of such record, shall be presumptive evidence of the con- ■■ tents of such instrument and its due execution, and shall be presumptively a satis- faction and discharge of such decree as to any payment of money or delivery of property therein acknowledged. From former § 2502 of this Code, in part. But, once docketed, the persons entitled to enforce the decree have enlarged remedies. The court of appeals held {Tovmsend v. Whitney, 75 N. Y. 425) that the docketing of a Surrogate's decree (as provided for by chap. 460 of the Laws of 1837, as amended by chap. 104 of the Laws of 1844, the provisions of which Laws were replaced by § 2553, now 2551, 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 docketed 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 iuconsistent but concur- rent 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. Bramky v. Forman, 15 Hun, 144. The lien of such a decree is the same as if the judgment, to which, by docket- ing, the decree is assimilated, had been entered against the persons directed by the decree to make payment. It in no sense constitutes a lien against the property of the decedent, and, if execution is issued theretmder (to 224 surrogates' courts § 213 enforce payment of money) against the executor, it issues against his prop- erty and not that of the estate. Matter of Waring, 7 Misc. 502; Bennett v. Cram, 41 Hun, 185. . But, while there is this double remedy, and while the Surrogate retains jurisdiction of the subject-matter of the proceeding in which the decree was made, it seems that docketing the decsree gives the court in whose office it is docketed jurisdiction procedurally. Section 2551, says "the lien thereof may be- suspended or discharged " asif it were a supreme court judgment. Hence it seems the act of docketing distinctly divests the Surrogate of personal jurisdiction to suspend or discharge the dficketed 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 docketed. Underhill's Estate, 9 N. Y. Supp. 457, Coffin, Surr. In Sackett v. Woodbiiry, 70 App. Div. 416, it was held, however, that the Surrogate, or his clerk, alone has power to enforce the decree though docketed. How; then, are decrees to be enforced? § 213. Enforcement of decrees before the Code. — Before the adoption of the Code of CivU Procedure, the Surrogate had power to enforce all lawful orders,, process, and decrees of his court, by attachment against the persons of those who neglected or refused to comply with such orders and decrees, or to execute such process; which attachments were required to be in form similar to that used by the court of chancery in analogous cases. 2 R. S. 221, § 6, subd. 4; Dunford'v. Weaver, 84 N. Y. 445, 2l'Hun, 349. This extended to orders and decrees for the payment of money, as well as to those for the delivery of specific property, or the performance of other specific acts; and it extended, also, to decrees against guardians. Seaman v. Dieryea, 11 N. Y. 324. This power was not derived from the Statute of Contempts applicable to courts of record, Matter of Watson, 5 Lans. 466; Si c. in Ct. App., Watson v. Ndson, 69 N. Y. 536; Seaman v. Duryea, 10 Barb. 532; afd 11 N. Y. 324, but existed independently of it. Certain sections of the Statute of Contempts were, it is true, a,ppUcabIe to proceed- ings in a Surrogate's Court; Watson v. Nelson, supra, but, in exercising the power above mentioned, the court did not proceed by virtue of that statute, and could not, for the benefit of the injured party, fine for a con- tempt, for mere non-payment of money adjudged due by a decree, and then commit for the non-payment of the fine. Id. The power was that of chan- cery, which was exercised by an attachment commanding the sheriff to bring the person charged before the Surrogate, to answer for his alleged misconduct. The; party charged might be allowed to give bonds-to appear. Upon the return of the attachment, if he did not exonerate himself, the Surrogate might make an order that he comply with the decree or order in question, and that he be taken aaid kept in custody until he did so, and paid the fees, unless sooner discharged according to law. Upon this order, a, precept or warrant might be issued to the sheriff, under the seal of the Surrogate, commanding him to take the body of the § 213 DECREES AND ORDERS 225 person charged, and keep him in custody until he paid the money or per- formed the other acts specified. It was proper that the warrant, as well as the rule or order, should show the failure to pay, or do the other act required; but this was not regarded as essential, if it appeared by the other proceedings. Seaman v. Duryea, 10 Barb. 536, aff'd 11 N. Y. 324. It was settled that, on a settlement of accoimts, the Surrogate had power to ad- judge the balance due, and decree its payment; and that this decree could be enforced against the person. But it remained a question whether the proper final process was a commitment as for a contempt, or a precept, or an execution. See Watson v. Nelson, 69 N. Y. 536, 545; Seaman v. Duryea, 11 id. 324. This question, whether a person taken under final process, for non-pa3mient of money adjudged due by a decree, was to be deemed com- mitted for contempt, and, therefore, to be kept in close custody, or whether he was to be deemed taken as upon an ordinary execution against the person, and, therefore, entitled to the jail liberties, and to be discharged from imprisonment under the statute, was, for a time, left in doubt by the authorities. See Matter of Watson, 5 Lans. 466. The confusion in the cases arose in part, at least, from not observing the principle that the power to issue process against the person in this court did not depend solely on the Statute of Contempts, but existed independently of it; the requisite question in each case being, whether it was one of commitment for contempt, or merely a process in the nature of an execution against the person. People v. Cowles, 3 Abb. Ct, App. Dec. 507; which was the case of a refusal, by a judgment debtor, to obey an order made in supplementary proceedings, that she apply, to the satisfaction of a judgment, a sum of money belonging to her, which it was duly found that she had in her pos- session. It was settled that, where a party was adjudged to have in his possession a specific sum of money, and that he should pay it over, and he refused to do so, the disobedience was a contempt, and the prisoner was not entitled to the Hberties. And it was, at length, explicitly declared that where the Surrogate's decree, rendered against an executor, adjudged payment by him of a svim of money generally, to a person entitled to a share of the estate, and he failed to pay it, the proper process was an execu- tion against the body, in the form prescribed by the court of chancery, upon which the defendant was entitled to the jail liberties. Watson v. Nelson, 69 N. Y. 536. And if the payment of money generally was directed "by an interlocutory order, a precept of commitment, which was equivalent to an execution inja civil action," was the appropriate process, and the defendant would be entitled to the jail liberties thereupon. Id. The adjudication, in this case, was that the appellant had no standing in the court of appeals, whereupon the appeal was dismissed; but the court took occasion to express its opinion upon the merits, as above. In People v. Marshall, 7 Abb. N.. C. 380, the rule, indicated by the court of appeals, as above stated, was explained to be that a mere failure, on the part of a representative, to pay a debt adjudged due by a Surrogate's decree, was not a contempt for which the latter was authorized to impose upon the 226 surrogates' oourts § 213 former a fine, and commit him to close custody for non-payment thereof; and, it was held, that an administrator might be committed to close cus- tody upon an attachment for disobedience to a decree requiring him to pay over a fund shown to be in his possession. In that case, on the return of the attachment, the administrator appeared, and, in answer to interroga- tories, alleged that he had the fund in hand, but had not paid it over pur- suant to the decree, because there were rival claimants to it. From the language of the opinion of the court of appeals, in Watson v. Nelson, supra, it does not clearly appear that the aggrieved party was not entitled to an attachment to bring the delinquent before the court, but it was said that a commitment to close custody was improper. The court re- marked, "We must hold the form of commitment to have been unauthor- ized." But, in Mailer of Sherry, 7 Abb. N. C. 390, the Surrogate of New York county, citing the case in the court of appeals, refused to issue an attachment for non-payment of money adjudged to be paid by a decree, saying: "If the petitioner shall be able to show that the executor actually, and not constructively, had sufficient funds in hand, applicable to the pay- ment of petitioner's allowance, at the date of decree, then he will have a prima fade case for attachment for contempt, and only then." The remedy, by process in the nature of attachment, was applicable, therefore, to all classes of orders, whether requiring the payment of money or the doing of any other thing. It was the only remedy for disobedience to orders other than those requiring the payment of money, with one exception, to wit, orders requiring the return of an inventory. On the other hand, orders and decrees for the payment of "money might be enforced by execution, and by action upon the oflBcial bond of a default- ing representative, as well as by attachment, — the remedy by attachment, and that by execution or action on the bond, being distinct.- See Saltus v. Saltus, 2 Lans. 9; Sherwood v. Judd, 3 Bradf. 419. The only case presented by the Revised Statutes, as originally adopted, where the Surrogate was authorized to direct the prosecution of an executor's or administrator's bond, was the refusal of the executor or administrator to make and return an inventory, and his consequent removal, 2 R. S. 85, § 21 ; though it was also provided that obedience to an order requiring an executor or adminis- trator to render an account might be enforced in the same manner as an order to return an inventory, and the same proceedings might be had to attach the disobedient party, and his letters might be revoked "with like effect as in those cases." It may be doubted whether this latter provision furnished any warrant for an order directing the prosecution of the bond, on a mere removal for default in rendering an account. With a view, apparently, of remedying the defect, the Legislature immediately passed an act, Laws 1830, chap. 320, § 23, providing that, in case of the neglect or refusal of an administrator to perform any decree "for rendering an account, or upon a final settlement, or for the payment of any debt, legacy or distributive share," the Surrogate might cause the bond to be prose- cuted, and might apply the moneys collected as directed by the decree. § 213 DECREES AND ORDERS 227 But this statute would seem to have contemplated only the case of a decree for the payment of money, and not a decree for the performance of any other act, such as the rendering an account, etc. In 1837 and 1840, a further and cumulative remedy (see People v. Guild, 4 Den. 551), was ^furnished, for disobedience to an order for the payment of money, by per- mitting the docketing of such order in the county clerk's ofhce, and the issue of execution thereon, and authorizing, in case of its return unsatisfied, an action on the bond. Laws 1837, chap. 460, § 65; Laws 1844, chap. 104, §§ 1, 2. But neither of these statutes gave the privilege of prosecuting the , bond merely upon the revocation of letters for refusal or neglect to render an account, or to do anything else than pay money. The result, therefore, was, that the only cases in which the bond of an executor or administrator would be ordered to be prosecuted were: (1) where there was a revocation of letters for refusal or neglect to return an inventory; and (2) where there was neglect or refusal to obey an order directing the payment of money. Two courses were, accordingly, open to the party desiring to enforce a decree for the payment of money. He might, on proof of the non-payment as directed by the decree, apply to the Surrogate for an order that the bond be prosecuted as provided by the statute of 1830, supra; or he might, under the statutes of 1837 and 1844, supra, file the decree in the coimty clerk's office, and issue an execution thereon, and then, in case of its return un- satisfied, he might apply to the Surrogate to have the bond assigned' to him for the purpose of being prosecuted. These remedies were cumulative, and it was discretionary with the party whether he would proceed, in the first instance, by execution on the decree, or immediately by action on the bond. If the latter course was adopted, the action on the bond was insti- tuted in the name of the people, under the direction of the Surrogate, by whom the moneys collected were to be applied. People v. Tovmsend, 37 Barb. 520; People v. Laws, 3 Abb. Pr. 450. In the other case, the party sued in his own name, as assignee of the bond, and recovered only what was due to him. Baggott v. Boulger, 2 Duer, 160. Where a party elected to proceed, in the first instance, by action upon the representative's official bond, it was necessary to satisfy the Surrogate that the representative had refused or omitted to perform a decree in proceedings for an account, or upon a final settlement, or for the payment of a debt, legacy, or distributive share. Thereupon the Surrogate might cause the bond to be prosecuted; and he was required to apply the moneys collected, in satisfaction of the decree, in the same manner as they ought to have been a,ppUBd by such executor or administrator. 2 R. S. 116, § 19a, inserted by Laws 1830, chap. 320, § 23. Where the party elected to proceed by execution, in case of non-payment, before, proceeding against the sureties, he might apply to the Surrogate for a certificate, stating the amount of the debt and costs directed to be paid by the decree. This certificate, being filed with any county clerk, was en- tered on the docket of judgments, and was enforceable by execution, as if it were a judgment of the coimty court. Laws 1837, chap. 460, §§ 63, 64. 228 surrogates' courts § 214 If the execution was returned unsatisfied, the Surrogate might assign the bond to the creditor or appHcant, who could bring an action in his own naxad, as assignee, and recover the amount awarded him by the Surrogate's decree. See Baggott v. Boulger, 2 Duer, 160; Thayer v. Clark, 4 Abb. Ct. App. Dec. 391. This remedy might be had against guardians. 2 R. S. 152, § 9. Finally, an action might be brought on a Surrogate's decree, to compel payment of any sum thereby adjudged to be due; but it would bebarred by the Statute of Limitations, vmless commenced within six years, as the court was not a court of record. § 214. Enforcement of decrees under the Code. — Under the Code, Sur- rogates' Courts are given greater power to enforce their decrees than is vested in other courts of record. Generally speaking the Code provides for enforcement of a decree, either by execution or by punishment for con- tempt. It has been held that, however broad these powers, they do not preclude one from an action in the supreme court to recover his share in an estate, fixed by a Surrogate's decree ordering payment or distribution. Koenig v. Wagener, 126 App. Div. 772 (two dissents). The following sec- tions define the power of the Surrogate: § 2663. Enforcement of decree by execution. A decree directing the pajTnent 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 payment. 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 aU other respects, the provisions 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 sur- rogate'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. Former § 2654 of this Code. From L. 1837, o. 460, § 64; L. 1895, c. 946. §2664. Enforcement of decree by punishment for contempt. In either of the following cases, a decree of a surrogate's court, directing the pay- ment 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 re- fuses or wilfully neglects to obey it, by punishing him for a contempt 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 vyhiph 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 sheriff of the surrogate's county, has been returned by him wholly or partly unsatisfied. 4. Where the delinquent is an executor, administrator, guardian, or testamentary 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 without issuing an exe- cution, or after the return of an execution, as he thinks proper. If the delinquent has given an official bond, his imprisonment, by virtue of pro- ceeidings 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 §§.215, 216 DECREES AND ORDERS 229 not bar, suspend, or otherwise affect an action against the sureties in his official bond. Former § 2555 of this Code. As regards the method of enforcement, decrees may be divided into such as direct (1) the payment of a sum of money, or (2) the performance of some other act, or (3) both. The general plan of the Code, for enforcing decrees of the several descriptions, may be stated as follows: 1. A decree for money may be docketed with the county clerk in any <30unty of the State, and thereupon as noted in § 212, it becomes a lien upon the real property of the debtor in that county, in Uke manner as if it were a judgment of the supreme court. An execution against the debtor's property may be issued, out of the Surrogate's Court, to the sheriff of any county where the decree is so docketed. If such an execution is returned wholly or partly unsatisfied, supplementary proceedings may be instituted as in an action, or steps may be taken to punish the deUnquent for con- tempt; and, if he is an executor, administrator, or guardian, the issuing of an execution is not a necessary preliminary to the contempt proceedings. Finally, if the debtor is an official who has given a bond, an action there- upon may be maintained ^ari passu with, or in lieu of, any of the fore- going remedies. 2. A decree directing the performance of an act, other than the payment of money, is to be enforced by serving a certified copy on the person re- quired to obey it, and thereafter punishing him for contempt if he "refuses or mllfully neglects to obey it." 3. As to a decree of the third class, the methods of enforcement men- tioned under the two foregoing heads are respectively applicable to its different portions. It is proposed to discuss these propositions in detail. § 215. Discussion of sections 2553 and 2554. — 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 dixectiing 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 deUnquent 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 § 2554, 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 proceed- ings under § 2554. § 216. And first then as to enforcing decrees for the payment of money by an execution against the property. — The execution undei" § 2553 is issued 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 § 2553 must run against A's property. Matter ofQuackenbos, 38 Misc. 66. Section 1825 230 surrogates' courts § 216 of the Code as to obtaining leave to issue execution against an executor or administrator in his representative capacity is not applicable. That sec- tion relates to a special proceeding in the Surrogate's Court for leave to proceed under the judgment of another court, against representatives sub- ject to the Surrogate's jurisdiction and control. Section 1371 of the Code applies, q. v. The execution issues as of course. Joel v. Ritterman, 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 appli- cation to the court for leave to issue execution on a 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 decree; and that the five years run from the entry of the decree in the Surrogate'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 Tovmsend 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. Speckman, 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 § 2551, 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 transcript 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 § 2553, Bingham v. Burlingame, 33 Hun, 211, 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 {'tovmsend v. Whitney, supra), and the five years after which execu- tion can issue only by consent of court runs from time of its entry, and §§ 217, 218 DECREES AND ORDERS 231 not from time the transcript is docketed. People v. Woodbury, 70 App. Div. 416. As the decree is not a lien on the decedent's estate but on property of the executor respondent, so the execution should run to the property of the executor, or to that with which he has been surcharged, and not against that of the estate. Matter of Waring, 7 Misc. 502; Matter of Quackenbos, supra. If the execution shows that it is issued against the debtor under a Surrogate's decree directing him as executor to pay a legacy, it is not de- fective if it runs against the debtor personally. Peyser v. Wendt, 2 Dem. 221 ; Matter of Waring, supra. § 217. Disobeying the decree — A decree may be reversible on appeal and yet be enforceable by execution until reversed. Such a decree cannot 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 de- fective so that a motion to vacate it could properly be made, disobedience 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 estate 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 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, llS;Bovee v. King, 11 Hun, 250; Chegaray v. Jenkins, 5 N. Y. 376; Field v. Parker, 4 Hun, 342. § 218. Enforcement of decrees by punishment for contempt. — Section 2554 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; Matter 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 former § 2578 (now 2760) to stay execu- tion. The Surrogate in proceedings under former § 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 of Ryer, 120 App. Div. 154. Analyzing § 2554, 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 232 surrogates' courts §§ 219, 220 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 § 2553. 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- sortiQg 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 ithe judgment and the issuance and return of the execution, where the party disobeying 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 actin 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 satis- faction 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 § 2554 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- son sought to be punished has no property out of which an execution if issued could be satisfied. Ferguson v. Cummings, 1 Dem. 433. § 219. 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 judg- ment was a supreme court judgment against an administratrix. Applica- tion was made to the Surrogate for leave to issue execution. In the "in- quiry" 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 xmsatisfied. Thereupon, the Surrogate, treating this as a wrongful or fraudulent concealment of estate assets made a decree directing her to pay the sum already foimd in default of which she was to be punished as for contempt. This is an exceptional case. § 220. Limitation on the Stirrogate's power. — The Surrogate's Court can only enforce by attachment obedience to its lawful orders and Hecrees, 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 vmdor the circumstaiices contemplated by § 2698 of the Code, and thei 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 § 221 DECREES AND ORDERS 233 order. Guion v. Underhill, 1 Dem. 302. But where the court has power tbrliake the order or decree, which is disregarded or disobeyed, all that is preliminarily 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. Svdlow 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 pimished for contempt. Guion v. Vnderhill, supra. But, ordinarily, the Surrogate would probably so pro- ceed. 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 , 235 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 original order. Gillies v. Kteuder, 1 Dam. 349. But while it is the better practice to begin the proceedings with an order to show cause it is not im- perative so to do. Surr. Coffin held (Gtdon 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 per- sonal 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 commitiiietit 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 Judiciary Law, § 753, relating to courts of record. The general provisions governing procedure in contempt proceiedings were contained in title 3 of chap. 17, being §§ 2266 to 2292. It is now in the Judiciary Law, Art. XIX, §§ 750-781. Without detailed reference to these sections it may be stated, by way of summary, that the practice in- dicated therein is, first, that the courts of record may inffict summary punishment for contempt where the offense is conamitted in the immediate view and presence of the court. See §§750, 755. 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 i^sue 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 imtil he is discharged according to law." Section 756. Third, the cases in which notice of the proposed punishment must be given by the offender are given in § 757, which is, as follows: Order to show cause, or warrant to attach offender. The court or judge, authorized to punish for the offense, may, in its or his dis- cretion, where the case is one of those specified in either of the last two sections, and in every other case, nrnst, upon being satisfied, by affidavit, of the commission of the offense, either l.*Make an order, requiring the accused to show cause before it, or him, at a 236 SURROGATES COURTS §223 time and place therein specified, why .the accused should not be punished for the alleged offense; 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, com- mdndiilg 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 offense. The practice UE^der the order to show cause, in regard to its, service, etc., is indicated by §§ 760-765, q. v. The following fornas are intended to in- dicate this.prpcedure. An affidavit such as is. first indicated is intended to bring the contempt to the notice of the court. If the order is one direct- ing 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 dispretiop proceed by order to show cause; such order is, indicated in the precedents below. But if the order is one for the pa,yment 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. Surrogate's Court, County of , Affidavit on applica- tion for enforcement of decree by pttnish- ment for contempt. Note- Or the affi- davit may be made by the attorney. Title. State of New York County of being duly sworn deposes and says: that he is ,, , , (gives status of party upon the, proceeding) (note) ; and that on the day of 19 a de- cree was made aiid entered in the oflSce of the Surrogate of the county of by which decree one (give designa- tion 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 he paid, into court or to be 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 pdrticutdr act designate the same toncisely lisiiig preferably the language of the decree).' And deponent further says; that a copy of the said decree duly certified was, personally served upon |Said ,i the officer (or the person) required thereby dr 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 personaUy by on behalf of - , ' (here designate the person to whom the maney was directed to be paid or the person in whose behalf the act was to be 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 §223 DECREES AND ORDERS 237 Note. The prac- tice by order to show cause is customarily resorted to though not absolutely essen- tial. See annotations to §757, subd. 1, Jud. Law. The Surro- gate has a right to punish upon proof of the contempt. Where the deponent desires an order to show cause, the usual alle- gations should be added. Note. Armex to this affidavit, affida^- vit showing personal service of decree which is sought to be lea- forced. to said within the time limited by said decree (or where the decree was for the payment of vf^ney and was duly dock- eted under section 2661 and 'execution, issued thereon, add, that an execution duly issued as prescribed in section 2553 of the Code of Civil Procedure to the sheriff of the said county of and has been returned wholly unsatisfied; or if it is satisfied in part, slate to what degree). {Where decree is one that cannot be enforced hy execution, add paragraph, and deponent further says that said decree is one that cannot be enforced by execution under section 2553; where the decree can be in pari enforced, by execution' slate the facts in this respect concisely.) {If proceedings under the decree sought to be enforced have %een stayed by. an appeal properly perfected and action has been had thereon by the Appellate Court affirming the same, state the facts of such affirmance and the entry of the order of the Appellaie Court and the service of a certified copy thereof with notice of entry thereof upon the person sought to be punished.) And deponent is advised and verily beUeves that the said decree which the said refuses or wilfully neglects to obey should be enforced by punishing the said for contempt of this court. (Jurat.) (Signature.) : (Note.) Hon. Surrogate's Court Caption. Surrogate. Order to show cause why should not be- punished for con- tempt. Present: Title. 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 payrnent 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 directed by said order to be paid; - And, it apf)earing to the satisfaction of the Surrogate that the said refuses or wilfully neglectSito 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 {andiwhere the order disobeyed has been appealed from and affirmed, recite the order of the Appel- late 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 238 SURROGATES COURTS §223 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.) Order or warrant of commitment, where notice is not given to disobedient party. [See also Form 82]. Noie. The Surro- gate has power to im- pose costs on the dis- obedient party, prac- tically in the nature of a penalty for his disobedience. At a Surrogate's Court, etc. Present: Title. Hon. Surrogate. On reading and filing the affidavit of and the affidavit of showing due personal service on of a certi- fied 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 demand for the pay- ment of the moneys mentioned in said order (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 such pasTnent being now fixed at dollars. Note. Now, on motion of attorneys, for said It is ordered, that a precept (or warrant) be issued out of, and under the seal of this court, directed to the sheriff of the county of commanding 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, imder 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: Order of commit- ment upon return of order to show cause. Present: Title. At a Surrogate's Court, etc. Hon. Surrogate. 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 upon proof of the due service thereof on and on reading and filing the affidavit of submitted in opposition to said motion. Now, after hearing §223 DECREES AND ORDERS 239 Warrant mitment. of com- Nole. Give repre- sentative designation if necessary. for tlie 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 The People of the State of New York, To the Sheriff of the County of New York, Greeting: Whereas, on the day of 19 by a certain order 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 {riote) pay to or to his attorneys, the sum of doUais, within five days from the service upon him of a certified copy of said 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 wilfuUy neglected, and stiU 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 county, 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.) ' A copy of the warrant and of the basic affidavit must be served on the respon.dent. Jud. Law, §§ 763 and 764, provides for an endorsement, dis- cretionary, by the court of a sum fixed in which the respondent may give undertaking for his appearance to answer. The sheriff has no right to re- lease the person in custody, except on his giving the proper undertaking. 240 SURROGATES COURTS §223 Judi Law, § 766; Matter of Callan, N. Y. L. J., Dec. 8, 1891. In this case the sheriff accepted a deposit of money in lieu of bail, which the latter turned over to the clerk of the Surrogate's Court. Held, that neither of these officers had authority to receive the money. The clerk was ordered to return the money to the sheriff, the Surrogate saying that the rights of the parties in regard to the money must be settled in another tribunal. 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 pther mandate of the court, the Surrogate may upon proof of such idisobedience proceed by attachment. This practice is customary, where the oflFender is one acting in a representative capacity, such as executor, administrator, trus- tee, 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 Avithin that time, the Surrogate may issue an attachment substantially in the following form: The attachment. Note. The warrant may also run addi- tionally to the sheriff of any county. People v.Br(rwn,4&B.\m,S20. The People of the State of New York, To the Sheriff of the County of (note)' 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 coimty of at the Surrogate's oflBce in the county of on the day of 19 to answer unto us for cer- tain trespasses and contempts against us in not complsdng with the exigency of a citation heretofore duly issued by our Sur- rogate 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, render an account of his proceedings as such as aforesaid), or show cause why an attachment should not be issued against him, which said citation was duly and personaEy 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 paused the seal of oj£ce of our said Surrogate to be hereunto affixed. (L. S.) WitnesSj etc. (Signature of Surrogate.) {Evdorsemenl.) Let the administrator within named" give a bond for his appearance to answer on the return day of the §223 DECREES AND ORDERS 241 within writ, in the penalty of sureties. (See text, supra.) dollars, with two sufficient (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 interroga- tories to be addressed to the offender and to which he must make cate- gorical reply, precedents for which forms are here indicated. 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 proceed- ings 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 attached the said (and had let him at large on bail, according to a bond returned with such a,ttachment), (or had taken his body, and that, for want of bail, he had him in custody before the court) ; and the said denying that he is guilty of the diso- bedience and contempt alleged against him; It is Ordered, that interrogatories addressed to the said touching the said citation, and his acta or omissipns 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. Note. Section 769, Jud. Law. Surrogate's Court, Coimty of Title. Interrogatories for the examination of ' (the admin- istrator or executor, etc.), pursuant to an order made in this rnatter 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 citation to appear personally before the Surrogate of county, on the day of inst., at ten o'clock A. M., at the courthouse in and (state act required by the citation^? 242 SURROGATES COURTS §223 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 peirsonaUy or otherwise, ap- pear (here state act required by citation), pursuant to said cita- tion? ■ Fifth Interrogatory. If you did not so appear and (describe 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 valid excuse or reason you have to allege why you should not now be punished for con- tempt of this court. • (Signature of Surrogate.) Answers rogatories. to inter- Note. The excuse is addressed entirely to the discretion of the Surrogate, unless defect in jurisdiction or process is shown. Surrogate's Court, County of Title. Answers to interrogatories exhibited and filed in the above matter, under the oath of the * of deceased. 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 interrogatory answer yes or no. To the sixth interrogatory the party may answer stating con- cisely his reason for non-compliance, 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 willful, 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 imable 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. §224 DECREES AND ORDERS 243 Surrogate's Court, County of Order for corn- mitment. 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 (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 having been, by virtue of such attachment, personally before the court, on said day, and denying the alleged contempt, it was thereupon ordered that interrogatories addressed 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 in- terrogatories, 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 examined the party in person, state the fact), that the said has committed the contempt with which he is charged, and this court noy adjudging him to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or did, actually defeat, impair, impede or pre- judice the rights of (describe parties prejudiced) in the above entitled proceedings; It is Ordered, that a fine of $ be, and the same is, hereby imposed upon the said for his said misconduct. {Note.) And it is further ordered, that the said do pay the charges and fees for serving the citation in this matter, amounting to $ and also do pay to the sheriff of the 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 common jail of the county of there to remain charged upon his con- tempt, until he shall have (describe act required by citation) 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 f6r that purpose. (Signature of Surrogate.) § 224. Relief from undue punishment. — If the offender is punished by imprisonment and it develops, either that he cannot physically endure con- finement, or pay the sum named as the fine, or actually do the thing directed, then the Surrogate has power under Jud. Law, § 775, to discharge him. Note. E. g., sum specified in the decree he disobeyed. Matter of Ryer, 120 App. Div. 154. 244 surrogates' courts §§ 225, 226 Matter of Strong, 1 1 1 App. Div. 281 , aff 'd 186 N. Y. 584. See People ex rel. Dean v. Markell, 72 Misc. 427, showing that supreme court will not, by- writ of habeas corpus, supersede the Surrogate's power, attributed to him under § 775 of the Judiciary Law. (See opinion of Andrews, J.) But he will exact "satisfactory proof" of the inabihty-. Matter of Geyer, 62 Misc. 443. For example, merely going through bankruptcy is not of itself proof of inability to pay estate moneys. Mdtter of Collins, 39 Misc. 753. See as to "inability" cases cited in People ex rel. Dean v. Markell, 72 Misc. 427, at p. 429. § 225i Commitment with benefit of jail liberties. — It was held, under the Revised Statutes, that a commitment to close custody was improper, and that the proper process was an execution agaiiist the person, in the form prescribed by the court of chancery, upon which the defendant was entitled to the jail liberties., Watson v. Nelson, 69 N. Y. 536. Compare People V. Cowles, 3 Abb. Ct. App. Dec. 507. And this rule is fallowed in proceedings under the present statute. Baker v. Baker, 23 Him, 356; Meyers v. Becker, 29 id. 567; People v. Riley, 25 id. 587; Matter of Amerman, 3 St. Rep. 356. § 226. Enforcement of orders. — Orders have been differentiated from decrees above. Orders are defined by § 2548, which is as follows: - Definition of "order"; how enforced. A direction of a surrogate's court, made or entered in Writing, and not included in a decree, is an order. It may be enforced in like manner as a similar order, made by the supreme court in an action. 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'apphes to have a decree opened thp denial or granting of his applica- tion 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 appUcabl? to thgi enforce- ment of orders as the general principles above laid down, as to a reason- able exercise of discretion a,nd a substantial comphance with the Code ap- ply to orders as well as decreeSi Where a party, however, is sought to be pimished 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 accoilnt of certaimtestamentary trustees, and the referee directed to hear and deter- mine all issues raised by the objections to the accoimt; 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 aay wise involved in the issues raised by the objections which had § 227 DECREES AND ORDERS 245 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. 239. § 227. Power to open decree.— Section 2490, subd. 6, confers the au- thority now had by Surrogate's Court to open, vacate, modify or set aside decrees or orders, or to enter them nunc pro tunc. This subdivision 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 dis- covered evidence, clerical 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 jurisdiction exercises the same powers. And, in § 2763 it is prescribed: Upon an appeal from a determination of the surrogate, made upon an application pursuant to subdivision 6 of § 2490, the appellate court has the same power as the surrogate; and his determination must be reviewed, as if an original application were made to that court. 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; Matter of Schlosser, 63 Misc. 163. Hence § 2490 does not cover an attempt to attack the probate of a will, two years old, and otherwise un- attacked. Matter of Gaffney, 116 App. Div. 683. But see Matter of Wohlge- muth, 110 App. Div. 645. That is, judicial error is remediable by appeal only, clerical error by opening. Matter of Peck, 131 App. Div. 81, and cases cited; Matter of Schlosser, 63 Misc. 163. 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 semble). See Matter of Gall, 182 N. Y. 270, where a creditor not a party came ia after 8 years, and moved to open an accounting decree. The opening of a Surrogate's decree, formally and lawfully made^ re- quires the exercise of the soundest discretion. See opinion ia Decker v. Elwood, 3 Sup. Ct. (T. & C.) 48; Matter of Gaffney, 116 App. Div. 583, aff'd 189 N. Y. 503; Matter of Lowry, 89 App. Div. 226; Matter of Filley, 47 St. Rep. 428; Story v. Dayton, 22 Hun, 450. ••-. ., This power of the Surrogate is very broad and general. The court of 246 surrogates' courts §§ 227a, 228 appeals has held (Matter of Regan, 167 N. Y. 33S, 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, and former 2481; Matier of Flynn, 136 N. Y. 287. He may exercise this power in aid of one in default if the default be excus- able. Matter of Doig, 125 App. Div. 746. The Surrogate thus has the power of a court of general jurisdiction to vacate his decrees and may grant relief as in the supreme court "upon the application of anyone 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 imder the decree parties to the controversy with the administrator, s. c, 47 App. Div. 490, 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 Deobold v. Oppermann, 111 N. Y. 531; Matter of Hodgman, 140 N. Y. 421; Matter of Lang, 144 N. Y. 275. § 227a. How to proceed. — In Matter of Smith, 65 Misc. 417, erro- neously reported as in Kings county, Thomas, Surr., held : " It has for many years been the practice in this court to initiate proceedings in this court for the reopening or vacating of decrees, by order to show cause or notice of motion," citing Cluff v. Tower, 3 Dem. 253; Furman v. Furman, 153 N. Y. 309. Code Civ. Proc, §§ 1282, 1283. This is undoubtedly so. In the case before him, however, the respondent in the transfer tax proceeding was a non-resident, never served with process of the court at any step of the proceeding and denying its jurisdiction over his person and moving specially to set aside the notice by mail as void to give such jurisdiction. The Surrogate had power to open on motion; but of course his decree subsequently made had and could have no effectual force on the non-resident. It was nugatory, as a decree directing him to pay money. See reasoning in Woodruff v. Clajlin Co., 133 App. Div. 874, at p. 877, as to surety not a party to original accoimting. The Surrogate is to proceed as any other court of record would. See Matter of Henderson, 157 N. Y. 423, 428. "Proof must be made, notice given, and a judicial hearing of the parties had." Matter of Peck, 131 App. Div. 81; Matter of Robertson, 51 App. Div. 117, aff'd 165 N. Y. 675. § 228. Time within which application may be made. — Former § 2481 above quoted, now 2490, provides that the powers conferred thereby "must § 228 DECREES AND ORDERS 247 be exercised only in a like case and in the same manner as a court of record and of generaljurisdiction exercises the same powers." Accordingly, it was repeatedly held that §§ 1282 to 1290 governing the supreme court in set- ting aside judgments for irregularity and limiting the time within which applications to that end may be made were applicable to and controlled similar appUcations in the Surrogate's Court. See Corbin v. Westcott, 2 Dem. 559; Matter of Hesdra, 4 Misc. 37. The court of appeals in Matter of Hawley, 100 N. Y. 206, expressly held that rehef from an erroneous or irregular decree, except upon the ground of fraud, clerical mistake, newly discovered evidence or other like causes, must be appUed 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 § 2490 are analogous to those enumerated in §§ 1282 and 1283, and are governed by limitations imposed in §§ 1282 and 1290, except where fraud and collusion are made the ground of the appUcation. 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 Clinev. 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 § 2490 was not intended to assimilate) in all respects, the power of the Surrogates' Courts over their records to that possessed by the supreme court; and that §§ 1282 and 1290 were not applicable in the way of limiting the time within which the Surrogate may act; and that while the general 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 § 2490 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 neces- sarily 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 of 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, notice given and a judicial hearing of the parties had, but there is no more limit 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, 248 surrogates' courts § 228 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 opportunity 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 coun- sel, 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 authbrity over its own records for the correction 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. 434, and In re Hawleyj 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 former § 2481 (now § 2490) 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 questions; that were involved and decided in- those cases are not Hke the one now before usl 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 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. See also Matter .of Wiltse and Fromer, 5 Misc. 105, where the Surrogate's power is compared to that exercisable under § 724 of the Code. In Costello v. Costello, 152 App. Div. 280, it was held equity should not §§ 229-231 DECREES AND ORDERS 249 intervene where relief was securable by application to the Surrogate to open, vacate, or modify his decree. § 229. 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 hkely to change the result, (6) Is material, (c) Is not cumulative, (d) Could not have been obtained in 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 hitn at the tinae 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. See also Afaifer o/ i2ose, 153 App. Div. 263. § 230. Same subject. — The power to amend a decree when opened will be exercised in respect of material error or mistake due to inadvertence (see § 234). 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 pay- ment 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 deced- ent's debts was overlooked the Surrogate opened and modified his decree by deducting the account and directing a refund of the amount erro- neously 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. See Matter of Peterson, 68 Misc. 10, where ap- pUcation was based on "unsettled state of law" at time the decree was made. § 231. Same subject. — The power to open decrees given by the present Code merely gives Surrogates'- Com-ts expressly a power which they had previously exercised as incidental to powers expressly conferred by statute. Mattm- of Henderson, 157 N. Y. 423; Farmers' L. &. T. Co. v. Hill, 4 Dem. 250 surrogates' courts §§ 232, 233 41; MaMer 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 ab- solutely essential to the due administration of justice by a Surrogate. Similarly it was held, in Butler v. Emmett, 8 Paige, 12, 21, that a Surro- gate had power to enter an order nunc pro tunc, provided that at the time to which it was made to relate back, he would havq 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. Vreedenhurg v. Calf, 9 Paige, 128. So also to modify a decree by the correction of mis- takes 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 Him, 468, and see Strong v. Strong, 3 Redf. 477, citing Brick's Estate, 15 Abb. Pr. 12. § 232. Same subject. — From this brief review of the power possessed by Surrogates before former § 2481 was enacted, it will be seen that the Sur- rogate's Court had prior power to open, vacate, modify, or set aside a de- cree for fraud, clerical error, or other sufficient cause, such as a want of jurisdiction 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, there- fore, from an examination of § 2490, that the only really new power con- ferred thereby, is to grant a new trial or new hearing for newly discovered evidence 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 such 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 § 2490 of the Code. Matter of Hawley, 100 N. Y. 206, 211, opinion of Ruger, Ch. J. Also Matter of Beach, 3 Misc. 393; MaMer of Carr v. Tompkins, 46 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 accoimt'was filed, the application was denied. Matter of Arkenburgh, 38 App. Div. 473. § 233. Same subject. — The words, " other sufficient cause," are intended to cover only those cases where relief cannot be had by appeal or motion to set aside the decree. Matter of Tilden, 98 N. Y. 434; MaMer of Smile', 72 Hun, 594; MaMer of Humfreville, 8 App. Div. 312; Singer v. Hawley, 3 Dem. 571. And so where a Surrogate refused to remove an executor andj)ro- ceeded with the judicial settlement of his account and allowed him commis- sions, and, in the meantime, an appeal from the order refusing to remove § 234 DECREES AND ORDERS 251 the executor had been had 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 HumfreviUe, supra. In the headnote it is stated: "Even were the power of the Surrogate under former § 2481 of the Code of Civil Procedure analogous to that of a court of record vmder § 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 misconduct 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 cautiously exercised and it should never be iised for the mere purpose of enabling the Surrogate to review his own decision. The only appropriate method of review is by appeal. Story v. Dayton, 22 Hun, 450. Where citation was served on incompetent only, and not on "next friend," held "sufficient cause." Matter of Donlon, 66 Hun, 199. See Matter of Peterson, 68 Misc. 10, as to imcertainty of law as to effect on debts of a discharge in bankruptcy as a "sufficient cause." § 234. 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 time to appeal has expired. Morgan v. Comey 49 App. Div. 612. 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 accoimting executor appears to have been guilty of fraud. Matter ofFlynn, 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 serv- ice 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 E,edf. 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 252 subrogates' courts § 234 amended in that respect so as to include the omitted name. Matter of Grant, 16 N. Y. Supp. 716. But decrees settling accounts are to be opened with great care, since payments may have been made, and readjustments most difficult. Matter o/OWeii, 46 Hun, 500. 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 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 of Pierson, 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; Matter of Carey, 24 App. Div. 531. He has power to open or modify such a decree equally with one made by himself. E. g., on ground former Surrogate was disqualified. Matter of Hancock, 91 N. Y. 284. 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 former § 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 adinitting 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, RoUins, Surr. So a Surrogate may vacate a decree which he signed through fraud or by reason of a mistaken supposition of ju'risdiction on his part, or of death or intestacy on the part of the alleged decedent. Dobke v. McClarahj 41 Barb. 491; Brick's Estate, 15 Abb. 12; Matter of Patterson, 79 Hun, 371. § 235 DECREES AND ORDERS 253 So, where decree contained an untrue statement, regardless of whether it was made intentionally or not. Matter of Henry, 78 Misc. 319. See as to application by attorney general, for unknown next of kin, of a hermit, to set aside excessive allowances to undertaker, physician, and for counsel fees. Matter of M alone, 150 App. Div. 31. 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. See Ashley v. Lamb, 50 Him, 568; Matter of Fuller, 86 Hun, 47. 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. See Matter of Moore, 72 Misc. 644 (county judge vacating order of adop- tion). See Matter of Wood, 70 App. Div. 321, where decree affected title to real estate. Where a decree was recorded without authority, application may be made to expunge the record. See Matter of Armstrong, 72 App. Div. 286. § 235. When power will be denied. — However, granting or refusing an application to open a decree is a matter of discretion with the Surrogate. Boughton v. Flint, 74 N. Y. 476. And while under § 2490 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 apphcation 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. Jmes, 5 Redf . 398. Nor of course will it be opened where the party appl3dng 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 wiU 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; Matt/sr 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. Adecree was opened on motion of a judgment creditor. Subse- 254 surrogates' courts § 236 quently his judgment was reversed. The order opening the decree was thereupon vacated on the ground that he was then merely a creditor hav- ing 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. See again Matter of Peck, 131 App. Div. 81, and cases cited. In Matter of Wickvfire, 80 Misc. 137, the Surrogate refused to open a probate decree oij the mere ground that one of the witnesses on testamen- tary capacity proved to be a legatee under the will. See also Matter of Lord, 90 Misc. 222. 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. Reedv. Reed, 52 'N.Y. 651. Nor where it appears that all the parties were represented upon the pro- ceeding will it be l-eopened 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 imless the fraud is clearly estabUshed. Matter of Salisbury, 6 N. Y. Supp. 932. Nor imless 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; Ricard v. Lay tin, 2 Dem. 587; Story v. Dayton, 22 Hxm, 450; Matter of Cook, 22 N. Y. Supp. 969; Matter of Gaffney, 116 App. Div. 583, aff'd 189 N. Y. 503. Nor has the Surrogate right to open a decree merely on the ground that it was not made in conformity with the imderstanding of th^ 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 becjAise an allowance of com- mission to such executor or administrator was inadvertently omitted, imless 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 case 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, RolUns, Surr. Where it develops that, on accounting, certain assets were not included, the Surrogate may either open the decree, or direct a further accounting. Matter ofHeaney, 125 App. Div. 619; Matter of Hood, 90 N. Y. 512. § 236. 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 § 237 DECREES AND ORDERS 255 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 validity 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 negligence, 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 re- port, 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. § 237. Opening probate decree, after birth of posthumous child. — Where probate has been had, and, after entry of the decree, a child of testator'is born, the Surrogate has power to reopen the proceeding, and to direct citation to issue and be served, and to appoint a special guardian so that the decree may be conclusive upon the child as a probate decree, in respect to factum of the will. This is upon the theory that, after conception, the imborn child, if sub- sequently born aUve, and if "capable of living" when the decree was first made, is considered as in esse, ab instante conceptionis. See Home v. Van Schaick, 3 Barb. Ch. 488. Its rights to share in the estate will not be affected, changed, or lessened by such citation. But, if living, it was a necessary party. It could not be personally served, nor could publication of the citation be had. Upon its coming to the birth, the fact may be presented on petition, to the Surro- gate, and the action above indicated thereupon taken. See elsewhere, dis- cussion of rights of after-born child. See decree and underlying papers, filed September 10, 1912, in New York Surrogate's office in Matter of Will of John Jacob Astor. In this matter, the proceeding was opened specially only, and no prior party was allowed to raise anew any question as to validity oi factum of will. CHAPl^R V APPEALS -FROM DECREES AND ORDERS § 238. Appeals, effect on enforceability of decree appealed from. — The act of 1914 treats of decrees in title 2, art. 2, and of appeals from decrees in title 5, art. 3, some 200 sections apart. Logical treatment seems to require that we discuss appeals, directly after the subject of the orders or decrees to be appealed from. Section 2557 forms a link between the two topics. From certain decrees or orders it might be nugatory to appeal if the operation thereof could not be suspended pending the appeal. With well-defined exceptions, however, the Code provides' that a "perfected appeal" has that effect, and in certain specific cases an undertaking is provided for to accomplish the same result. § 2557. When execution of decree or order is stayed by appeal. An appeal from a decree or an order directing the commitment Of an executor, administrator, testamentary trustee, guardian, or other person appointed by the surrogate's court; Or an attorney or counsel employed therein, For disobedience to a direction of the surrogate's court, or for neglect of duty; Or directing the commitment of a person refusing to obey a subpoena, or to testify when required according to law; Does not stay the execution of the decree or order appealed from unless the appellant gives the undertaking required by section 2761 of this chapter. An appea,l from a decree of a sin-rogate, Admitting a will to probate, , Or granting letters testamentary, Or letters of administration, Or from an order or judgment of the appellate division of the supreme court affirming a decree of the surrogate admitting a will to probate, or granting letters testamentary or letters of administration, Does not stay the issuing of letters where, in the opinion of the surrogate mani- fested by an order, the preservation of the estate requires that the letters should issue. (See also § 2560.) An appeal from a decree Revoking letters testamentary, letters of administration, or letters of guardian- ship; Or from a decree or an order, suspending an executor, administrator, or guardian, or removing or suspending a testamentary trustee; Or appointing a temporary administrator, or an appraiser of personal property Does not stay the execution of the decree or order appealed from. Except as otherwise expressly prescribed in this chapter a perfected appeal has the effect,, as a.stay of the proceedings to enforce the decree or order appealed from, prescribed in section 1310 of this act, with respect to a perfected appeal from a judgment. Parts of former §§ 2579, 2582, 2583, 2584 of this Code, combined. See 2 R. S. 610, 611 (Part 3, c. 9, tit. 3), §§ 110-116. 256 § 238 § 239 APPEALS FROM DECREES AND ORDERS 257 The article on appeals has been substantially changed. Former §§ 2569 and 2571 have been repealed. The first dealt with appeals by persons not parties, now covered by making § 1296 applicable; and the second with the review of intermediate orders, now covered by making § 1301 applicable. , § 239. The right of appeal. — -The right to secure a review of a Surro- gate's decree, or of an order affecting a substantial right is given by § 2754. § 2754. Appeal; when and to what court it may be taken. 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, by any party aggrieved thereby, except where the decree or order was rendered or made upon his default in appearing. Former §§ 2568, 2570 of this Code. Prom 2 R. S. 609 (Part 3, c. 9, tit. 3), § 104; Id., 711, § 118; Id., 62, § 35; L. 1895, c. 946. It is given to "any party aggrieved thereby" unless he were in default, and so presumably consenting thereto. Delmar v. Delmar, 65 App. Div. 582. It relates to final determinations or "decrees" and to "orders affect- ing a substantial right." This does not change the former rule. In the section making applicable certain sections of Chapter XII, three new sections are made to operate in appeals from Surrogates' Courts. The sectioH' now reads ; § 2768. Certain provisions of chapter twelve made applicable. The provisions of the following sections of this act, to wit: sections 1295 to 1299, both inclusive, and 1301 to 1303, and 1305 to 1309, both inclusive, apply to an appeal taken as prescribed in this article, and for the purposes of such application the word "judgment" shall mean a decree. Former § 2575 of this Code. That is §§1296 (in lieu of former 2569 repealed) 1301 (in lieu of former 2571 repealed) and 1302 now apply, in addition to those enumerated in fornaer 2575. Section 1300 is not made applicable, but is so by its very terms. . 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. iSection 1296 provides for an appeal by one entitled to become a party. Section 1297 provides for an appeal when an adverse party has died, by substituting the heir, devisee, executor, or adminis-, tratorof the deceased party as the case requires. Sections 1298 and 1299 cover cages where party dies pending appeal. Section 1301 relates to specifying interlocutory or intermediate orders to be reviewed. Section 1302 covers cases where party or his attorney cannot be found. Section 1303 covers the remedying of defects in proceedings on appeal. Sections 1305 to 1309, both .inelusive' (g. 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 tmdertaking on appeal. It is unnecessary to quote these 258 surrogates' courts § 240 sections in full further than to say, except as they are expressly made ap- pUcable by reference, appeals from orders or decrees of the Surrogate are provided for by art. 5 of title 5 of chap. 18. § 240. Party " aggrieved." — The distinction was formerly emphasized between a party aggrieved and one who would have been aggrieved if he had been a party, and who came within the scope of former § 2569. It included a person who acquired an interest or right which would have en- titled him to be heard if it had been previously acquired. But now § 1296 appUes (and former 2569 is repealed) and provides: A person aggrieved, who is not a party, but is entitled by law to be substitiUed in place of a party; Or who has acquired, since the making of the order, or . . . the decree . . . appealed from, an interest . . . may also appeal . . . But his appeal can not be heard until he has been substituted . . . This restricts the situation, for formerly one who was not a necessary party, not an actual party, but who could have intervened below, being a proper party, could also appeal, by filing a verified statement of his interest ad litem. See Matter of Sullivan, 84 App. Div. 51. This case is no longer controlling. For the present class of "aggrieved" appellants is thus limited to a party or his "successors or assigns," if we may use the term, in interest. The section thus contemplates by the word party, one who is a party at the time 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 appealing 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. See Cox v. Schermerhorn, 12 Hun, 411. So it has been held that where an executor had not paid a claim or become per- sonally Uable to pay it, and the Surrogate refused 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. Rathbum, 4 Paige, 102. Similarly, it was held that where an appeal was taken from certain provisions of a decree settling the accounts of an executor 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 § 241 , APPEALS FROM DECREES AND ORDERS 259 default" within the meaning of § 2754 of the Code, permitthig appeals except by one in default. People ex rel. Patrick v. Fitzgerald, N. Y. Law Journal, June 12, 1902. § 241. Same subject. — 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 aggrieved," within the intent of §§ 1294 and 2754 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. Thomp- son, 128 N. Y. 426; 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 interest which is injuriously affected. Bryant V. Thompson, citing People v. Lawrence, 107 N. Y. 607; Hyatt v. Dusenbury, 106 N. Y. 663. 'So on a submission of an "agreed statement" to the ap- pellate division by executors and trustees oh the one hand and the "per- sons interested " on the other to determine from what fund to pay a transfer tax, held, the representatives 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, supra; Matter of Hodgman, 140 N. Y. 421; s. c, 11 App. Div. 344, aff'd 161 N. Y. 627; McLouih v. Hunt, 154 N. Y. 179; Matter of Rich- mond, 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, 484, 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 never- theless appeal from a decree admitting to probate, Vandemark v. Vande- mdrk, 26 Barb. 416; Delajield v. Parish, 42 Barb. 274, nevertheless the language of § 2754, "a party aggrieved may appeal," limits th'e 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 (chap. 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 260 surrogates' , courts § 242 great interest and importanpe could not b?! passed upon by that court until brought there by some party having an a^ctijal and practical, as distin- guished from a mere theoretical interest, in the controversy. See opinion of O'Brien, J., at page 435, citing F^qpl^ ex rel, Breslin y. Lawrer^ce, 107 N. Y, §07; Hyatt v. Dysevhury, 106 N. Y. 6^8. 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 -Jil. Y. &09;. Fairbanks v. Cm-lies, 1 Abb. 160. Bi^t the wprds a^resheld to include tl?? representative^ of a deceased party who was himgeK a party aggrieved. See Campbell v. Gallagher, 18 Civ. PxQC. 90. So also a person upon ^hom ^he interest qf a party has devolved or to whorn it has p^en set oypr. McLaughlin v. Brett, 2 Civ. Proc. 194. A stranger to tfee proceieding has no, standing upon the. appeal; that is to say, a person who dop^^Pt, bring himself within the definition of the in- terest prescrib€|d by the section quoted may not appeal. See Metier of Bristol, 16 Abt(. 397. \yhere a stranger to a proceeding appUed for relief against the proceeding and his application being denied sought to appeal from such order^ held tjiat he could not do so. ~ § 242. Substantial right. — ^Where th^ appeal is from an order it must be an order affecting snl^stantial rights. Matter of Burnett, 15 N. Y. St. Rep. 116. As ,f qr example, an order.diTWtiug the executor to pay a legacy, ikf ai- ter of Hasley, 17 Weekly Digest, 241. An order a-djudging 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 administraiEor after his account ba^ l?p?n passed upon by a referee, to file a supplemental ac- count. MMter of Gilbert, 104 N. Y. 200; Stephen v. Lott, 42 Hun, 408. So also a decrpe fixing the fees, of an appraiser is appealable. Matter of Har- riot, 145 N. Y. 540. But where the orcier is ex parte. Matter of Johnson, 17 Hun, 538i; Ski^ore v. Davies, 10 Paige, 316, no appeal lies. The, proper practice is to move on poticeto vacate an ex parte order; if this motion is refysesd an appeal may he. So an order denying a motion to dismiss a petition does ,not affeict a svj^stantial right. Matter of Soule, 46 Hun, 661; Matter of Phalen, 51 Hun, 208. Appeal lies frpm a decision that a petitioner for letters is oris nqjt competent, undpr the statute. McMahonv. Harrison, 6 N. Y. 443. So prdpys merely affecting the procedure on the hearing before thp Surrogate do npt affect substantial rights an^ are not appeal- abjie, Henry v. Henry, 3 How^ N. S, 386, as where a, Surrogate denies a njotion for thp sin?,ultaneous trial o(f several issues in a proceeding pending before him. See 4 Dem. 253. So the exercise by the Surrogate of his discretion ^p appoint a referee is not reviewable by the general term. Matter c^ Post, 64 Hun, 635; Matter ofPea,rsaU, 21 N. Y. St. Rep. 305. But an artjit^ary exercise of power by the Surrogate is reviewable. Matter of PawjRJl, 136 App. Diy. 830. An appeal to the Surrogate's discretion, as for example, an application to reopen probate proceedings to admit ex- trinsic eyidence is npt reviewable^ Bqmhton v. Flint, 74 N. Y. 476, unless the e?cprci^e of the discretion has been abused. Matter of Doig, 125 App. § 243 APPEALS FROM DECREES AND ORDERS 2'61 Div. 746. So also in a case where the Suri'ogate gralited a oiotioii to issue a comniisgion.. Matter of Plunib, 64 Hun, 317. So where a tnotibri was maide before the citation was served or was returnable to vacate the citation upon the ground that the petition was insufRcieht, ali order denyiflg such motion was held notto affect any substantial right, and was theMoi'e held not to be appealable. Matter of Westurn, 5 App. Div. 595, citing Tracy V. Reynolds, 7 How. Pr. 327; Matter' of Bumett, 15 N. Y! St. Rep. 116, and other c&ses cited above. So' an order oveJhlliftg' objections to the jurisdic- tion of the Surrogate to make an order, e. g., to fix value of atf attorney's servicer, is not appealable. The person aggrieved shotild wait lintil he exercises the asserted jurisdiction and then appeal from such determination. Matt& of LOeiberlgUth, 114 App. Div. 754, and cases dited. 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 mattef back is not appealable. Matter of Post, 64 Hun', 635. Where a Surrogate, however, improperly refiised to decree distribution of an estate ready for distribution, it wsts held that the parties aggrieved ought not to appeal but to proceed by mandamus. Matter of Nottingham, 88 Hun, 443. § 243. Parties to app'ftal. — The Act provides: §2766. Who.must be made parties. Each party who has appeared m the special proceeding in the surrogate's court, must be made a pairty to' the appeal. A person not a party, msly be brought in by an orden" of the appellate court, made after the appeal is taken, in such manner as the order may prescribe. Former § 2573 of this Code, modified. This section provides that up5n the appeal, persons who are not already parties to the prCfeeedings may be brought in by an oirder of the appellate court made after the appeal is taken, and perfected, with service on those already parties. See Marvin v. Marvin, 11 Abb. N. S. 97; Matter &f Dunn, 1 Dem. 294. So in Matter 'of Hunt, 120' App. Div. 883; the court held the appeal pending the bringitig itt of oitiitted lie'ce^sary parties' on its 6'Wn order. Matter of Marks, 128 App. Div. 775. It would appear,' therefore, that, as the Surrogate's 'Court has no p'6^er tb grant an order of intervention after the decree is entered,^ the purpbse of § 1290 is that a person such as is described therein may, by fi^Kfig an affida- vit showing that he has the interest therein required and by filing arid serv- ing his notice of' appeal, with a copy of such affidavit, become an original appellant and be thereafter a party to the proceedings' iii the appellate court. This construction of the section would obviate the risk which stieh a party might run of'having' the time within which he must ^peal (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: lii Cox V. Stkermerhorkf 12 Hun, 411, such a party, the' time to appeal having elapsed, was allowed to cbme in as a' respondent ! Section 2755 is slightly different in language from former § 2573 which 262 surrogates' courts §§ 243a, 244 it replaces. The necessary parties to the appeal now are "each party who has ajypearpd."' Formerly there was added "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 fee- come, manifest in the course of the proceedings. ..." § 243a. Parties to appeal — Guardian ad litem. — It has been held by the appellate division that a special guardian appointed in a Surrogate's Court does not become fundus officio by the rendition of the decree; but that under the Code 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 ap- peal from the iSurrogate'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 appeal, although it is not necessary that the appeal be taken in the name of the infant. UnderMJl v. Dennis, 9 Paige, 202; Kellinger Y.Roe,! Paige, 362; Matter of Van Yranken, 20 St. Rep. 387. The acceptance of costs and allowance in the court below does not preclude a guardian ad litem, how- ever, 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; Pruynv. Brinkerhoff, 57 Barb. 176; persons to whom money is directed to be paid by the d&cree, Jauncey v. Rudderford, 9 Paige, 273; Matter of Thompson, 11 Paige, 453, also any persons who are inter- ested in sustaining ^the order or decree appealed from. Kellett v. Bathbum, 4 Paige, 102;, Gardnev 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. We repeat, a motion made under § 2755 to bring in as parties to the appeal persons, not parties below, but interested in the subject-matt^er, shoul^i be made in the appellate court, after the appeal is duly perfected as to those already parties, , Matter of Marks, 128 App. Div. 775. But it is obvious that such interyenor must come within the intent of § 1296, i. e., a person aggrieved having an interest affected by the attempt to review the order or decree. § 244. Appellate division, first appellate tribunal. When and how appeal taken.^Ah appeal from a Surrogate's order or decree must be taken in the 'first instance to the appellate division of the supreme, court. Section 2754, suprck It is 'taken, by notice of appeal under the second paragraph of § 2756, below. The time within which to appeal is prescribed in the first paragraph: - , , . , ; §245 APPEALS FROM DECREES AND ORDERS 263 § 2766. Time to uppeal; how taken. An appeal must be taken within thirty days after the service, upon the appel- lant, 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, except that the party entering such decree or order shall not be entitled to further notice to limit his time to appeal. An appeal must be taken by the service upon each party to the appeal, other than the appellant, and upon the surrogate, or the clerk of the surrogate's court, of a written notice, referring to the decree or order appealed from, and stating that the appellant appeals from the same, or from a specified part thereof. Where a party to the special proceeding in the court below appeared in person, the notice of appeal must be personally served upon him; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. Former §§ 2572, 2574 of this Code, consolidated and modified. Prom 2 R. S. 66 (Part 2, c. 6, tit. 1), § 55; Id., 608, §§ 90, 102, 105-107. The time is set running by service of the order or decree with written "notice of entry." Filing and entering are not synonymous. Section 1304 is not made applicable to Surrogates' Courts, being conspicuously omitted by § 2758. The appellate division, in O'Connor v. McLaughlin, 80 App. Div. 305, held that an order made July 16th and stamped "Filed July 17th," was " entered " within the intent of § 1304. This is not .the case with Surro- gate's orders or decrees. Sections 2486-2487 prescribe the books in which orders and decrees are to be entered. As a matter of practice, just as a deed is deemed recorded as of the time-stamp date of its delivery to the Register, so the order or decree is deemed entered as soon as the duty of the clerk to enter it accrues. Section 2756 contains the sensible provision (new) that the time of everyone to appeal is set running by such service by anyone. There were previously cases of astute practitioners, intending to appeal, who extended their time to do so by being prompt to enter and serve on other parties the particular order or decree and thus set ruiming the time of others to appeal. These others, oblivious of the fact that the party serving the order had not himself been served, and so as to set the time running against him, would later on be confronted with an appeal supposed to have been abandoned. If service is made upon an attorney, the notice operates on every client for whom he appeared. Matter of Heldmann, 153 App. Div. 583. § 245. How appeal taken.— The notice of appeal -may be adapted from this precedent. Notice of appeal' Surrogate's Court, County of Title. Please take notice that (specifying status of appel- lant in proceeding in which the order or decree appealed from was made) appeals (on the law , on the facts) to the Appellate Division of the Supreme Court in the department, 264 surrogates' courts § 245a from the decree {or from the order) made by the Surrogate of ' the county of and entered in his office on the day of 19 and from each and evfery pairt theredf. (// only part of the decree is appealed from specify the purjiOrt of that part of the order or decree which is intended to be appealed from.) (Under Matter of Gilmim, 92 App. Div. 462, a,ddi and appellant appeals also upon the fact^ and will aik the court to exercise its powers under § 2763 of the' Code.) // intermediate order is to be reviewed identify it by its date and date of its entry. See § 1301. (Date.) (Signature.) Attorney for (Add address.) To: ._ ^ ', (Here insert name of Surrogate of the ed'urity atid'naine or names of attorneys for all the parties to, the appeal under §2755.) This brings up for immediate discussion two topics. Intermediate orders, and the Oilman case noted in the precedent. § 245a. Notice of appeal — Gilman case. — Former § 2574, being' Supet- seded by the second paragraph of § 2756, we notte first that there is no longer the special requirement that the notice be served " within the state." The notice is filed with the clerk of the Surrogate's Court. We note ' here that while § 1300 is not made appHcable to Surrogates' Courts by § 2758', nevertheless its last clause does apply. FoT if an appeal from' the Surrogate go to the appellate division, and thence to the court of appeals, the latter notice of appeal "shall be filed with the Clerk of the Surrogate's Court." The notice of appeal need not be as specific as exceptions are required to be; it need not state the grounds of appeal, Matter of Stewart, 135 Ni Y. 413; but need only refer to the decree or order appealed from, that is to say, to describe it with sufiicient particularity as to its date of entrj^; title and effect. It is only requisite that the notice of appeal should contain a definite statfement that the appellant aplpeals froni a s'pecific order or decree or a specific part thereof. So it has' been held that notices of appeal from Surrogate's orders and decrees will be liberally construed. Matter of Lawson, 42 App. DiVi 377, 382, calling attention to' the fact that former §§2571 and 2545 are not so exacting as § 1301. But see MaiM of Gilman, 92 App. Div. 462, which intimates by a "semble," that when the appeal is taken upon the facts, the power given the appellate division by § 2763 (former 2586) to independently decide the facts,, receive further testimony or documentary evidence, or appoint a referee, should be invched (in the no- tice of appeal. While this case was unanimously* decided, yet in later cases the same court has exercised the power irrespective of the notice of appeal. Wliere it does so act, e. g., by appointing a referee, the appeal is carried along, and argument held up till the report is available. Matter of Burr, 116 Api). Div. 518. Or, it may be, argument will first be had to develop the necessity of taking new testimony, etc., and then' adjourning the mat- §§ 246, 247 APPEALS FROM DECREES AND ORDERS 265 ter while that is being done. The rule in the Oilman case is strength- ened further by the provision in § 2757 stating that an appeal may be taken ''upon questions of law, or wpon the fads, or both." § 246. Intermediate orders. — It is next to be noted that the act of 1914 repealed former § 2571, which read: , An appeal, taken from a decree, brings up for review each intermediate order wlfiah 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. But § 1301 is made applicable instead. 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 iiitermediate merely because made in the same matter and at a time prior to the order made dirfectly the subject of appeal. Thus, where a will was admitted to probate and on appeal the general term reversed the Surrogate'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 inind when the will was executed, and second, whether the will was procured by undue influence; such trial having'been had and the re- sult cettifled to the Surrogate, the Surrogate entered a decree adjudging that the will was invalid and revoking the former record and probate of the instrument. 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 intermedi- ate order necessarily affecting the decree within the meaning of former § 2571. Matter of Bartholic, 141 N. Y; 166, 171, citing Matter of Budlong, 126N;Y. 423. § 247. Same subject; limit to right. — The last clause of former § 2571 made it an important question whether to appeal directly in the first in- stance from an "intermediate order." In the first place it cannot he ap- pealed from unlesb, as above noted, it affects a "substantial right." The question, of' course, is determined by the further question of an ultimate intention to' appeal to the court of appeals. To illustrate this I give a case urirfeported 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 motion 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, the matter proceeded under the affirmance by the ap- pellate division before the Surrogate to a decree settling the account. B appealed from the final decree and stated in the notice of appeal that 266 StTRROGATES' COURTS § 248 she intended to brings 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; quosre, further, whether the difficulty could have been obviated in the appeal to the court of appeals by specifying as an intermediate order, not the order of the 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 interme- diate, on 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). § 248. Appeal on facts, or on law — Exceptions. — "An appeal from an order or decree of the Surrogate may be taken upon questions of law, or upon the fticts, or upon both." Code of Civil Procedure, § 2757, in part. The rule has already been stated that under § 2541, the Surrqgate need not make findings of fact and conclusions of law. But exception must be taken to his rulings upon the trial of an issue of fact, under § 2542. . If 'there be no exceptions there is nothing to review. Matter of Falls, 29 N. Y. St. Rep. 759; Matter of Sprague, 126 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 exceptions 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. CraAg, 87 N. Y. 550; Hepburn v. Mordgomery, 97 N. Y. 617. For such an exception indi- cates 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. But now by § 2541, the Surrogates' decree is given the same effects for purposes of appeal "or other form of review," "as the general verdict of a jury." In Burger v. Burger, Judge Andrews, writing the opinion of the court, dis- § 248 APPEALS FROM DECREES AND ORDERS 26!^ ' tinguishes 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 former § 2586, providing that: "Where an appeal is taken upon the facts, the appellate court has the same power to decide the ques- tions of fact which the Surrogate had, and it may in its discretion receive further testimony or documentary evidence, and appoint a referee" (now numbered 2763). 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, § 2542, 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 § 2756. This section, which prescribes how an appeal may be taken, declares 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. Section 2542 makes applicable art. Ill of title I of chap. X. This article includes §§ 992-1007. So far as they relate to "the manner and effect of taking . . . exceptions, and the. settlement of a case containing the excep- tions," they apply to a trial before the Surrogate . . ." for which purpose the decree is regarded as a judgment, and notice of an exception may be filed in the Surrogate's office." Under § 994 this must be done within ten, days after the decision is served with written notice of entry of judgment thereon. In a recent case, People v. Journal Co., 213 N. Y. 1, it is held that a de- cision made without findings requires the filing of an exception, citing Ross V. Caywood, 162 N. Y. 259, C. C. P., § 994. Two subordinate points were also decided (a) that the appellate division could stay the argument, and permit the omission to be supplied, under § 994, (6) that the effect of the failure to file might be waived, citing Cowenhoven v. Bvil, 118 N. Y. 231, 234, 236; Snelling v. Yetter, 25 App. Div. 590, 593. It is still true that if timely made, requests to find can be submitted under § 2541. It would seem as if exceptions to the action; on such requests, must be filed within the same period of 10 days fixed by § 994. If a decree, under the new practice, containing no findings, is filed and enteried, apparently it is necessary (a) to except thereto, if People v. Journal Co., supra, applies (although that was a case of nonsuit), (b) the notice of 268 surrogates' courts ~§§ 249, 249a appeal should specify if the appeal is also to be on the facts; (c) but, if the appeal is general, and no exception is filed whatever the effect in case of later appeal to court of appeals, certainly the appellate division has, and can exercise, its power of review, and if the appeai be on the facts, its additional powers under § 2763. Matter ofSpratt, 4 App. Div. 1. § 249. Same — Case on appeal.— Section 2757 (in part) pregcxibes as to an appeal: If it is tak«n from a decree rendered upon the trial by the surrogate, or by the surrogate and a jury, of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by ^p,Tf,. for the making aad spttjing of a c£|,ae upon an appeal in an action. Since by:§§ 2S42 and 2757, the supreme court, practice is made control- ling (see §§ 992 et seq., C. C. P.) on appeals from Surrogates' Courts it is unnecessary to discuss the practice, except in special particulars. The case is to be made as if the appeal were in an action. The case is to be settled by the Surrogate, who has every power in the premises which the trial justices have in Uke case. (See annotations to Rule 32, General Rules of Practice) ; Matter of Sprathaff, 50 Misc. 109 (as to contents of case on appeal). A case is not required where no issue of fact is involvfed. Matter of Jaichson, 32 Hun, 200; Matter of Byron, 61 Hun, 278^ But if only questions of law are to be reviewed there must be exceptions, of record, to present them for review, and they should be specific. Matter of Spratt, 4 App. Div. 1 ; Angevine v. Jackson, 103 N. Y. 470. It used to be the rule that requests to find, etc., could be presented at any time until case on appeal was actually settled. Now it must be, under § 2541, before "the close of the trial," even if § 992 apphes, and § 2541 makes the "decision" equal to, the general verdict of a jury, yet § 992 only provides that the trial "is regarded asicontinuing until the verdict is rendered" [I am constrained therefore to differ with some of the authori- ties cited by Judge Heaton (3d ed.) as being still controlling. See for example Matter of McCarty, 68 Misc. 283, cited in his § 168.] § 249a. 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 ap- peal 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 w;ith 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 ainend- ments will be submitted for settlement at a time and place specified to the Subrogate 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 Surrogate, on appeals from his court, may by order allow further time for the doing of § 249a APPEALS FROM DECREES AND ORDERS 269 any of the acts above provided to be done on such appeal. That is to re- lieve 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 application, and for good reason shown for the delay. Hence the power may be exercised after the time has expired. For § 2758 of the Code makes applicable § 1303 to Surrogate's Court. Note, in latter, section, the words "the court, in or to which the appeal is taken . . . may . . . permit the omission to be supplied." This of course does not extend to the matter of taking an appeal in the first instance. See § 1303,' Cdde Civ. Proc, aiid 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 amendments thereto may be servedj shaU be made unless the party applying for such order, serve a notice of at least two days upon the adverse parties of his intention to ap- ply therefor, stating this time and place for making suijh application. 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 may be dismissed. Ibid., 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 with the facts," when it clearly appears" either that a paper actually used was not recited in the decree, or that the decree recites a paper not actually used. Matter of Richardson, 120 App. Div. 406. Should there have been a reference, the referee is fimdus, upon fihiig his report. He has no rela- tion to nor powers respecting the appeal. See opinion of Fowler, Surr'. Matter of Nestell, 72 Misp. 331, 335. It has been held that § 2757, formerly § 2576, was not intended to regu- late th© practice in bringing appeals, except to require that when the apipeal 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. Mqiter 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; Burger 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 appellate court will have nothing to consider. Matter of Clark, 34 N, Y. St. Rep. 523. So in Matter of GoUsticker, 54 Misc. 175, Th;q«mas, Surr., held that the only way he could settle a case involving his deter- mination of the sanity of testator on a probate proceeding was by includ- ing all the evidence "which any party may claim to be material to the determination of tJie queBtions to he. passed upon by the appellate court," citing Perkins V. S(iU, 56 N. Y. 87, 91. Otherwise, he pointed out, it would be impossible for that court to decide under § 2545, n.ow 2757, 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 270 surrogates' courts §§ 250, 251 appeal does not contain all the evidence dr does not have the usual certifi- cate 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. If certified the clerk must charge one cent a folio "when printed copies are presented." Section 2499. § 250. Perfecting the appeal — Stay. — But a mere notice of appeal alone cannot give fife to the appeal, except in particular cases. § 2769. Security to perfect appeal. To render a notice of appeal effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that security is not neces- sary to perfect the appeal, the appellant must give a written undertaking, with at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. Former §2577 of this Code. See 2 R. S. 66 (Part 2, c. 6, tit. 1); §56; Id., 10, § 108. • Before quoting the "next section" (§ 2760) we note the difference which must be kept in mind between rendering a notice of appeal " effectual for any purpose," and " staying execution " of the decree appealed from. Each requires an undertaking to be given. The inquiry is which is to be given, or whether both are requisite. Section 2760 reads: § 2760. Id.: where^ decree is for money or delivery of property, etc. In every case (except one in which the letters of an executor, administrator or guardian have been revoked, or a trustee has been removed). A notice of i appeal by an executor, administrator, testamentary trustee, guardian or other person appointed by the surrogate's court, from a decree, directing him to pay or distribute, money, or to^ deposit money in a bank or trust company, or to deliver property; Or by an executor or administrator from an order granting leave to issue an execution against him, as prescribed in section 1825 of this act. Does not stay the execution of the decree appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appeUamt will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires will deposit or distribute the nloney, or deliver the property, so diretfted'to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed. ,; Former § 2578 of this Code. From 2 R.S. 116 (Part 2, c. 6, tit. 5), § 21; L. 1870, c. 359, § 12; L. 1882, c. 399. § 251. The undertakings. — Either or both undertakings (undei* §§2759 or 2760) may be adapted from this precedent. Note, however, the second paragraph of § 2762, quoted in § 255, below. Since § 2758 makes §§ 1305-09 applicable as already noted, it is sub- mitted that by written consent security can be waived under § 1305, or a §251 APPEALS FROM DECBEES AND ORDERS 271 deposit of money made with the clerk and notice of the fact served under § 1306. Surrogate's Court, County of Undertaking on ap- peal. See Form 85, II. Note. A proper surety company is equivalent to two sureties, by statute. Note. See below. §253 Note. The under- taking must be ac- knowledged by each surety. Note. The affidar vit of sufficiency, is required since it is in- tended by the under- taking to stay the execution of a decree, in which case the Title. Whereas, on the day of 19 a decree was made in the above entitled proceeding by the Surrogate of the county of adjudging or decreeing (here state purport of decree concisely) ; Whereas, (here state status of party in proceeding) feeling aggrieved thereby, intends to appeal therefrom to the appellate division of the Supreme Court, in the ' depart- ment; Now therefore, we, A. B. of by occupation (a mer- chant), and C. D. of by occupation (a banker), do hereby jointly and severally undertake to and with the People of the State of New York that the appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding $250. {Note.) Where undertaking is on appeal from a decree directing pay- ment of money, substitute for the foregoing paragraph, after the names and residences and occupations of the sureties, hereby jointly (note) and severally undertake, to and with the People of the State of New York, in, the sum of dollars, that if the said decree is affirmed in whole or in part, or the appeal is dismissed, the said appellant will pay (or, deposit), (or, distribute) the sum of money directed to be paid (or deposited, or distributed) by said decree, or such part thereof as the said decree if affirmed may direct (or, in a proper case, say, will deliver the property directed to be delivered by said decree), and that the appellant wilLpay all the costs and damages which may be awarded against him on such appeal. (Date.) (Signature.) (Note.) Add also affidavit of sufficiency, as follows: State of New York County of being duly sworn deposes and says: that he is one of the sureties named in the foregoing undertaking; that he resides in county of State of New York; that he is a ' holder; and that he owns property consisting of in the county of and State of that the same is of the net value of not less than dollars and unincumbered except as follows: that he is not upon any bond, undertaking or written obliga- tions whatever, except as follows: that he is worth in good property in the State of New York not less than dollars over and above all debts, liabil- 272 surrogates' courts §§ 251a, 252 undertaking should ities and lawful claims against him and all liens and incum- also be endorsed with brances and lawful claims upon his property, the approval of the Sworn to before me this | Surrogate, the date of day of 19 J such approval being indicated. See § 2762. (Surety.) {Note.) .§ 251a. How,stay effected. — Section 2759 is. general in its operation, and fixes the character of the security which must be given to perfect any appeal, except such as are exprfessly provided for. The .stay which it is desired to secure pending any appeal is given, not by virtue of this section, but by virtue of § 2757, which is as follows (last paragraph) : Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the proceedings to enforce the decree or order appealed from, prescribed in section 1310 of this act, with respect to a perfected appeal from a judgment. [From former § 2584]. (See whole section qiioted above in § 238.) This assumes that the appeal is by one entitled to appeal. An appeal improperly taken cannot so operate.' Matter of Evans, ZZ Misc. Qll. This stay does not result from appeals from interlocutory or practice orders. See opinion Clarkei, J., in Matter of Williams, 135 App. Div. 123. He con- strues "enforce the decree or order" as definitive — ^that is, a& indicating decrees or orders directing collection or payment of money, deUvery of property, punishment for contempt, or the doing of a thing refusal to do which will be a contempt. The sections referred to in § 2557 are former §§ 2578, 2579 and 25^3, now respectively 2760, 2761 and 2762. The effect, therefore, of perfected appeals generally is the same as th6 effect of a perfected appeal under § 1310 which provides that where an appeal is perfected as prescribed in chap. 12, "the appeal stays all proceedings to enforce the judgment or order appealed from, except that the court or judge from whose deter- mination the appeal is taken may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order ap- pealed from or not embraced mthin the appeal." Consequently where a Surrogate in probate proceedings denies a motion for a commission, an appeal from his order does not stay the probate pro- ceedings. Estate of Henry, 4 Dem. 253. Nor would an appeal from an order denying a union of issues previously directed to be separately tried stay the probate proceedings. Such orders merely affect modes of pro- cedure that are entirely within the control of the trial court. Matter of Henry, supra, citing Arthur v. Griswold, QO N. Y. 143; Whitney v. Town- send, 67 N. Y. 40; Miller v. Porter, 17 How. Pr. 526. On the other hand, if a Surrogate makes an order granting ah appHcft- tion for the issuance of a commission to take testimony without the State, a perfected appeal from such order would stay the issuance of such com- mission. Matter of Henry, opinion of Rollins, Surr., at page 264. § 252. When second undertaking necessary to effect stay. — There is no § 253 APPEALS FROM DECREES AND ORDERS 273 proyision for any other undertal^ing upon appeal except that required by § 2760, where some appointee of the Surrogate's Court, such as an executor, administrator, testamentary trustee or guardian, appeals from a decree requiring him to pay, distribute or deposit money, or to deliver property, or where an executor or administrator appeals from an order granting leave to issue execution against him; in such cases, in addition to the un- dertaking for costs and damages, there must he a, further undertaking as required by the section which has been qu6ted above in § 250. But this section undoubtedly requires two undertakings, or a double undertakiiig (see precedent above) to effect a stay. It must be distinctly borne in mind that the undertaking specified in § 2760 that the appellant will pay the sum directed to be paid or collected, or deposit or distribute the money, or deliver the property, is not sufficient of itself to stay the decree unless the undertaking to pay all costs and damages required by §,2759 (formerly 2577) is also given. Matter of Whitmark, 15 N. Y. St. Rep. 745. Where an executor, however, is mentioned in the willas a legatee and he takes an appeal from the decree of the Surrogate which declares his legacy void, the fact that he is an executor does not require the double imdertaking contemplated by § 2760, for his appeal is an in- dividual appeal, and the single undertaking under § 2759 will be deemed sufficient. DuBois v. Brown, 1 Dem. 317, 334, Coffin, Surr. Unless, then, the appeal is by an executor, administratpr, testamentary trustee, guard- ian, or other person appointed by the Surrogate's Court as such, no un- dertaking can be required except the one for $250 required by § 2759, and the giving of that undertaking perfects the appeal. Matter of Arkenburgh, 17 Misc- 543, Tompkins, Surr., affirmed on Surrogate's opinion in 11 App. Div.-44, 45. The danger of faiUng to give both undertakings in the proper case is illustrated in Matter of Holmes, 79 App. Div. 267. The Surrogate by decree ordered the executrix to pay certain legacies. She filed only the undertaldng required by former § 2577. The decree not being stayed she was proceeded against for contempt, and fined the amount directed to be paid. The Surrogate's action was sustained on appeal. ■ If there are two proceedings between the same parties for the sarne ob- ject and one ripens into decree, it bars the later proceeding even though stayed by perfected appeals. Matter of Moran, 59 Misc. 133. § 253. Contempt cases ; different undertaking. § 2761. Security to stay proceedings in case of commitment. An appeal from a decree or an order, directing the commitment of an executor, administrator, testamentary trustee, guardian, or other person appointed by^ the ; surrogate's court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate, or for neglect of duty; or directing the commitment of . , a person refusing to obey a subpoena, or to testify, when required according to law; does not stay the execution of the decree br order appealed from, unless the ap- pellant gives an undertaking with at least two sureties, in a sum therein specified, to 'the effect that if the decree ororder appealed froin, or any paH thereof, is affirmed, or the appeal is dismissed, the appellant will, within twenty days after the af- firmance or dismissal, surrender himself in obedience to the decree or order, 274 surrogates' courts § 253 to the custody of the sheriff of the county, wherein he was directed to be committed. Former § 2579 of this Code, m part. From 2 R. S. 610, 611 (Part 3, c. 9, tit. 3), §§111-115. Where an undertaking is required under this section to stay proceedings pending appeal in case of commitment, follow the form in § 251 from up to and including the names, residences and occupations of the sureties, and then continue: hereby jointly and severally undertake that if the decree (or order) appealed from or any part thereof is affirmed or the appeal is dismissed, the , appellant will within twenty days after such aflSrmance or Note. Follow same dismissal surrender himself in obedience to such decree (or rules as to signature, order) to the custody of the sheriff of .the county of acknowledgment, affiy wherein by such decree he is directed to be, committed. davit of sufficiency and (Note.) approval by the court. The language of this section may be confusing because it contains no expUcit provision for an undertaking for costs. It has been held, however, that when an appeal is taken from an order of commitment by the Surro- gate for disobedience to a direction of such Surrogate, or for neglect of duty by an executor, administrator, testamentary trustee, guardian or other person appointed by the Surrogate's Court or by some attorney or counsel employed therein, a stay of the execution of such an order will be effected, by giving the seclirity provided by | 2761. Matter of Pye, 21 App. Div. 266, Hatch, J. But it was further held that, if the appeal was prose- cuted to the court of appeals, in order to secure a stay, such second appeal must be perfected imder § 1326. But when the appeal to the court of appeals is perfected by the giving of an undertaking to the effect that the appellant will pay all costs and damages not exceeding $500, which may be awarded against him on the appeal, then under § 1310, q. v., the appeal operates as a stay. And it was held in the case just cited that the supreme court had power to grant a stay of proceedings upon an appeal from an order made in a Surrogate's Court; the order in such case being condi- tioned on the giving by the appellant of the security required by § 1326. It was further held that the undertaking given under § 2761 (formerly 2579) remained in force unaffected by the appeal to the court of appeals and was a continuing security for compliance with the decree of the Surro- gate, and that no further security was required to be given so long as it remained in force. Judge Hatch added: "It is quite evident therefore that the appellant had complied with all the provisions of law necessary to perfect his appeal except the giving of the undertaking for security for costs; when this was done, it, together with the appeal, operated as a stay of proceedings upon the decree appealed from until disposition was made by the court of appeals. No order was therefore necessary except for leave to file the security to stay proceedings upon the' decree upon filing the required imdertaking for costs. See page 268. See also Matter of Gihon, 29 Misc. 273, where Surrogate Silkman summarizes the practice, and holds that a duly perfected appeal by a contestant of a will stays is- §§ 254, 255 APPEALS FROM DECREES AND ORDERS ' 275 suance of letters testamentary, unless the Surrogate deems it necessary to issue them under § 2557 for the preservation of the estate. (Affirmed 48 App. Div. 598, on opinion below.) § 254. Appeal by one of several parties, not necessarily a stay as to all. — ^Where there are a number of parties in interest and they do not all ap- peal, an appeal by one will not necessarily stay the execution of the decree where the appellant's rights are clearly separable from those of the other parties to the proceeding and can be protected, as by a deposit of money covering his interest pending the appeal. So where one of several residuary legatees under a will, that has been declared invahd, appeals from the decree directing distribution to the next of kin, the perfected appeal will only operate to prevent the execution of the decree so far as is necessary to protect his interests. Kavanagh's Estate, 9 N. Y. Supp. 443, Ransom, Surr. In this case the court made the following direction: "The executor should set aside a sum sufficient to provide for a possible reversal on appeal and then proceed to carry out the directions of the decree so far as the same will not be affected by the success of the appellant." § 255. What appeals do not stay execution. — This subject is treated in the Code under the contradictory topic "When execution of a decree or order is stayed by the appeal'." And the provisions of the Code are them- selves contradictory. We have noticed that where the decree is for money or the dehvery of property under § 2760, the representative or trustee cannot stay execution of the decree appealed from by merely perfecting his appeal under § 2759, but must give an extra undertaking in a sum therein specified, which, as it is provided by § 2762, is to be fixed by the Surrogate or an appellate justice. The form of this undertaking has been indicated in the foregoing precedent. But §2760 commences: In every' case except one in which the letters of an executor, administrator or guardian have been revoked, or a trustee has been removed," a notice of appeal does not stay the execution of the decree, implying that in these exceptional cases the notice of appeal does stay the execution of the decree. But § 2557 provides that an appeal "from a decree revoking letters testamentary, letters of administration, or letters of guardianship, or from a decree or an order suspending an executor, administrator or guardian, or remov- ing or suspending a testamentary trustee or appointing a temporary ad- ministrator or an appraiser of personal property, does not stay the execution of the decree or order appealed from." These two sections read together apparently mean that in the cases last specified under § 2557 no stay of the execution can be accomplished by any imdertaking, although the security necessary to perfect the appeal must be given under § 2759 in order to render it "effectual for any purpose." Fernbacher v. Fernbacher, 4 Dem. 227. See opinion by Rollins, Surr. ; Stout v. Betts, 74 Hun, 266. So it would appear that similarly under § 2557, the first paragraph, where punitive decrees or orders are made by the Surrogate directing commitment of the various respondents specified in said action, the appeal cannot stay ex- ecution unless the second undertaking required especially by § 2761 be given. 276 surrogates' courts § 256 The second paragraph of § 2557 also provides that "An appeal from a decree of the Surrogate admitting a will to probate or granting letters testamentary, or letters of administration, or ftom an order or judgment of the appellate division of the supreme court affirming" such a de- cree "... does not stay the issuing of letters where, in the opinion of the Surrogate, manifested by an order the preservation of the estate requires that the letters should issue." Section 2557 closes with the provision, already quoted, "Except as other- wise expressly prescribed in this chapter, a perfected appeal (that is, the undertaking in the sum of $250) has the effect of a stay of 4he proceed- ings to enforce the decree or order appealed from prescribed in § 1310 of this act in respect to a perfected appeal from a judgment." We therefore summarize this question of when a decree can be stayed or not stayed in respect to its being executed by saying: 'First, that if a will is probated and letters are to issue, or letters of administration are issued and the Surrogate thinks that the preservation of the estate requires that they should issue, an appeal may be taken and perfected without affecting the issuance of letters. The estate is, as it were, in the custody of the court in a quasi-receivership, subject to be set aside if the appeal is successful, but in the meantime the order direct- ing letters to issue operates and cannot be stayed. But if the Surrogate fails to manifest his opinion by such an order, a perfected appeal will stay the issuance. Second, where letters are revoked or a representative or trustee is re- moved or suspended or a temporary administrator is appointed, or an appraiser of personal property, an appeal may be taken and perfected but ' the decree or order is to be carried out none the less, it -being obvious that while anything done in execution of the order may be ntigatory if the appeal is successful, no harm to the estate can result if the appeal is unsuccessful. Third, then we have the two special cases in §§ 2760 and 2761 that where a decree directs an executor to make a payment or to deliver property, or where execution is allowed to issue against an executor, or administrator, he cannot tie up the proceedings by a mere perfected appeal, but fnust give security to obey, in the event his appeal is unsuccessful, and under the latter section in case he has been directed to be committed by way of pun- ishment for contumelious or contumacious conduct, or refusal to act, the appeal will not stay the execution of the decree, unless it is, first, perfected, and second, accompanied by an undertaking that he will submit himself for commitment in case his appeal is unsuccessful. This brings us to the question of the amount and requisites of the imdertaking and the enforce- ment thereof. § 256. Amount and requisites of undertakings. — This is covered by § 2762, formerly by §§ 2580 and 2581 of the Code. The section reads: § 2762. Amount and requisites of undertaking; action thereon. ■ The sum specified in an undertaking, executed as prescribed in either of the §256 APPEALS FROM DECREES AND ORDERS 277 last two sections, must be fixed by the surrogate, or by a judge of the appellate court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. An undertaking, given as prescribed in the last three sections, must be to the people of the state; must contain the name and residence of each of the sureties thereto; must be approved by the surrogate or a judge of the appellate court; and must be filed in the surrogate's office. The surrogate may, at any time in his discretion, make an order authorizing any person aggrieved to bring an action upon the undertaking, in his own name, or in the name of the people. Such action may be prosecuted in the same manner, and with the same effect as an action , upon an administrator's bond; and the proceeds of the action must be paid or dis- tributed as directed by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them, and the balance, if any, must be paid ipto the surrogate's court. Former §§ 2580, 2581, of this Code, modified; the last sentence is from former § 2579. We are to note, first, that the amount of undertakings to avoid immediate commitment or to stay an immediate payment of money or deUvery of property, or to prevent an execution issuing against a representative, is not fixed by the statute, but depends upon the circumstances of each case and must be fixed by the Surrogate, or in the alternative, by a judge of the appellate court. In Matter of Dittrich, 52 Misc. 277, the plaintiff under- took to determine the amount in controversy and the. Surrogate on motion vacated the bond. The Surrogate had made an order directing the re- moval of A and ordering her to account. Costs were taxed at $70. She gave one bond to perfect the appeal for $250, and one to secure the $70 costs as being the amount in controversy! In^the second place, it is obvious that the undertakings, the amount of which are fixed by the Surrogate, are undertakings required by §§ 2760 ~ and 2761, where the appellant is obviously an executor, an administrator, guardian or trustee, i. e., a person appointed by the Surrogate's Court, who has been disobedient to its mandates. Now in the case where some- one else is the- appellant, apparently the only undertaking required is the one which perfects the appeal, and that being given, apparently, under the last paragraph of § 2557, has the effect of a stay. This is obvious from Matter of Arkenburg, No. 1, 11 App. Div. 44, affirming 17 Misc. 543, on opinion of Tompkins, Surr. This was a case where a decree had been, made settHng the account of certain executors and directing a distribution. Some of the legatees appealed. The executor, although a legatee under the will, did not appeal. The appellants gave an undertaking for $250 to per^ feet their appeal. Thereafter the executor moved for distribution under the decree unless a proper undertaking should be given to stay the execu- tion and enforcement of the decree. The learned Surrogate, whose opinion was adopted by the appellate division in deciding the case, says : The question is: "Does the undertaking already given effecta stay? "Section 2577 (now 2759) of the Code provides for the undertaking which has been given and which is necessary to render the appeal effectual. "The only other undertaking provided for on an appeal from a decree 278 surrogates' courts § 257 of the Surrogate's Court is in cases of appeals by executors, administrators, trustees, guardians or other persons appointed by the Surrogate's Court. Then to stay the enforcement of the decree there must be an additional undertaking. "Counsel for the executor and the motion insists that [former] § 2580 gives the Surrogate discretion to require an additional undertaking and fix the amount thereof; these are the words relied upon: 'In, every other case, it (the amount) must be fixed by the Surrogate, or by a judge of the appellate court, who may require proof,' etc. "These words, however, clearly refer to undertakings required of ex- ecutors, administrators, etc., and not to any other appellant. "The case of Steinback v. Diepenbrock, 5 App. Div. 208, cited in support of the motion, is not applicable; there the appeal was from a judgment of the supreme court. "There is authority for requiring an undertaking to indemnify a re- spondent against loss and damage, in such a case, that is not found in the provisions in reference to appeals from Surrogates' Courts. "My conclusion is that unless the appeal is by the executor, adminis- trator, etc., no ^undertaking can be required except the one for $250 re- quired by [former] § 2577, and that the giving of that undertaking on his appeal perfects the appeal, and hence under [former] § 2584 operates as a stay of proceedings to enforce the decree." § 257. Technical detail — ^Prosecuting the bond— Justification. — In § 251 above we gave a precedent for these undertakings. It will be seen that this precedent complies with the requisities thereof set up in § 2762 above. The undertakings the requisites of which are provided are those given "as prescribed in the last three sections" and therefore include the security to perfect appeal and the rule now is, therefore, that any of these regular or extra undertakings must be-: To the People of The State. Must contain the name and residence of each of the sureties thereto. ' Must be approved by the Surrogate, or in the alternate, by one of the appellate judges, and Must be filed in the Surrogate's office. We will discuss the method of prosecuting an undertaking in the chapter on "Ofiicial Bonds," because it is provided by § 2762 that the undertaking may be prosecuted in the same manner and with the same effect "as an action on an administrator's bond," and while the undertaking runs to the people of the state, it is provided, that the Surrogate "may at any time in his discretion make an order authorizing any person aggrieved to bring an action in his own name, or in the name of the people." Justification. See "Official Bonds" (later) discussing §§ 2575-2587 of Code. Section 2762 gives the Surrogate power to take proof, when fixing the amount of an undertaking "of the value of any property, or of such other facts as he deems proper." Section 1.308 applies also. Rule 5 of the General Rules of Practice should also be studied. Local rules by § 257 APPEALS FROM DECREES AND ORDERS 279 Surrogates govern, when adopted. We quote 'Rules 17 and 18 in New York county and Rule 24 in Kings county. New Yobk County Rule XVII. — Justification op Sureties to Undertaking on Appeal The respondent on any appeal from a decree or order of this court may within ten days after the fihng of the undertaking required on such appeal serve upon the attorney for the appellant a written notice that he excepts to the sufficiency of the sureties therein; whereupon and within ten days thereafter such sureties, or other sureties in "a new undertaking to the same effect, must justify before the surrogate, or a clerk designated for that purpose, on five days' notice of such justi- fication, to be served upon the respondent's attorney, by each surety appearing in person before said surrogate or designated clerk and submitting to an examination, under oath, on the part of the appellant, touching his sufficiency. If such sureties shall be foiind sufficient, said surrogate or designated clerk will indorse an allowance thereof upon the undertaking or a copy thereof, and a notice of such allowance shall be served upon the attorney for the exceptant; and the effect of any failure to so justify and procure such allowance shall be to avoid the undertaking. Rule XVIII. — ^Justification of Sureties to Bond of Executor, Administrator, Guardian, . &c. Principals and sureties upon bonds and undertakings, if natural persons, must appear and qualify before the clerk designated for that purpose by the surrogate. Whenever a bond with sureties shall be filed by an executor, administrator, guard- ian or trustee any person interested in the estate may apply to the surrogate for an order requiring the sureties in said bond to appear before him or a clerk desig- nated for that purpose and submit to an examination under oath as to their suffi- ciency as such sureties. If it shall appear to the satisfaction of the surrogate that such examination is necessary he will make an order prescribing the time and place where such examination shall take place, a copy of which order shall be served upon such executor, administrator, guardian or trustee at least five days before the time fixed for such examination. If on such examination the surrogate shall be satisfied of the sufficiency of such surety he will indorse his approval upon the bond or a copy thereof; and in case such surety on such examination shall not in the opinion of the surrogate be sufficient the surrogate will make an order requiring the substi- tution of new sureties within five days after the service of a copy of said order upon the executor, administrator, guardian or other trustee, or his attorney, if he shall have appeared by attorney on such examination. ■" Kings Countt Rule XXIV Principals and sureties upon bonds and undertakings, if natural persons, must appear and qualify at the same time before the Administration Clerk. No bond for a sum less than fifty dollars will be approved. No bond given by a surety com- pany, the penalty of which is more than two thousand dollars, will be approved unless it shall be accompanied by the certificate of the surety thlt the principal has made an agreement with it for the deposit of the moneys and other depositable assets of the estate in the manner declared to be lawful by section 813 of the Code of CivU Procedure, and that such agreement has provided for such deposit with one or more depositaries previously designated in writing by the Surrogate. , If sureties become insolvent, § 1308 applies (see § 2758). The remedy is 280 surrogates' courts §258 to move for a new or additional bond. Matter of Sheldon, 117 App. Div. 357. Read opinion of Sewell, J. The motion must be made to, "the court in which the appeal is pending." § 258. Appeals after jury trial. — In former editions, prior to the Act of 1914, this subject called for careful elucidation, as did also the cognate one of jury trials ordered lay the appellate division on reversal of Surro- gate decrees. (See Jessup's Surr. Pr., 4th ed., pp. 213, et seq.) In § 178, above, we have discussed § 2538 as to trial by jury before the Surrogate, or, by his order, at supreme court trial term, or in the county court. This section also aiithorizes either of the New York county Surro- gates to transfer a probate proceeding to thp supreme court, in order to its being tried by jury — as was formerly the case under old § 2547. Certain questions, therefore, emerged: as to motions to set aside the verdict or for a new trial, or whether the appeal was from the ^Surrogate's Court or from the court to which the proceeding had been transferred. Part of this discussion, modified by the elimination of §; 2472a and the modification of old § 2547 in new § 2538, is stiir necessary. Where either of the Surrogates of New York county has made an order transferring to the supreme court any special proceeding for the probate of a will pending before him, under § 2^38, the verdi,ct, on the issues framed by the Sm-rogate's order of trans- fer, if not set aside by the trial justice, " shall be certified to the Surrogate's Court . ; . and shall be conclusive except upon appeal." It is to be noted in this connection that while the matter transferred is pending in the court to which it is transferred or in the court to which it may be appealed, the Surrogate is only deprived of the power to try the issues rejerre^.. His jurisdiction over the estate continues. Matter of Blair, 60 Hun, 523; Barrett, J., which opinion should be carefully read. As to such probate cases after the proceeding is transferred to the su- preme court, the trial practice will follow the usual course. ' But, a^ to appellate practice, the verdict bqing certified, a decree of the Surrogate is entered thereon and appeal lies from such decree., The' other cases are the cases where the Surrogate has referred to the supreme court or cburity' court for trial controverted questiorls ' of fact. Under the revision of 1910 resulting in the modification of §2547 and the enactment of § 2472a, these controverted questions of fact which the Surro- gate had power to direct a jury trial were ^presented only in three proceed- ings, (1) In, a, proceeding to. sell decedents' real property the Surrogate might order the trial of siich question and must order it if seasonably demanded by a party having constitutional right to jury trial of suqh issue, (2) In a proceeding to judicially settle an ap'courit, and (3) In 3,, profjeeding for the payment o| a legacy the Surrogate m,iist order the, trial by jury of any controverted question of fact seasonably demanded by either party havinga constitutional right to such a trial. Under the act of 1914, § 2538,' the scope of this jiir^ trial right is en- laJ■ged,^ee § 178, above. ,; § 258 APPEALS FROM DECREES AND ORDERS 281 The Surrogate's order framing the issue of fact to be tried is the only authority necessary for the trial in the supreme court. It will doubtless be certified by the clerk of the Surrogate's Court to the clerk of the su- preme court; feither party may then notice it for trial; possibly such issues would be given a preference on the trial calendars of the court. When the verdict is rendered, if it be not set aside by the trial judge, the clerk of the trial court certifies the verdict back to the Surrogate's Court. It is then conclusive, except upon appeal. Section 2538. Thereupion, under old § 2547, at amy time within ten days after the verdict is rendered {not "certified back to the Surrogate's Court") the aggrieved party might move for a new trial before the trial justice "upon exceptions, or because the ver- dict is contrary to the evidence, or contrary to law, or is excessive, or is insufficient." This is not now specifically provided nor is it stated where the order granting or refusing the new trial shall be entered. But it is the clear intent that eveiything on the trial and relating to the verdict shall be in the other court and governed' by' its practice. The proceeding, it must be recalled, l*as not been transferred to the supreme court — simply an issue certified for trial. The question then arises whether the practi- tioner shall appeal from the order granting or refusing the new trial forth- with, or review such order as an intermediate order upon appeal from the final decree, which will be made in- the main proceeding in the Surrogate's Court. It certainly, if it refuses a new trial, is an intermediate order'nebes- sarily affecting the decree and comes within the intent of §§ 1316 and 1317, which pennit a review of an intermediate order of this character if specified in the notice of appeal. Of course the case where the order grants a new trial is different, for ther^ the new trial will proceed at the direction of the trial justice as would happen in any other jury trial in the su'^reme court, unless an appeal was at once taken from his order and the new trial stayed, but if the order refuses a new trial the repeal of old § 2571 must be con- sidered. That section impliedly gave the right to appeal from that order on a separate, - independent and immediate appeal, the object' being of course to have the controverted question of fact authoritatively deter- mined as soon as possible before proceeding to a decree in the main pro- ceeding in the ~ Surrogate's Court, The discussion, in Bench and Bar, August, 1910, we think overlooks the fact that the Laudy case, 14 App. Div. 160, is not one of these cases at all. It was a case where the jury trial was ordered by the appellate court; In spite, therefore, of the uncertain- ties presented by the method of re-legislating the practice, it seems reason- able to state that whether the trial by jury be in a probate case transferred in toto, or be merely of a question or -questions of fact certified' over by the Surrogate for special trial, the verdict of the jury, if not set .aside, can only be reviewed by means of a motion for a new trial, and by appealing from the order, granting or refusing a new trial, except that in a. proper case the prder refusing ^neyf trial may be treated as an intermediate order and then certified back with the verdict to the Siu-rogate's Court, and may, in the main proceeding, be reviewed on the appeal from the decree itself. 282 surrogates' courts § 259 No authority need be cited to the proposition that an order denying a new trial necessarily affects the final judgment. In conclusion, it should be observed that the Surrogate is now shorn, § 2539, last paragraph, of his power he formerly enjoyed to entertain a motion for a new trial, though he has jurisdiction of the proceeding (see Matter of Patterson, 63 Hun, 529-532).' The differentiation that had to be drawn when former § 2548 and § 2549 were on the statute book and specifically prescribed how these various jury trials must be reviewed are no longer pertinent and even by analogy might confuse the discussion. By their repeal the Surrogate's special power to entertain a motion for a new trial in certain cases is taken away. By § 2539 when he himself presides at a jury trial he has every power of a trial justice in the premises. We conclude: as the proceeding remains in his care, save in New York County when, and only when, the whole proceeding is transferred, the clerk of the Part where the trial is had appears to be charged with the duty of certifying the verdict and the order of the Judge if one be made on a motion to set it aside or for a new trial, back to the Sm'rogate's Court for entry. And from the order, when so entered, as from any order in that Court, the appeal will be taken. § 259. Powers of Appellate Division. — Appeal having been taken, and perfected, the papers on appeal, or the case and exceptions, being settled and filed, and the matter brought on for argument, we note that the Appellate Court has peculiarly extended scope in its powers of review. § 2763. Power of appellate court; further testimony. Where an appeal is taken upon the facts, the appelate 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 r^eree. The appellate court may reverse, affirm, or modify, the decree or order appealed from, and each intermediate order, specified in the notice of appeal, which it is authorized by law te review, and as to any or all of the parties; and it may, if neces- sary or proper, grant a new trial or hearing. Upon an appeal from a determination of the surrogate, made upon an application pursuant to subdivision six of section 2490 1 the appellate court has the same power as the surrogate, and his determina- tion must be reviewed as if an original application were made to that court.^ The decree or order appealed from may be enforced, or restitution may be-awarded, as , the case requires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a judgment. Former §§ 2481, 2586, 2587 of this Code. We have already noted the suggestion, under the Oilman case, supra, that the careful practitioner, having the right under § 2757 to appeal on the facts will specify in his notice of appeal that he appeals under §§ 2757 and 2763 so as to invoke the powers given under the first paragraph of the latter section. The power of the Appellate Division in the review of a decision of the ' Section 2490, subd. 6, is the provision whereby the Surrogate has power to open, var cate, etc., his orders or decrees and to grant new trials. 2 The words "that court" mean the Appellate Court, § 259 APPEALS FROM DECREES AND ORDERS 283 Surrogate is not limited to a determination of whether there exists evidence upon which his decree may be supported. This is by virtue of § 2763 quoted above. Not only has'the court the same power in regard to the facts that the Surrogate himself had, Matter of Lavdy, 148 N. Y. 403; Matter of Purdy, 46 App. Div. 33; Matter of Bossell, 121 App. Div. 381, but it must determine for itself upon the facts whether the case was cor- rectly decided when such question is presented by the appeal. Matter of Hall, 61 App. Div. 266; Matter of Warner, 53 App. Div. 565; Matter of Rogers, 10 App. Div. 593, 594, citing Gilman v. Oilman, 3 Hun, 22; Matter of Hardenhurg, 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 Division held he had such power, examined the facts as to service for itself, held service had been duly made and affirmed the Surrogate's . denial of her status as widow, but on this further and stronger ground, which afterwards was given the force of res adjudicata. Matter of Mc- Goughran, 124 App. Div. 312, appeal dismissed, 192 N. Y. 565. When an appeal from a Surrogate's decree is taken on the facts, the Appellate Court, while the proceedings are before it, 'has power to decide any questions of fact which the Surrogate could decide, and in its inquiry into such facts it may take further testimony or documentary evidence, and also direct a reference for the purpose of taking such testimony. Mat- ter of Westerfield, 61 App. Div. 413. , Section 2763 means what it says: the Appellate Division has and may exercise the trial powers of the Surrogate. Matter of Tyndall, 117 App;, Div. 294, and cases cited at p. 299; Matter. of Hall, 61 App. Div. 266; Mat- ter ofStapleton, 71 App. Div. 1. Matter of Beck, 6 App. Div. 211, 154 N. Y. 750- That is, in rehearsing the record, it may at any point reverse the rul- ing of the Surrogate, as where he struck out testimony, and proceed ac- cordingly on the facts as thus reinforced. This power, however, will only be exercised in necessary cases and where a clear reason therefor is shown. So in the Gaines Will case, where the decree appealed from had been made_ several years before the appeal came on, and application was made to the General Term to direct the tak- ing of further evidence, the General Term refused to exercise its power under old § 2586. Matter of Gaines,' 74 Hun, 94. But in Matter of Burr, 116 App. Div. 518, where the appellant executor was removed for failing to inventory a demand note he had given decedent and complained on appeal that Surrogate had refused to allow him to prove payment, the Appellate Division appointed its own referee to take such proof. See Matter of Farmers' Loan & Trust Co., 47 App. Div. 448. The Appellate Court must be satisfied that the evidence sought to be secured is important enough to justify a rehearing. Matter of Hannah, 45 Hun, 561. Newly 284 surrogates' cotjrts § 260 discovered evidence may be received by the Appellate Division. Caujolle's Appeal, 9 Abb. 393; Matter of Drake, 45 App. Div. 206, 211. In Mattef of Shedeker, 95 App. Div. 149, the court even assumed to supply an essential finding of fact omitted by the Surrogate, as well as by his referee. _ The duty of the Appellate Division is riot merely to determine whether there was sufficient evidence to support the decision, but it is expected to determine for itself whether the Surrogate correctly determined the acts. Matter of Rogers, 10 App. Div. 593; Matter of Warner, 53 App. Div. 565, 567. This power prior to the adoption of the Code was possessed by the Court of Appeals as well. Robinson v. Raynor, 28 N. Y. 494, 496, opinion of Seldeny J., citing Schenck v. Dart, 22 N. Y. 420; Caujolle v. Ferrie, 23 N. Y. 90; Moore v. Moore, 21 How. Pr. 211. See also Howland v. Taylor, 53 N. Y. 627; Kyle v. Kyle, 67 N. Y. 400, 408; Hewlett v. Elmer, 103 N. Y. 156, 163. But under the present limitations of the jurisdiction of the Court of Appeals this is no longer so. Section 190, Code Civ. Proc. The Appellate Division may review discretionary orders of the. Surrogate, but will not disturb his determinations unless there be an abuse of his discre- tion. Matter of Goundry's Estate, 57 App. Div. 232. Discretion^iry orders are not appealable to the Court of Appeals. Matter of Baldvnn, 158 N. Y. 713. § 260. What the Appellate Court may do. — We have already discussed § 2757. We quote again a part thereof: i. e., that an appeal from an order or decree of the 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 appellailts as prescribed in § 2542. The section closes by a general rule, to quiet appellate litigation. "But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears {sic) to the appellate court that the exceptant was necessarily prejttdided thereby." In the discussion belOw, the cases cited must be read with this qualification ever in mind that "re- versible error" means error that was necessarily prejudicial. There shall be a case containing the evidence incorporating the findings and conclusions and rulings with the exceptions thereto. So, where there was no case made and settled and no record of any exceptions, it was held that an appeal brought up nothing for review. Matter of Potter, 32 Hun, 599. And where there had been findings of fact and exceptions but no case on appeal had been made and settled, it was held that the mere fact that these findings and exceptions were mentioned in the notice of appeal would not entitle the appellant to a review thereof in the Appellate Court. Matter of Clark, 34 N. Y. St. Rep. 523. See also Waldo v. Waldo, 32 Hun, 2S1; Burger v. Burger, 111 N. Y. 523, limiting Angevine v. Jackson, 103 N. Y. 470; Matter of Kellogg, 104 N. Y. 648. So the Court of Appeals held. Matter of Spra'gue, 125 N. Y. 732, that where no findings had been made and the case on appeal contained no exceptions, neither the General Term nor the Courtof Appeals, had any power to review the Surrogate's §§ 261, 262 APPEALS FROM DECREES AND ORDERS 285 decision on the facts. But in a case where the respondent having omitted findings of fact in the entry of his decree argued an appeal upon the merits, it was held he could not set up such omission and deraaiid a reargument on the ground that no findings were made. Matter of Patterson, 16 N. Y. Supp. 146; Matter of Bradway, 74 Hun, 630; Matter of Falls, 29 N. Y. St. Rep. 759; Matter of Kaufman, 39 N. Y. St. Rep. 236. See Matter of Widmayer, 52 App. Div. 301. In this last case it was found that the Surrogate had not made any decision under old §'2545, and accordingly the case was sent back to the Surrogate for compliance with the statute, following Matter of Peck, 60 Hun, 583. § 261. Reversal. — Generally where the Surrogate's decree is a de- termination upon a disputed question of fact and upon conflicting evidence, the Appellate Division will decline to disturb his decision upon appeal. See Mqtter of Clark, 82 Hun, 344. But under the power which the cotirt has to decide all questions of fact which the Surrogate had (^ee Matter of Rogers, 10 App- Div. 593, 594, and cases cited), if they are satisfied that the evidence contained in the case on appeal is not merely conflicting, but is giich as would warrant a jury in arriving at a verdict contrary to the decisioji of the Surrogate, the Appellate Division will reverse the decree of the Surrogate and order a new trial of the issues of the specific questions of fact involved. Matter of Brunor, 21 App. Div. 259, 263, 265; Matter of Van Houten, 11 App. Div. 208; Howland v. Taylor, 53 N. Y. 627. See quasi protest against "gross and fantastic mockery" of system by Ketcham, Surr., in Matter of Langbein, N. Y. Law Jour., December 2, 1911, with feeling references to Matter of Tompkins, 69 App. Div. 474, and Matter of Clyne, 72 Misc. 593. A decree or order of the. Surrogate's Court, "shall not be reversed for an error in admitting or rejecting evidence, unless it appear to the Appellate Court that the exceptant was necessarily prejudiced thereby;" therefore, where the Appellate Court is satisfied that while the evidence admitted or rejected was improperly admitted or rejected, yet the court could in- dependently of such evidence have justly arrived at the conclusion that it did, the error may be disregarded. Matter of Watson, 101 App. Div. 550. The effect of the section is to leave the Appellate Court at liberty to dis- regard the error if it could have had no influence on the determination of the case. Matter of Miner, 146 N. Y. 121, 136; Matter of Crane, 68 App. Div. 355, 357, citing Matter of Rogers, 10 App. Div. 593; Matter of Welling, 51 App. Div. 355. If the judgment is clearly right notwithstanding the error, it is no ground for reversal. Loder v. Whelpley, 111 N. Y. 239, 246. The courts in applying this rule have held that to justify a reversal it must appear, either, that had the evidence which was rejected been received, the appellant's case would not have failed, or that without the improper evi- dence which was received, the respondent's case was deficient. Matter of Seagrist, 1 App. Div. 615, opinion of Rumsey, J., citing Snyder v. Sher- man, 88 N. Y. 656; Matter of Miner, supra. § 262. Same subject. — It is, however, the duty of the Appellate Court 286 surrogates'' courts § 262 to determine whether or not the error was prejudicial; this inquiry is neces- sarily affected by the question whether the specific evidence was admitted improperly or rejected imprope^-ly. Thus, where a Surrogate, on the trial of an issue of fact, receives incom- petent evidence, the case is different from an error of the Surrogate in rejecting competent testimony. In the former case the evidence improp- erly received is before the court, and it may appear that, although the Surrogate has erred in admitting it, yet the error did no harm, because the fact to which such incompetent testimony related was clearly proved by other competent evidence. Thus in the case of Loder v. Whelpley et al., Ill N. Y. 239, incompetent evidence was received. The Court of Appeals determined that this error afforded no ground for a reversal of the decree, because the Surrogate, in his opinion, which was incorporated in and formed a part of his decision, stated that he had disregarded the incompetent evidence, and also because the decision of the Surrogate's Court was jus- tified "by testimony which leaves no doubt of its correctness, and leaving out all the evidence objected to by the contestant, the same result, and that only, could be reached." The court in the case cited determined that if a decree of the Surrogate was clearly right, notwithstanding an error in receiving incompetent testimony, such error is no ground for a reversal. See Matter of Benton, 71 App..Div. 522, 524; and Matter of Hopkins, 73 App. Div. 559. But the case is different where a Surrogate errs in rejecting competent and material testimony. It is impossible to determine what effect such testimony, if received, would have had on the decision of the question of fact before the Surrogate. A party offering competent and material testinlony is necessarily prejudiced by its exclusion; he is entitled to have such evidence considered by the Surrogate; if received .it might affect the result; he is injured by its exclusion. This is true of a refusal to permit cross-examination. Matter of Steenwerth, 97 App. Div. 116. The true rule as to the construction that should be given to § 2757 (formerly § 2545) of the Code of Civil Procedure is stated by Andrews, J., in The Matter of the Will of Smith, 95 N. Y. 516, 527, 528, as follows: "Under this section, when the court of review finds that incompetent evidence has been re- ceived, or competent evidence rejected, it then becomes its duty to deter- mine whether the error prejudiced the party against whom it was com- mitted. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reason,able doubt upon the subject, then we conceive a case is presented where the party excepting was necessarily prejudiced within this section." Matter of Potter, 1,7 App. Div. 267; Copland v. Van Alst, 9 Weekly Digest, 407; Horn v. Pullman, 72 N. Y. 269; Matter of Morgan, 104 N. Y. 74, 86; Brick v. Brick, 66 N. Y. 144. This reemphasizes the value of having respondent's offers, objec- tions and exceptions in the printed record. Such a practice if insisted §§ 263, 264 APPEALS FROM DECREES AND ORDERS 287 upon obviates many difficulties in deciding whether error was "pre- judicial." The practice before Referees emphasizes this same point. Some referees (and all referees should do so), to avoid the expense and delay of rehear- ings, when doubtful as to whether evidence should be received, take it, subject to a motion to strike out, on which motion a ruling is subsequently made. The record thus contains the questionable testimony and the Surrogate in acting on the report, and the Appellate Court in reviewing him in turn, have before them the full facts, and can more intelligently and with more finaUty determine the error, if any. § 263. Same subject. — Where, on the probate of a will, persons whose testimony is made inadmissible by § 829 of the Code are allowed to testify, of course not meaning subscribing witnesses, unless the Appellate Court is able to say with certainty that the evidence was without influence upon the result (as, for example, where other witnesses testify independently, substantially and conclusively to the same facts), it will be proper ground for reversal. Schoonmaker v. Wolford, 20 Hun, 166, 168, citing Foote v. Beecher, 78 N. Y. 155. By conclusive evidence, however, is meant in this connection such , evidence as is capable of but one construction and in- capable of being answered. In this -sense, if the incompetent evidence was slight or irrelevant, or if, without it, the fact is conclusively established by other evidence, the Appellate Court will disregard it because it could not have injured the other party, Foote v. Beecher, Church, Ch, J., or could not legitimately affect the result. Hobart v. Hobart, 62 N. Y. 84; Matter of Torkington, 79 Hun, 118; Matter of Degen, 89 Hun, 143; Petrie v. Petrie, 126 N. Y. 683. But if evidence be improperly excluded in the erroneous belief that § 829 is applicable, it is reversible error. In such case it is not necessary that the appellant should have made an "offer" of the testi- mony sought to be introduced. Matter of Potter, 161 N. Y. 84, 88. § 264. Judgment or order of Appellate Division. — The form of the de- termination of the Appellate Court is prescribed by § 2763 in part, which we requote: The appellate court may reverse, affirm, or modify the decree or order appealed from, and each intermediate order, specified in the notice of appeal, which it is authorized by law to review, and as to any or all of the parties; and it may, if nec- essary or proper, grant a new trial or hearing. . . . The decree or order appealed from may be enforced, or restitution may be a\ifarded, as the case requires, as prescribed in title first .of chapter twelfth of this act, with respect to an appeal from a judgment. The sections of chap. 12 which are made applicable are §§ 1319 and 1320, which provide the mode of enforcing a judgment or order, either modified or affirmed. These sections are as follows : Mode of enforcing affirmed or modified judgment. Where a judgment from which an appeal has been taken, from one court to an- other, is wholly or partly affirmed, or is modifi.ed, upon the appeal, it must be en- forced, by the court in which it was rendered, or to the extent permitted by the 288 surrogates' courts §§26^, 266 determination of the appellate court, as if the appeal therefrom had not been taken. § 1319, Code Civ. Proc. See Matter of Cook, 125 App. Div. 114, holding that after the Court of Appeals has directed the modification of a Surrogate's decree he has no power to change the decision formerly made by him except in conformity with the superior tribunal's direction. Mode of enforcing affirmed or modified order. Where a final order, from which an appeal has been taken, from one court to another, as prescribed in title fifth of this chapter, is wioUy or partly affirmed, or is modified, upon the appeal, the appellate coiirt may enforce its order, or may direct the proceedings to be remitted for the purpose to the court below, or to the judge who made the order appealed from. § 1320, Code Civ. Proc. § 265. Partial reversal and partial afBrmance. — It has been questioned whether, when thqre are several respondents, the Appellate Court has authority to reverse a decree in part and to affirm it in part. The rule seems to be well settled tha;t upon an appeal from a judgment which is entire and against several respondents, the Appellate Court must either totally afiirm or reverse, both, as to the recovery and as to all the parties. But in cases where there, are separate and distinct judgments, or where an error exists as to a separate claim or.defense, which relates only to a trans- action between the plaintiff and one of the defendants, the judgment may be reversed as to such a claim or defense, and only as to the parties interested therein, and affirmed as to the remainder. The taking of "piece- meal" appeals will not be tolerated. See Matter of Cook, 125 App. Div. 114, aff'd 194 N. Y. 400. These rules are not of recent origin. They existed and were practically the same at common law, under the Revised Statutes and the Code of, Ciyil Prpcedure. Altman v. Hofeller, 152 N. Y. 498, 504, [citing Richards v. Walton, 12 Johns. 434; Arnold v. Sanford, 14 Johns. 417, 425; Van Bokkejin v- Ingersoll, 5 Wend. 315; Shelden v. Qwinla/n, Si Hill, 441; Farrell v. Calkins, 10 Barb. 348; Story v. N. Y. & Harlem R. R. Co.., 6 N. Y- 85, 89; Wolstenholme v. Wolstenholme File Mfg. Co., 64 N. Y. 272; Goodsell v. Western Union Tel. Co., 109 N. Y. 147; Board of Under- writers V. Nat. Bank, 146 N. Y. 64.] See discussion of cases cited, at pages 504 to 506. As to findings of fact additionally to be inade by the Appellate Division under, §1317 of the Code, see Bonnette y. Molloy, 209 N. Y. 167; Lamport V. Smedley, 213 N. Y. 82, 1st headnote. § 266. After the Appellate Division has acted. — The act provides: § 2764. Appeal; proceedings thereupon. In the appellate division of the supreme court the order made upon an appeal frxjm a dpcre,e or an order of a surrogate's court must be entered with the clerk of the appellate division, and a certified copy thereof, annexed to the papers trans- mitted from, the court below upon which the appeal was heard, must be transmitted to the court from which the appeal- was taken, and the court below shall enter the judgment or ort^er necessary to carry the determination of the appellate division into effect;. , , Former,! 2585 of this Code. See L. 1895, c. 946. §§ 267, 268 APPEALS FROM DECREES AND ORDERS 289 § 267. Appeal to Court of Appeals. — There is in chap. 18, no provision as to appeals to the Court of Appeals; they are regulated by § 190 et seq. of- the Code, q. v. Hence the Court of Appeals only reviews the action of the Appellate Divisions, and that on appeals from decrees or final orders. The word final order is not preserved in the act of 1914; but the principle, so far as the Court of Appeals is concerned remains unaffected by such omission. Under this section the following decisions have been made as to what is or is not a "final order" of a Surrogate. An order settling an intermediate account of executor, and awarding commissions, and determining the rights of the parties to the extent that it actually adjudged them, is an order finally determining a special proceeding, and an appeal will lie to the Court of Appeals as of right from an order of the Appellate Division affirming the same. Matter of Prentice,^ 160 N. Y. 568. So is an order which effectually puts out of court an attorney asserting his lien in the Surrogate's .Court. Matter of Fitzsimmons, 174 N. Y. 15. See also Matter of Regan, 167 N. Y. 338. An order of a Surrogate directing an executor or administrator to make and file an account is not a final order. Matter of Callahan, 139 N. Y. 51. Nor is his order denying a motion to open a decree and require a further accounting. Matter of Small, 158 N. Y. 128, citing Van Arsdale V. King, 155 N. Y. 325; City of Johnstown v. Wade, 157 N. Y. 50. The order of the Surrogate fixing appraiser's fees is a final order. Matter of Harriot, 145 N. Y. 540. An order of a Surrogate denying a motion to direct an executor to institute legal proceedings is not a final order but is merely the exercise of his discretion, and cannot be reviewed in the Court of Appeals. Sherman v. Page, 85 N. Y. 123. So also a Surrogate's order vacating a stay on probate, denying an application for issuance of letters testamentary, and relief from a stipulation of renunciation by an executor, and granting letters of administration c. t. a. is a discretionary order and not reviewable in the Court of Appeals. Matter of Baldwin, 158 N. Y. 713. An order fixing the amount of a creditor's claim is a final order. Mead v. Jenkins, 4 Dem. 85. So where a Surrogate made an order denying a motion to vacate certain decrees made upon executor's accountings and the General Term reversed his decree and vacated the decree which he had refused to vacate, held that it was a final order and reviewable in the Court of Appeals. Matter of Tilden, 98 N. Y. 434. But where a Surro- gate's order denies an application that an executrix be required to account and on appeal the General Term reversed such order, and remitted the proceedings to the Surrogate for the purpose of accounting prayed for, held that this was not such a final order as to be reviewable in the Court of Appeals. Matter of Latz, 110 N. Y. 661. We discuss, elsewhere, under "Transfer Tax" separately the practice in such cases. § 268. After rehearing ordered by Appellate Division. — The form of the reversal may determine the right to appeal. Thus, if, on appeal from a Surrogate's decree refusing probate, the Ap- pellate Division reverses and directs probate, its act is final, and appeal lies 290 surrogates' courts § 269 to the Court of Appeals. Matter of Hunt, 110 N. Y. 278; Matter of Wilcox, 131 N. Y. 610. But if it order a rehearing no such appeal lies, not even on stipulation for judgment absolute, since the provisions of the Code in that regard apply only to actions. Matter of Gibson, 195 N. Y. 466; dist'g Matter of Whitney, 153 N. Y. 259. § 269. Practice on such appeals. — When appeal is taken to the Court of Appeals from judgment of the Appellate Division affirming or reversin'g a Surrogate's decree, the appeal may be noticed on the calendar fdr appeals from orders and heard as a motion. Under § 1300 the notice of appeal ' "shall be filed with the clerk of the Surrogate's Court." While the Court of Appeals reviews the act of the court immediately below, and no appeal lies directly from the Surrogate's Court to the Court of Appeals, Matter of Union Trust Co., 172 N. Y. 494, yet the clerical practice is just as if it could so lie. For, after the remittitur is sent by the Appellate Division to the Surrogate, the return of the Court of Appeals is certified by the Surrogate's Clerk, the notice of appeal is served on him, see § 1300, Code Civ. Proc, amended 1909, and the remittitur of the Court of Appeals is sent back to him so that the clerk of the Appellate Division has no further relation to the matter, except in the one case when the appeal is on questions certified to the Court of Appeals. It must be borne in mind that the Court of Appeals will apply to ap- peals coming up from the Surrogate's Court the same rules it does to other appeals. Thus an order of the Appellate Division reversing a Surrogate's decree revoking probate of a will which does not state that the reversal was upon the facts must be reversed if the record discloses no error of law. Matter of Keefe, 164 N. Y. 352, rev'g 47 App. Div. 214, applying §§ 1338, 1361, and citing Matter of Chapman, 162 N. Y. 456; Wetmore v. Wetmdre, 162 N. Y. 503; People v. Barker, 152 N. Y. 417. See also Matter of Hall, 164 N. Y. 196; Matter of Barefidd, 177 N. Y. 387. In such a case the Court of Appeals can examine the record only to ascertain if any of the findings of fact are unsupported by evidence, thereby disclosing legal error. Matter of Keefe, supra, and cases cited at p. 354. In Nat'l Harrow Co. v. Behient & Sons, 163 N. Y. 505, 508, the court laid down the rule, "When the Appellate Division reverses on the law we have but three questions open to us here, viz.: 1. The correctness of the rulings as to the admission or rejection of evidence; 2. Whether any material finding of fact is without evidence to support it; 3. Whether the conclu- sions of law are supported by the facts found." Where the Appellate Division reverses a Surrogate's decree upon questions of law only, an appeal may be taken to the Court of Appeals from its decision. Kingsland V. Murray, 133 N. Y. 170, 177. Where the evidence is conflicting, or where it is of such a nature that diverse infere^ices may be drawn there- from, the decisions of the Appellate Division upon questions of fact can- not be reviewed in the Court of Appeals. Matter of Ross, 87 N. Y. 514. Section 1337 of the Code provides that a question of fact arising upon conflicting evidence cannot be determined upon an appeal to the Court §§ 270-272 APPEALS PROM DECREES AND ORDERS 291 of Appeals, unless where special provision for the deterEoinatjon thereof is made by law. . No special provision is found in the Code authorizing a review in the Court of Appeals of a question of fact in any special proceed- ing or upon any appeal from the Surrogate's Court. Kingsland v. Murray, supra, opinion of Earl, Ch. J., at page 178. See also Matter of Mercantile Trtisi Co., 210 N. Y. 83. _. ', Where the Appellate Division reverses pn both facts, and law the Court of Appeals has no jurisdiction. Matter of Totten, 179 N. Y.,112. But, in this case the court asserted jurisdiction, holding that the Appellate Di- vision "cannot create a question of fact" by its mere say-^0. So they examined the record, held the inferences from uncontradicted evidence so pointed to one conclusion and the only one a reasonable mind could reach, hence there was no question of fact! § 270. Findings below. — In the Barefield case, above cited, there were no findings of facts. The order of reversal by the Appellate Division did not state it was on the facts. The Court of Appeals held it must be pre- sumed that all facts warranted by the evidence, and necessary to support the determination of the trial court were duly found, citing. People v. Adirondack Ry. Co., 160 N. Y. 225; Gamim v. McGuire, 160 N. Y. 476. If exceptions are made to the Surrogate's conclusions of law underlying a decree, which is affirmed by the Appellate Division, questions of law are thereby raised which, the Court of Appeals can review. Matter of Killan, 172 N. Y. 547. § 271. Appeal must be direct from Appellate Division. — It is not pos- sible, after action by the Appellate Division modifying a Surrogate's de-, cree, to appeal directly to the Court of Appeals from that decree duly modified; nor can such an appeal be regularized by stating in the notice that the modifying action of the Appellate Division will be brought up for review, for it is not an "intermediate order" in the sense of the Code. Either an appeal must be taken directly from the order of the Appellate Division; or the device resorted to of modifying the Surrogate's decree, taking a second appeal to the Appellate Division which will affirm pro forma, and thus appealing to the Court of Appeals from this "final" judg- ment of the Appellate Division. So held in Matter of Union Trust Co., 172 N. Y. 494, citing Ansonia Brass & Copper Co. v. Conner, 98 N. Y. 574. § 272. Remittitur from Court df Appeals. — When the Court of Appeals has decided the appeal its remittitur is sent down. It should be filed in the Surrogate's Court, Matter of Hopkins, 41 Misc. 83, aff'd 95 App. Div. 57, when the usual order is then made making the determination of the Court of Appeals that of the Siurogate. This is made on notice. BayUes, New Trials & Appeals, 2d ed., p. 368. Perplexing questions may arise. For this last order of the Surrogate must conform strictly to the remittitur, which, if erroneous, can only be amended by the Court of Appeals on notice. Zapf v. Carter, 90 App. Div. 407. The court below cannot make any change. Parish v. Parish, 87 App. Div. 430. Yet, on the other hand, the Surrogate can make no order he could not originally have made. 292 surrogates' courts § 272 Thus in the Hopkins case above, Silkman, Surr., on the remittitur made his order a.ccordirigIy "reversing the Appellate Division and ordering a jury trial." Held this was unauthorized and surplusage. In the same case, the Surrogate queried whether a jury trial could be had under fornier § 2588 under the decision of the Court of Appeals, since its reversal is presumed to be on questions of law and that section only authorizes such trial upon a reversal on the factsi The Appellate Division does not pass on this p6iiit directly,' but doubtless the Court of Appeals has power on such an appeal to make the determination which the Appel- late Division ought to have made. PART III PROBATE OF WILLS CHAPTER I wills; when, and to what extent, operative § 273. Function of wills.^Upon the death of a person owning property, the ownership is immediately transferred to another; the property is not for a single instant without an owner; but the right to the possession of. such property, and the power to dispose of it, do not pass in the same way. The right of ownership in the property frequently, if not usually, depends on an obscure and complicated state of facts, and, therefoi;e, for a time, the power of disposal is held in suspense or incumbered with restrictions and conditions until those rights can be judicially ascertained- The pro- ceedings had for this purpose, the identification and collection of the property, and its allotment and distribution according to the rights of the successors, as they are made to appear, constitute the administration of the estate. The first step in the proceedings taken in a Surrogate's Court, to obtain such a judicial determination, is to apply for the probate of the, will, if any, or for letters of administration if there be no will. If there be no will the ownership of the decedent's real property passes to his heirs, and that of his personal property is fixed by the Statute of Dis- tributions and its orderly administration is by an administrator under letters from the Surrogate, called of fidministration, which issue pursuant to a statutory order of priority. If there be a, will, to the extent that it be vaUd, the destination of the property is determined by its terms, and the estate is administered primarily by an executor, under letters, called testa- mentary, from the Surrogate, by which executor distribution is made, unless certain assets are left in trust to testamentary trustees, in which case, sub- ject to certain claims of administration by the executor, the administration and ultimate distribution of the trust assets are done by such trustees or their successors. We discuss below, under separate cha,pters, the mode and effect of issuing, the various kinds of letters. But in these five chapters we shall deal solely with testacy, whether actual or attempted, with the manner.in which wills are to be executed and proved so as to be operative, with the practice in probating the same; and with the issues that arise in contested probates, and the orderly disposition thereof. § 274. The making of a will — ^Its purpose. — A, being still alive, and §§ 273, 274 293 294 surrogates' courts § 275 advised of the intent and effect of the Statute of Distributions, desires to avoid and prevent its operation on his estate, and proceeds to make and execute his "Last Will and Testament." Without unduly anticipating the discussion, under Contested Pbobates, of the issues as to factum, etc., we are here to consider what is requirpd to;pve this "testamentary script" validity and effect. We will not discuss here "vahdity of testamentary provisions." So far as substantive, law is pertinent to a treatise on practice, or adjective law, this topic will be treated under " Consthuction of Wills." But, since the right to contrav^rie the Statute of Distributions is a statutory and not a natural right, we must look to and discuss the statute in that case'iilade and "pi-otided, known as the "Decedeiit Estate Law (Consolidated Laws, chap. XIII, L. 1909, chap. 18). Definition: A i^ilf is the expression of one's desire, intended to be opera- tive after his decease, to' govern ' (1) The giiardianship N. Y. L. J., Dec. 1, 1911. In Primmer v. Primmer, 166 App. Div. 402, also a blind testator, held proponent must satisfactorily prove his "knowledge of con- tents" of will when executed. 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 tes- tator, but as a protection 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 execu- tion. Jackson v. Jackson, supra, at page 160, citing Butler v. Benson, 1 Barb. 526; Chaffee v. 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 0. 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 subscription. Matter of Beneventano, 38 Misc. 272. So where one of the witnesses 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 surviving witness testifies clearly and conclusively as to the mak- ing of the mark by testator it has been held to be sufficient proof without- confirmatory evidence by other witnesses. Hyhnds's Will, 27 N. Y. Supp. 961, discussing Matter of Walsh, 1 Tucker, 132, criticised in Simpson's WiU, 2 Redf. 29; Reynolds's Will, 4 Dem. 68; Warden v. Van Gieson, 6 Dem. 237; Matter of Dockstader, 6 Dem. 106; Matter of Phelps, 5 N. Y. Supp. 270. i In a fairly recent case (1913) the mark in question was made by one who could read and write. Held, merely to require clear and satisfactory proof of the circumstances necessitating that form of subscription. Matter of Irving, 153 App. Div. 728. 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 subject' of expert or opinion testimony, Matter of Corcoran, 145 App. Div. 129, citing Matter of Hopkins, 172 N. Y. 360, so unless the witnesses actually saw the mark made, or other witnesses are procurable to testify in this regard, probate must be refused. 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 § 292 wills; when operative, etc. 315 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 later, but it may be here observed, that while the decision in the Hyland case referred to the 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 require the court to attach any greater solemnity to the instrument nor permit it to dispense with any of the statutory requirements in ascertaining whether it was duly executed. See Will of Diet, 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 imperfect 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 sufficient 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. See also Matter of Leddy, N. Y. L. J., Jan. 16, 1912, where the very firmness and lack of tremor in the alleged mark, made by a dying woman of great age, led Cohalan, Stirr., on comparison with a series of receipts previously admitted to have been signed by her "mark" and all shaky and trembling, to reject the will. § 292. 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- 316 surrogates' courts § 292 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 hav- ing been theretofore made. See Matter of Keeffe, 155 App. Div. 575, aff'd 209 N. Y. 535; Matter of Baumann, 85 Misc. 656. 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 Hdysradt v. Kingman, 22 N. Y. 372; Willis v. Matt, 36 N. Y. 486; Matter of Carey, 14 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; Matter of Nussbaum, 144 N. Y. Supp. 443. 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 sufficient. 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 subscrib- ing 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 could 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 Jam^s Mackay, Deceased, 110 N. Y. 611, that, "subscrib- ing witnesses to a will are required for the. purpose of attesting and iden- tifying it," Lewis V. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 77 N. Y. 596, aff'g 16 Hun, Q7; Matter of Nevins, 4 Misc. 22; Bdskin v. Baskin, 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 (6) that with the signature visible to them he should acknowledge it to be his. See Matter of Keeffe, supra. Iii Matter of Clute, 37 Misc. 586, the court observed: A silbscribing 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 § 292 wills; when operative^ etc. 317 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. HoUenback 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. See Matter of Raymond, 86 Misc. 359, rev'd for jury trial 167 App. Div. 893. In Lewis v. Lewis, supra, it appeared that the paper was so folded that 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 witnesses 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 beeil properly executed. To similar effect, Matter of Keeffe, supra. 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 required by the rule laid down in Matter of Laudy, 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, and same case on appeal after 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 acknowledgment 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- cromhie, 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 318 surrogates' cotjrts §§ 293, 294 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; Lems V. Lewis, 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. In Matter of Marley, 140 App. Div. 823, a jury trial was ordered, on reversal of decree refusing probate, on facts making it seem incredible that signature had not been visible to witnesses, it being a will holographic as to its body and its attestation clause as well. (See opinion by Houghton, J.) A third witness is unnecessary and may be disregarded if there are two subscribing witnesses. Matter of Sizer, 129 App. Div. 7, aff'd 195 N. Y. 528. § 293. Same subject. — The testator's signature must have been made before the witnesses signed. This rule was estabUshed by the case of Jackson v. Jackson, 39 N. Y. 153, 161. It has been uniformly followed bythe subsequent decisions; so where the testator after the witnesses had signed added an attestation clause in his own handwriting, beginning with 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, ■ and see Matter of Kunkler, 147 N. Y. Supp. 1094, where testator signed after the witnesses. 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 applies 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. Matter of Keeffe, supra. § 294. Publication. — The testator at the time of making such subscrip- tion or at the time of acknowledging the same, shall declare the instru- ment so subscribed to be his last will and testament. "At the time of" .merely requires "contemporaneity in the whole transaction"; e. g.. A, the testatrix, says: "this paper is my will and I wish you two to witness it." Then she signs and they sign. This is a sufiicient declaration and request. Matter of Gamher, 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 witnesses and that such declaration shall be made at the time of executing the will. See Matter of Balmforth, 133 App. Div. 521, and cases cited. Also, Matter of Kindberg, 1 and 2, 141 App. Div. 188. If as to either witness there was no declaration of the testamentary na- § 294 wills; when operative, etc. 319 ture of the instrument probate is to be refused. Matter of Bryant, 148 N. Y. Supp. 917. ' 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 attestation clause as to the occurrence of one of the essen- tial acts making up a due execution is by no means conclusive. Yet the absence of it will necessitate more rigid scrutiny of the facts by the Surro-. gate. Matter of Ellery, 139 App. Div. 244. Publication of the will or any other formal step 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. Knowledge of the character of the transaction is inferable from a holographic will. Mailer of Ellery, mpra; Matter of Beckett, 103 N. Y. 167, 174; Matter of Marley, 140 App. Div. 823. But it is not conclusive. Thus in Matter of Wilmerding, N. Y. L. J., Dec. 5, 1911, Fowler, Surr., says: There being some difBculty in the proof of this will in common form before the clerk, I directed the proofs to be retaken before me. The will is a holograph. Holo- graphic testaments are doubtless favored in probate law. In the civil law even the signature of the testator to a holograph was dispensed with (C. 6, 23, 21, pr.). Under our old law, prior to the last century, if it were certain that a testament were writ- ten or subscribed by the testator the testimony of witnesses was unnecessary (Swinb., 639; Gilb. Rep. 260). But since our present Statute of Wills, while the evidence of publication of a holographic testament may be somewhat relaxed, never- theless a substantial comphance with the statute is essential, and both publication and rogatio testium or a request to the witnesses to act as attesting witnesses, must be made out in some way to entitle such a testamentary paper to probate as a will. Matter of Phillips, 98 N. Y. 267; Matter of Beckett, 103 N. Y. 167; Matter of Hunt, lip N. Y. 278, 281; Matter of Turrell, 166 N. Y. 330; Matter of Moore, 109 App. Div. 762, 765, aff'd 187 N^ Y. 573. In this case both oi the witnesses to the wiU of Mr. WUmerdiug swear positively that there was no publication by the testator, and neither witness knew that the instrument which he subsigned was a will until long subsequent to the disruption of the session during which they so subsigned. As was intimated in substance in Matter of Moore, supra, it wouli be a dangerous practice to permit even a meritorious holograph to be established in defiance of the positive testimony of those who are the chief actors in a quasi public function. Such a precedent would be dangerous in the extreme, as it would tend to" nullify the Statute of Wills. There is in this/3ause now before me no re- semblance to the latest case which I find reported on this subject. Matter of Marley, 140 App. Div. 823. I am constrained to refuse probate to the paper propounded. See as to rule being relaxed in holographic will cases. Matter of Leveng- ston, 158 App. Div. 69. Proponents are bound to show affirmatively as a condition of probate, that the testator had an intelligent knowledge of the contents of the will. Matter of De Castro, 32 Misc. 193, citing Barry v. Boyle, 1 T. & C. 422; 320 surrogates' courts § 294 Townsend.v.. Bogart, 5 Redf. 93; Hyatt v. Ly,nnin, 1 -Dem. 14; Cooper v. Benedict, 3 id. 136; Heath v. CoZe, 15 Hun, 100; Jones v. Jones, 42 id. 563; Matter of Green, 67 irf. 527. See also Rollwagen v. Rollwagen, 63 N. Y. 504. The testamentary character of the instrument must have been un- equivoeally communicated by testator to witnesses. Matter of Delprat, 27 Misc. 355, citing Lends 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, "It was all right," held, together with full attestation clause sufficient evidence of publication. Matter of Buel, 44 App. Div. 4, 5. When it is read aloud to both testator and witnesses probata will be had on slight proof of declaration" that it is a will. Matter of Wylie, 162 App. Div. 574. iWhere the witnesses deny publication, the impeaching of their credibility does hot.affirmatively prove what they deny, even where will is holographic. Matter of Moore,- 109 App. Div. 762. The pubhcation 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 insUfiiGient. Ibid. The rule requiring substantial comphance with the statute permits,, however, any communication by the testator to the witnesses, at the time of sighing or acknowledging, indicating that the testator intended to give effect to the paper so signed and attested as his wilj. 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 Danf orth 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 iSr. Y. 125; Thompson v. Stevens, 62 N. Y. 634; Rugg v. Rugg, 83 N. Y. 592; Back v. Dack, 84 N. Y. 663; In re Pepoon, 91 N. Y. 255. " The necessary pubhcation may be proved by circumstances as well as words, Levris v. Lewi's, 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. Lan£, supra, as well as established by their direct and positive evidence. Declarations^ by the testator may be proved. Matter of Cor- coran, 145 App. Div. 129; Matter of Kennedy, 1^7 N. Y. 170. Any act of a testator in the presence of the witnesses at the time, of § 295 wills; when operative, etc. 321 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 Hardentyurg, 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. 7&5; Darling v. Arthur, 22 Hun, 84; Matter of Cottrell, 95 N. Y. 329; Mat- ter of the Will of Bernsee, 141 N. Y. 389; Matter of Hunt, 110 N. Y. 278. Sq it' is held that a man is not to be denied the right to make a testamen- tary disposition of his property on account of defect of speech and hear- ing; and a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent in 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. See Matter of Holmberg, 83 Misc. 245, case of a holographic will. 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- l^,ration within the meaning of the statute. See Lane v. Lane, 95 N. Y. 494, 500. See Matter of Bassett, 84 Misc. 656. § 295. Meaning of the words, " at the time of." — The object is general ' contemporaneity, as above noted. The intent of the statute is that the pubUcation 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; J[fickspn 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 pubhcation must be con- temporaneous with the execution, that is, form part of the same trans- action. Thus the pubUcation 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 pubhcation of the will may be made by the testator im- mediately 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 PhiUips, 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 wUl, yet since the declaration was made before the signature was finished, the execution was valid. So where a testator reads his will apd 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 pf publication, and the witness does so, there is sxifficient compliance 322 surrogates' courts § 295 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 esjch other, for the signature may be acknowledgeid to them separately. Barry V. Brown, 2 Dem. 309, Rollins, Surr. ; Hoysradl 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 Igive 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 sta,nd' as a 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 compliaince with thie 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 sa!S- 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 ties- tatrix relating back to the pi;ior 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 opin- ion of Ruger, Ch. J., at pages 174, 176. In Matter of BaWmm, 67 Misc. 329, aff'd 142 App. Div. 904, 202 N. Y. 548, the Court approxitaated the legislative device of turning the clock back to extend the legislative day. The "contemporaneity" of the transaction was held ndt "exhausted'' by its beginning in one place where witnesses signed and ending in another place at the end of which second interview pUbUcation was completed. But where the continuity of the transaction was interrupted 'by an interval of two years between the two witnesses' signatures there is no contem- poraneity. Matter of Harty, 85 Misc. 628. But a mere request to witness "this instrument" is an insufficieiit pub- lication of it as a will. Matter of Delprat, 27 Misc. 355, citing Rutherford V. Rutherford, 1 Den. 33; Wilson v. Hetterick, 2 Bradf . 427, or "documeintj" 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 OfBuel, 44 App. Div. 4. (There was, however, an attestation clause in this easel) §§ 296, 297 wills; when operative, etc. 323 § 296. 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 vahd pubhcation as has been already indicated. Matter of Holmberg, 83 Misc. 245; Matter of Menge, 13 Misc. 553; Matter of Murphy, 15 Misc. 208. But this must be clearly proven, particularly where the testator is in his last sickness, or very feeble, or is shown to have been unconscious, or under the influ- ence of some drug, such as opium. Heath v. Oohi 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 com- plied with, it is immaterial whether both witnesses testify to identical tran- sactions, so long as there is no conflict between them. Thus where one of the witnesses 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 coun- sel 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 publication. Matter of Voorhis, 125 N. Y. 765. The effect of an attestation clause, where the witnesses do not recollect or where their recollection conflicts, is discussed, below. See Matter of Bernsee, 141 N. Y. 389, 392. § 297. Republication. — Cases may occur where the publication of a subsequent or supplemental testamentary instrument may cure defects in publication of a prior will. This rule usually applies to cases where the 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 have 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 pubhcation upon the following facts : The will having been drawn and read to the testator the draughtsman was requested to change a certain clause of the will which was done in the presence of the testator, not, however, by changing the body of the instrument but by appending a brief clause entitled "codicil;" The. will 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 I the two witnesses. The subscription to the will and codicil were made at ithe, same time, the testator requested one of the witnesses to sign for him; the a,ttesting 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 wiU 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- 324 surrogates' courts § 298 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 eases cited. See Matter of Karrer, 63 Misc. 174, where defects of first execution were almost immediately, but as a new transaction, cured, and witnesses who had already signed simply adopted their former signatuTes^-held sufficient. This carries the doctrinie of substantial compliance almost to the limit; See Jlif aWer o/ Beams, 89 Misc. 712, where copies of will intended to be reptiblished were incorporated into instrument of republication. While a dulj^ executed codicil may take up and vivify a defectively exe- cuted will, even though the codicil revokes in part the will taken up, it must be borne in mind' that the revocation of the codicil does not leave the will provable. Even if the original will was valid as to factum, a valid codicil thereto partially revocatory persists, so far as revocation is in- volved. If revoked itself, the things it revoked do not ipso facto revive. Osbwrri V. Rochester Trust & S. D. Co., 209 N. Y. 54; Matter of Kathan, 141 N. Y. Supp. 705. - ' Same is true of wills proper. A made a will. Later he made a second will revoking it, again he tore up the second. Held not a reviver of will No. 1. Matter of Wylie, 162 App. Div. 574. The Decedent Estate Law, § 41, alone provides how such revival is ef- fected. It is discussed and quoted elsewhere. See Matter of Kuntz, 163 App. Div. 125. § 298. 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 of DouglaSj 38' Misc. 609) is executed on an entirely distinct separate occa- sion, not only must all the formalities of execution, Matter of Stickney, 161 NJ 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 referring 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 Cortkmdt 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 unlfess the testator declares that he does not intend the codicil should have (that 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 Trost, 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 § 298 wills; when operative, etc. 325 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, validly 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. See remarks and cases cited by Fowler, Surr. (obiter), in Matter of Francis, 73 Misc. 148, 155. Yet, if there be sufficient identifiGation of the prior will, due execution of a codicil to it validates the will not only without reexecution 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 I Jarman on Wills, page 188; Storm's Will, 3 Redf. 327; IlUnsworth V. lUensworth, 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, hadTnadeher 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 codicil in such cases, is .to revt)ke the intermediate will, for the date of the codicil attaches to the will revived or republished thereby and constitutes the last wiU 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, revoking 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^theilast 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, siipra, it was held that a will made while testator was insane could be validated if repubhshed in a lucid interval, citing 1 Wms. on Exrs., 7th_Am.'ed., 267. In Lttngdon v. Astor's Executors, 16 N. Y. 9, the Court of Appeals held that the effect of a codicil reexecuting 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 Dehio, C. J., at pages 37 and 38. Generally speaking, then, the publication of a codicil operates as a republication of the will, and, so far as regards the formahties of execution, the will is sufficiently proved by proof estabhshing that the codicil was executed^ in accordance with law. Matter of Nisbet, 5 Dem. 286, Rolling,: Surr., citing among other cases. Van Cortlandt v. Kip, 1 Hilly 590; Kip v. Van Cortlandt, 7 Hill, 346; Van AlsSyne 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, 326 surrogates' courts § 298 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 judge 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 Wilii 56 How. Pr. 125; Master's Estate, 1 McCarthy, 459. The rule was sum- marized by Judge Eaarl, 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 pubhshed at the same time. Brown v. Clark, 77 N. Y. 369, q. v. at page 375. See Mooers V. White, 6 Johns. Ch. 375; Jackson v. HolUmay, 7 Johns. 394. See also Moffett V. Elmendorf, 82 Hun, 470. Where a will has been formally revoked by a subsequent will^ but not destroyed, it may be revived by the execution of a codicil. Matter of Knapp, ,51 St. Rep. 517, 23 N. Y. Supp. 282, expressly referring to it. Matter of Campbell, 170 N. Y. 84. Compare Matter of Tr&st, 38 Misc. 404, 77 N. Y. Supp. 879. In that case testatrix executed a will in March, 1897, and another in September of the same year, and in April, 1900, on a separate sheet annexed to the March will, she executed a codicil, not referring to either will, but simply appointing a guardian for her grandchildren, which appoihtmeikt was invalid, because their parents were living. Held, that the codicil did not republish thfe March will as of the date of the codicil, or by destructibn of an instrument intended only as a modification thereof; Matter of Johnston^ 69 Hun, 157, 23 N. Y. Supp. 355. But a will that is revoked by a subsequent one which is destroyed by the testator, is not revived by his declaration that he desires his first will to stand, made to, others than the subscribing witnesses, where the persons to whom such declaration was made do not subscribe as witnesses to the will. Matter of Brewster, 72 App. Div. 587, 76. N. Y. Supp. 283; Matter of Stickney , 161 N. Y. 42. In that case, the court said: "We are of the opinion that it was the intent of the Legislature: by this statute to require the same formalities and the same proof to establish a republication of a will as are plainly required to estabUsh its original pubUcation, and hence, that a will which has been revoked can be revived only by its republication in the presence of its attesting witnesses." Where at the time the signatures of the testator, and witnesses were subscribed to an instrument it was not properly exe-. cuted and attested as a will, but thereafter, as a new transaction, the §§ 299, 300 wills; when operative, etc. 327 testator acknowledged his signature, declared his will and requested the witnesses to attest the same and the witnesses, thereupon, to the knowledge of the testator, acceded to his request and adopted their previous signa- tures as an attestation of the transaction^ they may be held to have signed them as subscribing witnesses within the requirements of the statute. Matter of Karrer, 63 Misc. 174; Matter of Kwrdz, 163 App. Div. 125; Dec. Est. Law, § 41. § 299. Insufficient publication. — Failure to comply substantially with thei statute . as quoted above, namely, that the testator indicate in some sufficient maimer to the witnesses and every of them that the instrument they are by him requested to sign as witnesses is his last will and testa- ment, 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 tes- tator identifying the paper which they witnessed as a wUl, probate was re- fused for want of due publication. McCord V. Lownsfewr-j/, 5 Dem. 68. So where testator of a. holographic will requests A to witness ''this document" held insufficient. Matter of Turrelli 28 Misc. 106, aff'd 166 N. Y. 330. There must be, a declaration of the testarfientary character of the instru- ment. Ibid., citing Bashin v. Baskin, 36 N. Y. 416; Matter of Will of Philh/ps, 98 N. Y. 267; Matter of Mackay, 110 N. Y. 611; Matter of Laudy, 148 N. Y. 403. It must be remembered in this regard that pubhcation is one of the distinct acts constituting execution; it is an independent fact from subscription or acknowledgment of subscription or from request to sign and must be sufficiently separately proven. In re Nevin's Will, 24 N. Y. Supp. 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 contribute iii 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 execu- tion 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, I Dem. 436,440,441. § 300. The witnesses.—" There shall be at least two attesting witnesses, each of whom .shall ;^gn 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 meaniag 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; Ritgg V. Rvgg, 83 N. Y. 592, or at the end of the signed will. Matter of Reisner, 81 Misc. 101. The object of having witnesses is not only that there may be persons capable of identification, and who may be called upon to testify 328 surrogates' courts § 301 as to substantial compliance with the provisions of the statute, but; par- ticularly, 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 wUl 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."' Lervis Vi Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; In re Mackay, 1 10 N. Y. 611; Sisters of Charity v. Kelly, 67 id. 409; Willis v. Mott, 36 id. 486; Matter of Van Geisen, 47 Hun, 8; Matter of Bernsee, 141 N. Y; 389; Matter of Levengston, 158 App. Div. 69. 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 thit 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; Matter ofKunkler, 147 N. Y. Sup^). 1094. But see Matter of Karrer, 63 Misc. 174, where Ketcham, Surr.; probated 4' will, -upon proof of adoption merely of their signatures, previously affixed by the witnesses under circumstances which he concedes showed"" copious disregard of the statutory requirements." See Vaughan v. Burford, 3 Bradf. 78, cited by Ketcham, where due execution was upheld as to a man dying of cholera, and where parties were therefore in another room, and signature per alium and all other parts of factum were confirmed ex post facto. From what has been already said in another connection it will be remerhbered that interventioh of the attestation clause between the testator's and witnesses' signatures j is perfectly proper. See Williamson v. Williamson, 2 Redf. MQyMcDonough ' V. Loughlin, 20 Barb. 238; Matter of Dayger, 110 N. Y. 666, aff'g 47 Hun, 127. § 301. Same subject. — There is nothing in the statute as to the wit- nesses subscribing in the presence of each other. Lyman v. Phillips, 3 Dem. 459, aff'd 98 N. Y. 267; Herrick v. Snyder, 27 Misc. 462; Matter of mefenthaler, 39 Misc. 765; WiUis v. Mott, 36 N. Y. 486; Matte!r of Engler, 56 Misc. 218; Matter of Roe, 82 Misc. 565. If the testatoi- signs in the presence of one witness requesting him to sign which he thereupon does, and subsequently acknowledges his signature to the other witn^s 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, however, are not present at the same time all the formaUties must be repeated in the presence of each. Tyler ' § 301 wills; when operative, etc, 329 V. Mapes, 19 Barb. 448. If there are more than two witnesses the will may be probated if the foriflalities were sufficiently 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 EngUsh rule as stated by Lord EUenborough that "in favor of attestation it is presumed, if he might see he did see." See SpavMing y.. Gibbons, 5 Redf. 316, 319; Gardiner v. Raines, 3 Dem. 98; Peck V. Car&y, 27 N. Y. 9, 31. See Matter of Nussbaum, 144 N. Y. Supp. 443. 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 th^ 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 invahdates 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 formahties 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 vaUd, complete, perfect instrument. It was held, Herrick-v. Snyder, 27 Misc. 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, M 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 330 surrogates' courts § 301 her mark and signature. Meehan v. Rourke, 2 Bradf . 385, 392. See Jackson 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 SiUanan 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 signatui'e 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, whefe the witnesses are dead, or by lapse of time do not remember the circumstances attending the execution, the law/ after dih- gent production of all the evidence existing, if there are no circumstances of suspicion will presimie a proper execution of the will, particularly when the attestation clause is fuU. 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 § 302 wills; when operative, etc. 331 cases injustice is done and the wishes of the dead thwarted. A decree will be entered denying probate." In Matter of Jacobs, 73 Misc. 162, one of the witnesses inadvertently wrote the testator's name instead of his own. Held as he wrote it animo attestandi, probate should be granted. See opinion for review of cases. See Morris v. Kniffin, 37 Barb. 336, upholding attestation by mark. § 302. The request to the witnesses to sign. — The statute requires a request 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 valid execu- tion, to wit: that the attendant circumstances were such that from them a request by the testator may properly be implied. But if there were no request probate must be denied.' Matter of Raymond, 86 Misc. 359. So also, unless the request be to witness a will. Matter of Shaper, 86 Misc. 577. In this case witnesses were asked to witness "this paper." 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 summoned 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 jand 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 par- ticular case. And so the courts have always held that there is no partic 332 surrogates' courts § 302 ular 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 the testatrix, one of whom, George C. Barrett, had copied the will which in- cluded 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 suflBciently shown. Id., page 296, citing Doe v. Roe, 2 Barb. 200. See Matter of Luthgen, 61 Misc. 544, a border case, where request was inferred from reading will aloud, since it contained a recital of "two undersigned witnesses." • 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 Peek 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 pubHcly stating the character of the instrument, observed that it was necessary that the testator should request those who were in attendance as witniesses 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 wiU in that capacity, the testator made no dissent, and when the will had been executed took it into his possession and thereafter rer tained it; held, to be a sufficient request. See also Matter of Nelson, 141 N. Y. 152; Matter of Barms, 70 App. Div. 523, 528. In Brinkerhoff v. Bemsen, 8 Paige, 499, the chancellor observes: "I think, therefore, there can be no reasonable doubt that, if this wUl 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 wiU as to make it a good execution thereof, according to the intent and spirit of the, statute." See also Trustees of Auhim Theo- logical Seminary V; Calhoun, 25 N. Y. 422, and see Matter of Raymond, 167 App. Div. 893, rev'g 86 Misc. 359, and ordering jury trial. 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 pres- § 302 wills; when operative, etc. 333 ence and hearing of the testator, and to the witnesses, so that the attest- ing 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 v. Stevens, 62 N. Y. 634; Stein y. Wilzinski, 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 witnesses 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 as- sent 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 witnessing his will; and moreover the testator was not in a condition to observe or take notice of things not pressed upon his at- tention. He says (at page 422) , " Under such circimistances 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 recollection but not positive testimony that he did not hear. See Lends v. Levuis, UN. Y. 220, 224; Orser v. Orser, 24 N. Y. 51 ; Wilson v. Hetterick, 2 Brad. 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 instrumentj 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 of Perego, 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. 208, and may be made to the witnesses before the testator has actually sub- scribed his own name. Matter of Williams, 2 Connolly, 579, and is suffi- cient although it consists merely in a request to one or both witnesses j or to the scrivener to read aloud the attestation clause which con1;ains such request. See Matter of Woolsey, 17 Misc. 547. See also Kingsley v. Bhrncfi- ard, 66 Barb. 3,17; Stewart's Will, 2 Redf. 77, 79; Neugent v. Neugent, 2 Redf. 369, 375. In the case last cited Surrogate Calvin held the request 334 surrogates' courts §§ 303, 304 insuflBcient 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 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. Ruddon v. 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 acknowledgment, 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 sign- ing of the witness Cosgrove was with the knowledge, or at the request, of the testatrix." See Troup v. Reid, 2 Dem. 471, where Surrogate Rollins collates the authorities upon the question of the sufficiency of a decedfent's assent to the words of another upon this question. Ridherford v. Ruther- ford, 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; Gamble v. Gamble, 39 Barb. 373; Peck v. Carey, supra; Gilbert v. Knox, supra; Heath v. Cole, supra; Burke V. Nolan, supra. § 303. 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. See Matter of Sizer, 129 App. Div. 7 (opinion by Gajoior, J., see cases at p. 10), aff'd 195 N. Y. 528; Matter of Abel, 136 App. Div. 788; Matter of Walker, 67 Misc. 6. Particularly 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 obtained. 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 will discuss under probate, below, the provision of the Code, 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 tes- tify, 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 2612 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 discus- sion of the effect of the attestation clause. § 304. Forgetfulness. — Forgetfulness on the part of a witness may be pecuniarily induced. See Matter of Sizer, supra, 129 App. Div. at p. 11, § 305 WILLS; WHEN OPERATIVE, ETC. 335 and see appellant's brief in Matter of Raymond, 167 App. Div. 893. 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 vahd execution of a will, which had been indeed, before then well settled but had previously 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 Wyrruin 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 ele- ment 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 es- tablished 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 Seminary v. Calhoun, where Judge Denio says: "My pvurpose 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. Rv^g, 83 N. Y. 592; Lems v. Lewis, 11 N. Y. 220. To same effect. Matter of Bassett, 84 Misc. 656. 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 mis- takenly or corruptly swear that the formalities required by the statute were not complied with, if from other testimony in the case the coiut or jury is satisfied that the contrary was the fact." See also Chaffee v. Baptist Mis- sionary Conv., 10 Paige, 91, and Matter of Sizer, 129 App. Div. 7, 10. 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 Matter of Cottrell, 95 N. Y. 329; Matter of Carey, 24 App. Div. 531, 542. § 305. Attestation clause; effect further considered. — The cases cited under the discussion of § 2612 of the Code are sufficient 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 attes- tation clause, after a considerable lapse of time, when it may reasonably be supposed that the particidar circimistances attending the execution of the will have escaped the recollection of the attesting witness, is a circum^ 336 surrogates' courts § 306 stance 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; Matter of Probate of Will of Pepoon, 91 N. Y. 255; Matter of CottreU, 96 N. Y. 329; Lane v. Lane, 95 N. Y. 494; Brovm 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 VanHoutm, 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 Foley, 55 Misc. 162, where all the witnesses were dead, and testatrix had signed by "mark," of which there was no eyewit- ness proem-able, 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 "conunon-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 of Pepoon, supra, the court held, "Where the attestation clause of a will is full and complete it is not always essential that all the particu- lars required by the statute to constitute a valid execution of the instru- ment 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 Rugg v. Rugg, supra; Matter of Kellum, 52 N. Y. 517, 519. See also Lane v. Lane;95 N. Y. 494. § 306. 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 presxmied 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 of Brissell, 16 App. Div. 137, 139; citing Matter of WiU of Kellum, 52 N. Y. 517; Brown v. Clark, 77 N. Y. 369; Matter, etc., of Pepoon, 91 'N. Y. 255; Matter, etc., of CottreU, 95 N. Y. 329; Matter, etc., of Hesdra, 119 N. Y. 615. This presumption in favor of the regularity of the execution of a wiU 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 presmned from the attestation clause alone. Matter of Delprat, 27 Misc. 355, citing WooUey v. Woolley, 95 N. Y. § 306 wills; when operative, etc. 337 231; Lends v. Lmds, 11 N. Y. 220. Yet, in Maiter of Sizer, 129 App. Div. 7, Gaynor, J., asks whether a full attestation clause and proof of the signatures of the testator and the witnesses was " alone evidence of the execution of the will with the formalities required by law"? He answers: "It was." See opinion at p. 9 and cases at p. 10. This was affirmed, 195 N. Y. 528. See also careful opinion by Carr, J., in Matter of Abel, 136 App. Div. 788. But the presumption created by the existence of such a clause may be re- butted. In Woolley v. Woolley, 95 N. Y. 231, it was held that the attesta- tion clause was not effectual to raise the presimiption 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 attestation clause is positive arid explicit as to the non-occurrence of one of the essential facts recited in such clause. See also Rumsey v. Goldsmith, 3' Dem. 494. In two recent cases (1914), it was held that an attestation clause cannot cure a defective execution patent on the face of the will, Matter of Kunkler, 147 N. Y. Supp. 1094, nor destroy the probative effect of the subscribing witnesses' testimony to the contrary of its recitals. Matter of Solomon, 145 N. Y. Supp. 528. Failure of the memory of both witnesses may, however, be disregarded 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, WilUams, J. The Sizer case above cited holds that proponent may found a prima fade case on a full attestation clause and proof' of signatures. See 129 App. Div. at p. 10. 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 Lavdy, supra; M'Cord \. Lounsbury, 5 Dem. 68. In Matter of Balmforth, 60 Misc. 492, Ostrander, Surr., refused probate on this very theory, but was reversed, 133 App. Div. 521. The learned Surrogate refused, we think properly, any weight to the clause, as not having been read. The Appellate Court was satisfied that due pubhcation had been had, arid that the attestation clause "cor- roborated" the testimony in that reSpect. Surrogate RolHns discussed the adjudicated cases somewhat fully, Rolla v. Wright, 2 Dem. 482, in connec- tion with § 2620 of the Code, now § 2612, and the effect of an attestation clause (among others, Butler v. Benson, 1 Barb. 526; Rider v. Legg^ 51 Barb. 260; Moore v. Griswald, 1 Redf. 388), in all of which cases the court com- mented on the absence of circumstances calculated to arouse suspicion. In the following cases a full attestation clause was instrumental in sustain- ing 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 Townleyi, 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. McAlpim, ,3 Dem. 108. : ., 338 surrogates' courts § 307 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; Porteiis 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 ^ilv. 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 iii 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 in the recital was accidental and that the requirements 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. Lewis V. MerrUt, 98 N. Y. 207; Matter of Crane, 68 App. Div. 355, 357. Yet just its absence may defeat probate, e. g., see able opinion by Jenks, J., in Matter ofEllery, 139 App. Div. 244, where holographic will, the witnesses being dead, failed of probate, for lack of a full and formal attestation clause. § 307. 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 reiquirements. Price v. Brown, 1 Bradf . 291. See post, discussion of § 2612. But in such case it is proper for the Surrogate to require proof of "other circumstances" undef § 2612. See Brawn v. Clarke, 77 N. Y. 369. Surrogate Fitzgerald, Matter of the Will of John OUver, 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 former § 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 circumstances of the family are con- sidered, 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 trans- § 307 wills; when opeeative, etc. 339 action 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 provisions. 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 parties 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 testifies that he believed it was true in its recital of the facts, the will was admitted to probate. In re KUtt, 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. 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 wUl 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 execu- tion of a wiU 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 vaUd execution. See Egan v. Pease, 4 Dem. 301; Matter of Cornell, 89 App. Div. 412. But, if those superintending the execution are beneficiaries of the particular will, the ordinary presumption of due execution loses- its weight. Matter of Kindberg, 207 N. Y. 220, aff'g 148 App. Div. 915. 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- 340 surrogates' courts §§ 308-310 cerned that he complied with the statute. Matter of Levengston, 158 App. Div. 69. See Lavxrence 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. 44;6. But in Matter of Turrel, 28 Misc. 106, aff'd 47 App. Div. 561, and 166 N. Y. 330, where witness was asked to witness a "docu- ■ment" it was held insufScient, though the "document" was a holographic will, citing Matter of Beckett, 103 N. Y. 167, 174. See also Lewis v. Lewis, 11 N. Y. 220; Matter of Dale, 56 Hun, 169; Matter of Eldred, 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 Palma, 42 Misc. 469. § 308. Valid codicil a part of will. — Its operation. — The Decedent Es- tate Law, § 2, provides that the word "will" includes all codicils. Hence, all that has been said of wills and their execution covers codicils also. We have alluded to the effect of codicils in the way of republication of the will or of revival thereof. Under Revocation we discuss its testamentary or dispositive operation. A codicil is defined to be a supplement or addition to a will; or an explanation or alteration of its dispositive parts and tsUcen with the will is probated as one testament. Its usual effect, unless a contrary effect appear, is to make such one testament speak as of the date of the codicil. Stillwell v. Mellersh, 5 Eng. L. & Eq. R. 185; Brown v. Clark, 77 N. Y. 369, 375; Smith v. Chese- borough, 176 N. Y. 317; Salmon v. Stuyvesant, 16 Wend. 321. It does not usually supersede the will. Bloodgood v. Lewis, 209 N. Y. 95. Codicils are sometimes drawn, modif jdng the will in a, specific contingency only. Unless that contingency occur the codicil is obviously inoperative. E. g. Before a trip lo Europe, testatrix made a codicil to safeguard against her and her husband perishing in a "common disaster" or shipwreck "at or about the same time." The husband survived her five months. Held, codicil inoperative. Matter of Redmond, 50 Misc. 74. (See § 315 below.) § 309. Lost or destroyed wills. — We discuss elsewhere the action to establish a will that has been lost or destroyed. The Surrogate may also under similar safeguards take proof of and admit to probate the contents of such wills. We note the fact merely at this point. § 310. Cannot probate revoked wills. — It sometimes becomes a ques- tion on probate, whether or not the propounded script may not have been revoked. Where a will is once duly executed it has the gift of continuance. Its operation as a testamentary disposition cannot be altered or prevented save by revocation pursuant to the staltute, as in force at the time of at- tempted revocation. As to how a will, executed before the statute, could be revoked after the statute took effect, see Sherry v. Lazier, 1 Bradf. 437; Matter of &riswold, 15 Abb. Pr. 299. As to difference between revocation of a will, or a provision thereof, § 311 wills; when operative, etc. 341 and the ademption or satisfaction thereof, see Langdon v. Astor, 16 N. Y. 41. § 311. Will not revoked. — Accordingly, before discussing the practice on probate, it is important to determine whether the instrument, or any one of several, found among a decedent's papers is a live instrument or is one that he has revoked. For a distinctive feature of a will is its ambula- tory nature. A will vaUdly revoked (as below set forth) is no will, and cannot be proved as the decedent's last will and testament. But unless the proponent knows the circumstances to be such as to constitute vahd revocation, as for example, that the date of the will is prior to the mar- riage of testatrix, Brovm v. Clark, 77 N. Y. 369, 2 R. S. 64, § 44, which thus destroys the will, he should propound the paper and let the court determine. Of several papers, all purporting to be complete wills, the last in point of time should be offered. But if any doubt exists as to the charac- ter of papers of a testamentary character found, as to whether, e. g., they may or may not be codicils, they should be offered. We shall discuss below the effect of codicils — ^it is proper to say here simply: If A revokes his wUl, all codicils to it published as such, fall with it. , MaM^ ofNokes, 71 Misc. 382. The effect of a codicil, as "taking up" and "regularizing" an existing complete will is a totally different question: See, e..g.. Matter of Emmons, 110 App^ Div. 701 ; Matter of Campbell, 170 N; Y. 84. At common law, revocation of a devise could not be proved by parol. Jackson v. Kniffen, 2 Johns. 31. AU that could be shown were intrinsic circumstances, showing a change in the subject of the devise, but nothing more. Adams v. Winne, 7 Paige, 97. The statute supplanted the com- mon law doctrine of "impUed revocation." Matter of Davis, 105 App. Diy, 221, aff'd 182 N. Y. 468. See Burnham v. Comfort, 108 N. Y. 535; Matter of Aker, 74 App. Div. 461, aff'd 173 N. Y. 620. "Destruction" is not implied revocation. Matter of Katham, 141 N. Y. Supp. 705. The provisions of the Revised Statutes covering revocation of wills are still in force and are as follows: " Written wills, how revoked or canceled. "No will in writing, except in the cases hereinafter mentioned, or any part thereof, shall be revoked or altered otherwise than by some othqr will in writing or some other writing of the testator declaring such revoca- tion or alteration; and executed with the same formalities wth, which the will itself was required by law to be executed, or unless such .will be burnt, torn, canceled, obUterated or destroyed with the intent and for the pur- pose of revoking the same by the testator himself, or by, another person in his presence by his direction and consent, and when so done by another person, by the direction and consent of the testator, the fact of such in- jury or destruction shall be proved by at least two witnesses," (§ 34, Dec. Est. Law, chap. 13, Gons. Law, art. 2). 342 surrogates' courts §312 " Will, when revoked by marriage and birth of issue. (See § 324, bfelow.) "If after the making of any will disposing of the whole estate of the testator, such testator shall marry and have issue of such marriage, born either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked unless provision shall have been made for such issue by some settlement or unless such issue shall be provided for in the will or in such way mentioned therein as to show an intention not to make such provision and no other evidence to rebut the presumption of such revoca- tion shall be received." Section 35, Dec. Est. Law; Matter of Gall, 32 N. Y. St. Rep. 695. This statute is derived not from the common but from the civil-law rule, which rests upon the "presumed oversight of the parent." See Wormser V. Grace, 120 App. Div. 287, citing Brush v. WilMns, 4 Johns. Ch. 606; Smith V. Robertson, 24 Hun, 210. See Tavshanjian v. Abbott, 59 Misc. 642; Udell V. Stearns, 125 App. DiV. 196. But where testator unmarried makes a will providing for "such children as may survive me" his later marriage and the birth of issue do not revoke such will. Matter of Lolly, 136 App. Div. 781, aff'd 198 N. Y. 608. But the adoption of a child does not oper- ate to revoke a prior made will. Matter of Gregory, 15 Misc. 407. (See discussion, § 324, below.) " WiU of unTnarried woman, revoked by marriage. "A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage," (§ 36, Dec. Est. Law). These statutes are self-operative. It seems an extreme calse, yet it is held that a will made by a woman in contemplation of her marriage, and providing for her intended husband, was revoked by the act of her mar- riage. Matter of Mann, 51 Misc. 315. (See cases cited.) Brown v. Clark, 77 N. Y. 369; Lathrop v. Dunlop, 6 Sup. Ct. (T. & C.) 512; M'Mahon v. Allen, 4 E. D. Smith, 519. A widow is "unmarried," Matter of Kaufman, 131 N. Y. 620; Ctoner v. Gowdrey, 139 N. Y. 471. See Near v. Shaw, 76 Misc. 303, and cases cited. -But A, while married, makes a will. It is not revoked by her husband's death, or by divorce, nor by a remarriage siib- sequent to either. Matter of McLarney, 153 N. Y. 416; Matter of Burton, 4 Misc. 512. . See also §§ 37, 38, 39 and 40, Dec. Est. Law, as to effect oh, previous made will of bonds, agreements, covenants, charges, incumbrances, con- veyances, settlements, deeds or other acts of the testator affecting the property devised in such will. (See discussion, § 322.) § 312. Express words of revocation. — Gonveyancej when not to be deemed a revocation. " Where by a conveyance, settlement, deed or other act of a testator by which his estate or interest in property previously devised or bequeathed by him, shall be altered but not wholly divested, and in the instrument by \^hich such alteration is made, intention is declared that it shall operate as a revocation of such previous devise or bequest, it will so operate, but §313 wills; when operative, :p;TC. 343 not otherwise. In the absence of such express intention the devise or be- quest made prior to such conveyance or. deed shall pass, to the devisee or legatee, the actual estate or interest of the testator which would otherwise descend to his heirs, or pass to his next of kin." (See § 39, Dec. Est. Law.) Conveyance when to be deemed a revocation. " But, if the provisions of the instrument by which such alteration is made are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency and such condition be not performed, or such contingency do not happen " (§ 40, Dec. Est. Law). Canceling or revocation of second will not to revive first. . " If a testator shall duly make and exfecute a second will after the mak- ing of any will, the destruction, cancellation or revocation of such second will shall not revive the first, unless it appear by the terms of such revoca- tion that it was his intention to revive and give effect to his first will, or unless after such destruction, cancellation or revocation, he shall duly republish his first will" (§41, Dec. Est. Law). In the Matter of Stickney, 161 N. Y. 43, 45, aff'g 31 App. Div. 383, the court observes: "Obviously, the ^rst sentence of § 53 (now §41, Dec. Est. Law) relates only to the revocation in writing provided for by § 42 (now § 34, Dec. Est. Law) and, therefore, to revive a first will Under that pro- vision, a writing executed with the same formalities,^ as are required for the execution of a will, must exist in which the testator in express terms de- clares his intention to revive and give effect to such former will. The second sentence of § 53 provides the only other method of reviving a prior will where it has been revoked by a second which has been destroyed, and requires that w"hen the revocation of the second has been by its destruction the first will must be republished by the testator." Hence the court held that republica- tion must be made to the very witnesses who attested the will thus sought to be republished. Of course it could be reexecuted and published anew to new witnesses. See also Matter of Cunnion, 135 App. Div. 864, 201 N., Y. 123; and Osborn v. Rochester T. & S. D. Co., 209 N. Y. 54. It is possible that the revoking will may nevertheless no longer exist. To sustain probate of such lost revoking will would require proof by at least two credible witnesses; whereas to prove its execution and revoking effect may be done by one witness. See §§ 1865 and 2613, Code Civ. Proc, and Matter of Wear, 131 App. Div. 875. See also Matter of Wylie, 162 App. Div. 574. In Matter of Barnes, 70 App. Div. 523, it was held that probate of a will would be denied on the ground of its revocation when satisfactory proof was adduced that a will revoking the will offered for probate was duly executed, even though the revoking will was not and could not be produced, and was not in fact probated. § 313. Necessity of revoking clause in later will. — The mere execution of a later will has been held not to operate as a revocation of the prior will, unless it contains an explicit revoking clause or is wholly inconsistent 344 surrogates' courts § 313 with the prior will; thus, where a will purports to dispose of all the testator's property, it is in such case clearly inconsistent with the prior will, and will be deemed to revoke it. Simmons v. Simmxyns, 26 Barb. 68. So a later will giA^ng all to A, revokes a prior will giving all to B. Matter of Sheldon, 158 App. Div. 843. Roosa, Surr., in Matter of Oilman, 65 Misc. 409, upheld the "paramount intention to revoke" implied from execution of later wiU repugnant to first, disposing of whole estate, though naming no executor. The reason for this rule is that a later will disposing of other property or only a portion of the decedent's property is to all intents and purposes nothing more than a codicil, and only operates to change pro tanto the dispositions made by the testator in the prior document; in other words, the inconsistency between the prior and later instrument must be complete. This necessarily leads to the further statement that as a codicil, in order to become operative, niust be shown to have been executed with all the statutory formalities as if it were an independent will> so a subse- quent will cannot operate to change or revoke a previous will, unless it is executed with the same formalities with which the will itself was required by law to be executed; thus where (Nelson v. The Pub. Adm., 2 Bradf; 210), a testator selects the mode of revocation by writing, he will fail in accom- plishing his purpose if he dispenses with any of the necessary formalities. In the case just cited, a very mercurial testator made four unattested wills, three others apparently duly executed, and, several papers of revoca- tion. Three of the attempted revocations were wills signed, but not at- tested; three were mere declarations of revocation subscribed by the testa- tor, but without the names of subscribing witnesses. The court hdd that while they expressed as strongly as anything could a determination to re- scind every instrument of a testamentary character ever executed by, the testator, and while they expressed this repeatedly, showing a continued and earnest intention to revoke, nevertheless the law must govern. "The testator might. have revoked by burning, tearing, canceling, obUterating or destroying, but he selected the mode of revocation by writing, in which he has failed to comply with the law and these formal acts have no validity." See also Leaycraft v. Simmons, 3'Bradf. 35, 43; McLosky v. BM, 4 Bradf. 334, where the Surrogate admits a second will not executed with the formalities necessary in order to dispose of real property in the State of New York to be sufficient as a will of personal property admitting the prior will, which had been executed, as a will of real property. See, also, Barry v. Brawn, 2 Dem. 309, , and ikf airs v. Freeman, 3 Redf. 181, holding that whtere a party offering a subsequent will to that propounded, which it was claimed operated as a revocation, the burden of proof is on such party, and he is required to show the due execution of that instrument in order that it may constitute, a revocation. Where a codicil was written at the foot of the will and made such dispositions as to blend the codicil and will into one testamentary disposition, a revocation of the codicil by erasure of the signature was held to revoke the will as well. Matter of Brookman, 11 Misc. 675. §§ 3L4, 315 wills; when operative, etc. 345 § 314. Reviving prior will.^The provision of § 53, art. Ill, ch. 6, part 2, Revised Statutes, 8th ed., p. 2550 (§41, Decs- Est. Law) above quoted, that the destruction, cancellation or revocation of a second will shall not revive the first will, unless it appears by the terms of such revo- cation that it was the testator's intention to revive and give effect to his first-will, or unless he shall duly republish his first will, must be taken to be limited in its application to the exact cases covered by the statute, and: for this reason, that cases are not infrequent where the testator is known to- have 'made a second will, which, however, cannot be found. In such a case if the prior will be propounded as the last will of the decedent, it will be admitted to probate in the absence of proof : , (a) : That there was a later will; (6) That it was properly executed (by which of course is meant that all elements of proper execution were present, including capacity, etc.); (c) That the later will contained a revoking clause or, ; (d) Such proof of the contents of the later will as show inconsistency: with the provisions of the former will. ■ ' ' There is no doubt, however, as to the jurisdiction and power of the Surrogate to receive proof that the prior will was revoked by the subse- quent will, and further to receive proof that the subsequentwill had been fraudulently destroyed: or, that having been properly executed, it was destroyed by the testator when his mind had become so impaired :that he was incompetent to perform a testamentairy , act, which incompetency of course taints with invalidity the act of revocation as well. Matter of Waldron, 19 Misc. 333. See opinion of Woodward> J., in Maiter'ofWear, supra^ Therefore, while it may be perfectly clear that the second wiU was: duly made and executed, and that it was destroyed, or canceled or revoked or where there is an absence of proof as to the contents of a later will, the Surrogate is without power to say that the second will was in fact a revoca- tion of the-i first and the prohibition of the, statute against; reviving the first will is not infringed; inasmuch as thereis no proof that the first will was not continuous in its operation as a declaration of the testator's testar mentary intention. Nelson v. McGiff&rt; 3 Barb. Ch, 158, 164. So in Matter of Stickney, 161 N. Y. 42, the court held that a will that has besQ revoked by a subsequent one which is destroyed by a second one, is not revived by his declaration of desire to revive the first onej :MW/!css, such declaration be made to the original subscribing witnesses. In Matter of Kimtz, 163 App. Div. 125, A made a will revoking, former, wills. . Later she desitroyed the last, in presence of one of the. witnesses to the original will declaring she wished the original will to stand. But it was not republished. Held, not revived. , , , § 315. Codicil to earlier will.^A ciarious complication may arise where a testator executes two wills, and after executing both, makes a codicil toi the earlier will. The question then arises, what is the effect of suph codicil upon the intermediate will, and. can it revive the ^rlier will? The question will , turn on whether the eariier will was destroyed or revoked., 346 surrogates' courts § 315 The effect of a codicil to a will, revoked by a later will, is to revive and republish the earlier will; which speaks as of the date of the codicil, assum- ing it to be duly executed. Knapp's Will, 23 N. Y; Supp. 282. It also operates by implication to revoke the intermediate will. In other words, the codicil and the earlier will, read together, constitute the final testa- mentary disposition of the estate. Matter of Campbell, 170 N. Y. 84, aff'g 67 App. Div. 627. See also Matter of Conway, 124 N. Y. 455; Cauljield V. Sullivan, 85 N. Y. 153; Matter of Miller, 11 App. Div..337; 1 Williams on Executors, 6th Am. ed., pp. 251, 252; 1 Jarman on Wills, 5th Am. ed., pp. 114-191; Broum v. Chrk, 77 N. Y. 369. In the case of the Will of Pinckney, 1 Tucker, 436, the learned Surrogate considers this question briefly, and states that it is not altogether Without precedent. He refers to an English case (3 Vesey R., p. 402) where the testator executed a codicil in 1776, referring to a will of 1752. A devisee of real estate under a second and later will of 1756, filed a bill to sustain that will. The codicil was held to cancel the intermediate will (citing also Crosbie v. McDonald, 4 Vesey R., p. 616). He also cites another case, Hall V. Tokeler, 2 Robt., p. 318, where the decedent executed two wills, destroyed the earlier one animo revocandi, and then executed a codicil showing an intention to revive it; and it was held that the codicil was inoperative to revive the former will which had been destroyed but did operate to revoke the later will. The facts before Surrogate Tucker were that the decedent had executed a will in June, 1861, and another March 16, 1863, and a codicil March 28, 1863, which in terms was expressed to be a Codicil to the will of June, 1861, was found with the seal and signature cut out; which constituted cancellation under the statute; due execution was proved of the other will and of the codicil; it was held that the codicil being expressly declared to be a codicil to the will of June 21, 1861, could not be attached to the later will, and the effect of the codicil was to revoke and abrogate the later will, because it republished the earlier will as testator's last will; and since the codicil could not operate to revive the earlier will, as it had been canceled, both wills were revoked and abrogated. The Surrogate further held that inasmuch as the codicil propounded was not sufficient to stand alone as a testamentary disposition^ intestacy must be decreed. Jarman in his work on Wills, says (at p. 188) that the law in England is that "if a testator makes a will in 1830, and at a subset quent period, say 1840, makes another will inconsistent with the former, but without destroying such former will, and afterwards makes a codicil which he declares to be a codicil to his will of 1830, this would set up the will so referred to in opposition to the posterior will." If the codicil is properly executed, published, etc., the will first revoked and then revived needs no republication. Matter of Emmons, 110 App. Div. 701. The codicil and will are by the reference made one instrument, and though the original will was informally executed it would be cured and corrected by due execution of the codicil. Storm's Will, 3 Redf . 327, citing §§ 316, 317 wills; when operative, etc. 347 Mooers v. White, 6 Johns. Ch. 374, 375. Where a testator was improperly prevented from revoking a will, the ancient rule was that the one who so hindered the revocation was rendered thereby unworthy, i. e., he was excluded from participation. But it is very doubtful whether the prevention of the execution of a codicil by improper means can revoke a previous will. Leay- craft V. Simmons, 3 Bradf. 35, 43. Where a will is revoked by destruction it seems that it revokes a codicil thereto, even though it turns up later uninjured. Gunninghdm v. Hewitt, 84 App. Div. 114. See learned review of the law by Ketcham, Surr., in Matter of Nokes, 71 Misc. 382. He quotes the Matter of Emmons, supra, "A codicil executed according to the formali- ties of the statute is a final testamentary disposition, and if there be an existent and complete will, it takes it up and incorporates it." Citing Matter of Campbell, 170 N. Y. 84. "If, however, there be no such existent and validly executed will, and if the codicil be so complete in itself as to be capable of execution, there it must necessarily stand and be given the force of valid testamentary disposition." But as the paper propounded before him was published "as a codicil" merely to a specific will which had been revoked he refused it probate. It must be noted that when the codicil was made the will was alive. Where a will was made by A, who later duly made a codicil thereto, which he finally revoked, held not to revoke the will. Osburn v. Rochester Trust & S. D. Co., 209 N. Y. 54, mod. 152 App. Div. 235. § 316. Parol declarations inadmissible. — Where questions of conflict- ing will and codicil come up, evidences of mistake in the testator's refer- ence to one of two wills in a codicil dating subsequently to both, is inad- missible (see Matter of Pinckney, supra), nor are subsequent declarations by testator that he had revoked his will to be allowed in evidence. Coe v. Kniffen, 2 Johns. 31 ; Dan v. Brownj 4 Cow. 483. See also Matter of Ken- nedy, 167 N. Y. 163; Matter of Burbank, 104 App. Div. 312. For a will cannot be revoked by parol, or in any but the statutory manner, and a will certainly will not be deemed revoked by alleged declarations by tes- tator that he did not understand its provisions, nor can such declarations be admitted. Matter of Hammond, 16 St. Rep. 977; Shaw v. Shaw, 1 Dem. 21. But where a trust deed, executed with the formalities of a will, pur- ported to revoke a will, it was held duly revoked. See Matter of Backus, 49 App. Div. 410, and the Surrogate's decree (29 Misc. 448), admitting the will to probate was reversed and probate denied. § 317. Revoking act must be equally solemn with act revoked. — A will cannot, even by its own terms, automatically revoke itself on a specified contingency. A made a will stating that if he married it is to be regarded as "cancelled." Held not a statutory revocation. Matter of Steiner, 89 Misc. 66. To make a subsequent will or a codicil operate to revoke a will, such codicil or will must be an affirmative testamentary disposition in itself. In the Backus case just cited the trust deed effected a complete disposition of the grantor's property. But the court held that the writing effectual to revoke a will need not be characterized as a will by the person 348 surrogates' courts § 317 executing it. Of course due execution of the later will must be satisfactorily established. Mairs v. Freeman, 3 Redf. 181. If the later will be not pro- duced it must be satisfactorily proved by affirmative evidence as to factum and contents. Matter of Williams, 34 Misc. 748; Matter of Meyers, 28 Misc. 359. Even though the paper claimed to have a revocatory effect clearly manifests an intention to revoke, that is not suflScient. The most satisfactory evidence that the testator had repeatedly and explicitly de- clared that it was his deliberate design to annul or destroy the will, would not authorize the court to reject the instrument, Delafleld v. Parish, 1 Redf. 1, 104, aff'd 25 N. Y. 9, 30, 35, particularly if-the testator was physically enfeebled when making the later will. Judge Davis writing the prevailing opinion in the Parish Will case formulated this rule which is concise and clear. See 25 Abb. Pr. 35. "When it is sought to establish a posterior will, to overthrow a prior 3ne made by the testator in health, and under circumstances of delibera- tion and care, and which is free from all suspicion, and when the subse- quent will was made in enfeebled health, and in hostiUty to the provisions of the first one^ in such case the prior will is to prevail unless he who sets up the subsequent one can satisfy the conscience of the Court of Probate that he has established a will. And also the prior will is to prevail, unless the subsequent one is so proven to speak the testator's intentions, so as to leave no doubt that it does so speak them." The Court of Appeals in 1 much later case, Newcomb v. Webster, 113 N. Y. 191, 196, declared. the rule in respect of the effect of a codicil claimed to have' revocatory opera- iion. Judge Danforth says: "It may be taken as a well-settled general -ule that'a will and codicil are to be construed together as parts of one md the same instrument, and that a codicil is no revocation of a will further ;hari it. is so expressed. Westcott v. Cady, 5 Johns. Ch. 334. But if, when •egarded as one instium6nt, it is found to contain repugnant bequests n separate clauses, one or the other, or both, must fail, and therefore, ;he rule is that, of the two, the bequest contained in the later clause shall stand. The same principle appUes with greater force where th^e are two listinct instruments relating to the same subject-matter. In such a case m inconsistent devise or bequest in the second or last instrument is a lomplete revocation of the former. Biit if part is inconsistent and part s Consistent, the first will is deemed to be revoked only to the' extent of ;he discordant dispositions, and so far as may be necessary to give effect ,0 the one last mad.e;" Citing Nelson v. McGiffert, 3 Barb. Ch. 158. Con- ieqviently the Court of Appeals held that as the codicil made a new and !omplete disposition of the estate, but appointed no executors, both will md codicil should be admitted to probate, that the former was operative 10 far as to designate the executors, but revoked by the latter as to the iisposition of' the property. 113 N. Y. 197. Hence revocation by a writ^ ng means by an authenticated writing. A mere writing, unattested in 'solemn fofm" though 'signed and dated and indorsed on the very will is a nere sign of an intention, but not an "equally solemn" or sufficient act. §§ 318-320 wills; when operative, etc. 349 Matter of Miller, 50 Misc. 70. But if in addition tiie original signature is canceled, and produced, thus indorsed from decedent's safe, and there is no suspicion of any tampering, revocation, not by "equally solemn" act but by cancellation, may be declared. Ibid. § 318. Effect of duplicate wills. — It seems that where a will has been executed in duplicate, revocation by the testator of one of such duplicate wills, by cancellation or destruction, will be held to operate to nullify the other, in the absence of proof that the other was within the control of the testator so as to be similarly destroyed. See Adnari v. Bangs, 3 Dem. 385. This of course would not apply to a revocation by an instrument in writing. The duplicate will can in such case be treated only as one in- strument, and a reference to a will of the given day, or a reference to it as a prior will need not specify that the will is a duplicate will, if the revoca- tion be in conformity with the statute, and express in its terms. Biggs v. Angus, 3 Dem. 93, 96. See Roche v. Nason, 185 N. Y. 128. This subject is authoritatively covered in Matter of Schofield, 72 Misc. 281, where Surrogate Fowler traces the history of such wills in the law. He held that the revocation of the "example" in the testator's custody operated on the other "example" in his .attorney's safe and revoked the will as a whole. In Matter of Van Dor en, 77 Misc. 44, it developed that the two "ex- amples" were not in fact duplicates. But a codicil to the "duplicate" will was referred to and the "example" in conformity with the codicil was deemed the correct original. § 319. Mutual wills. — Mutual wills, unless made in pursuance of a con- tract between the testators, may be revoked by either testator without notice to the other. Edson v. Parsons, 85 Hun, 263, 155 N. Y. 555, 556; Middleworth v. Ordway, 191 N. Y. 404. And such a contract, effectual to prevent revocation, must be affirmatively proven by full and satisfactory evidence, s. c, 155 N. Y. 555. See also Herrick v. Snyder, 27 Misc. 462. An agreement to make mutual wills can be enforced only at instance of a party thereto. Wallace v. Wallace, 71 Misc. 305. The Surrogate cannot enforce it. Matter of Sandberg, N. Y. L. J., Dec. 7, 1911. In this case probate was refused to an alleged will made in defiance of the mutual transaction, which transaction was proved and had some weight in settling the question of undue influence there presented. Equity will not enforce it at a suit of a third party. Everdell v. Hill, 58 App. Div. 151. In Matter of GoUsticker, 123 App. Div. 474, aff'd 192 N. Y. 35, three brothers made mutual wills on consideration they be operative only if they remained un- married. A and B married. C did not. On his death, held his will was not revoked, under the statute. § 320. Revocation by obliterating or canceling. — It is the settled rule that the provisions of the statute in regard to proof of revocation of a will by cancellation or obliteration, contemplates the cancellation or oblitera- tion of the whole will. The language of the statute is expUcit. It says, 350 surrogates' courts § 320 "No will or any part thereof shall be revoked or altered unless such will" (not unless such will or such part) "be burnt, torn, cancelled, obliterated or destroyed animo revocandi." The effect of the words in the statute are that not even a part of the will shall be deemed revoked unless the will itself is destroyed, and they forbid the possible inference that a part might be revoked by destroying such part. Lovell v. Qwitman, 25 Hun, 53'f, aff'd 88 N. Y. 377. See Mattm- of Curtis, 135 App. Div. 745, when testator tore out one clause, and initialed "cancelled" on the edge of the whole. See Matter of HiUeribrand, 87 Misc. 471. Where the parts torn out could not be found, yet the balance of the will, not being duly revoked was probated. Matter of Kent, 89 Misc. 16. See opinion as to degree of proof required to supply thff contents of the parts cut out. Query? If no proof were available, would not this case practically sustain the partial revocation attempted by the testator? The animus revocandi to be operative must have relation to the entire instrument tampered wiih. This, however, must not be taken to mean that a complete destruction of the instrument must be effected; thus, where a testator in infirm health, feeble in his physical powers, and yet of sufficient mental soundness to be capable of a testamentary act, calls for a will previously executed, tears the paper into fragments and then or thereafter declares that he has destroyed his will in the presence of wit- nesses, it will be held to be a sufficient destruction of the will, the act being clearly proved as well as the intent of revocation. See Sweet v. Sweet, 1 Redf. 451. See further on the point that the mere act of tearing or can- celing is not , sufficient, Jackson v. Halloway, 7 Johnson, 394; Jackson v. P-aUie, 9 id. 312; Smith v. Hart, 4 Barb. 28; Nelson v. McGiffert, 3 Barb. Ch. 158; Perrott v. Perrott, 14 East. 423; Willard on Ex. 123. In Matter of Schweizer, N. Y. L. J., Feb. 28, 1912, the paper propounded as a will was last in the testator's own custody, and at his death being found with the seal detached, the testator's subscription canceled, the names of the wit- nesses erased, and the words "I cancel this will for good reasons" under- written in testator's own band, held, it must be taken to have been revoked in his lifetime by testator himself. " Cancellation and destruction of the will by testator animo revocandi has been made out and probate must be refused." It will be noted that the statute quoted above contemplates a cancella- tion, either by the hand of the testator, or by the hand of another; and where, by the hand of another, by testator's direction and consent. But it must be actually done. So where testatrix told her brother to destroy her will and he falsely told her he had done so, at her death it was held not to have been revoked. Matter of Evans, 113 App. Div. 373. And it must be done by testator or in his -presence. See Matter of Hughes, 61 IVfesc. 207, opinion by Ketcham, Surr. • Moreover, such cancellation and the direction to cancel must be proved by at least two witnesses. The statute does : not provide for any presumptions, but leaves the circumstances to be proven. A most instructive case is Matter of Hopkins, 35 Misc. 702, § 320 wills; when operative, etc. 351 aff'd 73 App. Div. 559, rev'd 172 N. Y. 360. In this case the special guard- ian argued that where a will is found with the signature erased, there arises a presumption that it was done by the testator, and that to over- come such presumption there must be evidence that it was done by some other hand, and cited Matter of Philip^ 46 N. Y. St. Rep. 356; Matter of Clark, 1 Tucker, 445, as authorities directly in point, and cited as analogous. Hard v. Ashley, 88 Hun, 103; Collyer v. Collyer, 110 N. Y. 481, where the question was that of an alleged lost will. The court observed: "No one questions but that these cases were correctly decided upon their own pe- culiar facts, and it is the facts of each case which control. "The statute was enacted to prevent fraud and not to invite it, there- fore such a broad presumption which would make the accomplishment of a fraiudulent cancellation the easier would contravene the spirit of the act." And it was held below that as the signature was sought to be can- celed by vertical marks, which were proved by expert testimony not to have been made by testator, the will was not duly canceled. The Court of Appeals reversed on the ground that testimony of expert that 1 1 1 { | { marks on signature were not made by testator was inadmissible as such marks are not writing for purposes of comparison under Laws 1880, chap. 36, and Laws 1888, chap. 555. (See cases discussed in opinion.) It was remitted for a jury trial. (See second appeal. Matter of Hopkins, 97 App. Div. 126.) Held that while it was shown the signature was cancelled yet as neither party offered any evidence as to whether, when found in testator's custody the signature was in fact then canceled, the only presumption to be enter- tained was that the cancellation was subsequent to execution. On the next appeal it was held to have been canceled by another than testator. Matter of HopkinSi 109 App. Div. 861. See also Matter of Brookman, 11 Misc. 675. In this case the signature was erased by ink lines, and the word "void" in margin initialed by testator. Held, will was revoked. In Matter of Ak&rs, 173 N. Y, 620, aff'g 74 App. Div. 461, the testator wrote at head of, and also opposite signature to his will "This will and codicil is revoked. Jan'y 14, '96. Fred'k Akers." The New York Surro- gate held this not sufficient cancellation and probated the will. This was affirmed. In a recent case in Kings county. Matter of Alger, 38 Misc. 143, the tes- tator had drawn across all the provisions of his first codicil, including the signature and attestation clause numerous cross marks in lead pencil and also wrote in on the place of the attestation clause, the word "canceled" and in another place the date, "April 19th, 1895." The second codicil contained several cross marks in lead pencil in the first clause thereof, and at the foot of the attestation clause there was written: "Brooklyn, April. The codicil in the within is this day 20th, 1895, canceled for personal abuse and ungratefulness on her part. Geo. Alger, 203 12th St., in the city of Brooklyn, N. Y." The words "Geo. Alger" were also written a second time below this. 352 surrogates' courts §320 It was proved that the word "canceled" and the date were-ali in the hand- writing of the decedent. 'S The Surrogaite held both codicils to be canceled. He points out the derivation of the word canceled from cancelli, cross-bars or lattice work, and held that where it is apparent that the cross lines had been made by the testator with the evident intention of effecting a revocation, such act is sufficient to work a revocatioii of the will, citiilg Matter of Br ookman, 11 Misc. Q7 5. ' So far as intention to cancel is concerned, there can be little doubt but that in the Akers case, the intention of the testator was cleftr beyond per- adventure, and yet the court, as we think properly, held the revocation not to be according to the statute, and it may thus be doubted whether under Iiov$ll v. Quitfnan, the decision in the Alger case will stand as to the second codicil. See opinion as to meaning of cancellation and cases discussed. > The recovered several fragments of a wiU so torn and supposed by' the testator to have been destroyed, will be denied probate. When testator desires to revoke part of his will he must resort to the means provided for in the first part of § 34, quoted in § 311, q. v. above; that is, to some formal writing executed as therein prescribed. Lovell v. Quitman, 88 N. Y. 377, 380, Danforth, J.;Gngelv. Vollmer, 1 Dem. 484. So, if the will is found in draughtsman's deSk, cut in two, there is no presumption of revo- cation. Matter 6f Aekels, 23 Misc. 321. See Matter of Van' Woert, 71 Misc. 372, as to facts proving intent to revoke. Also Matter of Kathan, 141 N. Y. Supp. 705. So where a testator having, by will, devised property to his son, whose name was given, it was held that the erasure of the name leaving, however, the word "son" could not operate to revoke the devise. Clarh v. Smith, 34 Barb. 140. So iii Matter of Kissam, 5Q Misc. 308, Millard, Surr., tes- tatrix's will gave to R.I and H. 'eac/i the simi of $5,0OO. After execution he erased the name of H: and the word "each." Held this could not dlter the will, lior was it a revofcation. See cases reviewed at p. 309. So' in Matter of Gartland, 60 Misc. 31, the Vriting in by a third party of additional pecuniary bequests after execution, was held not to invalidate the will and' were rejected by Beckett, Surr., in probating it. See, contra, Dan v. Brown, i Gow. 483j ^holding that so long as there exists ammo revocandi the slightest decree of cancellation will revoke. Where one who had acquired property after making his will, interlined provisions therein and altered other provisions so as to cover such after-acquired property, it. was held that such' changes not being properly attested could have np testamentary effect, and yet not being done ammo revocandi would not affect the will as it originally stood. Hotvard v. Holloway, 7 3ohm. 394. Similarly where it appeared that the signature of the testatrix had been erased, first by drawing diagonal lines over the name^, and thfen nearly erasing such lines and the name itself, after which the testatrix carefully rewrote her signature over the original place of signing, Surrogate Jenks held that there was no presumption of its having been done with the in- § 321 wills; when operative, etc. 353 tention of revoking the will, and in the absence of affirmative proof to that effect, he admitted it to probate. Matter of Wood, 2 Connoly, 144. § 321. Material alterations in will. — Where a will is offered for probate having material alterations and erasures, the Surrogate must determine whether they were or were not made before execution. Matter of Wilcox, 131 N. Y. 610. When it clearly appears that the alteration was made befote the will was executed, probate will be granted. See Matter of Acker- man, 129 App. Div. 584. But, in doubtful cases, where material provi- sions have been erased or altered, and the Surrogate cannot determine from the proof whether the alterations were made before or after -execu- tion, the whole instrument must be rejected, and probate refused. Matter of Barber, 92 Hun, 489, 497. When material alteration follows signature the whole will will be refused probate, "on the theory that testator would hot desire hig will to stand with a material part omitted." But if not ma- terial it may be disregarded and probate decreed. Matter of Gibson, 128 App. Div. 769 and cases discussed. The burden of proof is on the pro- ponetit to show they were made before execution. For the presumption in rtgard to alteration in a will is in this State, that it was made after execu- tion. Matter of Dake, 75 App. Div. 403, citing Matter of Potter, 33 N. Y. St. Rep. 936, and Crossman v. Crossman, 95 N. Y. 145. See, also. Matter of Carver, 3 Misc. 567, Davie, Sitrr.; Wetmore v. Carryl, 5 Redf. 544, 547, Rollins, Slur., citing Herrick v. Malin, 22 Wend. 388 ; Smith v. McGowan, 3 Barlf. 404; Acker v. Ledyard, 8 Barb. 514, and opinion of Lord Brougham in Cooper v. Bockett, 4 Moore's P. C. C. 419. See, also. Van Buren v. Cock- butn, 14 Barb. 118; McPherson v. Clark, 3 Bradf. 93; Estate of Prescott, 4 Redf. 178. Those seeking to establish a will containing such apparent defects must overcome the usual presumption by proof direct or inferential. Dyer v. Erving, 2 Dem. 160, Rollins, Siur.; Matter of Carver, supra. If the inter- lineatibns are in body of holographic will in testator's handwriting there is a presiunption they were made in preparing will and before execution. Matter of Dake, supra. Yet, once a will has been signed and published and attested, the testator though he may absolutely revoke it by destruc- tion, or may amend or modify it by another writing executed with formali- ties such as attended its own execution, cannot otherwise, by one jot or tittle, vary its terms, either by additions, interlineations, obliterations, erasures or other changes upon its face, or by the after preparation of xiil^ttested papers, designed to supplement its provisions, or by the altera- tiofi of any such papers already in existence and engrafted by proper refer- ence upon the will itself. Dyer v. Erving, supra, opinion of Rollins, p. 170. See interesting case. Matter of Johnson, 60 Misc. 277, where alterations were made at testatrix's request and witnessed, and she reidentified her originalsignatm'e to them. Will admitted, but alterations ignored. The same is held by Fowler, Surr.; in Matter of Foley, N. Y. L. J., Feb. 21, 1912, reviewing nearly every reported decision (see opinion for cases cited). The head note in part reads: 354 surrogates' courts § 321 Where wprds are written in the body of the will by, an attorney after a subr scription thereof by testatrix, such words so overwritten are hot entitled to probate unless the testatrix again' subscribed the same. Her subsequent acknowledgment of her subscription is insufficient to incorporate the words never subscribed in fact. See Matter of Crawford, 80 Misc. 615. , Qohalan, Surr., a^^ cases cited,. The Court of Appeals, Crossman y. Crossman, 95 N. Y. 145, 152, inti'- mated that there is no presumption where the ifiterlineatioii is fair upon the face of the instrument and there are no circumstances to,, cast suspicion upon it that such interlineation though imexplained was fraudijlently made after the execution of the instrument. But in t)i^t case the court had before it duphcate wills. The iaterlineation was in, o^ pf ihe two and the words interlined were necessary to maJke^ the ^11' the duplicate of the othei;. Moreover, the interlineation was noted in the attpstatipn clause. Judge Earl said (p. 153), "Taking all these circumstances tl^fi^e was sufficient to cast the burden upon the contestants, to show. that the interlineations were fraudulent and unauthorized." See Mat,ter ofDwyer, 29 Misc. 382, 390. In determining whether the alterations weje made before or after execution, the Surrogate will interrogate the .'v^tnesses or persona present as to ,thfir personal knowledge j and in the ,absencp of any fight from this source he should consider the haiidwriting, comparing it with that in the body of the instrument, the color of the ink, which, he; hajS authorityto have chemically tested. Matter of Monroe, 5 N. Y. Supp. 55^;j the manner of the interlineation, and, particularly, whet3i,er reference is made, to it in the attestation clause, Crossman v. Crossman, supra, Jfpr in case there is such reference, the interlineation is sufficiently Eiccountedfor,, 1 Greenleaf, § 564. See also MaMer of Whitney, 90 Hun, 138-143. If the will is in testator's writing and was in his custody till his death, any inter- lineation or erasure will be presumed to have been made ibgfo.^'p jej^^QjitiQ^i.- Matter of Potter, 33 N. Y- St. Rep. 936. But pencil ,interline3,|4pns will i^pt be deemed permanent parts of a will. Will of Tig}f,e,l!i.Y. L^w^Jqurnal, August 15, 1898. They show the deliberation of thetfptatpi;, but ^^e not Sjuffipient as an jemhodirnent of: his determination. I,n,,i^fa^ of ^tichney, 41 Misc. 70, Church, Smrr., admitted a wiU, vaUdly executed, to probate, but enumerated in his decree each provision held to b,e annulled by inter- lineation, or change proved to have been made after execution. In Mat^rof^ Ra,is\eck, 52 Misc. 279, pencil marks made in a lawyer's will (holographic) fpund in his private box were disregarded, being tjreated ap.mere in^ia, of a purpose to make a new will,; but not sufficient to revokp the pjd until and unless the new testamentary act was actually complete. • Again, in Matter of Wedhrook, 44 Misci 339, a peculiar case was presented. Testatrix had cut out a paragraph and piasted the two rpra,^j^iiiig pieces of the will together, and put the paper into her box. She, latier wwte. h^r, executor telling him of the box and that it contained her will. Held there was no proof of intent to revoke. Thereupon the Surrogate took proof, of. the.j^utout missing, portion of the will, and, incorporating t^^§,same intq the existing paper, decreed probate. , .ii §322 wills; when operative, etc. 356 § 322. Effect of marriage of a woman as a revocation. — (See § 311, ani,e.) It was the rule of the common law that the marriage of a woman operates as an a,bsolute revocatiori. of her prior will. Blrown :v. Clark, 77 N. Y. 369, 373, and cases cited. , • This rule of the common law was made a part of the law of this State by the Revised Statutes, which is the declaration of an absolute rule (now § 36, Dec. Est. Law). It has, been held that the fact that the testamentary capacity conferred upon married women by the so-called married women's acts in this State, takes away the reason of the prior rule, does not ahToga,tei,\iis rule,. Brown V. Clq,rk, supra, in spite of the maxim cessante ratione l^gis, cessat lex ipse. 3 Redf. 445, reversed. The courts cannot dispose of a statutory rule because it may appear that the , policy upon which it was established has ceased, but where a testatrix makes a will before her marriage and after her marriage makes a codicil referring to such will, the due execution and publication of such codicil is now, as it was prior to the Revised Statutes, a sufficient repub- hcation.of the will to which it refers. Van Cortlqndt v. Ki-pp, 1 Hill, 590; Brown v. Clark, 77 N. Y. 369, 377, and cases cited. See also 1 Jarman on Wills, p. 78. "A, codicil duly attested communicates the efficacy of its attestation (even) to any unattested will or previous codicil so as to render effectual any devise of the freehold estate which may be contained in such prior unattested instrument. " The revocation accomplished by a marriage subsequent to the making of a will is,?ibsolute and operates eo instanti. Lathrop :V. Dunlap, 63 N. Y. 610. See also Matter of Gall, 2 Connoly, 286, aff'd in 131 N. Y. 593, where testator married one to whom he had for a long time prior thereto sustained ilhcit relations; the marriage found by the court was non-ceremonig,l, but was adjudged to have takeA place by mutua,l consent S'ta time subsequent to the making of the will. Held that while the fix;ing of the period ,\y;hen the paj^ties passed by mutual consent, from a state of illicit intsrcpurse intO; that of marriage was incapable of being positively fixed, that nega- tively it certainly had nottaken place at the tinie pf the making of the mil, which th^ef ore was rpyoked by the subsequent niarriage and birth of issiue. , , , , , , A widow is deemed an unmarried woman under this rule, and a will made while she is a widow will be deemed revoked by her subsequent remarriage. Matter of Kaufman, 131 N. Y. 620, aff'g 61, Hun, 331., Spe §311, ante.: ^ Bu;t Tiyjheare a married woman ma,kes sl will and subsequently to itS' execu- tion-her marriage is dissolved by judicial decree, she is not deemed to have executed it ^s an xmmarried woman,, an.d in such a case the Court, of Ap- peals held that the subsequent remarriage .pf such a woman would not operate to reyoke the -v^U. Matter of McLq,rney, 153 N.. Y. 416, aff'g 90 Hun, ^pl. The word unmarried in the statute means a person not in a state of marriage. Id- See also Matter of Union Trust Co., 179 N. ^. 356 surrogates' courts § 322 261, "not bein^' married at the time." The whole subject of a woman's will; as affected by the statutes is summarized in one of Surrogate Thomas' luminous and comprehensive opinions. Matter of Yung, N. Y. Law Jour., July 11, 1908, wliich is quoted in full: "The propounded paper was duly executed by the decedent on July 2, 1895, at which time she was the wife of James Boyd Blake, and the mother of two infant children born of her marriage with him, only one of whom now siu-vives, the other having predeceased her. Thereafter, her then husband, James Boyd Blake, died, and she married Charles Yung, one of the persons nominated in the testamentary instrimient as executors, who is the proponent in this proceeding, and by her marriage with him she became the mother of Charles Francis Yung, now an infant of the age of about 3 years. The only objection filed in the proceeding is made* by the special guardian of the infant Charles Francis Yung, and the only issue raised thereby is as to whether, upon the facts already stated, the pro- pounded paper was revoked. The statutes applicable are contained in chapter 6, title 1, of the Revised Statutes, enacted in 1830, with later amendments thereto. Section 1 provided that 'all persons except- idiots, persons of imsoimd mind, married women and infants may devise their real estate by a last will and testament, duly executed according to the provi- sions of this title.' Section 21 also declared that 'every male person of the age of 18 years or upwards, and every female nbtbeihg a married" woman, of the age of 16 years or upwards, of sound mind and memory, and no others, may give and bec(ueath his or her personal estate by will in writing." In other words, a valid will could not' be made by a married woman, and this rule was not a new one, the statute being, in this respect, a new state- ment of the law iexisting at the time of its enactment and for long prior thereto. Three sections in the title cover all cases in which a constructive revocation of a will thus authorized to be made could occur, and these sections are numbered 43, 44 and 49. By section 44 it was declared that 'a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.' Section 43 provided for the revocation of the will of a man by his subsequent marriage and the birth of a child, if either wife or issue survived him. Section 49 provided for the piartial revocation of the will of a man in favor of and to protect any child afterwards born, who was not mentioned or provided for in such will, or otherwise provided for by a settlement. The scheme thus presented was definite, complete and har- monious. By Laws 1849,' chap. 375, it' was provided that *any married female may . . . devise real and personal property and any interest or estalte therein, and the rents, issues and profits thereof in the same manner and with like effect as if She were unmarried." By Laws 1867, chap. 7*82, §§ 1 and 21 of the Revised Statutes were amended so as to place women arid men on precisely the same footing as to the riaaking of wills; There- after, in 1869, in Cotheal v. Cotheal, 40 N. Y. 405, a case of great hardship to a child born after the execution of a will by its mother, by which be was deprited of aily interest in her estate or of any provision therefrom, § 322 wills; when operative, etc. 357 was presented to the Court of Appeals, anci an effort was made to procure a construction of § 49 of the Revised Statutes which would make it ap- plicable to the will of a married woman. Notwithstanding the equities which might have influenced the court if the statute had been capable of two constructions, it was adjudged that it had no application and that the will of the mother was unrevoked, and that the afterborn child was with- out remedy. Shortly following this decision § 49 was by Laws 1869, chap. 22, amended so as to read as follows: 'Whenever a testator shall have a child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child so afterborn un- provided for by any settlement, and neither provided for nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent's real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and shall be entitled to recover" the same portion from the devisees and legatees in proportion to and out of the parts devised and bequeathed to. them by such will.' This statute is conceded to have application to the present case, and without an adjudication that the will is in whole revoked and null the contesting infant will be entitled to the full share of his mother's estate which would pass to him in case she were intestate. Matter of Murphy, 144 N. Y. 557. If any advantage will come to him by the rejection of the paper it will not be in the nature of an increase of his interest in the estate of the decedent, and nothing less will serve to give him a legal standing to contest and resist the probate of the paper. Trustees v. Ritdi, 91 Hun, 509, 532; Matter of Murphy, 144 N. Y. 557; Matter of Brown, 47 Hun, 360, 361; Matter of Rollwagen, 48 Howard, 103. • My further examination as to the propriety of admitting the will is therefore made in pursuance of my gen- eral duty to examine as to the validity of the paper, though not contested. No amendments have been made to §§ 43 and 44 of the statute. Under § 44 the will would have been revoked if it had been executed either be- fore the marriage of the decedent or after her first husband's death and while she was a widow. Matter of Kaufman, 131 N. Y. 620, for ' a will exe- cuted by an unmarried woman shall be deemed revoked by her subsequent marriage,' but she was not 'an unmarried woman' wheii she executed jthe paper, and that provision of law has no application, Matter of McLarney, 153 N. Y. 416. Section 43 of the statute, which is claimed to have applica- tion here, is as follows: 'If after the making of any will disposing of the estate of the testator, such testator shall marry and have issue of such marriage, born either in his lifetime or after his death, and the wife or issue of such marriage shall be hving at the death of the testator, such will shall be deemed revoked unless provision shall be made for such issue by some settlement or unless such issue shall be provided for in the will, or ia such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received.' It can scarcely be contended that this section of the statute was intended by the revisers or by the Legislature which enacted it to 358 surrogates' courts §§ 323, 324 apply to the wills of women; it has never yet been held to apply to the wills of women, and I am of opinion that it does not apply to theiii. The 'testator' mentioned in it is one who can marry a 'wife,' which 'wife' can or may survive him. While in the construction of statutes the use of a masculine term will include the feminine, it has never been held that the use of a word applicable only to a female shall also include the male. The objections will be overruled and the will admitted to probate." § 323. Illicit cohabitation, effect of.^-'By marriage, in this connection, is contemplated the solemn relation involving the mutual rights of the parties in a manner sufficient to entitle either to the aid of the cbiirt. A ceremonial marriage between parties competent to contract it is of course sufficient to revoke a prior will in any case covered by the statute. Doubts may arise when the marriage claimed is of that vagiie character known as a common-Jaw, or non-ceremonial marriage for the reason that it is often no easy judicial task to determine just when the alleged marital relation comhienced. While the Cohabitation of parties may continue for siich a period and undef such circumstances as to warrant a court in deciding that the parties are in law" husband and' wife, yet it iliay be impossible for the court to say just when illicit intercourse ended and the marital state com- menced. The cohabitation, apparently decent and orderly, of two persons opposite in sex, raises a presumption of more or less strength that they have been duly married. Such coha,bitation does not ccinstitute marriage. It only tends to prove that the parties have entered into a marriage con- tract. But where the cohabitation is ilHcit in its origin, there is a presump- tion that it so continues until a change in its character is shown by acts and circumstances strongly indicating that the connection has become matrimonial. GaU V. Gall, 114 N. Y. 109, 117, Vann, J., citing Caujolle v. Feme, 23 N. Y. 90; O'Gara v. Eisenloher, 38 N. Y. 296; Badger v. Badger, 88 N. Y. 546,554; Hyhes v. McDermott, 95 N. Y. 451 , 457. So when a testator living in illicit relations with a woman, inade a will, and such relations continued to his death, and were subsequently by the Court of Appeals held to have grown into a matrimonial relation without fixing the time exactly. Surrogate Abbott applying the Opinion of the Court of Appeals in Gall y. Gall, just quoted, held in the absence of affirma- tive proof that the illicit intercourse had changed into matrimonial rela- tions before the execution of a codicil a year after the making of the will, he milst hold that the subsequent marriage, adjudged by the Court of Appeals to have subsisted, and the birth of issue, must operate to revoke the will. Tn re Gull's Will, 9 'N.Y.Siipp. 466. § 324. Revocation by marriage and birth of childi^See § 311, ante. (See elsewhere discussion of rights-of "after born" child.) The language of the statute is express in this regard, and the rule must be borne in mind that w'hen the statute defines such a revocMion, all other cases are im- pliedly excluded; thus the statute making no provision for the revocation of a will by the discovery of the existence of a child, living at the time of the making of the will,' a will. made in ignorance of such existence, ife not §324 wills; when operative, etc. 359 revoked. OrSish v. McDermott, 2 Redf. 460. The Yung case quoted in § 322 shows that this statute refers only to a man. So the will of a married woman is not revoked by the subsequent birth of children although 'they are not provided for in the will. Cothealv. Cbtheal, 40 N. Y. 405. So it seenis, the will of an unmarried woman will not be deemed revoked by the birth of an illegitimate child. Matter of Bunce, 6 Dem. 278; Matter of HvMl, 6 Dem. 352. See McCrum v. McCrwni, 141 App. Div. 83, where pregtiantwoman made will not mentioning child. But even where a child is born after a will has been executed in which no provision has been made for it, and the whole of testator's estate is thereby disposed of, the fact that thfe child is under the statute entitled to the same share in the esjiate whiteh would have been his or hers if the father had died intestate does not justify refusing probate to the will. That is proper only where the mar- riage, of which the child unprovided for is the issue, occurred after the tes- tanaenifcary act. Matter of Gall, Rollins, Surr., 5 Dem. 374. But even a contingent provision will prevent revocation, in view of the rule of the civil law that the statute aims at, namely, to prevent "omission by oversight." Stachdbefg v. Stachelberg, 52 Misc. 22. See Matter of Del Genovese, 169 App. Div. 140. The Statute (old § 43, now § 35, Dec. Est. Law) ends with the provision "aiidnd other evidence tb rebut the presumption of such revocation shall be received." Held to exclude proof that a legatee died before testator, ei'go, his iegac^ lapsed, efgo, the will did not dispose of the whole estate. MdMer of 'Bossignot, 50 Misc. 231. In the Matter of Del Genovese, supra, it is said: ''The steps in accepting this doctrine of implied revocation by marriage and birth' of children borrowed froin the civil law are set forth in Brush v. Witkins, 4 Johns. Ch. 506, as far as the law stood in 1820. Kent, Chan- cellor, there' showed that the cbmmon-law courts had at first been reluctant to fOlKW this inference of intention. The presumption of revocation by such family changes, however, might be then rebutted by parol evidence. This, however, he regarded as dangerous, saying: 'Courts would be run- ning^ the ha,zai*d of substituting their will for that of the testator' (p. 519). "Ill this state 'of the law, the revisers ^n 1827-1828 put in the clause, which took effect on January 1, 1830, excluding all evidence to rebut the presumption of' revocation, except (d) unless a provision be made for such issue by some settlement; or (6) unless the issue shall be provided for in the will; Or (c) in such Way mentioned therein as to show an intention not to make such provision. (2 R. S. 64, § 43.) See original note. Appendix, p. 631. "It is the change by marriage and parenthood that the law presumes were not in the mind of the maker of the atite-nuptial" testament. If this question were to remain in' suspense, so thait the will might still be revived by a later windfall augmenting the estate, then there would be no cer- tainty in the rule of testacy. Under our statute marriage and parenthood do not raise a presumption of an intention to revoke, but are in themselves 360 surrogates' courts §i324a a revocation, unless express provision be made in view of thes new duties arising from the changed relation. "After much deliberation it has been settled that the rules applicable have reference to the existing state of facts at the time the will itself was ma,de. Israeli v. Rodon, 2 Moore P. C. 51. It follows that subsequept acquisition of property, and an augmenting of the estate after the execution of such ante-nuptial will, cannot prevent this revocation which rests on the situation when the will was executed. Marston v. Roe, dem. Fox, 8 Ad. & El. 14. "Mere acciunulation of property in addition to that possessed at the date of the ante-nuptial wiU cannot, upon any groimd of reason, be con- sidered as a 'provision' made by the testator for the new dependents. upon him as a husband and father. Baldwin v. Spriggs, 65 Md. 373, " Even before the New York statute took effect, an increase of the testa- tor's property did not prevent this implied revocation- In a case of mar- riage and birth of children, and death in 1807, Bronson, J., held th,e. will had been .revoked by implication of law, and , ordered a new trial,; On such a new trial, proof, inter alia, was offered that the testator was seized of other real estate besides the premises in question, of the value of $4,000 in the whole, but this, with other evidence, was excluded and such exclu- sion was affirmed. Havens v. Van Den Burgh, I Den. 27, 31, 32. Revoca- tion in such .circumstances works no hardship." § 324a, Effect of agreement to convey. — The statute (§ 37, Dec. Est. Law) does not give to a bond or covenant to convey lands already devised by the grantor in his will subsequently probated the effect of revoking the devise. , The devisee takes subject to the grantee's remedies as though testator were still hving. The subject is covered in the; opinions in Van Tassel v. Burgen, 119 App. Div. 509, q. v.; § 48^ now § 40, Dec. Est. Law, provides when revocation results from such a contract or conveyance, while the preceding section provides for the same in case the intent is declared expressly in the instrument so to revoke. A total or partial revocation may be effected indirectly or impliedly, as by a change in the condition of the property devised, or in the devisor's inters , est in it, such revocation being deduced from the facts of each case, ujader familiar rules of law. Accordingly, where a testator, having de,vised, or be- queathed specific property, afterward in his Ufetime sells or otherwise ab- solutely disposes of the same property, this amounts to a revocation of such devise or legacy, Livingston v. lAi^ingston,^ Johns. Ch- 148j,ilfmM§e v. Cox, 5 id. 441; Walton v. Walton, 1 id. 258; Herrington v, Budd, 5 Den. 321; Ametrano v. Downs, 170 N. Y. 388, 63 N. E. Rep. 340; McNaughtQ^y. McNaugMon, 34 N. Y. 2Q1; Adams v. Winne, ,7 Paige, 97; Beck v. McGfiMs, 9 Barb. 35; Brown v. Brown, l&^id., 569; Barstow v. Goodwin, 2 Bradf. 413;. Hottbeck v. Wilks, 4 Abb. Pr. 315; Gilbert v, Gilbert, 9 Barb. 5Z2;Arihw:y,. Arthur) 10 id. 9; Hoffman v. Steubing, 49 Misc. 157, to the extent that he has^ divested himself of the property devised or bequeathed.!, Vreeland v. McGlelland, 1 Bradf. 393. Where the testator does not wfeoKj/. divest Jiimself. § 324b wills; when operative, etc. 361 of his interest in the property, but retains any portion thereof, as, e.g., a life estate in lands dftyised, or reserves rent and a right of reentry, Herring- ton V. Budd, 5 Den. 321. See Vandemark v. Vandemark, 26 Barb. 416. As to restoration of the devise, upon a reconveyance of the land, see Walton v. Walton, 7 Johns. Ch. 258; Brown v. Brown, 16 Barb. 569. As to effect of devise of land contracted to be sold, see McCarty v. Myers, 5 Hun, 83, this does not work a revocation. In regard to such revocations, the com- mbn law has, in most cases, been declared or modified by the statute. A mere agi'eement to convey is not a revocation, but the property passes by the devise or b^fciuest, subject to the same remedies for a-specific perform- ance 6r otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had de- sceridfed to them. CoUS. L. 1909, chap. 18, § 37 (2 R. S. 64, § 45). And see Knight V. Weatherwax, 7 Paige, 182; Walton v. Walton, 7 Johns. Gh. 258; Gaities'v. Winthrop, 2 Edw. 571; Roome v. Philips, 27 N. Y. 357, 364; Guelich v. Clark, 3 Sup. Ct. (T. & C.) 315; Nutzhorn v. Sittig, 34 Misc. 486, 70 N. Y. Supp. 287; Williams y. Haddock, 78 Hun, 429, 29 N. Y. Supp. 199, aff'd 145 N. Y. 144; Holly v. Hirsch, 135 N. Y. 590, 49 St. Rep. 14. In the same way, a charge or incumbrance upon any real or personal es- tate, for the purpose of securing the payment of money, or the perform- ance of any coVenajdt, is not a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein contained, pass and take effect subject to such charge or incumbrance. Cons. L. 1909, chap. l8, § 38 (2 R. S. 65, § 46). And see Vandemark v. Vande- rnark, 26 Barb. 416. Nor is aiiy act of a testator, by which his interest in property is altered, but not wholly divested, to be deemed a revocation of a previous devise or bequest of such property; but the devise or bequest gives to-ihe devisee or legatee the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless, in the instrument by which such alteration is madej the intfehtion is declared that it shall operate as a revocation of such previous devise or bequest. Cons. L. 1909, chap. 18, §39 (2 R. S. 65, §47); Burnham v. Comfort, 108 N.. Y. 535. But if the provisions of the instrument by which such alteration is made are wholly inconsistent with the terms and nature of the previous devise or bequest, the instrument operates as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition is not performed, or such contingency does not happen. Cons: L. 1909, chap. 18, § 40 (2 R. S. 65, § 48) ; Ludlum v. Otis, 15 Hun, 410. §;324b. Irrevocable wills. — A will being ambulatory in its nature is, therefore, revocable at any time before the testator's death, the act of revocation being Conducted pursuant to the requirements already pointed out; so far as the Surrogate's Court is concerned, therefore, there are no irrevocable wills. (See § 326, below.) The agreement of the testator for a good and valid consideration to make an irrevocable will in favor of the person from whom such consid- eration is received, oi- of some person named by him, is an agreement un- 362 surrogates' courts : .§ 325 enforceable in the Surrogates' Counts, so ttxat, though the te^ta,^Qr h^ made such a will and although ;^t expressly spates,. t|ha,t it i? ai;i irrevocable will, it may -be revoked by his later will provided the reqijureio^p^ ajaqye set forth are comphed with; and the, later will, if proppu^dj^fl; .Ipj^fpfce, .tjip Surrogate, and duly proved, must be admitted to probate ^ ^he last yfiR and testament of the dpcedent. Matter of Gloiuxister, l],,N.i^. Supp. 89^, The remedy of the henejficiary is not by ejccljadJjPg .t)i9_ l^jl^^r \5fi)J, fycii^o. pro- bate, for the Surrogate has no jurisdiotiop to d^sJ wijtjti ^qptracts, ,b!u1;,1;^^9 person aggrieved must proceed by a suit in equity to. enf|ppce^tjl;ije, agjce^r ment evidenced by the will purporting to be irrevocable. Mutpfii^l I4fe Iris. Co. V. HoUaday, 13 Abb- N. C. 16; Colt v. O'Compr, $9 11^9. 83,, 8^, In Matter of Goldsticker, 123' App. Div. ,474, aff'd 192 ])«};. Y,,'f?5^.ti^ee brqtb^rs niade mutiu^ wills on condition , they were to i^p. qper^tiiyi? so long as all remained unmarried. Two subsequently married' jHqI^ tJ^,is could not operate to revoke will of third, w:ho had died unmarijied, \iri|;hpHt revoking his will pursuant to statute. , ^ , In this case a later will had be,en refused probate for Jac^.o^ capacity^ make it. Held the later will so made' could not revoke ,the/Opigmfi,ljnuti^l will. , : . I , § 325. Effect of anteauptial^ agreement.^ Where an ,^|:.enu{i)|;i^Ji, agree- ment was made between decedent and his future wife if> exec,ul^e n;ii^t^^ wills Biftei; marriage and such wills were accordingly executed, neyCTtlieless, it was held that such wills did not thereby become as ■«ril|siri;evojq£(^ilet.nor .operate to prevent the decedent from thereafter executing a tesl^ai^ntary paper varying from and repugnant to it. Matt^ of Keep's Will, 2 I>^. Y. Supp. 750, citing JEsiy parte Day,. 1 Bradf, 476; Schumacher v..^^cfi^ji^f^ 4 Amer. Rep. 138 (Ala.);, Hoj)per v. Reed, 32 Daily JBieg.; Octojjei; 26, 1.887. See Edson v. .Par^/?.^s, 155 N. Y. 555. In AdaWfi y. Swft, 169 ,App. JDJx, 8Q2, the court qyqte^ ffom thC; opinion of Gray, J., Jnthe, cajseja^t csitpcj,: , , "Thej;law permits a person to dispose of his property ^.t, his pleasure. He, may make a valid agreenien.t, binding lumself tp mkakje a particf4px tes- tamentary .disposition of his property, if it be a reasonable one, and he may validly renounce the power to, revoke hi§, will in the absence of ,fi;au4 or deceit." Assuming, for the purpose of discussing this partjicula;r objec- rtipn, that the contract between Adams and his wife was, as sheclainas that it was, vaJid and e?cecj:fted by the making of the fil's;t will, we fipd ^9 4h^- cialty in hplditigthP't Adams thereby contrfipfed a;w^y hj^ right ,tq,^expjfe that will, and.the secoA^ will, pffered as a reyocatipn, was i;^ef£ectu^l,^^of that purpose. If it was it fi^njshes no,o^s;tacle to th? prolate i^f tJ}.p<^aElier will,, and: the probate pf the second will may properly be enjoined,, Th^e^p pripciples have been apphed heretofore in, wellpppjijisi(^e;c,ed,ca^^.,,i^i^t^ Life I.ns, Co. v. Hol^ay, V^Vprst, J., 13 ^bb-N. ..Q. 16; L.^ .Srfjnte v> Conklin, Leventritt, J., 39 Misc. Rep. 715. i . , Ipi^idfJ^v. /Sit>i/i, the facts were (guoljng from p. 807): ., : "A pre-nupti^-l agreement th|at if plaintiff would marry ,tfcj^,te3tat()F, Jjip _Tfpuid leave all his property to her by will; an acceptance of tj^e proposal; § 326 wills; when operative, etc. 363 St, fulfillment of the agreement on plaintiff's part by marriage; a fulfillment of the agreement by testator by the making of such a will as he had agreed to makfe. Here then was an agreement entirely completed by both par- ties in so far as it was possible to complete it. Plaintiff on her part had, in fulfilling her agreement, taken an irrevocable step. It would be most unjust and inequitable to hold that the decedent having in form fulfilled his part of the agreement, could rescind his action and revoke his, per- formance. The case does not differ in prinoiplje from de HierapoUsi v. Reilly, 4^ App. Div. 22, aff'd 168 N. Y. 585, and Kerker v. Levy, 140 App. Div. 428, aff'd 206 N. Y. 109. " So where A made an oral antenuptial agreement with B to niake a will in, her iavor after marriage, it was held that marriage was a part of the agreement, and sole consideration therefor but not a sufficient part per- formance to take the case out of the Statute of Frauds. Hunt y. Bunt, 171 N. ,Y. 396, aff'g 55 App. Div. 430. In this case B proved actual execu^ tion of a will by A, but it appeared that such will was destroyed, and the oral testimony in support of its, contents did not show that it contained any recognition of the antenuptial agreement. Held insufficient to bar the statute,, citing Cooley v. Lobdell, 153 N. Y. 596, 600; Mentz v. Nevmitter, 122 N. Y. 491. See Matter of Del Genovese, 169 App. Div. 140, as to antenuptial will, and effect of § 35, Dec. Est. Law. - ,, In Phalen v. U.S. Trust Co., 186 N. Y. 178, the agreement was in writ- ing. H^ld, marriage was a yafid consideration. See opinion of Wernery J., as to rule under which such contracts are favored and effectuated. But, in .this case no revocation was involved. The plaintiff consented to the probate of the codicil which violated the agreement, but was nevertheless held entitled to specifically enforce the agreement to "make a will without discriminating among his cliildreH.'' See also Brown v. Brqy^n, 117 App. Div. 199, as to antenuptial agree- i](ient being in lieu of dower. Dower is favored^- and if there be doubt widow should take both, citing Matter of Gprden, 172 N. Y. 25, 28. Where an antenuptial agreement for a, fixed sum in lieu of dower carried interest froni death of husband, held that such interest would run on a larger sum given by the will i^nd defined therein as the payment " as agreed ^upon between us." Matter of Bostwich,.. 119 App. Div. 455. § 326. Effect of agreements to will.^An agreement to make a will is perfectly vaUd, and after the death of either of the parties becomes irrevo- cable (Ex parte Day, 1 Bradf . 476, and cases cited) ; but as a will, an ir- revocable instrument is unknown to the testamentary law of either this country or England. See Hobson v. Bluckburn, 1 Addams, 274, opinion of Sir John NichpU. Once the notion of irrevocability is imported iato a document, purporting to be a will, the circtunstance changes its essence as a wilLamd converts it into a contract; over such instruments Surrogates' Courts have no jurisdiction. Everdell v. Hill, 58 App. Div. 151, 159. The distinction Jjfitween an irrevopable wiU and a will that becomes 364 SURHOGATES' COURTS § 327 irrevocable as being one of two mutual wills, the testator of the other having died, is clear. Therefore between the mutual will, as a will, and its irrevocability as a will, and the will as an agreement, and its irrevocability as an agreement, there is an equally clear distinction (see Ex parte Day, supra), but while a will is held to be always revoca.ble and the last will, regardless of the nature and provisions and declarations in the first, must always be the testator's last will and testament, yet' a man may so bind his assets by agreement that his estate shall be a trustee for the purpose of his agreemfent, and so a compact between the parties to a so-called irrevo- cable will will be operative in equity to the extent of making the devisees of the will trustees for performing the decedent's part of the contract. See Ex parte Day, supra, extracts from EngUsh decisions. This contract or agreement is said to attach to the estate of the decedent as an eqtiitable lien or trust enforceable in a court of equity. See In re Keep's Will, 2 N. Y. Supp.. 750, citing, Ex parte Day, supra; Schumacher v. Schmidt, supra; Parsell v. Stryker, 41 N. Y. 480; Giles v. De Tallyrand, 1 Dem. 97. In Wallace v. Wallace, 216 N. Y. 28, the court says: "The rule or law is that the evidence required to show a contract by one deceased, to dispose of his property in Ja. certain manner aftfef his death, must be clear and convincing, or it will not be regarded as sufficient. Ed- son V. Parsons, suprd; Taylor v. Higgs, 202 N. Y. 65; Rosseau v. Rouss, 180 N. Y. 116; Tousey v. Hastings, 127 App. Di'sr. 94, 194 N. Y. 79." See also Re Gloucester's Estate, 11 N. Y. Supp. 899, opinion of Surrogate Abbott, who says, '"Under the authorities, if a first will was made for valuable consideration, its provisions may be enforceable against testator's estate as a binding contract in a court of equity. So far as it can be deemed to be a last will and testament, it has been revoked in express terms by the testator in his last will, and therefore has no longer any legal existence as a last will and testament. This court has no jurisdiction to deal with contracts; let decree enter admitting the last will tb probate." § 327. Same, enforcement. — There can be no doubt but that a person may make a valid agreement binding himself legally to make a particular disposition of his property by last will and testament, and if a testator agrees to devise property to another and receives a good and valuable consideration for such agreement, such agreement, a court of equity will hold, must be specifically performed. Stevens v. Reynolds, 6 N. Y. 458;. Parsell v. Stryker, 41 N. Y. 480, 487, and cases cited. 'Almost any "good" consideration will suplport such an agreement. For example: " If you will get me up a cane." Bush v. Whitaker, 45 Misc. 74, citing note to Johnson v. Hubbell, 66 Am. Dec. 784. For nursing and harboring decedent. Yarwood v. The Trusts, etc., Co., 94 App. Div. 47. For abstaining from tobacco until twenty-one years old. Homer v. Sidway, 124 N. Y. 538. The rule is the adequacy of the consideration is for the parties to cmris/ider § 327 wills; when operative, etc. 365 when the agreement is made, and not for the court when reviewing the transaction. Godine v. Kidd, 64 Hun, 585. This agreement can be enforced by compelling a conveyance from heirs of the promisor, or from purchasers with notice from him in his lifetime. See also Giles v. De Talleyrand, supra, where the Surrogate held that he had no authority to construe or pass upon such an agreement as affected the will'propounded before him. The settlement of the executor's aooounts and distribution of the estate was deferred until the question of the vaUdity and effect of the instrument could be passed upon by^a competent tribunal. See also Mut. lAfe Ins. Co. v. Holladay, 13 Abb. N. C. 16. But where mutual wills are made not in pursuance of agreement between the testators, either may revoke his will without giving notice of his intentions to the other. Edson v. Parsons, 85 Hun, 263, 155 N. Y. 555, citing Ex parte Day, 1 Bradf.,476. And if it be claimed subsequently that the wills were made pursuant to a contract, that fact must be established by the most clear and satisfactory evidence. For the mere making of mutual wills is insxifficient alone to establish a contract. Wallace v. Wallace, 71 Misc. 305. See Court of Appeals decision, s. c, 216 N. Y. 28. So, if it is recited in the wills that they were so made, or if it in any way appears on their face that they were executed pursuant to a contract, it is quite sufficient. In the Wallace case, just cited, held no such agreement was so shown. But. in RasMter v. Hoenninger, 214 N. Y. 66, the case was that of a joint and mutual will showing its irrevocabiUty on its face. See opinion. The will made in violation of the agreement must be probated by the Surrogate, and such probate is effective to transfer the legal title. Kine v. Farrell, 71 App. Div. 219. In a proper case, however, such legal title can be impressed with a trust in favor of a party having prior equities. In the case cited there was an agreement in writing between plaintiff and decedent, reciting a good consideration, free from ambiguity, and neither inequitable nor against public policy. No superior equities had inter- vened. The court decreed "that the legal title is impressed with a result- ing trust in favor of the plaintiff for the performance of the testator's agreement," and that such agreement would be specifically enforced by requiring a conveyance of the legal title to the plaintiff in execution of such trust, and by enjoining the beneficiaries under the will from question- ing such title. Ibid., citing Parsell v. Stryker, 41 N. Y. 480; Shakespeare V. Markham, 10 Hun, 311, aff'd 72 N. Y. 400; Godine v. Kidd, 64 Hun, 585; BrantinghamY. Huff, 43 App- Div. 414; Gates v. Gates, 34 App. Div. 608; Winne v. Winne, 166 N. Y. 263; Edson v. Parsons, 155 N. Y. 555; Eller- son V. Westcott, 148 N. Y. 149. The party to the agreement with the decedent need not object to the probate of the will made in fraud of the agreement. Phalen v. U. S. Trust Co., 186 N. Y. 178. The Surrogate would not deny probate on his objec- tion, and his failure to so object works no estoppel. Kine v. Farrell, supra, at p. 220, citing MaUer of Gloucester's Estate, 11 N. Y. Supp. 899; Giles's Estate, 11 Abb. N. C. 57; Matter of. Keep, 17 N. Y. St. Rep. 812. CHAPTER II DEATH OF TESTATOR, PEELIMINAEIES TO PROBATE § 328. Death. — Regardless of testacy, the Surrogate may not issue letters of any kind, excepting temporary letters on estate of absentee (see Temporary Administration), except he be satisfied that the estate to be administered is that of a decedent. In other words, death is a jurisdictional fact to be averred and proved. The Surrogate must be satisfied as to the death of the person upon whose estate administration is applied for. A mere allegation that the alleged decedent is dead to the best of petitioner's knowledge, information and belief is insufficient. Roderigas v. E. R. Sav. Inst., 76 N.' Y. 316. See Matter of Francis, 73 Misc. 148, as to effect of certificate of Bureau of Vital Statistics. Actual physical death is contemplated and not civil death. So where a man was indicted, tried and convicted of the crime of murder in the second degree and sentenced to state prison for life, and his only brother applied for letters of administration, it was held that the provisions of the Code of Civil Procedure from which Surrogates derive their authority to grant letters of administration, have no application to a case of civil death, but apply only to cases of actual death. Matter of Zeph, 50 Hun, 623. See Avery v. Everett, 110 N. Y. 317, opinion of Andrews, J., discussing the meaning and effect of civil death. The petitioner must aver, of his own knowledge, the decedent's death. If he does not, or the fact is controverted, the burden is on petitioner to prove it. Praut v. McNab, 6 Dem. 152. If the fact can only be imperfectly proved, as where A died in a hotel fire, Matter of Morgan, 30 Misc. 578, circumstances must be shown suflSicent to raise a legal presumption of death. As to presumption of death arising from prolonged absence, see Keller v. Stuck, 4 Redf . 294; Mackini v. Zanoni, 5 id. 492; Matter of Sullivan, 51 Hun, 378; Stouvenel V. Stephens, 2 Daly, ■319; Oppenheimv. Wolf, 3 Sandf. Ch. 571; Gerry y. Post, 13 How. Pr. 118; Merritt v. Thompson, 1 Hilt. 550; King v. Paddock, 18 Johms. 141; Mc- Cartee v. Camel, 1 Barb. Ch. 455; Eagle v. Emmet, 4 Bradf. 117, 3 Abb. Pr. 218; Moehring v. Mitchell, 1 Barb. Ch. 264; Clarke v. Cummings, 5 Barb. 339, 354; Matter of Ackerman, 2 Redf. 521; Matter of Ridgeway, id. 226; Matter of Tobin, 16 St. Rep. 749; Matter of Shipman, 22 id. 362; Allen v. Ketcham, 24 id. 251; Ferry v. Sampson, 17 id. 428; Ka'rstens v. Karstens, 20 Misc. 247, 45 N. Y. Supp. 966, aff'd 29 App. Div. 229; Czech v. Bean, 35 Misc. 729, 72 N. Y. Supp. 402; Matter of Taylor, 49 St. Rep. 644; Matter of Losee, 46 Misc. 363, aff'd 119 App. Div. 107; Matter of Sanford, 100 App. Div. 479, 91 N. Y. Supp. 706; Matter of Barr, 38 Misc. 355, 77 N. Y. 366 § 32§ §329 DEATH OF TESTATOR 367 Supp. 935; McNuttyv. Mitchell, 41 Misc. 293, 84 N. Y. Supp. 89; Ruoffv. Greenpmnt Savings Bank, 40 Misc. 549, 82 N. Y. Supp. 881. § 329. Presumption of death.— The common-law rule was that the continuance of life should be presumed until the contrary was shown. Buit the present rule which has been commonly acted upon by Surrogates, and is now generally accepted, is, that when a party has been absent seven years since any intelligence of him has been received, he is in contempla- tion of law presumed to be dead. Eagle v. Emmet, 4 Bradf. 117, followed in Seligmah v. Sonneb'orn, 11 St. R. 305; Matter of Sullivan, 51 Hun, 379; Matter of Davenport, 37*Misc. 455; Matter ofLosee, 119 App. Div. 107. See § 841 of the Code as to presumption of death of a person "upon whose life an estate iri real property depends." In one of the early cases where this presumption was applied {Doe d. George v. Jesson, 6 East, 80) Lord Chief Justice EUeriborough had Said : As to the period when the brother might be supposed to have died acdordiHg to the statute tl9 Car. II, chap. 6), with respect to leases dependent on lives, dnd also according to the Staitute of bigamy (1 Jac. 1, chap. 11), the presumption of the duration of- hf e, with respect to persons of whom no account can be given, ends at the expirfUion of seven years from the time when they were last knoum to be limng. In Matter of Matthews, 75 Misc. 449, Fowler, Surr., discusses the growth of this rule,' and the Umits that must be set to its application. He observes in part: " The presumption of death, both in this State and in the original home of the common law, is as follows: That, in the failure of proof to the con- trary, a person shall be taken to be dead when such person has been absent seiVeti years and not heard from. As so formulated it is, however, a mod- ern rule or prefeimiption . It is thought to take its beginning in England with the decision in the case of Doe d. George' v. Jesson, 6 East, 80, in January, 1805, and to have been founded by analogy on the Bigamy Act of James I and the act 19 Car. II, chap 6, "for redress of inconveniences by reason of the absence" of a cestui que vie, or one on whose life some estate in re- ihainder depended. These English acts raised certain presumptions of death after a continuous absence of seven years. In this State similar stat- utes were re-enacted and continue on our statute book. 1 R. S. 749, § 6; 2 R. S. 687, § 9; § 841, Code Civ. Pro. Consequently by analogy a similar presumption to that recognized in England since 1805 is sometimes raised in our courts in the course of the administration of justice. McCartee V. Camel, 1 Barb. Ch. 455; King v. Paddock, 18 Johns. 14:1; Eagle v. Emmet, 4 Brkdf. 117; O'Gara v. Eisenlohr, 38 N. Y. 296; Young v. Shulenberg, 165 N. Y. 385, 389; Ogilvie v. Wright, 1 Johns. Ch. 263; Ferry v. Sampson, 112 N. Y. 415; Cambrelling v. Pnrfon, 125 N. Y. 610, 616; Sheldon v. Ferris, 45 Barb. 124; Stouvenal v. Stephens, 2 Daly, 319; In re Taylor, 20 N. Y. Supp. 96D; Keller v. Stuck, 4 Redf. 294, 298; Cromwell v. Phipps, 6 Derii. 60; Kdrstens v. Karstens, 20 Misc. 247; Matter of Losee, 46 Misc. 363; Donovan v. Twist, 105 App. Div. 171; Fordham v. Gouvernewr Village, 5 App. Div. 565, 568. 368 surrogates' courts § 329 " The precise extent and application of the presumption in question is not definitely settled by the adjudications. The correct application of the pre*- sumption is conceded to be difficult (O'Gan^v.Eiserdohr, 38 N. Y. at p. 299), and in different tribunals it is not uniform. I am not concerned at this moment with the content of the presumption in question, and. I shall not therefore consider it, but will confine inyself to the consideration^pf.theiap- phcation of a presumption of dea;th in this tribunal, and, particularly in the cause now before'me. I do not think it wise to discuss generally the nature and extent of the rule of law known as "the presumption of death." " It is, I think, a rule of courts of probate and administration in general, that the court should not presume the death of any person other than the person whose estate is to be taken in such court to be administered- in, a succession matter, arising either a testato or ab intestato," In Matter of Shannon, N. Y. L. J., Sept. 4, 1912, the same Surrogate re- views the origin and precise application of the presumption, and explains his opinion above, with a later one. Matter of Smith, 'N. Y. t. J., May 13, 1912: The Law Journal prints this headnote: "The presumption of .death after seven years' absence or disappearance is not a presimiption of law but one of fact, which may be rebutted by any inherent circumstance or expressly. The presumption of death should not be lightly, applied, but only when it is an irresistible inference from facts otherwise fo|ind,". And the same rule is apphed where the one so disappearing was one of those entitled priority to letters. Matter of Barr, 38 Misc. 355. The proved circumstances may lead to the presumption or may negative it. Matter of Wagener, 143 App. Div. 286. Cerf v. Diener, 148 App, Ifiv. 150. This length of time may be abridged and the presumption be applied, eai;lier by proof of special circumstances tending to show the death \yithin a shorter period; for example, that at the -last accounts the person was dangerously ill, or in a weak state of health, or suffering from chronic incurable disease, or was exposed to great perils of disease or accident, or that he embarked on board of a vessel which had not since been heard from though the length of the usua;l voyage has long since elapsed. Eagle v. Emmet, supra. See English cases cited at p. 120. A "hazardous occupation" may strengthen the presumption. Cerf v. Diener, 148 App. Div. 150. Enlistment in tjip army of a nation since at war would also justify the presumption of deat^^^ See also Matter of Miller, 67 Misc. 660, Ketcham, Surr. ; , The Surrogate may refer the question as to whether the alleged decedent is dead. The reference is to take the proofs and report.- Matter of Sanford, 100 App. Div. 479. The presumption is a mixed one. It has to be built up until it gains strength sufficient to overcome the presumption' of; con- tinuity of life. See discussion of the rule in Matter of the Board of Educatimh ofN.. Y., 173N. Y. 321. In Matter of Benjamin, 155 App. Div. 233, rev'g 77 Misc. 434, may be found details of proof required. This was a case of a woman who disap- peared, unmarried, leaving all hesr; effects but her clothes. Note search, in bureaus of vital statistics, and in records of hospitals or asylums. § 330 DEATH OF TESTATOR 369 ^eqtion 841 of tjie Code prescribes that a person upon whoseMfe an es- tate in real property depends, who remains without the llnited States, or absents himself in the State or elsewhere for seven years* together, is pre- sumed to be dead in an action or special proceeding conceraing the, prop- erty in which his death comes in question, unless it is affirmatively proved that he, was alive within that time. ,It has been held that the proof of ab- sence for seven or more years must not necessarily be direct and positive, but that such absence may be fairly inferred from facts which clearly point tp, that conclusion. Cromwell Y.,P.hipps, 6 Dem. 6Q, 69. So, where it appea,red by affidayit that the alleged decedent had been an educated man, industrious and sober, until he logt his wife, when, he becanie dissipated, a,nd finally underwent an attack of delirium tremens the night before he went away, and that, while suffering greatly from his debauch and that at- tack, he left ; his home expressing his intention of committing suicide, going towards, a certain dock, and was never again seen or heard from by any of his friends, held, that from such silent absence during ten years it was proper that a presumption of death should be raised. Matter of Molting, 43 Hun, 456; Sheldon v. Ferris, 45 Barb. 124; King v. Paddock, 18 Johns. 141. See, also. Matter of Losee, 46 Misc. 363. Mere absence will not raise a presumption of death where; there are no circumstances which would make it, probable that the absentee would communicate with his home, or wjiere it appears that he was, illiterate. Matter of Miller, 30 N. Y. St. Rep. 212; McCartee v. Camel, 1 Barb. Ch. 455; Matter of J[pnes, 70 Misc, 154, and cases cited. So where a person immigrated from a foreign country without intending to return, no presumption of death arises until proper inquiry has been made at his last known place of residence in this, cpuntry. Matter of White, 31 Misc, 484. So, where A.€imigrated in, 1852 to New Zealand and was never heard from afte?:- 1855; n^ver cominuiiic^.ted with his famUy, and in 1886 became, if living, entitled to a share in the estate of a rich testator asi the child of a deceased cousin, and, on an application to distribute, his share on the ground of his death, it appeared no effort had ' been made to .find or trace him in New Zealand, wheije he was last heard of, it was heild proper to .refuse to disjsribute, as. there. were not sufiicient facts on which to base a presumption of hjis death or of his death without issue. Dunn V. Travis, 56 App. Div. 317; V ought y. Williams, 120 N. Y. 253; Dworsky v. Arndtstein, 29 App. Div. 274. See also Morrow v. McMahon, 35 Misc. 348, and discussion in Czechy. Bean, 35 Misc. 729. § 830. Hearsay evidence. — It has been held that hearsay evidence is, admissible as to the fad of :a person's death. : Matter of Stewart's. Will, 3 N. Y. Supp.. 284, Ransom, ,Su;i:r., citing Fosgatey. Hydraulic Co., 12 Barb.. 352; Jackson v. Bonham, 15 Johns, 226. See People v. Efz, 5 Cowen, 314; Clark ; v. Owens, 18 N. Y. 434. But this rule has been limited by holding that it is to'be admitted to rebut the presumption of life oijly after a con- sidera,ble la,pse of time. Stouvenel v; Stephens, 2, Daly, 319. But hearsay evidence is inadmissible to prove the place of a person's death. McCarty v. Terry, 7 Lansing, 236, 370 surrogates' courts § 331 § 331. Sea voyage-^Wrecks. — If the party whose death is in (iuei^fion went to sea, and nothing has been heard of the vessel in which he sailed, or of those who a'ccotnpanied him, the presumption, after a sufficient length of time has elapsed, will be that the vessel was lost, and all on board 'per^- ished; especially where the family and friends of the niissing man have made every effort and exhausted apparently every source of information to as- certain news of him and the vessel; Matter of Steivart, 1 Connoly, 86, 18 St. Rep. 978. In Matter of Norton, N. Y. Law J., June 12, 1891, there was lio positive proof of the time or place of testator's death; "but, "said Ransom, Surr., " I am satisfied from the proofs that, months since, he was lost at sea. On November 24, 1890, a little steamer, named for the testa- tor, departed from New London, Conn., for Toulon, France, having on board himself, his wife and niece, and a crew of seven men. Nothing was heard of its movements thereafter, except a dubious statement transmitted by cable, that an Algerian traveler in Toulon stated that it had been seen in Gibraltar in the latter part of December. Subsequent inquiry failed to dis- cover who the traveler was or what was the source of his knowledge. The vessel was less than sixty feet long, and had been thoroughly tested as a sailing vessel, but when laden with the additional weight of boilers and en- gines, and the necessary coal for the voyage, it was so low in the Abater , that the deck was only from twenty to twenty-two inches above the water hne. Within three days after its departure, heavy gales begiuning on the soiitheast coast of the United States, moved in a northeasterl;y course, in- creasing in violence Until they became hurricanes. The time of the de- parture of the vessel, the speed at which it moved, and the course taken, would have carried it into the track of the gales. In this ease, many months having elapsed since the depiarture of the vessel, and alter extraordinary efforts made, no intelligence having been received of its existeilce or the existence of any of those on board, I hold that the tfestator's death is proven, and a decree of probate of the will may be presented." In Matter 6f Alex- ander, N. Y. Law J., Jan.' 7, 1893, it appeared that testator took his depart- ure on the brig of which he was the master in August, 1892, for Martinique, and neither he nor the crew had been heard of since. A brig answering the description of his vessel was seen t6 sink off the Bermudas a few dayS afterward, and about the time it should have reached the locality. Differ- ent articles of cargo were found floating in the vicinity which' were identified as of the same character and marks of merchandise shipped by the owners of the brig from this city on the^voyage. The hydrographic reports and the newspaper reports showed that about the time the Vessel sunk violent gales prevailed in the vicinity. An insurance company paid the owners for the loss of the cargo. A decree of probate was granted. In Matter of Stewart, above cited, where the decedent had gone in his yacht upon a voyagfe to be of about twenty days, to a specified destination, and thfe vessel was sp6ken on a certain day at a given point, over whidh shortly therealfter a storm of great intensity raged, and the vessel nevet reached its destination, nor was any news ever heard afterwards by the § 332 DEATH OP TESTATOR 371 friends of the decedent, although they exhausted apparently every source of information, Surrogate Ransom held there was sufficient evidence of the death to warrant proceedings in the Surrogate's Court with a view to the administration of his estate under his will, using the following language: "It is well settled that it is not necessary that any specific period should elapse to create the presumption of death, but that it may arise whenever the facts of the case will warrant it. Stouvenel v. Stephens, 2 Daly, 319. And if the party whose death is in question went to sea, and nothing has been heard of the vessel in which he sailed, or of those who accompanied him, the presumption, after a sufficient length of time has elapsed, will be that the vessel was lost, and that all on board perished. Merritt v. Thomp- son, 1 Hilt. 550, and cases cited. In the following cases such facts existed. Matter of Ketcham's Estate, 5 N. Y. Supp. 566; Matter of Ackerman, 2 Redf. 521; Sheldon v. Ferris, 45 Barb. 124; Oppenheim v. Wolf, 3 Sandf. Ch. 571; Oerry v. Post, 13 How. Pr. 118; Merritt v. Thompson, 1 Hilt. 550; King v. Paddock, 18 Johns. 141 ; McCartee v. Camel, 1 Barb. Ch. 455. Where, when last heard from, one was in contact with some specific peril, this circiun- stance may raise a presumption of death, without regard to the duration of the absence. Lancaster v. Insurance Co., 62 Mo. 121; White v. Mann, 26 Me. 361. In Merritt v. Thompson, supra, it was held that the presumption of death does not rest upon the fact that the party had not been heard from for 17 months, but on the weightier circumstance that the vessel had not been heard from. In Gerry v. Post, 13 How. Pr. 118, it was held that, if a vessel had been absent double the longest time of a voyage she may be presumed to be lost; and it follows, as a consequence, that all perished with her, if none of the passengers or crew are afterwards heard of. "March 11, 1841, one Leo Wolf departed from New York in the steam- ship President. Nothing was heard of the vessel or of her passengers. The usual time to cross the Atlantic was 14 or 15 days, and the longest ' passages did not exceed 23 or 24 days. It was held that the steamer was lost before May, 1841, and that Leo Wolf's death occurred before that time. Oppenheim v. Wolf, 3 Sandf. Ch. 571. I am convinced by the evi- dence that Mr. Stewart is dead, and that his death occurred between the 10th day of March, 1888, and the 17th day of September, 1888, the date of the petition herein." See also Karstens v. Karstens, 20 Misc. 247, at page 250, Russell, J. § 332. Stiicide — Conflicting presumptions. — The presumption is strengthened in cases of a person who has attempted or threatened suicide. Matter of Nolting, 43 Hun, 456; Sheldon v. Ferris, 45 Barb. 124; McComb V. Wright, 5 Johns. Ch. 263; Matter of Ketcham,, 5 N. Y. Supp. 566; Matter of Allen, 24 N. Y. St. Rep. 251. Cases have arisen where there has been a conffict of two presumptions, for example, a woman who ha4 previously been married 'and whose husband disappeared in the year 1875, having previously been tried and convicted upon a criminal charge and confined in state's prison until September, 1878, at which time he came to the city of New York and was arrested for the crime of burglary, and, after giving 372 surrogates' courts § 332 bail, disappeared, and there was no legal or satisfactory evidence that at any time, or in any place, he had since been seen by any human being, and five years later the woman married again:' Surrogate Rolhns held, upon an application by the wbman for. letters ^ of administration on the estate of her second husband which was opposed by his sons on the ground of her being still the lawful wife of the man to whom she was first married, that the presumption of continuance in life of her first husband must yield to the presumption of her innocence of the crime of bigamy. Nesbit v. Nesbit, 3 Dem. 329, 332. The learned Surrogate held as follows: "This presumption in favor of seven years' continuance of hfe has been repeatedly held, however, to be inferior in force to the presumption of inno- cence, where the two have come in conflict; and the doctrine is now firmly established, that one who enters into a second marriage, the validity of which is attacked upon the grounds urged by the respondents in the pres- ent' in ten tabn, must be presumed legally competent to contract such niar- riage untU positive proof has been furnished that his or her former wife or husband was hving at the time of such second marriage. Dixon v. People, 18 Mich. 84; Klein v. Landman, 29 Mo. 259; Sharp v. Johnson, 22 Ark. 79; Greenbord v. Underhill, 12 Vt. 604; Hull v. Bawls, 27 Miss. 471; Cochrane v. Libby, 18 Maine, 39; Spears v. Burton, 31 Miss. 547; Gibson -v. State, 38 id. 313; Yates V. Houston, 3 Tex. 433; Lochhart v. White, 18 id. 102; Canady v. George, 6 Rich. Eq. S. C, 103; Loring v. Steineman, 1 Mete. 204; Kelly v. Drew, 12 Allen, 107; Blanchard v. Lambert, 43 Iowa, 228; Matter of Ed- wards, 58 id. 431; Senser v. Bower, 1 Penrose & Watts (Pa.), 450. "The doctrine of the cases just cited seems to be approved in Clayton v. Warden, 4 N. Y. 230; and in O'Gara v. Eisenlohr, 38 N. Y. 296, it is recog- nized by Mason, J., pronouncing the opinion of the Court of Appeals, though he proceeds to show why the presumption of innocence should not upon the facts of the case, be allowed to prevail. "Upon the foregoing authorities, I feel bound to hold (in the absence of evidence estabhshing that, at any time between the winter of 1878 and January, 1883, Oscar Decker was living)" that, when John Nesbit died, this" petitioner was his lawful wife. Even if I make a far less rigid apphcation than the authorities above cited seem to require of the presumption of inno- cence, as conflicting with the presumption of hfe, I can come to no other conclusion than that which has just been declared." Where a court is led to indulge the presumption of death from a seven years' absence, the date of death cannot of course be fixed. But as, ia such cases, death would not be presumed until the time fully elapsed, so the end of the period may be taken as the date of death merely to deter- mine who are the survivors and entitled to the estate. Matter of Davenr- port, 37 Misc. 455. In this case a brother surviving after the seven-year period was held entitled to the exclusion of heirs of a sistef dying before it elapsed. It is custotaiary where it is impossible to fix a date to assume the time of death as of the date of the decree. Matter of Losee, 46 Misc. 363. But in order to adjust distributive interests the decree should, if the §§ 332a-334 death of testator 373 facts warrant it, fix the date at some preceding time or within some preced- ing period. Allen v. Ketcham, 5 N. Y. Supp. 566. If the date of the death prove to be material, as it may be imder the Transfer Tax Law, e. g., did decedent die before the first act taxing suc- cessions? then it must be estabhshed as a fact, and cannot be allowed' to rest on presumption. Matter of Bernard, 89 Misc. 705. Fowler, Surr. citing Nepean v. Doe, 2 M. & W. 894. § 332a. Survivorship. — The cases relating to proof of survivorship are discussed elsewhere. See post. Accountings. § 333. Proof of intestacy. — Ordinarily, however, the fact of death is proved as any other fact, without resorting to presumption, and the second essential prerequisite to letters, to wit, the fact of testacy or that of in- testacy, remains to be proved. But if the death is established by presump- tion from disappearance and non-communication it carries with it a pre- sumption of intestacy. Barson v. Mulligan, 191 N. Y. 306, 324; citing Mitchell V. Thorne, 134 N. Y. 541; Ferry v. Sampson, 112 N. Y. 415. And of death without issue. Ibid., citing M'Comb v. Wright, 5 Johns. Oh. 264, and Ferry v. Samphon, supra. See also Jacobs v. Fowler, 135 App. Div. 713; and Matter of Julia Smith,^. Y. L. J., May 13, 1912, where Fowler; Surr., remarked: * ' At the time of her disappearance JuUa Smith was umnarried and childless, and the presumption of fact' is that she died unmarried and childless in the absence of any contrary proofs. Doe d. Banning v. Griffin, 15 East, 293; McComb v. Wright, 5 Johns. Ch. 263; In re Harding, 1891, May 28; Karstens v. Karstens, 20 Misc. 247,251. The application of the presumption of death after an established disappearance for more than seven years does not necessarily involve the exact date of death. The presumption of death relates only to the fact of death, and as said in Nepean V. Doe, 2 M. & W. 894; 4 Wigmore Ev., sec. 2531; 1 Phil. Ev., 640, whenever, it is material the time of death inust be the subject of ^distinct proof. ; Nepean y, Doe, Jones Ev., sec. 62, and cases cited;, cf. Matter qJ Davenport, 3,7 Misc., p. 456. PRELIMINARIES § 334. Deposit of wills. — The will may not always be found among testator's papers, or in his safe deposit box, or in the custody of his'attorney who drew it. Search in that event may be made in the office of the county clerk or Surrogate. For provision has been made by 'law that any person who has made a will may deposit the same for safekeeping with any county clerk, or any Surrogate, or with the register of deeds in New York county. The formahties to be observed are set out in the statute. Decedent Estd,te Law, §§ 30 et seq. The word "will" includes all codicils,, .Section 2, Dec. Est. Law. Such will shall be inclosed in a sealed wrapper, so that the contents thereof cannot be read, and shall have indorsed thereon: the name of the testator, his place of residende, and the day, month and year, when delivered, and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as provided in the statute, § 31, Dec. Est. Law. This, of course, overrides § 167 of the County Law, 374 surrogates' courts §§ 335, 336 which makes instruments deposited with such clerk, for safe keeping, "open to the examination of any person desiring the same." Such a " person entitled " is carefully defined by § 32, Dec. Est* Law. Such will shall be dehvered only 1. To the testator in person; or 2. Upon his written order, duly proved by the oath of a subscribing witness; or , , 3. After his.de9,th, to the persons named in the indorsement on the wrapper of such will, if any such indorsement be made thereon; or 4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a Surrogate, then to the Surrogate of the county. Section 33, Dec. Est. Law. If such will shall have been deposited with a Surrogate, or shall' have been dehvered to him as above prescribed, such Surrogate, after the death of the testator, shall publicly open and examitie the same, and make: known the contents thereof, and shall file the same in his office, there to remain imtil it shall haive been duly proved, if capable of proof, and then to be deliveted; to the person entitled to the custody thereof; or imtil required by the authority of some competent court tq produce the same in such court. If. a testator files his will in thg foregoing manner, for safekeeping, he pays a nominal fee (six cents to a coimty clerk or register, nothing to a Surrogate). § 335. Producing and filing the will. — The will of a decedent should be filed by the person petitioning for its probate whenever possible. But where it is in the custody of a safe deposit company or of a person who for any reason declines to produce it, it was early held that the Surrogate had no power to compel the production thereof by order. Matter of Foos, 2 Dem. 600. The practice is to file the petition for probate, whereupon a subpoena duces tecum will be issued, directed to the proper persons, requir- ing them to produce the will in court upon the return day of the citation. Id., p. 601. The. Surrogate has the pow^, under § 2490, subd. 3, to.enforce obediencfe to the requirements of such^a subpoena. § 336. Compelling production. — In 1910, the Legislature enacted a new section, more adequate to the end in view, since it covered, not only mere retention, but apprehended destruction, concealment, or conspiracy to that end. It read as follows (see present section immediately following) : Former § 2621a. [Added 1910.] Proceedings against persoris suspected of de- stroying, retaining or concealing mils. A person claiitdng to be interested in the estate of a decedent may present a petition under oath to a surrogate's court, against any one or more persons suspected of de- stroying, retaining, concealing, or conspiring with others to destroy, retain or conceal a will or testamentary instrument of the decedent. And the court thereupon must issue a citation, directed to such person or persons, ordering the production of the will or testamentary instrument or [that such person or persons] show cause why it should not be produced. § 337 PRODtJCING WILL 375 On the return of the citation, the court may orcfer the suspected person pr per- sons to appear before it and be examined on o^;th upon the matter of t^ petition. If any person cited fails to appear and submit to examination or refijses.tp, answer s\ic^i questions as are lawfully propounded to him, or to obey any lawful, order of the court, he may be committed to jail as for a contempt of court ujatili he submits to its order. The court may award costs as ia a special proceeding, to be paid by either party. Added by L. 1910, c. 358 (in effect May 24, 1910). The object and administration of this section is exhaustively analyzed in Matter of Work, 76 Misc. 403, holding, first, that this section simply en- larges the Surrogate's existing power, and second, that such a proceeding must be taken 6e/ore the entry of the probate decree, or afier the decree is vacated, since while the decree stands its conclusiveness under the Code is a bar. The section, as reivised in the act of 1914 is: § 2607. Petition to compel production of mil. Whenever it shall appear, by petition of any person claiming to be interested in the estate of a decedent, that there is reasonable ground ^o believe that any person . has destroyed, reta.ined, concealed, or is conspiring with others to destroy, retain, or concesal a will or testapaentary instrument of a decedent, or has any knowledge as to such facts, the court must make an order requiring ^hg respondent to attend and be examined in the premises, and may in such order or otherwise in the pro- c6feding require the production of any will or testamentary instrument. Service thereof must be made by deUvery of a certified copy thereof to the person or persons named therein and the payment or tender to each of the sum required by law to be paid or tendered to a witness who is subpcenaed to attend a trial in surrogate's court. Former § 2621a of this Code, rewritten. From L. 1910', c. 358. § 337. Substituting copy of wills proved in British courts. — Where, however, the will is that of a non-resident citizen dying in the- British Em- pire,, and cannot be produced, it may under certain restrictions, be sub- stituted, for probate purposes, by a copy certified pursuant to. the pro- visions of chapi 731 of the Laws of 1894, which is now § 2608 of the Code, and is as follows: § 2608. Probate o/ wills of citizens of the United States danfidUd in the United Kingdom of Great Britain and Ireland. ' 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 intention to become such citiz^, who shall have died, or hereafter shall di§, while domiciled, or resident within the United Kingdom of Great Britain and Ijreland, or any of its dependencies, which shall affect property within this state and whiph shall have been duly proven within such foreign jimsdiction, and there admitted to probate, shall be admitted to probate in any county of this state wherein shall be any prop- erty 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 ugd^r the I^lnd.and seal of a consul-general of the United States resident within such foreign jurisdic- , tioh, together w;ith the proofs of the said last will and. testament, made and accepted within such foreign jurisdiction, certified in like manner. Letters testamentary on sucli 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 is^uap^e.of.suqhjel^terp, by formal renunciation, duly acknowledged pr proven, and 376 StTBROGATES' COTJRTS § 337 duly certified, shall hot have renounced the trust therein' devolved upon them; provided, that before any 'sUch will shdll be admitted to probate in any county of this state, the same proceedings shall be had in the surrogate's court 6f the proper county as are required by law Upon the proof of the last will and testament of a , 'resideiit of this state who shallhave died therein; except that there need be 'cited upon such probate proceedings pnly the beneficiaries named in such will. Former § 2705 of this Code. From L. 1894, c. 731, § 1; L. 1909, c. 65. Where such will is not in the custody of a court having jurisdiction, the production of the original cannot be dispensed with. So held, where it was shown to be held by a foreign notary. Diez's Will, 56 Barb. 591. But if the original be produced before a commissioner, duly appointed to take the testimony, it islield to. be equivalent to production before the court appointing him. 'jRussellv. Hartt-, 87 N. Y. 18; Matter of Delaplaine, 45 Hun, 225; Matter of Camer&n, 47 App. Div. 120, 125, aff'd 166 N. Y. 610; Spratt V. Syms, 104 App. Div. 232. Again, ^ will may have been made here, by a resicient, and befqre New York- witnesses, and yet may have been filed and probated in a foreign court. , If in such case its production is impossible, and it develops that the Surrogate could not secure the evidence of the witnesses because un- able to coinpel their attendance before a fbreigh cbmmissionfer in the place where the will is, then, semble, the Surrogate is ,pp>yerless and an action under § 186i, discussed, in , chap. : IX, would afford the only remedy. Matter of Law, 80 App. Div. 73. A lost or destroyed will, also, may be proved in a proper case. See discussion below under § 2613, Code Civ. Proc. A case of hardship is that of Matter, af. Weston, 60 Misc. 275. The opinion of Beckett;, Surri, shows the difficulties presented: "He (the proponent) is, however, unable to produce or secure the production, of the paper propounded, as the will as .distinguished from the codicil , in order to prove it in the, customary way. inropen court, and hp cannot prove it by commission because, the. subscribing witnesses reside one in this State' and the other in thsiStatei of New Jersey,' and the paper; itself is deposited, in a court in the District of Columbia, by which it has been admitted to pror- bate, Matter of Cameron, 47 App. Div. 120, aff'd 166 N, Y. 610; Matter of Law, 80 App. Div. 73, 75, 76, aff'd 175 !N. Y. 471. Nor can he prove it by. an exemplified copy of the proceedings of the court which; ladimitted it to probate) as it is incompetent and inadmissible as evidence for 'the purpose. Code Civ; Pro., former §§ 2618, 2619, 2620; Matter of Delaplaine, 4:6 Him, 225. It is proposed to probate or establish the Wjill by proving the codicil which refers tQ,,itf , This can^oli'be.cJPJi?!, withput, showing that the statutory requisites as to the, execution of a will have been complied with, aind this the petitioner is in no position to do in this case. Matter of An- drews, 43 App. Div. 401; Matter of Conway, 124 N. Y. 464; Matter of O'Neil, 91 id. 523; Cookv. White, 43 Aj)?.' Div. 393, Sfi'd 167 N. Y. 588; Matter of Carll, S8 Misq. Rep. 474, 475; Matter of Emmons,^ 110 App. Dliv, 701. la^iBrom^v,. Clark, 77 ,N. Y. 369; Matter of Campbell, id. 84, and Cook v. White, supra, where it was held that a legally executed codicil revived or effected a ratificatibn or establishment of the will, there was proof of com- §§338,339 FILING THE WILL 377 pliance with the statutory requirements as to the will itself, The codicil cannot be admitted to probate as a separate and indepentieiit testamen- tary paper. It displaces one of three persons named as executors, in ithe propounded paper, and appoints another as an executor thereof in his stead, and makes no disposition of property whatever. From the; nature of this change it is obvious that the operation and efficacy, of the codicil are necessarily dependent upon the establishment or proof of the paper to which it relates as an effective testamentary instrument. Mdtter of Emmons, 110 App. Div. 704, 705. Petition dismissed. As a conseciuence, the motions for commission and temporary administrator must be denied." The object in directing the filing of the will is obvious. Moreover, in contested cases, the contestant is entitled to inspect, under proper safe- guard, the instrument propounded. In" New York county Rule IV re- quires as follows: . Rule IV.r-PROBATB; Will and Copy to Be Filed The will, if not lost or destroyed, shall be filed with the petition for probate unless, upon good cause shown by affidavit, the surrogate dispenses therewith, in which case the will must be filed at least two days before the return day of the citation. The rest of the rule prescidbes thkt a verified copy of the original be filed with it. It is verified by the joint affidavit of two persons to the effect that they have each carefully compared the foregoing paper with the original thereof, dated the , about to be filed for probate, and tjhat the same ia in all respects a true and correct copy of said instrument, and of the whole thereof. The blank is furnished by the probate clerk. ,., § 338. Duplicate wills. — Where a will ;is executed in duplicates or tripli- cate the Surrogate may direct the fifing of two or more, of the, copies or "examples." The object is to determine (o) that they are in fact duplicatesj (&)i.that they are five instrimients, since by the allieration or revocation of either the testamentary finality of either or hpthmay bp affected or dsr stroyed. But if they are duplicates, it is idle to prove hoth or to admit both to probate. Roche v. Nason, 185 N. ;Y. , 128, 135, citing Qrq^smfln v. Crossrmn,Q5 N. Y. 145, 150. And see .scholarly opinion in. Matter of ^cho- field,' 72 Misc. 281 — ^where idupUcate produced -was from , the, safe ;of the draftsman, while the other that had been in testator's custody eould not be found — Held, revoked. And see abpve, § 3,18, re ; dupficate "exam- ples." . , , , ,' , § 339: Photographing and testing will. — Contestants may desire to have the will photographed, particularly in cases where the signature, is disputed, and claimed to have been forged. The Surrogate has power, to allow this to be done (MoMer of Monroe, 4 Connoly, 496, Ransom, Surr.), or even ,t(> have chemical tests made of the ink. , Ibid,; Matter of Wait,. 16 N. Y. St., Rep. 292, where test was made in courjt, Application should be made in compfiance with the practice, prescribed in §§ 803-809 pf the.Qode- 378 surkOga'Tes' courts §§ 339a, 340 Matter of Woodward, 28 Misc. 602. Biit in Matter of Garfland, 60 Misc. 33, Beckett, Surr., refused to permit it on the original probate, in the face of future litigation in which it was of hifeh importance that "the very papei- itself, uncha'ngfed, in its exact OTigihal form and character" should be available. § 339a. Who may propound the will? — The new act pr6vides: § 2609. Who may ^opound wHi; contents of petition (in part). A petition for the probate of a will may be presented by: Any person designated in the will as executor, devisee, leigatee, testamentaiy trustee or guardian; A creditor of the decedent, or any other pierson interested in the estate; Any party to an action brough'tj or about to be brought, in which action fthe decedent, if living, would be a proper party. _ , , Former § 2614 of this Code, modified. From L. 1837, c. 400, § 4; L. 1897, c. Vlf. See for balance of section, § 345 below. But, pnce the will is offered for probate, the proceeding is beyond the control of the proponent {Hoyt v. Jackson, 2 Dem. 443, 456; Greeley's Will, 15 Abb. Pr. N. S. 393), in this sense that it becomes then the proceeding, not^of such proponents only, but of all persons interested in the estate under the will, whose right it is that the instrument shall tieprpved, and neither the proponent nor the Surrogate can arbitrarily ternunate the, proceeding so as to deprive any party thereto of his right to support the, probate, for the proceeding is one in rem. Matter of Lasak, 131 N. Y. 624; Paxtoh y. Brogan, 12 N. Y. Supp. 563. Seie as to nature of proceedings in rem. Matter of Horfon,^. Y. Ct. of App., March 7, 1916, opinion of Hiscock in,N. Y. L. J., March 20, 1916. After the petition is filed, and the proper parties are cited, the Surrogate has jurisdiction of both subject-ina;t'ter ahd' parties. If the proponent decides not to prove the will, any other party lliay become the actor and proceed to offer witnesses in support of the will. Matter of Lasak, supra, citing Code Civ. Pfoc, former § 2617. If all the parties are of full age and should join in asking that the pro- ceedings be dismissed, it would be the duty of the Surrogate to dismiss the proceieding. But sb long as ahy person cited is before the Surrogate in' support of the will, he has no right, upon the motion of any other patty, arbitrarily to arrest ot dismiss the proceeding. It is a proceeding in behalf of all the parties interested to ptove the will. If the proponent should die, the jurisdiction would not be divested {Brick v. Brick, 66 N. Y. 144), nor would the proceeding abate. Lafferty v. Lafferty, 5 Redf. 326. If he left successors to his interest they would have to be brought in and be made parties to the proeteeding as persons interested in the estate. Matter' of Lasak, 131 N. Y. 62i,&27 ; Matter of Govefs, 5 Dem. 40; VanAlen-v. Hemns, 5 Hun, 44. § 340. Persons interested. — What is meant by "persons interested" in an estate has heretofore been discussed ("Parties," ante). And the Surro- gate has power to determine whether the petitioner is a person entitled to propound the will before going on with the proceeding. It may be added § 341 PROPOUNDING WILL 379 that it has been held by the Court of Appeals {Russell v. Hartt, 87 N. Y. 19, 21), that the right to present a will for probate may be by a person possessing it transferred to another who as attorney or agent may act for and in the stead of the party interested. In the case cited, one Janet Russell was named in the will as legatee, as devisee and as executrix — thus possessing a threefold right to ask for its probate. By a power of attorney duly and properly executed, reciting the circumstances which made it necessary, she appointed one Hartt, her agent and attorney in her name, place and stead, to present the will or duly authenticated copies thereof to the proper Surrogate for probate and to have the same duly proven as a will of real and personal estate, and to ask for and receive letters of ad- ministration, and take possession of and administer upon the estate of the deceased. Held that the Sm-rogate was justified in acting upOn a petition filed by Hartt, and had full jurisdiction to entertain the proceeding. If the person interested is a woman, whether married or single^ she may petition for probate, and if married her husband need not join in the peti- tion. Where the petition for probate is filed by a creditor of the testator, it has been held that a mere allegation that the petitioner is a creditor would be sufiicient unless put in issue. If denied, then he must be required to set forth facts showing that he is such creditor. Gove v. Harris, 4 Dem. 293, citing Creamer v. Waller, 2 Dem. 351. § 341. Will must be "propounded. — It is the duty of an executor to propound his testator's will (Schouler on Ex'rs & Adm'rs, § 53; Thorn v. Sheil, 15 Abb. N. S. 81), and if probate be refused he may carry the matter to the Court of Appeals (see Appeals), and if successful is entitled to his counsel fees and disbursements thus incurred {Matter of Blair, 28 Misc. 611), to be adjusted upon his accounting, s. c, modified on appeal, 49 App. Div. 417. See also 34 Misc. 444, and see § 2746, formerly § 2558, Code CiviProc, as amended in subd. 3, in 1911, which destroys the effect of Dodd V. Anderson, 197 N. Y. 466. And any party finding a will, in which he is interested, should propound it. Matter of Griswold, 15 Abb. 299; Boynton v. Laddy, 20 N. Y. St. Rep. 148. But the executor cannot be compelled to take an active part in the probate. If he files the will and the petition for probate, he may decline to examine witnesses or to support the will in case of contest. He cannot cause the dismissal of the proceed- ing except all parties cited are of full age and consent. Matter of Lasak, 131 N. Y. 624. But if he takes such a negative stand any other party in- terested may undertake the burden of proving the will. And if none of the parties is willing so to do it is the duty of the Surrogate to do it under § 2614. Matter of Lasak, 1 Connoly, 486, 489. The executor is not ex officio beneficially interested under a will, and yet he cannot be permitted to deprive those who are of their rights by blocking the proceedings. If he is recalcitrant any other party may become an actor. Matter of Lasak, supra, Coffin, Surr. In Matter of Scott, 8 App. Div. 369, the court, however, says that where an executor propounds a will and codicil, he is thereupon 380 SURBOGATES COURTS §342 bound to ■procure and lay before the Court the evidence necessary and ap- propriate to establish it, and that one interested in the probate cannot be penalized by terms when because of the omission of the executor to per- form this "duty" he apphes for a commission or other means of eliciting the; proof. Persons discovering, a codicil to a will which is propounded for probate should, if interested, thereunder, ofEer it for probate in the proceeding pending for the probate of the original will. Carle v. Underhill, 3 Bradf. 101. If several persons produce independent instruments and severally petition for their probate as the last will of the same decedent, the pro- ceedings i will be consohdated in one, and the Surrogate will determine whether they are in harmony with one another, so as, when taken together, to constitute one last will, or whether they are entirely independent so that only, one can stand. Van Wert v. Benedict, 1 Bradfi 114, 119. Such an inquiry must establish one paper as the last will and the others either as codicils to.it, or as invalid by being revoked or otherwise. Ibid., Opinion of Bradford, Surr., and cases cited at p. 119. , § 342. Preliminary inquiries. — Before filing the petition it is well to ascertain with accuracy the names and addresses of all persons interested, with their relationship — degree of kinship — to the decedent. Section 2609 requires this now to be incorporated in the petition. The delays occasioned by bringing in, subsequently, necessary parties, who might readily have been ascertained in the first instance, is sufiicient warrant for this sugges- tion. The drafting of a family tree on which all the next of kin and all infants, especially issue of deceased parents, entitled by representation, are shown, will be found, of great service in the preliminary steps before the probate clerk or Surrogate in contested cases. Joseph Smith (father deceased) Amanda (mother living) Rjchard Sophia (brother — (31, sister — deceased) living) Mehitabel (25 living) John Smith (decedent) John Mary Clara (brother — (26, daughter, (24, daughter, deceased) living) living) —Jane (widow living) John (age 10 living) Thomas (age 4 "living) In such a tree, collateral relatives need not be shown. In intestacy, § 343 ACTING BEFOEE PROBATE 381 where there are no descendants it may be essential. That is, if Mary and Clara, children of John Smith are dead, then note names of brothers and sisters and nephews and nieces. § 343. Interference with the assets before probate. — In early times in England, it was customary for those standing nearest an intestate, and for the executors or beneficiaries named in the will of a testator, to take immediate charge of his estate, upon his death, without, in the first instance resorting to the courts for sanction. The result was that a creditor could maintain an action against one who thus assumed to administer; and no one who should interfere with the effects could be held responsible as an executor or administrator. The law is changed in this regard. The Re- vised Statutes take away the remedy which creditors had against thftse who, without such authority, interfere with the afesets, and require^ thttt the executor or administrator duly appointed shall pursue a remedy for the benefit of the creditors or others concerned. It is provided that "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 per- son." Dec. Est. Law, § 112 (2 R. S. 449, § 17); Mills v. Mills, 23 St. Rep. 604. This does not mean that a person wrongfully interfering is not liable to an action; but only that he is not so liable in the character of an executor or administrator. Section 112 further declares, that he " shall be responsible as a wrong-doer in the proper action, to the executors or general or special administrators of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts to the estate of the deceased." Hence, if persons pretending to be executors take possession, the next of kin, or others interested, should procure an ad- ministrator to be appointed, or letters testamentary to be issued; and the executor or administrator so appointed may recover the property. Muir v. Trustees, etc., 3 Barb. Ch. 477; Babcock v. Booth, 2 Hill, 181. Another provision declared, that "every person becoming possessed of property of a testator or intestate, without being thereto duly authorized as executor or administrator, or without 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 a.llowed to retain or deduct therefrom any debt due to him." Code. Civ. Proc, former § 2706, now repealed, taken from 2 R. S. 81, § 60. See Wever v. Marvin, 14 Barb. 376; Brown v. Brown, 1 Barb. Ch. 189; Matter of Flandrow, 28 Hun, 279; Hum- bert v. Wurster, 22 id. 405; Quackenbush v. Quackevhush, 42 id. 329, 332; Matter of Fithian, 44 id. 457; Matter (^ Brintnall, 40 Misc. 67, 81 N. Y. Supp. 250. This section was repealed by the act of 1914. In connection with this provision, it should be observed that, if such a person subse- quently took out letters, the acts which were before tortious were thereby legalized; Priest v. Watkins, 2 Hill, 225; Matter of Faulkner, 7 id. 181; Bellinger v. Ford, 21 Barb. 311; only, however, in case they would have been lawful if he had been acting under the authority of letters at the time. His responsibility relates back to the date of his testator's death or to his 382 SURBOGATES' COURTS § 344 own first act of unauthorized interference. Matter of Farrell, 1 Tuck, 110. § 344. Executor's possession of assets before probate. — -The right of one who is named an executor to take possession of the effects of his testator, without waiting for the probate of the will, is hmited. It is a general principle that an executor derives his title from the will itself, and not from the letters testamentary subsequently issued to him. The latter are not the foundation, but only the authenticated evidence, of his title. Hartnett V. Wanddl, 60 N. Y. 349; Van Schaack v. Saunders, 32 Hun, 515; Matter of Greeley, 15 Abb. Pr. (N. S.) 393. Nevertheless, although. a technical title to the effects vests in him at the moment of the testator's death, he cannot fully exercise his right of possession until he has been duly recog- nized as executor by the proper tribunal. Matter of Avery, 45 Misc. 529, 92 N. Y. Supp. 974. The statute expressly provides, that no executor, although named in the will as such, shall have, before letters testamentary are granted, power to dispose of any part of the estate, except to pay fu- neral charges, nor to interfere with the estate, further than is necessary for its preservation. 2 R. S. 71, § 16, now incorporated in Code Civ. Proc, § 2693. The acceptance of security from a surviving partner upon his purchase of the assets of the firm, pursuant to a provision of the partnership agreement, is an act for the preservation of the estate within the power of the executors of the deceased partner before letters. Hull v. Cartledge, 18 App. Div. 54; 45 N. Y. Supp. 450. Where any important interference with the assets is necessary for other purposes than the preservation of the estate, before projDate can be had, application should be made for the appointment of a temporary administrator. For fuller discussion see Letters Testamentary below. CHAPTER III PROBATE PROCEDURE — UNCONTESTED PROBATES § 345. The petition. — The petition is the first step in proceedings to prove a will. The distinction between proving a will in common form and in solemn form is practically no longer observed under the Code. Section 2609 provides for the presentation of the petition and is quoted above in § 339a, q. v- as to who may present it. The requirements as to the petition are as follows : Such petition in addition to the general allegations contained in § 2521 of this chapter shall describe , such will, and any other will of the same testator on file in the surrogate's office, and set forth the names and post office addresses, so far as they can be obtained with due diligence, of all the devisees, legatees and beneficiaries named in said wUl, or in any other will so filed. The petition accordingly is to be made in conformity with § 2521, ana- lyzed in a former chapter. That is, it must cover all necessary jurisdic- tional facts, ai^d include all persons entitled to be cited, so as to leave out none upon whom the decree admitting the will to probate ought to be binding. The practitioner's duty is to so conduct the "probate proceeding to decree as to insure the estate ^.gainst subseqiient successful attack by persons whom he should have foreclosed. The value of his professional service is conditioned in the premises by his accomplishing this result. The petition should substantially set forth the following facts: Decedent's name; Date of his death; Place of his death; That he left a will; Date of the will; Same as to codicils, if any; Execution of will, and names of witnesses; Residence of decedent at the time of his death; If a non-resident, that he left personal property within the State; or that he left such property which since his death has come within the State and remains unadiiiinistered; or that he died seized of real property sit- uated intKe county, and to which the will offered relates; or which is sub- ject to disposition to pay decedent's debts. And it is proper to add that no other apphcation fOr probate or administration has been made to any other Surrogate in the State, whether the will relates to real or personal property or both; Approximate value of personal property; Names of necessary parties, which will be, in case the will relates ex- §345 383 384 surrogates' courts §§ 345a, 346 clusively to real property, the husband or wife and all the heirs of testator or, in case it relates exclusively to personalty the husband or wife and all the next of kin. If it relate to both all must be named. It is requisite to add the residence of one so named, or the, statement that it is unknown and cannot be ascertained; arid all particulars exacted by § 2521, e. g. Names and addresses of all the devisees, legatees and beneficiaries named in said will, or in any other will on file in the Surroigate's office. Unknown persons must be approxinaately designated, or included, in a class; ^ ' ' :■',.' . '",.,', /' ' ', I '' ..Whether all are of full age, a,nd if not which are infants and whether over or under' fourteen years of age; and facts as to parents, etq. The character in which petitioner appears should be made clear, whether as executor named, or as pairty interested, and facts showing prima facie that he is entitled to propound the will; Prayer for probate. ' ,' § 345a. Foreign, du|)licate, etc., wills. — Wills in foreign languages may be offered as they are, preferably with translation, which the Surrogate must scrutinize and adopt in order to ascertain its meaning and the bene- ficiaries,- ,.CaMZj?eZd V, Sullivan, 85 N. Y. 153. , , The translation goes into the decree, and is a part therepf, and becomes unassailable collaterally. Jbid. , Duplica,te wills ought, to 6,e produced in both "examples," or the ab- sence of one accounted for; since if it was the. example in testator's custody, and cannot be fouiid tliere is a presumption of destruction animo revocandi. Williams on Exrs. 158. Either of two duplicate wills may be proved with- out the other. ■ Crossman v. Grossman, 95 N. Y. 145. .The f^ct that the subscribing witnesses (did not, when attesting the will, read or compare the dupUeates, but relied on the testator's statement that they were such, does not prevent the probate of the will. Roche v. Nason, 105 App. .I)iv. 256, aff'd 185 N. Y. 128. In that case (185 N. Y. 128) it was also held .that where one of the duplicates was received in evidence, an objection by the defendants to the introduction in evidence of the other duplicate, and its withdrawal by the plaintiff, precluded the ,defendant from insisting that the proof was insufficient to establish the identity of the two instruments. Upon a petition for probate of a will executed in duplicate, one of the two originals; being sihown to have been destroyed by Ihe maker, animo je- vQcandi, and there being no proof that'the other was in her .possession at any time after its execution, though it did not a,ppear but, that it was stilj intact; held,, .that a decree might bei entered . denying the application, ^sinari y. Sangs, 3 pem,. 385. And see Biggs y. Angus, id. 93. The npn- presentment of both duplicates is not a ground. f or, reyplaiig the probate of the will, "where both are subsequently produced. At most the probate was irregular. Matter of Crossman, 3 Civ. Proc. Rep. 65, aff'd, 30 Hun, 385, 95N. Y. 145. ,. ,/ § 346, Precedent for petition. — The following precedent is from the form in use in New York county, including the endorsement for clerk's entries. §346 PROCEDURE— UNCONTESTED PROBATES 385 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. {Note.) Note. If it relate exclusively to one class of property, adapt the averments to correspond. The petition shall describe any other wills of the same testa- tor on file in the Surro- gate's office of New York County. §2609, Code. Note. But see §2515, Code, and if non-resident, make ap- propriate allegations as to such facts and as to property basis of jurisdiction. If any person or his name, residence and post office address be unknown, the petition must substantially set forth the facts which show what efforts have been made to ascertain the Same and a general description of the per- son, showing his con- nection with the de- cedent andi his interest in the matter. § 2521, Code. When all parties waive citation all papers must be filed two days before the day fixed for the hearing. (Rule 5, N. Y. Co.) To the Surrogate's Court of the County of New York: The petition of residing at No. in the Borough of City of New York, respectfully states: That your petitioner execut named in the last will and testament of late of the County of New York, deceased; That said last will and testament, herewith presented and hereby offered for probate, relates to both real and personal property, and bears date the day of , 19 , and is signed at the end thereof by the said testa and by as subscribing witnesses. That petitioner does not know of any codicil to said last will and testament, nor is there any to the best of h information and belief. That the said deceased was, at the time of h death, a resident of the County- of New York and de- parted this life in said County, on the day of , 19 . Note. That the husband. aU the heirs, and all the next of kin of widow, said testa , each person designated in the will herewith presented and hereby offered for probate as executor, testa- mentary trustee or guardian; and also each person named as executor, testamentary trustee, guardian, legatee, devisee or beneficiary in (said wUl, and in) any other will of the same testator filed in the Surrogate's office and their residences and post office addresses are hereinafter mentioned in subdivisions a, b, c and d hereof, as follows: a. The following named persons who are of full age and of sound mind: who resides at who resides at who resides at who resides at' who resides at who resides at of deceased of deceased of deceased of deceased of deceased of deceased 386 surrogates' courts §346 State the age of the infant and whether or not the infant has a general or testament- ary guardian, whether or not his father, or, if he be dead, his mother, is living, giving the name and post office address of such person, and the name and post office address of the person with whom such infant resides. Section 2521. b. The following named persons who are infants over fourteen years of age: a who resides at of deceased State the age of the infant and whether or not the infant has a general or testament- ary guardian, whether or not his father, or, if he be dead, his mother, is living, giving the name and post office address of such person, and the name and post office address of the person with whom such' infant resides. Section 2521. State the name and post office address Of the committee, if any, and the name and post office address of the person or institution hiving the care or cus- tody of the incompe- tent; also the facts regarding his iricom- peftency and the name and post office address of a relative or friend having an interest in his welfare. Section 2521. c. The following named persons who are infants under fourteen years of age: a who resides at of deceased d. The following named persons who are of full age but of uiisound mind: a who resides at of deceased That the value of the real property in this State of whi^ the testator died seized is dollars and that the value of the personal property of which said testator died 1 is dollars. husband, That said testa left h surviving no widow. child or children, no adopted child or children, no issue of any deQessed 346 PROCEDURE— UNCONTESTED PROBATES 387 Erase' unnecessary allegations. child or children, no issue of any deceased adopted child or children, no father or mother, no brother or sister of the half or the whole blood, no issue of any deceased brother or sister, no uncle, no aunt, and no issue of any deceased uncle or aunt, except those hereinbefore mentioned. That no petition for the probate of the will herewith presented and hereby offered for probate, or for letters of administration on said estate, has been heretofore filed in this or any other Surrogate's Court of this State and that no other will of said testator has been filed in the Surrogates' office of New York County, except as hereinbefore mentioned and described. That there is no person designated in the will herewith pre- sented and hereby offered for probate as executor, testamentary trustee or guardian, except as hereinbefore mentioned. That there is no person named as executor, testamentary trustee, guardian, devisee, legatee or beneficiary in any other will of the same testator filed in the Surrogates' office of the County of New York, except as hereinbefore mentioned. That the names and post office addresses of the devisees, legatees and other beneficiaries named in the will herewith presented and hereby offered for probate, are as follows: 1. The following named persons have been hereinbefore mentioned: Name of Legatee, Devisee or Beneficiary. Post Office Address. Value of Legacy or Devise. . 2. The following named, persons have not been hereinbefore mentioned. Name of Legatee, Devisee or Beneficiary. Post Office Address. Value of Legacy or Devise. If an executor, or trustee, is required by the will to hold, man- age, or invest, property for the benefit of an- other, he must execute a bond. Code Section 2639. That there are no persons interested in this proceeding other than those hereinbefore mentioned. Wherefore your petitioner prays That a citation to show cause issue herein to the persons hereinbefore named, described, and included in subdivisions a, b, c and d hereof, citing them to show cause why the last will and testament herewith presented and hereby offered for pro- bate should not be admitted to probate; That an orde^ be granted directing the service of the citation personally without the State or by publication upon the persons hereinbefore named, described and included in subdiviaofls a, b, and d hereof who are not residents of the State of New York, 388 SURROGATES COURTS §346 and also upon the persons hereinbefore described and included in those subdivisions who and whose names or residences and post office addresses are unknown and cannot be ascertained; and That the last will and testament herewith presented and hereby offered for probate may be admitted to probate as a will of real and personal property and that letters testamept^ ary may be issued to the execut who may qualify there- under. Dated, New York, , 19 . Petitioner. County and State of New York, ss. : the petitioner named in the foregoing peti- tion, being duly sworn, depose and say that h ha read the foregoing petition subscribed by h and know the contents thereof; and that the same is true to h own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters h believe it to be true. Sworn to this- day of , 191 \ Petitioner. N. Y. Co. Order entered 191 Will filed day of 191 Proceeding adjourned to Pet. filed day of 191 191 , M Cit. returnable day of 191 , Sup. Cit. returnable to 191 , M. day of 191 to 191 , M Amd. Pt. filed to 191 , M day of 191 to 191 , M SURROGATES' COURT, County op New York In the Matter of Proving the Last.Will and Testa^ ment of Deceased, as a Will of Real and Per-. sonal Piroperty. Petition Esq., Attorney for Pet^J;i6ner. Contest. No. Borough of Manhattan, Objections filed the New York City. day of 191 .' §847 PROCEDURE — TJNCONTESTED PROBATES 389 Order entered Order entered Order entered 191 /l911 191 Admitted 191 4s to Real and Personal Estate. S. G. (L. p. ) Decrees Letters Testamentary Liber Liber Order Page Page entered 191' Bond dollars Bond filed 191 Renunciation of Order entered 191 as execut filed 191 The petition must be in writing and verified (Code Civ. Proc, § 2519) as pleadings are verified. Section 2520. The decision in Wright v. FUraing, 19 Hun, 370, in 1879, where the General Term of the Second Department held it not to be strictly necessary "to have a petition in writing to set in motion proceedings to prove a will," must not be considered as controlling now in face of the express words of the Code, and the universally accepted practice. Section 2520 of the Code provides that the provisions of .§§ 523- 526, q. V. (§ 523, when pleading must be verified; § 524, allegations on knowledge, and on information and belief; § 525, verification, how and by whom made; § 526, form of verification), apply to the verification of plead- ings in Surrogates' Courts and to the petition or other papers so verified, "where they can be so appliesd in substance, without regard to the form of the proceeding." ■ >; § 347. To what Surrogate petition must be presented.^It has been noted under the head of jurisdiction that "the Surrogate's Court obtains jurisdiction in every case, by the existence of the jurisdictional; .facts prescribed by statute" (Code Civ. Proc, §2512), but exclusive jurisdic- tion is conferred on certain Surrogates of the probate of wills under certain circumstances. ■ See ante (sub Jurisdiction) for discussion. Section 2515 of the Code provides : § 2616. Exclusive jurisdiction. The surrogia,te's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary thereupon, or to grant letters pf 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 coiinty, 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 property which has, since his death, come into the state, and remains unadministered. 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 leaving personal property which has, since his death, come into that county, and no other, and re- mains unadministered. '■ 390 surrogates' courts §§ 348,] 349 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 letters of administrktibh, under subdivision second or third of this section, has not been filed in any surro- gate's court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fourth of this chapter, is situated within' ttiat county, and no other. Fomjer § 2476, Code Ciy. Proc. § 348. Conflict of jurisdiclion. — Section 2516, quoted under Jurisdic*- TiON, declares that where a petition for probate or for letters of adminis- tration is once filed with either of two or more Surrogates' Courts having concurrent jurisdiction, the jurisdiction of the one with whom such peti- tion is filed, becomes exclusive. It seems, however, that the jurisdiction of the other Surrogate in such a case is merely dormant and may be asserted if the jurisdiction of the one so acquiring exclusive control terminates for any cause. So, when two petitions Were filed, one with the Surrogate of Wayne County for letters of administration, and the other, a day later with the Surrogate of Munroe County for probate of the will, it is manifest that under §• 2516^ foritaerly 2477, the jurisdiction of the Surrogate of Wayne County was exclusive. But when he denied the application before him, it was held the other Surrogate had thereupon jurisdiction to proceed with the probate of the will. Matter of G&ald, 9 N. Y. Supp. 603, aff 'd 131 N. Y, 630. See Matter of Golden, 40 Misc. 544, where there were two wills. The one, holographic, described testator as of Saratoga. There was proof he was intending to remove there to spend the rest of his life. The other, drawn by his attor- ney, recited his residence as at Troy, where he had lived 40 years. § 349. Conflict with foreign court.— In Matter of Sands, 62 Misc. 146, Beckett, Surr., wrote an instructive opinion in view of the objection that probate had been had in Missouri, and that it was a bar to the pro- ceeding here. Upon its developing that the parties were different and that the decree of the forieiign probate court was not conclusive in Missouri itself, he rejected the record of its proceedings and overruled the objection in bar. So, in Matter of H&rton (Ct. of App.), N. Y. L. J., March 20, 1916, to same effect. See opinion of Hiscock, J., who says: ' ' "The Probate Court of Ohio was a court of limited jurisdiction, -and unless it appears that it had jurisdiction to admit said will to probate its proceedings are void as claimed, and derive no benefit from the 'full faith and credit' provision of the constitution. Assuming at this point of the discussion that the testator was such a resident of Ohio at the time of his death as to furnish the Probate Court of that State with that element of jurisdiction, the question is presented whether a proceeding to probate a will is one which requires service of process upon all parties interested, even though non-residents, or is one in the nature of a proceeding in rem where such service may be dispensed with. "We regard it as well established that the latter is the case, and that if the, Probate Court otheryvrise has jurisdiction it may make a d^qree admit- ting a will to probate which is binding upon non-residents, even though §§ 350, 351 PROCEDURE — UNCONTESTED PROBATES 391 notice has been dispensed with on the original probate, and such probate becomes conclusive in the absence of contest within a given period as pro- vided by the laws of Ohio now before us. Vanderpoel v. Van Valkenburgh, 6 N. Y. 190, 198; Matter of Law, 56 App. Div. 454, 458; Matter of Goldr sticker, 192 N. Y. 35, 39; Woodruff v. Taylor, 20 Vt. 65, 73; Crippen v. Dexter, 13 Gray, Mass. 330; Bonnemort v. Gill, 167 Mass. 338, 340; Robertr son V. Pickrell, 109 U. S. 608; Overby v. Gordon, 177 U. S. 214; Tilt v.Kelsey, 207 U. S. 43; Christianson v. King Co., 239 U. S. 356 "In addition to the general rules of law established by the authorities as applicable to this subject, the State of New York has elected to give effect by statutory enactment to a decree of another State admitting a will of personal property to probate (Code of Civ. Proc, §§ 2629 et seq.). "It would therefore appear that if the Ohio Probate Court had jurisdic- tion otherwise to make its decree and no proceeding for a contest has been instituted as provided, the will so admitted to probate is effective tq re- voke the earlier New York will as a will of personal property, even though respondents had no notice of the probate proceedings. It not. appearing that the decedent left any real estate in New York, we do not pass on the question whether said Ohio decree and will would effect a revocation of the New York will as a will of real estate." § 350. Jurisdiction of wills of non-residents. — The jurisdiction given over wills of non-residents by § 2515, subds. 2, 3 and 4, and conditioned (1) either by the non-resident's death within the Surrogate's County leaving property in the State or which comes into the State subsequently; or (2) by the non-resident's leaving personal or real property in that, county and in no other in case he died out of the State, is preconditioned by the provisions of former § 2611 of the Code, now § 23, Dec. Est. Law, and of former chap. 731 of the Laws of 1894, which is now § 2608 of the Code, quoted in § 337 ante, which prescribe what wills of non-residents can be proved in this State. § 351. Waiver of citation. — Former § 2528 of the Code was amended in 1896 (by chap. 570, Laws of 1896, which took effect September 1, 1896), so as to provide explicitly for the waiver of issuance and service of citation. The amendment provided: "The issuance and service of aicit^tion may be waived by a party in any proceeding by an instrument in writing acknowl- edged and approved as a deed entitled to be recorded; pr by personal appearance, or by his attorney with written authorization, executed and acknowledged as a deed, and filed in the office of a Surrogate." In 1911 it was amended by inserting after "may be waived" the words "either before or after the filing of the petition in such .proceeding." Section 2511 now covers the matter and has been fully discussed, ante. This amendment amounted practically only to a declaration of a rule already existing and practiced in the Surrogates' Courts. It must be borne in mind that the section refers to jurisdiction of persons and the amendment is preceded by provisions for the prosecuting or defending of special proceedings in Surrogates' Courts by a party of full age, unless he has been judicially declared to be incompetent to manage his affairs; and 392 surrogates' courts § 351 while the language of the amendment is very broad, "may be waived by a party in any proceeding," it is believed that the intention of the Legis-' lature was that such waiver should be limited to persons of full age, and does not extend to give infants or incompetent persons the power to exe- cute such waivers. In Matter of Petersen, 51 Misc. 367, the Surrogate recognized the right of a foreign consul to represent subjects of the power he represented in this State, under prdof of the treaty with that power (Denmark) which contained a "most favored nation" clause, and of the treaty with the Argentine Republic which contained adequate provision for consular f^resehtatiouj But this power was limited to adult foreigners. As to infants "the only way in which a Surrogate's Court can obtain jurisdiction ... is by the issuance and service of a citation." The decision of the Surrogate of Otsego County (Matter of Gregory, 13 Misc. 363), that waiver of service cannot be accepted in lieu of "issiiance and service" of citation is not inconsistent with the practice. Where there are infants, issuance and service cannot be dispensed with nor the time shortened. But where all parties are of age and consent, the issuance and service of citation is in ordinary pradtice deemed unnecessary if formal waivers properly acknowledged, covering both issuance and service of the citation, are filed. The new § 2511 permits waiver "of the issue or serwce, or both." Citation may have issued, and service be waived by a particular respondent. It is only necessary to add here that in addition to dispensing with the issuance and service of citation by waivers, where all the parties are of full age and competent, it can also be dispensed with when the petition sets forth and the Surrogate is satisfied that the decedent left no othra- heir, next of kin, or person interested except the petitioner only. Bailey v. Stewart, 2 Redf. 212, 222. The object of the citation is to give notice to a,ll parties interested. If the Surrogate is satisfied there are none besides the petitioner, he may dispense with what would be a useless form. This seems to have been the procedure upon the probate of the will of Alexander T. Stewart. See Bailey v. Stewart, 2 Redf. 212, 221. The widow filed a petition that the "widow, only heirs "and next of kin of said deceased" was the petitioner, and that the deceased left him surviving neither father, mother, brother, nor sister, nor descendants of any or either of them, nor any descendants of his, nor any relation nor next of kin of said deceased. This was held to be "satisfactory evidence" to warrant the Surrogate in omitting to issue citations to "persons thus clearly proved not to exist," Same affirmed sub nomine, Bailey v. Hilton, 14 Hun, 31 It is believed, however, that there were subsequent contests by "unknown" heirs, who might have been foreclosed if duly cited at the outset. It has occasionally been claimed by practitioners that it is unnecessary to cite the next of kin of a decedent leaving personal estate alleged not to exceM $2,000 in value, where the widow or husband of the decedent is the petitioner for probate in case there are no legacies bequeathed by the wMl, on the ground that in such cases the widow or husband would take § 352 PROCEDURE— UNCONTESTED PROBATES 393 the whole estate under the Statute of Distributions. 8 R. S. 2565, 2567, part II, chap. VI, art. Ill, title 3, § 75, subd. 3. Dec. Est. Law, § 98. But it would seem to be safer that citations should issue or be waived nevertheless in order that those cited may have opportunity to prove if possible that there is more than $2,000 in the estate, in which case they might be "persons interested." Such is the custom in the New York Surro- gate's Court. §352. Persons entitled to citation. — Section 2610, formerly 2615 of the Code, which provides what persons are to be cited upon a petition presented for the .probate of a will, has been frequently amended (in 1892, 1893, 1894, 1905, and 1911), and in examining into the regularity of pro- bate proceedings with a view to ascertaining whether or not they are con- clusive against a given person, the practitioner will do well to refer to the language of the statute as it may have been in force.ai the time of the probate. The language now is as follows: § 2610. Who to he cited thereupon; contents of citation. The following persons must be cited upon a petition, presented as prescribed in the last section; If the will relates exclusively to real property, the husband or wife, if any, and all the heirs of the testator. If the will relates exclusively to personal property, the husband or wife, if any, and all the next of kin of the testator. If the will relates to both real and personal property, the husband or wife, if any, and aU the heirs, and all the next of kin of the testator. In every case, each person designated in the will as executor, testamentary trustee or guardian, and each person named as executor, testamentary trustee or guardian, or beneficiary in any other will of the same testator filed in the surro- gate's office. In addition to the general contents contained in sections 2523 and 2524 of this chapter, the citation must also set forth the name of the person by whom the will is propounded; whether the wiU relates exclusively to real property, or to personal property, or to both; and if the wiU is nuncupative, that fact. Former §§ 2615, 2616 of this Code, consolidated and modified. Prom 2 R. S. (Part 2, c. 6, tit. 2), § 37; L. 1837, c.460, §§5, 7; L. 1891, c. 174; L. 1892, c. 627; - L. 1894, c. 118; L. 1905, c. 438; L. 1911, o. 433. The word all where used in the subdivision is inclusive — alien heirs must be cited as well as those resident here. Kilfoy v. Powers, 3 Dem. 198. So, in Matter of Healy, 27 Misc. 354, it was held to include issue of deceased uncles and aunts, who by virtue of subd. 12 of former § 2732 (now in Dec. Est. LaWj Statute of Distribution) were then entitled by representation. But legatees are not required to b^ cited. Walsh v. Ryan, 1 Bradf. 433; Dyer v. Erving, 2 Dem. 160. Legatees under "any other will of the same testator filed in the Surrogate's office" must be cited. The legatees under the proposed will receive notice under § 2616 (discussed below) before letters issue. The provisions, for a time operative, whereby all persons in being who would take an interest in any disposition of the real or of the personal prop- erty, or of both, under the provisions of the will were also required to be cited, are now wisely left out. 394 surrogates' courts § 352 This simplification of the statute is beheved to be a step in the right direction. There is no provision made for citation of legatees or devisees who are not heirs or next of kin; yet they may properly be cited if it is desired to make the probate conclusive upon them, and as already else- where laid down, if not cited, they may petition to be brought in as par- ties in the probate. Walsh v. Ryan, 1 Bradf. 433. It is to be noted that this decree was in 1851 and before, the amendment requiring legatees or devisees to be cited; the statute at that time provided only for the citation of the widow, heirs and next of kin in probate cases; this was undoubtedly on the principle that these persons being the persons who would succeed to the estate in case of intestacy are all the persons interested against admitting the will, and therefore entitled at the outset to be cited, and this case expressly held that such a person in interest was not bound to cely upon the proper representation of his, interests by the executor, but might intervene to protect his interests and oppose the probate of the will or a codicil thereof. The learned Surrogate cited the following cases: Lems V. Bulkley, 1 Cas. Temp. §§ 190 and 513, notes; Bittleston v. Clark, 2 id. 250; Hayle v. Hasted, 1 Curt. 236; Mansfield v. Shaw, 3 Phill. 22; Urquhart v. Fricker, 3 Add. 58. See, also, Lavxrence v. Parsons, 27, How. Pr. 26; Foster v. Foster, 7 Paige, 48. Where a party becomes interested, while a probate proceeding is pend- ing, as by the death of the person to whose interest he succeeds, the Sur- rogate has power to bring such person in as a party. Russell v. Hartt, 87 N. Y. 18. If proponent discover the omissions he may proceed by sup- plemental petition. Merritt v. Jackson, 2 Dem. 214; Matter of Crumb, 6 Dem. 478; Matter of Ellis, 22 St. Rep. 77; Matter of Odell, 1 Misc. 390. The exclusion of "creditors" from "persons interested," by subd. 11 of §2768, of the Code of Civil Procedure, does not apply to a judgment creditor of a devisee named in a will. Thus where the interest of such a devisee would be defeated if an alleged codicil were proved, such a creditor has been held to be entitled to appear and oppose the probate of the codicil, as a "party interested." Raff erty v. Scott, 4 App-DW. 4:29. If the person so becoming interested be a minor, the Surrogate will appoint a special guardian for him upon bringing him in. Russell v. Hartt, supra. But if a guardian be not appointed at the proper time, the defect cannot be cured by an order nunc pro tunc. Matter of Bowne, 6 Dem. 51. For the defect is one which ipso facto gives the infant, if the decree is against him, the right to move to vacate it on attaining majority, and this right the Surrogate's Court cannot defeat. (See ante, Parties.) And if a person entitled to be cited has been inadvertently omitted as a party, it has been held that the Surrogate may bring him in by a supple- mental citation. Matter of Crumb, 6 Dem. 478; Code Civ. Proc, § 2490; Matter of Bradley, 70 Hun, 104, 110. In the case first cited the Surrogate inserted in the citation a direction to attend and show cause why the evidence taken and the proceedings theretofore had to prove the will should not stand, and why the decree § 353 • PEOCEDTJRE — UNCONTESTED PROBATES 395 admitting said will to probate and adjudging the same to be a valid will, to pass real and personal estate should not be sustained, and why he should not be bound thereby with the same force and effect as if he had been pre- viously cited to attend the original probate thereof. The practice seems to be correct for the reason that the power to take the proof of wills being given generally, the mode of its ej&rcise in a case not provided for by the statute, must be regulated by the court in the exercise of a sound discretion according to the peculiar circumstances of each particular case. Campbell v. Logan, 2 Bradf. 90. § 353. Section 2610 is mandatory and explicit. — ^The requirements of § 2610 must be specifically complied with. The omission of any who are by this section made "necessary parties," is a serious defect. The sur- viving husband^ or wife, as the case may be, must always be cited. Lusk v. Alburtis, 1 Bradf. 456. But the husband of one of the heirs or next of kin, unless himself one of the heirs or next of kin, is not entitled to citation. Keeney v. Whitemarsh, 16 Barb. 141 ; Beeker v. Lynch, 1 Bradf. 458. Where, however, a wife has been divorced from the testator, a different rule pre- vails. If divorced for her own wrong she has no rights in his estate whether real or personal. If divorced, though blameless, she has no rights in his personal estate. Consequently a divorced wife need never be cited upon the probate of a will of personal property, and a wife divorced for her own wrong need not be cited upon the probate of a will of personal property or of real and personal property. Matter of Estate of Ensign, 103 N. Y. 284, 290. The contents of citation must be as required by sections already dis- cussed and quoted, to-wit, §§ 2523-2524, as to general contents of any citation and § 2610 above, additional requirements in probate. The theory on which this latter provision is based is that in case the will can, for any reason, be shown to be invalid, and an intestacy be made out, the county or State, as the case may be, is interested, and must be given opportunity to show it, as in default of such heirs, or next of kin, or husband, or wife, the State would take the property as in case of an escheat. See Gombault v. Public Administrator, 4 Bradf. 226, which is considered as establishing the rule. In that case there appeared to be a reasonable chance of proving lack of testamentary capacity. But unless there seem to be such a reasonable chance of preventing probate, the attorney general and public administrator will not be zealous to contest probate; and this provision is chiefly precautionary, though none the less to be observed. The amendment of 1911 makes thfe attorney general a necessary party both where the will relates to real and to personal property. » PRECEDENT FOE CITATION The People of the State op New York By the Grace of^God, Free and Independent. To the heirs and next of kin of deceased, Send Greeting: Whereas, (see § 2610) 396 surrogates' courts §353 who resides at , the City of New York, has lately applied to the Surrogate's Court of our County of New York, to have a certain instrument in writing, relating (§ 2610) to both real and personal property, duly proved as the last will f.nd testament of who was at the time of h death a resident of the County of New York, deceased. (If wiU be nuncupative, recite the fact, § 2610.) Therefore, you and each of you are cited to show cause before the Surrogate's Court of our County of New York, at the Hall of Records, in the County of New York, on the day of one thousand nine hundred and at half-past ten o'clock in the forenoon of that day, why the said will and testament should not be admitted to probate as a will of real and personal property. 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, Honorable a Surrogate of our said County of New York, at said county, the day of in the year of our Lord one thousand nine hundred and Clerk of the Surrogate's Court. Note. The original citation must be returned to the Probate Clerk before one o'clock P. M. on the day preceding the return day, with sworn proof of service. PRECEDENT FOR AFFIDAVIT OF SERVICE Surrogate's Court, County of New York. Note. — Outside the State of New York, a certificate must be procured from the proper official. Such cer- tificate must show that the officer taking the acknowledgment is an officer of the state where it is taken and is authorized by the laws thereof to take the acknowledgment of deeds; that said official is well ac- quainted with such officer's ha,nd- writing, and believes the signature to the original certificate is genuine. 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 of , being duly sworn, says that he is over the age of twenty-one years; that he made per- sonal service of the within citation in the above-entitled special proceeding on the persons named below, whom deponent knew to be the persons mentioned and described in said citation, by § 354 PKOCEDTJRB — UNCONTESTED PROBATES 397 delivering to and leaving with each of them personally a true copy of said citation, as follows: On the day of , 191 , at Specify clearly time On the day of 191 , at and place of service of each party served. On the day of 191 , at § 354. Intervention of interested parties. — (See, ante, discussion of Parties.) The practice in the Surrogate's Court is peculiarly favorable to the admission of parties claiming or having any interest in the estate. Lawrence v. Parsons, 27 How. Pr. 26. The line is usually sharply drawn between those who must be cited and those who may become parties, the first class being necessary for jurisdictional purposes, and with a view to the finality of the decree to be entered, the second looking to the protection of any whose rights might be prejudiced by the decree if they were not represented in the proceeding. Section 2511 provides generally for intervention (subd. 3, b and c) by persons, "whether named in the petition or citation, or not." 'Its terms are very general. It will include a foreign administrator. See Matter of Davis, 182 N. Y. 468. In Matter of Hoyt, 55 Misc. 159, an appUcation to intervene was denied when it- appeared that the applicant was interested in an "other paper purporting to be a will of the decedent" which gave him a legacy less than that given him by the will propounded and which for some mysterious reason he asked leave to contest. If probate be unopposed, yet notice thereof, before letters issue, must be given under § 2616, discussed below. If contested, notice, must be given under § 2618, discussed under Contested Probates. The right to inter- vene given by former § 2617 and now governed by §§ 2511 and 2618 has been held not to lay down a new rule but only to be a formulation in this respect of the law as it existed before the Code went into effect. Lafferty v. Lafferty, 5 Redf. 326; citing Booth v. Kitchen, 7 Hun, 255; Walsh v. Ryan, 1 Bradf. 433; Marvin v. Marvin, 11 Abb. N. S. 97; Children's Aid Society v. Loveridge, 70 N. Y. 387; Turhune v. Brookfkld, 1 Redf. 220. In the case first cited Surrogate Livingstone showed that under the act of 1837 (chap. 460, § 4), "an executor, devisee or legatee named in any last will or any person interested in the estate might have such will proved." As has already been said in another connection, a person claiming to be so interested must show to the satisfaction of the Surrogate that he comes within one of the classes described in the Code. If the person claiming to be interested tlaims under some testamentary document other than the will propounded, he must prove the provisions of the document under which he claims, so as to show the Surrogate the nature and extent of his interest. Matter of Hamersley, 43 Hun, 639. Status is an issue determinable on the threshold. Estate of Young, Cohalan, Surr., N. Y. L.^J., March 16, 1916 following Matter of Hamilton, 76 Hun, 200. 398 surrogates' courts § 354 In 1863, Surrogate Gideon J. Tucker held that if parties claiming to be interested filed a verified claim of interest and appeared in open court on the return day, the fiUng of the claim constituted the claimant a con- testant and a party to the proceedings, and his appearance constituted a waiver of service of a citation. Norton v. Lawrence, 1 Redf. 473. He further held that should his interest be disputed he was bound to prove his interest and that where issue was taken on the allegation of interest the evidence in relation to that question and that which related "to the proof of the will should proceed "pari passu. This has not been changed. The case of Jones v. Hamersley, 4 Dem. 427, contains a careful discussion by Surrogate RoUins showing a correct limitation on the rights of intervenors to raise questions in the proceeding for the determination of the Surrogate. Former § 2617 had for its object, not the protection of the rights of the next of kin, or heirs-at-law; for they were entitled to citation. It aimed to protect legatees and devisees under the will, who, t(ut for the provisions of this section might have no knowledge of the pendency of a proceeding in which a decree might be made rejecting the will under which they are beneficiaries. Cook v. White, 43 App. Div. 388, 390. Now the notice under § 2616 or § 2618 serves the same purpose in a measure. The precedent is as follows: Court. Title. Take notice that the last will and testament of deceased, has been offered for probate (or probated as the case may be) and that the names and post office addresses of the proponent and of the legatees, devisees and other beneficiaries, as set forth in the petition herein, who have not been cited, or have not appeared, or waived citation, are as follows: Dated. Attorney for petitioner. Office and P. O. Address. On reverse side is an affidavit of service, calling for time and place of service as to each and every person served. The new act omits, apparently, to cover the case where a will is pro- pounded, and the proof of factum fails and probate is denied. This defect can be remedied under § 2616, as it stands, by construing the words, "has been offered for probate, or probated, as the case may be," to mean the authorizing of a notice, before letters of administration issue, where pro- bate is denied, reading "has been offered for probate, and rejected .as not sufficiently proven." This would serve the full purpose. Formerly, where one was not required to be cited on probate, and did not in fact intervene, a decree, denying probate to a codicil was held, as to personalty, conclusive upon him, and § 2617 not applicable. Matter of § 365 PROCEDURE — UNCONTESTED PROBATES 399 Tildm, 32 Misc. 118, 119, citing Code Civ. Proc, §§ 2626, 2627; Vanderpoel V. Van Valkenburgh, 6 N. Y. 190; Marvin v. Marvin, 2 Abb. N. S. 100, 101; Hoyt v. Hoyt, 112 N. Y. 493; Post v. Mason, 91 N. Y. 539; Smith v. HiUon, 19 N. Y. St. Rep. 340. In 1910, §§ 2626 and 2627 were repealed and § 2625 amended so as to read: Surrogate's decision on probate. A decree admitting a will of real or personal property, or both, to probate is conclusive as an adjudication of the validity of the will, and of the questions de- termined under § 2624 of this act, except as in this chapter otherwise provided. The object of this rephrasing of this section and of the repeal of the other two sections was primarily to leave § 2653a as giving the only method (save appeal) of revoking probate. For the whole article on "revocation of probate" was also repealed. Section 2653a is now repealed as to mat- ters initiated since the act of 1914 went into operation, and the jury trial now permitted, and the most general conclusiveness given to all decrees (see discussion. Decrees) leads to the remark that since the Legislature has shown an intent to increase the conclusiveness of Surrogate's decrees ad rem the careful practitioner will endeavor to make them conclusive beyond question in personam, by making parties all coming within the permission of the Code; except in cases so clear; that the conclusiveness is outweighed by considerations of economy. § 355. The petition must be filed. — The practitioner having prepared his petition in the name of a person known to be qualified to propound the will, and having prayed for the citation of all necessary persons, and having exercised his discretion in regard to the citing of such other parties in interest upon whom he deems it necessary that the decree of probate when obtained should be conclusive, and having satisfied himself that the will is one of which the Surrogate of the county in which his application is made has jurisdiction, will commence his proceeding hy filing the petition; and it is good practice to file the will at the same time, it being required in New York County by Rule 4; and by Rule 5 in Kings County, where- upon the clerk of the Surrogate will prepare the citation and deliver copies thereof to the attorney for service. In the larger counties it is customary for the attorney to make the copies. The rules for the service of the cita- tion have been carefully elaborated, ante, q. v., as well as the rules govern- ing the return day. The practice in cases where new parties necessary to the proceeding are discovered after the filing of the original petition, is not by amending the petition, but by filing a supplemental petition imder which the additional party is cited. This can be done even after the decree admitting the will to probate has been made (Matter of Odell, 1 Misc. 390), upon an appHcation of course to open the decree and give the petitioner an opportunity of being heard in opposition. The modern practice is liberal as to permitting amendments, seasonably 400 surrogates' courts §§ 356, 357 applied for, to the petition. E. g., where petition erroneously states facts of residence. Matter of Rubens^ 117 App. Div. 523. The service of citation has a twofold object, first, to advise the party- interested of the proceeding, second, and equally important, to give the court jurisdiction of the persons served. Where it is necessary to file a supplementary petition and issue a supplementary citation, it is unneces- sary again to serve those over whom the court has already acquired juris- diction. See also § 2768, Code, subd. 10. Upon the discovery of the existence of an additional necessary party the proceeding is suspended until he is brought in the manner already specified. In the Matter of Odell, 1 Misc. 390. The practitioner should in the calculation of a return day, fix it at a time which will allow for the time of the service on the newly discovered person in interest. Should the return day as fixed by the service of the original citation be overlapped, it will be necessary to adjourn the original return day in order that all the parties may be represented upon one re- turn day. In the absence of infants, practitioners are again reminded of the great value in shortening proceedings in the Surrogates' Courts, by the use of waivers and consents; these waivers and consents should be carefully drawn and should cover the precise point contemplated, in which case they are conclusive upon the parties signing them, and are most efficient in expedit- ing proceedings in this court. § 356. Parties in interest under will other than that propounded — Con- solidation. — The idea of the statute is to enable the Surrogate to deter- mine in admitting a paper to probate that it is iii fact the last will of the decedent. It becomes therefore most important that the person claiming under some paper other than the one propounded as a will should either produce the same, or offer satisfactory proof to the Surrogate that the other paper under which he claims was in existence when the decedent died, or that it had been previously lost, or, without his procurement, de- sti-oyed. Hamersley v. Lockman, 2 Dem. 524. See also Matter of Ham- ersley, 43 Hun, 639; s. c, 7 N. Y. Rep. 592. To this end if two instru- ments in the nature of "testamentary scripts" are separately propounded, the several proceedings should be consolidated and tried, as one. Van Wert V. Benedict, 1 Bradf. 114. Equally if a person turns up with a codicil he seeks to propound. Carle v. Underhill, 3 Bradf. 101. But the Surro- gate will determine the order of proof, i. e., he may take up first the latter will. See Matter of Martin, 82 Misc. 574, 575. § 357. Return day. — It is necessary to repeat, in this connection, some of the rules already elaborated elsewhere as to the fixing of the return day: Section 2529 of the Code requires a citation to be served within the county of the Surrogate, or an adjoining county, at least eight days before the re- turn day thereof; if in any other county, at least ten days before the return day. This is quite irrespective of the question whether the person served is a resident or nonresident. A nonresident, if he is served within the §§ 358, 359 PROCEDURE— UNCONTESTED PROBATES 401 State, is brought within the Surrogate's jurisdiction. Matter of Washburn, 12 Misc. 242, 244, Silkman, Surr. Where the service is required to be by pubUcation, the service must be completed at least twenty days before the return day, if within the United States, and thirty days if without. But this does not mean that the return day must he fixed at a time to allow such service, where there are necessary parties known to be non- residents, or where a foreign corporation is intended to be served. If service can be secured upon them within the State, or admissions of the service duly acknowledged are filed, or a duly executed and acknowledged waiver of the issuance and service of the citation is filed, it is not compul- sory that nonresidents be served by publication, or that the longer period be regarded in fixing the return day. Matter of Washburn, supra. See Matter of Porter, 22 N. Y. Supp. 1063. The Code merely requires that the citation be made returnable upon a day certain, designated therein, not more than four months after the date thereof. Code Civ. Proc, § 2523. The citation must be issued and served within sixty days of filing the peti- tion, if the Statute of Limitation be involved. Section 2518, Code Civ. Proc, In re Bradley, 70 Hun, 104. And it is customary for the Surrogate to fix the return day, taking into consideration the time in which service may be made. Merritt's Will, 5 Dem. 544, 545. But if petitioner shows by affidavit that although there are nonresident parties, service may be made upon them within the State, the Surrogate has power to fix any day. within the limits, eight days and four months, which may suit his conven- ience and that of the proponent. Matter of Washburn, supra. § 358. Can petition, once filed, be withdrawn. — The will once filed, and the petition presented, and the parties cited, the Court has jurisdic- tion ad rem, and the proceeding cannot be withdrawn without its consent or authority. Hoyt v. Jackson, 2 Dem. 443; Raven v. Norton, Id. 110. But that consent or authority can be secured in a proper case. Heermans V. Hill, 2 Hun, 409. For example: If all the parties cited, being of full age, should ask that the proceeding be dismissed, no one appearing in support of the will, it would be the duty of the Surrogate to dismiss the proceeding. The same result would be produced if all the parties cited should formally admit that the will was not legally executed, or that the testator was in- competent; and the same may be said of a case where sufficient proof of those facts was iatroduced at the instance of one whom a rejection of-the will would not benefit. Matter of Long, 43 Misc. 560; 89 N. Y. Supp. 555. But so long as any person cited is before the SiKrogate in support of the will, he has no right, upon the motion of any other party, arbitrarily to arrest or dismiss the proceeding. Matter of Lasak, 131 N. Y. 624, 43 St. Rep. 101. It follows that after the petition for the probate of a will is filed with the Surrogate, and the proper parties cited can become actors, any of them can contest and produce witnesses in opposition to probate, and any can offer witnesses in support of the will and cross-examine those called in opposition. Matter of Lasak, supra. § 359. The hearing. — The hearing is usually begun upon the return 402 surrogates' courts §§ 360-362 day, but may be had on any subsequent day which may on the return day be designated. This is consistent with § 2768, subd. 10, defining "upon the return of a citation" as relating "to the time and place at which the citation is returnable, or to which the hearing is adjourned." The proofs of service of the citation or the proper waivers must be filed on or before the return day. And in New York County, Rule 5 requires that the probate clerk must have at least two days' notice in all probate cases where all parties in interest have waived the service of citation before the testimony of the subscribing witnesses will be taken. § 360. Special guardians in probate cases. — (See Pahtibs). Infant parties must be represented by guardians ad litem. Where there is no application prior to the return day on behalf of such an infant party the Surrogate will appoint a special guardian to protect the interests of the infant. It has been the practice to insert in citations to infants a clause advising them that in the event of their not appearing by general guardian and of their failure to ask for the appointment of a special guardian, such a special guardian will upon the return of the citation, be appointed by the Surrogate. Price v. Fenn, 3 Dem. 341, 345, Rollins, Surr. Under the new practice of designating a person to receive citation on behalf of an infant, §§ 427 and 2530, that person will be the one appointed speci^,l guardian. The New York Surrogate's Court by Rule XV announces the appoint- ment of special guardian where the general guardian does not upon his appearance conform to that rule in all respects. § 361. Citation only need be served. — Former Rule 3 in New York County provided that "no mandate issued out of this Court shall be deemed duly served, unless copies of the petition or other paper or papers upon which it shall be issued, and upon which reUef is sought, shall be served with it" . . . except in eleven cases of which (1) is." citation to attend probate." However, Fowler, Surr., in an opinion in the N. Y. Law Journal, Feb. 17, 1912, expressed grave doubts as to the court's right by special rule, to limit methods of service covered fully by the Code. (See ante, Citation, and §§ 2525-2531.) § 362. The examination of witnesses. — The Code provides, by § 2611: § 2611. Witnesses to be examined; proof required. Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify. Before a nuncupative will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. The proofs must be reduced to writing. Any party to the proceeding may request the oral examination of the subscribing witnesses to the will and may examine such witnesses and any other witness produced by the proponent before the surrogate, without first fiUng objections to the probate of such will. Former § 2618 of this Code, modified. From L. 1837, c. 460, §§ 10, 11; L. 1841, c. 129, §§ 1, 2, 3; L. 1913, c. 412. The act of 1914 eliminated what, under former § 2618, were called "Sur- § 363 PROCEDURE — UNCONTESTED PROBATES 403 rogate's witnesses," the anomalies in respect to whose status were well analyzed by Fowler, Surr., in Matter of Hermann, 83 Misc. 283. The provision that the Surrogate must cause the witnesses to be ex- amined before him does not debar him from devolving this duty upon the clerk of the court in uncontested cases, or where all the parties entitled to be cited are before the court. This right he is intended to have under § 2502, subd. 5, which provides: "In any proceeding of which the court has jurisdiction, he (the clerk) may administer oaths, take affidavits, testimony and depositions." The framers of the act of 1914 state that this was intended to be a substitute for former § 2510, which related specifically to uncontested probate. This power is exercised in the county of New York by the Probate Clerk. The power was originally not given in all the counties of the State, but in 1894,' § 2510 was amended by leaving out the words of special designation, ' and it became applicable to the clerks of all Surrogates' Courts/ and by the amendment of 1887 (chap. 701) to § 2546 of the Code, the Surrogate in New York County was given power to direct an assistant to take and re- port the testimony in probate cases. This power was valid. The assistant is known as the probate clerk. He has no authority to" pass upon the issues involved. Section 2536, Code. [This section refers to the Surro- gate's power in N. Y. County, on consent of all the parties appearing, to direct an assistant, or a referee to take and report the testimony.] Nor have the clerks generally under the new act. The object of the original amendment, which was prepared by Judge Rollins, was stated by Surrogate Ransom (Matter of Allemann, 1 Connoly, 441), to be to enable the Surrogate 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- ■ burdeiied. Consequently, the words in § 2536, that the assistant is without au- thority to pass upon the issues, do not prevent him from passing upon objections to the admissibility of evidence. Matter of Allemann, page 443. Nor do the words, "on the written consent of all the parties appearing," refer to the designation of the assistant but only to the appointment of a referee. , Ibid. § 363. What witnesses to be examined. — Two, at least, of the subscrib- ing witnesses must be produced and examined, if so many are within the State and competent to testify. Section 2611. Two, and no less, are , required to prove the "execution and tenor'- of a nuncupative will. Ibid. See learned opinion by Ketcham, Surr., in Matter of O'Connor, 65 Misc. 403 (with bibUography for the antiquarian). They must be produced by the proponents, not in pursuance of any mandatory requirement of law, but because there can be no probate until tlxey are produced and examined, and the Surrogate is satisfied of the genuineness of the will, and of the vaUdity thereof. Section 2614, old 404 surrogates' courts §§ 364, 365 § 2618, is modified by omitting the provision under which a respondent could require the production "of any other witness, whose testimony the Surro- gate is satisfied may be material." See, as to operation of this rule, Hoyt V. Jackson, 2 Dem. 443, 455; Matter of McGovern, 5 Dem. 424, 426. If the proponent cannot produce the necessary subscribing witnesses he must satisfy the Surrogate of the sickness, death, absence from the State, lunacy, or other incompetency of such witness in the manner required by § 2612. For, in the absence of such explanatory proof, probate will be refused. Graber v. Horn, 2 Dem. 216, Rollins, Surr. § 364. Incompetency of witness, how shown. — The provisions of § 2612 are as follows: § 2612. Absent, etc., witnesses to be accounted for; dispensing with testimony; commission; proof of handwriting. The death, absence from the state, or incompetency by reason of lunacy, or otherwise of a subscribing witness required to be examined as prescribed in this or the last section, or the fact that such witness cannot, with due diligence, be found within the state, or cannot be examined by reason of his physical or mental con- dition may be shown by affidavit or other competent evidence, and when so shown to the satisfaetion of the surrogate, the surrogate may by an order entered in the minutes or recited in the decree dispense with his testimony; or in a case where such witness is absent from the state and it is shown that his testimony can be obtained with reasonable diligence, the surrogate may, in his discretion, and shall upon the demand of any party, require his testimony to be taken by commission. Where iJhe testimony of a subscribing witness has been dispensed with as provided in this section, and one subscribing witness has been examined,' the will may be ad- mitted to probate upon the testimony of such subscribing witness alone. If all the subscribing witnesses to a written will be dead, or incompetent by reason of lunacy or otherwise, to testify, or unable to testify, or are absent from the state and their testimony has been dispensed with as provided in this section, or if a subscribing witness has forgotten the occurrence, or testifies against the execution of the will, or was not present with the other witness at the execution of the will; 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. • Former §§ 2619, 2620 of this Code, modified. From L. 1837, c. 460, §§ 10, 11, 20; L. 1882, c. 399; L. 1888, c. 508; L. 1902, c. 114. It is to be noted that the Surrogate's order dispensing with the testi- mony of a subscribing witness is quite discretionary. If a respondent averred that the "absence from the state" was pecuniarily induced, the Surrogate could refuse the order. § 365. The examination. — It is not necessary that the Surrogate should primarily make any order requiring the attendance of the subscribing wit- nesses. It is the proponent's duty to produce them. Matter of McGovem, 5 Dem. 424. But if such witnesses refuse to attend, the Surrogate has power to compel their attendance by subpoena, and to pimish them for contempt in case of disregard of the subpoena when served. The require- ment of § 2611 as to the producing of two witnesses is limited by the words "if so many are within the State" except as above pointed out in reference § 366 PROCEDURE — UNCONTESTED PROBATES 405 to nuncupative wills. See Swenarton v. Hancock, 22 Hun, 38, construing similar provision before the Code, "if so many are living within this State." If they are, the testimony of neither can be dispensed with {Chapman v. Rodgers, 12 Hun, 342, 345) unless, it seems, by express waiver of all parties entitled to citation, being of full age (Id.), in which case the Surrogate would be bound to inquire more particularly into all the facts and circum- stances in corroboration of the witness examined. And even though the subscribing witnesses are examined, there is no rule forbidding the introduc- tion of other witnesses to the due execution of the will. Reeve v. Crosby, 3 Redf. 74, 77, citing Trustees of the Theological^Seminary v. Calhoun, 25 N. Y. 422; Peebles v. Case, 2 Bradf. 226. § 366. Competent subscribing witnesses. — Section 2611 further limits the compulsory production of -"two at least of the subscribing witnesses," by the wOrds, "competent and able to testify." The courts have freely construed the word "competent." Thus, while an attorney is prohibited by §§ 835 and ^36 of the Code from disclosing communications made by his client to him, or his advice thereon, unless the client waives his privilege yet the Court of Appeals held in Matter of Coleman, 111 N. Y. 220, that the request to his attorney to sign as a subscribing witness was to be deemed a waiver of the statute, and Surrogate Ransom held {In re Lamb's Will, 18 N. Y. Supp. 173), that such waiver extended "to all communications and transactions had between the testator and his attorney having refer- ence to the paper under consideration." (See post, under Lost Will.) But § 836 of the Code was amended to meet the rule laid down by the Court' of Appeals (see Laws 1893, chap. 295), by providing that "nothing herein contained shall be construed to disqualify an attorney in the pro- bate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its prepara- tion and execution in case the attorney is one of the subscribing witnesses thereto." Section 836, Code Civ. Proc. See In re Gagan's WiU, 20 N. Y. Supp. 426. This amendment was thus merely declarative of the law as it was stated to be in the Coleman case. But it was held {Matter of Sears, 33 Misc. 141), that unless an attorney who drew a will was such subscribing witness, he cannot testify to its execution by his client. See Matter of O'Neil, 26 N. Y. St. Rep. 242. And where he was not a witness, and seeks to testify to contents of a lost will the waiver as to execution does not ex- tend to publication of contents, since they were not published, and his mouth is sealed, if objection be made. Matter of Cunnion, 61 Misc. 546, aff'd 135 App. Div. 864, 201 N. Y. 125, q. v. The whole subject is re- viewed, the successive amendments narrated, and the foregoing rule re- asserted in this case in the Court of Appeals in a very able and illuminating opinion by Chase, J., q. v. The rule given by Mr. Wigmore in his work on Evidence is admitted to be reasonable, i. e., that the confidential rela- tionship, after the testator's death, does not call for silence as to the execution and tenor of the will. His duty rather demands full disclosure. But the Legislature alone can remove the seal imposed by §§ 835 and 836. See, 406 SUREOGATES' COURTS §§ 367, 368 also, Matter of Seymour, 76 Misc. 371; Matter of Francis, 73 Misc. 148, 153. § 2545. A person is not disqualified or excused, from testifying respecting tlie execution of a will, by a provision therein, whether it is beneficial to him or other- wise. Former § 2544. This section limits the testimony which such a person is not disqualified from giving, to that relating to the execution of a will. Its terms clearly refer only to subscribing witnesses to a will (Matter of Eysaman, 113 N. Y. 62, 75), and was intended to make all such witnesses competent to testify in a Probate Court to the execution of the will, however their interest might arise. It was not intended, however, to operate as a repeal of § 829 (Cad- mus V. Oakley, 3 Dem. 324, 328), prohibiting legatees or devisees from testi- fying concerning any personal transaction or communication between the witness and the decedent. Ruger, Ch. J., observed in Matter of Eysaman, supra: "The evidence authorized to be given by (former) section 2544 refers to that given in Surrogates' Courts alone, and relates solely to the subject of the execution of the will," and he points out that the reason for exempting subscribing witnesses from the application of the general rule of exclusion, made by § 829, is obvious, as their testimony is made indis- pensable, if obtainable, to the probate of a will under (foraier) §§ 2618 and 2619. § 367. Same subject. — While a legacy, devise, interest, or appointment of any real or personal estate made in a will to a person who is a subscrib- ing witness thereto is void when the will cannot be proved without thte testimony of such witness (2 R. S., ch. 6, title 1, § 50), such person is^ever- theless a competent witness respecting the execution of the will and can be compelled to testify respecting its execution. Ibid.; Matter of Eysaman, 113 N. Y. 62, 76. So an executor who is a subscribing witness, is competent to prove the execution of the will. Levy's Will, 1 Tuck. 87; Children's Aid Society v. Loveridge, 70 N. Y. 387; McDonough v'. Loughlin, 20 Barb. 238; Rugg v. Rugg, 83 N. Y. 592. And the commissions to which he is entitled do not constitute such a beneficial interest as to disqualify him. Reeve v. Crosby, 3 Redf . 74. Where he is a legatee, but only to the extent of a sum specified to be by way of compensation for his services as exec- utor, although in addition to his lawful commissions, the same is true. Pruyn v. Brinkerhoff, 57 Barb. 176. § 368. Dispensing with testimony of subscribing witness. — Section 2612, above quoted, permits the dispensing with the testimony of a sub- scribing witness who is proved, to the satisfaction of the Surrogate, to be dead, absent from the State, a lunatic, or incompetent under some provision of the law to testify or who, it is proved, cannot after due diligence be found within the State or elsewhere. In Matter of Francis, 73 Misc. 148, 152, Fowler, Surr., passes on suffi- ciency of official "death certificates" in this regard. But when such a witness's testimony has been dispensed with, the will need not fail of probate for lack thereof. His testimony, when he is merely § 369 PEOCEDURE — €NCONTESTfib PROBATES 407 absent from the State, may, if it appears it can be done, be taken by com- mission. But in all other cases the will is established by the methods provided by § 2612 (see § 369 below). Section 2770 of the Code makes applicable, in Surrogates' Courts, the provisions of §§ 887-913, which relate to taking depositions without the State for use within the State, as well as §§ 870-886 which relate to deposition taken and to be used within the State. (See former § 2538.) Where, therefore, a necessity arises for taking testimony in this way for use in the Surrogate's Court the practitioner will resort to the ordinary practice. Matter of Plumb, MUun, il7. The rule as to "due diligence" or "reasonable diligence," is expressly emphasized in § 2612. Leslie v. Leslie, 15 Week. Dig. 56. The applicant must offer an affidavit showing the necessity for the commission. It may be made by the party or by his attorney, or his agent. Eaton v. North, 7 Barb. 631; Ball v. Dey, 7 Wend. 513; Rule 24, Hun's Rules. The Surrogate has discretionary power to grant a stay pending the execution of the commission, which he may re- voke, if it is not diligently proceeded with. Notice of the appUcation must be given to the other parties to the proceeding. Code Civ. Proc, § 889. After hearing the parties, or upon the stipulation, if it issue on consent, the Surrogate will make an order which will contain directions as to interroga- tories if they be required. Or he may allow an open commission, upon oral questions, Code Civ. Proc, § 893. The proposed interrogatories and cross- interrogatories may be settled by consent, or by the court upon notice. The commission issues under this order, and indorsed upon it are the di- rections for executing the same directed to be annexed by §§ 901 and 902, Code Civ. Proc. The commission must be made under the seal of the court. M. & H. 0. Co. v. Pugsley, 19 Hun, 282. But this can be waived. Churchill v. Carter, 15 Hun, 385. § 369. When subscribing witness's testimony not to be dispensed with. When a subscribing witness is within the State but is, by reason of age, sick- ness, or infirmity, disabled from attending, or, as § 2612 puts it, "cannot be examined by reason of his physical or mental condition," such disability must be proven to the satisfaction of the Surrogate by affidavit or other competent evidence. Code Civ. Proc, § 2612. The testimony of such a witness where it is required, if he be able to testify, must be taken in the manner prescribed by law and produced before the Surrogate as part of the proofs. The manner of taking the testimony of such an aged, sick or infirm witness is expressly prescribed. Code Civ. Proc, §§ 2543, 2544. Upon proof by affidavit to the satisfaction of the Surrogate that the testimony of the witness is material and necessary, and that he is unable to attend and is a resident of the county, the Surrogate may proceed to the place where the witness is, and there, as in open court, take his examination. Provision is expressly made that such notice of the time and place of this examination must be given as the Surrogate may prescribe to any parties who have appeared in the proceeding, or to any party to whom the Surro- gate in his discretion requires notice to be given. 408 subrogates' courts §§ 370, 371 § 370. Same. — Where all these facts are shown to the satisfaction of the Surrogate with the exception that it appears that the subscribing witness to the will is in another county, it is provided that 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 tbe Surrogate of the county in which he is. (See § 2544, ante, for full discussion). Such order must specify a day on or before which a certified copy thereof must be de- livered to the Surrogate designated, and should direct to whom, and the manner in which, the notice of the examination is to be given. The Surro- gate must then transmit a copy of this order, attested by the seal of his court, to the Surrogate whom he has designated, together with the original will. The Surrogate designated, upon the day specified in the order, or upon an adjourned day designated in his own discretion, must take the examina- tion of the witness as if he possessed original jurisdiction of the probate proceeding in cases where objections have been filed, and it so appears in the order. But he may do it vice any clerk mentioned in § 2502. The examination must be reduced to writing and subscribed by the witness or otherwise duly authenticated, and must be certified by the Surrogate tak- ing the examination, together with a statement of the proceedings upon the execution of the order designated; and these papers, attested by the seal of the Surrogate who took the examination, must be returned without delay, and with the original will, to the original Surrogate, by whom all the papers must be filed. See § 2544 as to alternative power to appoint a referee. § 371. Section 2612, second half. — This section is quoted in § 364, ante. It covers possible probate where all the subscribing witnesses fail by reason of: ' (1) Death, (2) Incompetent (lunacy, etc.), (3) Unable to testify, (4) Absent from the State. And an order made dispensing with their testimony, or (5) Forget the occurrences re factum, (6) Testify against execution, (7) Or one was absent when other witness signed. In such cases: 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 wiU upon the trial of an action. See Matter of Reynolds, 87 Misc. 669. Beckett, Surr., decided an interesting case of this kind, of a will over forty years old, a full attestation clause, t\yo of the witnesses dead, and thejihird leaving the State in 1868 and reported dead. See Matter of § 372 PROCEDURE-— UNCONTESTED PROBATES 409 Leaird, 58 Misc. 477: He held that declarations of the testator as to the existence of the propounded paper were competent, citing Matter of Briggs, 47 App. Div. 49; Matter of Foley, 55 Misc. 168; Matter of Nelson, 141 N. Y. 157. See also Rider v. Legg, 51 Barb. 260. This section, formerly 2620, is substantially an embodiment of the pre- existing statutes {Rolla V. WrigM, 2 Dem. 482), but differs in one material respect. The former statute provided for the proof of the handwriting of a necessary subscribing witness who "should be shown to reside out of the State." Under this statute it was held that mere absence from the State of such a witness, a resident of the State, would not authorize the Surro- gate to admit such proof. Stow v. Stow, 1 Redf. 305. But the incon- venience of such a rule led to the enactment of the law as it now stands. Where the necessary witness is absent frqm the State and the Surrogate is satisfied that, his testimony cannot with due diUgence be taken by com- mission, he may dispense with his testimony, and take proof of his hand- writing Mth that of testator under § 2612. In determining this question the Surrogate will construe "due diligence" not only in reference to the efforts of the proponent to ascertain the whereabouts of the witness, but also in regard to whether the proceedings will be unreasonably delayed. The Surrogate may permit resort to the proof allowed by this section where it is shown to his satisfaction that the absence of the witness from the Btate has been procured by persons interested in delaying or defeat- ing the probate of the will, Matter of Dates, 12 N. Y. Supp. 205, and may refuse it if proponent is shown to be trying to avoid producing the witnesses. In Matter of Briggs, 47 App. Div. 47, the subscribing witnesses to the will were dead. It was held that former § 2620 gave the Surrogate the right to admit a will on less evidence than if both witnesses were living, by the words "of such other circumstances as would be sufficient to prove the will upon the trial of an action." The court says, at p. 50, "A will may be established upon the trial of an action by ordinary common-law evidence from which its execution may reasonably be inferred by the jury, although that evidence is given by but one witness," citing Harris v. Harris, 26 N. Y. 433; Jackson v. Vickory, 1 Wend. 406, 412. That is, the question will be whether, upon the whole evidence, the jury may fairly infer that the requirements of .the statute have been complied with. Upton v. Bern,:- steinj 27 N. Y. Supp. 1078. See also Matter of Foley, 55 Misc. 162. In the Briggs case the court held that declarations of the decedent as to the execution of the will, were competent in support of due execution, and afforded as strong an inference as to due execution as one derived from an attestation clause had there been one. In Matter of Law, 80 App. Div. 73, the court states the rule as to when an action under § 1861 is the only pro- cedure to adopt. And in Matter of Ellery, 139 App. Div. 244, Jenks, J., carefully defines the character and degree of essential proof to estabUsh a holographic will, no attestation clause and witnesses dead, § 372. The proof required to establish uncontested will. — (See " Con- tested Probates" as to examination of witnesses in such cases.) Where 410 SURBOGATBS' COURTS § 372 there is no contest, the proof required to satisfy the Surrogate is to h6 addressed to two points, (a) The genuineness of the will. (b) The validity of its execution. Section 2614 which prescribes this confers upon the Surrogate the power to require in his discretion further proof. It is as follows: § 2614. Probate not allowed ur/,less surrogate satisfied. Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will, and the validity of its execution. 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 peti- tion and citation require, and must be recorded accbrdingly. The decree admitting it to probate must state whether the probate was or was not' contested. >< Former §§ 2622, 2623 of this Code, consolidated and modified. From L, 1837, c. 460, §§ 17, 10; 2 R. S. 58 (Part 2, c. 6, tit. 1), § If; L. 1877, c. 206, §2. Former § 2622 gave additional specific power to inquire into the facts as to "execution, delivery and possession": of the will. In this connection we observed in 1913: In view of the language of the Court, in Matter of Cunnion, 201 N. Y. 125, above referred to, as to the reasonableness of the rule as stated by Mr. Wigmdre, though negatived by §§ 835 and 836 of the Code, query, whether under the language of the last paragraph of this § 2622, the lawyer who drew the will if fie received it from testator, though not a witness, may not, on the Surrogate's own motion, be required to testify to the circumstances attending the execution in spite of the seal of the statute? The genuineness of the will propounded is usually established by the identification of the instrument by the witnesses when identifying their signatures as witnesses. But § 2614 enables the Surrogate, where that means of satisfying him fails by reason of failure of memory or of vague- ness of the proof, or where one or both witnesses are dead, to fix the gen- uineness of the instrument not only by proof of the handwriting of the testator and the witness or witnesses, but by tracing it back through the proponent and the person who obtained the will from the testator; as, for example, the attorney who drew the will, who would be quite competent to testify to the fact that the will propounded is the will he drew and the testator signed. See Matter of Way, 6 Misc. 484. This is so under the act as it stands for "all the facts arid circumstances" as to "genuineness" are words of most comprehensive import. In Matter of Burbank, 104 App. Div. 312, the court lays down the rules as to proving the si^ature. 1. By having seen the party write. 2. By familiarity with authenticated signatures. 3. By comparison, by a qualified expert. :: See also discussion in dissenting opinion by Hiscocki J., in Matter of Bur'tis, 107 App. Div. 51, 70. The proof necessary to satisfy- the Surrogate § 372a PROCEDURE-^UNCONTESTED PROBATES 411 as to the validity of the execution of the will must of course be addressed to the various requirements of execution under the statute and is discussed in full in the next chapter under contested probates. § 372a. The deposition in uncontested cases. — ^Every Surrogate's Court has its own forms. The precedent submitted is satisfactory in prac- tice, and conforms to the Act. 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. County and State of New York, ss. : of , being duly sworn as a witness in the above-entitled matter, and examined on behalf of the applicant to prove said will, {or the proponent), says: I was acquainted with the above named " now de- ceased. The subscription of the name of said decedent to the ihstrument now shown to me and offered for probate as (if need be say, as a codicil to) h last will and testament, and bearing date the day of in the year one thousand nine hundred , ( ) was made by the decedent at the City of New York, on the . day of in the year one thousand nine hundred and , in the presence of myself and the other subscribing witness. At the time of such subscription the said deced- ent declared the said instrument so subscribed by h to be " h last will and testament; and I thereupon signed my name as a witness at the end of said instrument, at the request of said decedent, and in h presence. The said decedent at the time of so executing, said instrument, was upwards of the age of twenty-one years, and in my opinion of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will. I also saw said , the ot'her subscribing witness , sign h name as witness at the end of said will, and know that he did so at the request and in the presence of said decedent. I knew said decedent for years before the execution of said instrument. Witness sworn and examined before me 1 this day of 191 j Assistant to the Surrogate, New York County. If no objections be filed § 2546 operates. The uncontroverted aver- ments of the petitioner and of the depositions " constitute due prpof." If there has been an infant represented by special guardian the special guardian should file a report substantially as follows: 412 surrogates' courts § 373, Court: ;, Title. I Special guardian's report. I, 'i^ttorney and Counsellor at LaW;' hereto- fore appointed the special guardian of; the infant ^ ; ■ for the purpose of appearing for . . , : , herein ^nd ,protept>-, 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. • § 373. Proof of lost or destroyed will. § 2B13. Vroo} of lost or destroyed will. A lost or destroyed will can be admitted to probate in a surrogate's court; but only in a case where a judgment establishing the will could be rendered by the su- preme court, as prescribed in section 1865 of this act. Former § 2621 of this Code. From L. 1870, c. 359, -§8. Section 1865 provides as follows: § 1866. Proof of lost will in certain cases. But the plaintiff is not entitled to a judgment, 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. The Surrogate's power to admit to probate a lost or destroyed will is purely statutory. Hatch v. Sigman, 1 Dem. 519. As are also the mode of procedure, the proof required and the restrictions imposed. He had no power before 1870. The provisions of the Code, §§ 1861, 1865, relating to actions to establish a will, govern the proceeding. Matter of Ascheim, 75 Misc. 434 ; citing Matter of Kennedy, 167 N. Y. 163, 168. Surrogate Spring summarized the rules governing such cases as follows (Hatch v. Sigman, supra, p. 521) : "First. Where a will, duly executed, has been lost or destroyed, by ac- cident or design, before it was duly proved and recorded within this State, an action to estabhsh it may be maintained. Code Civ. Proc, § 1861; Vowhees v. Voorhees, 39 N. Y. 463, affirming 50 Barb. 119. "Second. Since the enactment of the Code of Civil Procedure, proceed- ings to establish lost or destroyed wills can be entertained in a Surrogate's Court. Code, former § 2621. "Third. Petitioner is not entitled to a decree establishing; such will, § 373 procbduke — uncontested probate 413 unless list;, the will was in existence at testator's death, or 2d, was fraudu- lently destroyed in his lifetime; and, in either case, its provisions must be elearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. Code, § 1865; Kerry v. Dimm, 37 N. Y. Supp: 92. "Fourth. The power of a court to admit to probate a lost or destroyed will exists only in the cases I have mentioned." Timon v. Claffy, 45 Barb. 438i 446; Harris v. Harris^ 36 Barb. 88, 97. See also, later case of Matter of Granacher, 74 App. Div. 567, aff'd 174 N.Y. 504. . In entertaining, applications then under § 2613 to establish alleged lost or destroyed wills. Surrogates must not relax the rules by which they are governed in admitting wills that are actually producible before them. See Matter of ReiffeU, 36 Misc. 472. But, on the contrary, they will re- quire unmistakable evidence of the existence of a properly executed will {Matter, of Purdy, 46 App. Div. 33), and "clear and distinct" proof of its provisions. See Sheridan v. Houghton, 6 Abb. N. C. 234; McNally v. Brown, 5 Redf. 372. It is not necessary that the witnesses should re- member the exact language used by the testator; but they must be able to testify at least to the substance of the whole will, so that it can be incor- porated in the decree, should the will be admitted to probate. See Matter ■of Waldron, 19 Misc. 333. In Matter of Purdy, supra, probate was denied because there was no evidence that the signature was made in the presence of both witnesses, or that decedent acknowledged his signature, nor was there sufficient proof of the will's contents under § 1865. Mere proof of the existence of the will is not alone sufficient. See Matter of Schofield, 72 Misc. 281, where one of two dupUcate wills, i. e., the one -testator had himself kept, was notiound. Held destroyed, animo revocandi. It must be shown to have been, lost, or fraudulently destroyed. If a will caninot: be found which is known to have existed, the only presumption is that it was destroyed by the testator animo revocandi. Matter of Kennedy, 167 N. Y. 163, aff'g 53 App. Div. 105, and 30 Misc. 1; Matter of Nichols, 40.Huh, 387, 389, .citing Idley v. Bowen,ll Wend. 227; Holland v. Ferris, 2 Bi-adf. 334; Hatch v. Sigman, 1 Dem. 518, 530; citing Betts v. Jackson, 6 Wend. 173; BulMey v. Redmond, 2 Bradf. 281; Schultz v, SchuUz, 35 N. Y. 653; Hard v. Ashley, 88 Hun, 103. See also Collyer v. Cdlyer, 110 N. Y. 481, 486; Knapp v. Knapp, 10 N. Y. 276. See also Matter of Ascheim, 75 Misc. 434. This presumption may be overcome by proof of the deposit of the will after execution with a custodian and that the testator had there- after no access to it. Or, as the rule is stated "it may be rebutted by sufficient evidence to the contrary." Matter of Cunnion, 201 N. Y. 123. The burden ofrebuttal ison those "who maintain the continuation of the will as an inceptive legal instrument." Matter of Ascheim, supra. In the Keimedy case, supra, li. was held that it was incompetent to prove the ex- istence of the will by declarations of the decedent (see opinion, reviewing ,oases)!j--i I . - /;■,■',„ 414 surrogates' cotjrts § 374 This is not at variance with Matter of Cosgrove, 31 Misc. 422. In that case there was evidence by disinterested witnesses that the will was, upon execution, handed to the d!secutor named in it, and there was no evidence that it ever returned into the possession of testatrix. A week before her death it was proved she spoke of the will as in such executor's possession, and as satisfactory to her. Thomas, Surr., held that such declarations w'ere competent to rebut any inference of revocation arising from the loss of the will, occurring while the executor had it, citing Betts v. Jackson, 6 Wend. 173, 187, 188; Matter of Marsh, 45 Hun, 107. But the proof as to its loss or destruction must be such as to counteract the presumption of laiwfill intent to revoke, if it occurred before the alleged testator's decease. ' In other words, "He who seeks to establish a lost or destroyed will as- sumes the burden of overcoming this presumption by adequate proof." Collyerv. Collyer, 110 N. Y. 481, 486. So if 'the evidence is conflicting and vmsatisfactory, particularly as to its contents, the application must fail. But the rule is liberal to this extent, that if the witnesses recollect the sub- stantial disposition of the property, and the names of the beneficiaries, the Surrogate is justified in decreeing it as proved. So Surrogate Livingston held that § 1865 should receive a liberal con- struction, and the words "its provisions" must be "clearly and distinctly proved, " should be deemed to refer to the disposing provisions of the will, and not necessarily to the appointment of an executor. Early v. Early, 5 Redf. 375, 386. See Matter of Purdy,A& App. Div. 33. But where no two witnesses prove all the provisions, or prove any of them with sufficient clearness to enable the court to more than surmise the nature of the will, probate must be denied. McNally v. Brown, 5 Redf. 372. It will not suffice to prove one provision by two or more witnesses, and another pro- vision in the same way by others, but each of the witnesses must be able to testify to all the disposing parts of the will. Collyer v. Collyer, 4 Dem. 53; Matter of Ruser, 6 Dem. 31, 33. In Matter of Kent, 89 Misc. 16, held this provision not applicable to parts which were cut out of the will pro- pounded, and are missing. Declarations of the testator as to its contents are not admissible (td.). So where the lawyer who drew the alleged lost will testified that "it either gave the whole estate to the wife absolutely, or it gave it to her for life with the remainder to the children," Surrogate Coffin observed that: this testimony "lacks the elements of clearness and distinctness which the statute exacts." Matter of Ruser, supra. See Grant v. Grant, 1 Sand. ^ti. 235. See discussion by Beekman, J., of credible evidence in such a case. Kahn v. Hoes, 14 Misc. 63. See Matter of Cunnion, 201 N. Y. 125; opinion of Chase, J. § 374. Existence of will at testator's death. — The Court of Appeals has held, that where a will has been lost or destroyed, under circumstances slibwing that it was not done with the knowledge or consent of the testator, it may be established as his will whether the loss or destruction took place before or after his decease. Schultz v. SchuUz, 35 N. Y. 653. Section 186S § 375 PROCEDURE— UNCONTESTED PROBATES 415 prescribes. that such a wiir cannot be established "unless the will was m existence at the time of the testator's death, or was fraudulently destroyed in his lifetime." This, therefore, limits the case of fraudulent destruction as a ground for nonproduction of the will offered for probate to that tak- ing place in testator's lifetime. It must also be a fraud as to the testator. Matter of De Grootj 9 N. Y. Supp. 471. A destruction without his knowledge or consent and in disregard of his intention, is such a fraud. Early v. Early, 5 Redf. 376. But mere proof of opportunity to destroy, or motive to destroy, is not enough to satisfy the statute, though it may have evi- dential weight in connection with other evidence. The burden of proof of "clear and distinct" proof, is on the person claiming under the alleged will. Collyer v. Collyer, 110 N. Y. 481, 486; Belts v. Jackson, 6 Wend. 173 ; Knapp V. Knapp, 10 N. Y. 276. See also "Contested Probates, " post. § 375. Due execution must be proved. — The Surrogate must require satisfactory proof that the will was executed as required by our statutes. In this regard there is no distinction between a lost will and one actually laid before the court, excepting that the court and the witnesses are de- prived of the substantial aid to memory given by the sight of the will and of the recitals of an attestation clause. See Early v. Early, 5 Redf. 376, and cases discussed. Surrogate Rollins (Matter of Paine, 6 Dem. 361) out- lined the issues to be determined in a given case, substantially as follows: 1. Did the decedent, on a given day, execute, in compliance with the requirements of law, a written instrument as and for his last will and testa- ment? 2. If he did so execute such instrument, did he, at the time of such exe- cution, possess the testamentary capacity requisite 'for making a valid will? 3. If he did so execute such instrument, was he induced so to do by undue influence or fraud? 4. If not, have the provisions of such instrument been clearly and dis- tinctly proved, as required by § 1865 of the Code of Civil Procedure? 5. If such instrument was so executed, was it in existence at the time of the decedent's death? 6. If such instrument so executed was not in existence at the time of this decedent's death, had it been fraudulently destroyed in his Ufetime? The statement of these issues indicates in general terms the issues the proponent of a lost will or destroyed will must undertake to meet, and all of which he must meet by affirmative evidence. Counsel cannot stipulate the contents of a will, although it is proved that there was a will, and that it was duly executed. Matter of Ruser, 6 Dem. 31. In this case the draughtsman of the will, an attorney, was doubtful whether the testator gave his estate to his wife absolutely or for life. , Coun- sel for all parties entered into a stipulation that the testator left his estate to his widow for her life with a remainder to his children. Surrogate Coffin very properly held that the statute. contemplated no such royal road to probate and refused to give force to the stipulation. Section 835 of the 416 surrogates' courts § 376 Code does not, in such a case, render the draughtsman of thejwill,ran at- torney, incompetent to testify as to what took place at the. time of execu- tion." Matter of Barnes, 70 App. Div. 525, 528, citing HurlburiY. H'urWurt, 128 N. Y. 424; Rosseau v. Bleau, 131 N. Y. 183; Matter of Chase,;4l Hun, 204; Sheridan v. Houghton, 16 Hun, 628, aff'd 84 N. Y. 643; Hebbardv. Haughian, 70 N. Y. 55. But in this case the incompetency was shown to have been waived by the testator at time of execution. In Matter of Eldred, 109 App. Div. 777, the will involved, was holo- graphic. There was no attestation clause. The witnesses testified some- what unsatisfactorily. But the probate was sustained. See opinion at p. 780. In Matter of Halstead, 51 Misc. 542, the Surrogate found the will had been in existence; he found its contents and thatit had been destroyed after decedent's death. But as both the witnesses were dead and there was no proof of their handwriting he refused probate. Where there is an attestation clause, see, for discussion of presumptive effect thereof: Matr- ter of Abel, 136 App. Div. 788; Matter of Sizer, 129 App. Div.. 7, aff'd 195 N. Y. 528. See ante, discussion of Due Execution. § 376. Proof of codicil to or revocation of alleged lost or destroyed will. — In case, upon an application to prove a lost or destroyed will, one opposing its probate sets up an alleged codicil or a revoking clause in a later but also lost will, the question becomes material whether this cbdicil or later will and its execution and contents must be established in the same way and under the same rules required in order to the adihission of the will sought to be probated. > ■ . : r Surrogate Rollins intimates that it is not necessary, but that " any legal evidence which satisfies the Surrogate of the existence of a will executed subsequently to one offered for probate is sufficient also to justify the denial of probate to the earlier paper." And he held {CoMgah v. Mc- Kernan, 2 Dem. 421, 425), that it was not, accordingly, necessary that two witnesses should testify as to the contents of the later instrument, nor was it necessary to show that such instrument was in existence at the: time of the testator's death, nor that, if not then in existence, it had been fraud- ulently destroyed in his lifetime. He bases this decision upon the decision of the Court of Appeals in Harris v. Harris, 26 N. Y. 433, which held that the statutory provision respecting the mode of estabUshing lost wills re- lated only to the special proceeding pointed out by the. statute andfdid not abolish the common-law rule of evidence, which allowed the proof of p, lost will by a single credible witness. See Jackson v. Le Grange^ 19 Johns. 386; Dan v. Brown, 4 Cow. 483; Jackson v. Betts, 6 Cow. 377; Chapman v. Rodgers, 12 Hun, 342, 347; Fetherly v. Waggonel; 11 Wend. 599. The learned Surrogate accordingly declared he would admit parol evidence of the execution of a later will as well as of the fact that it contained a revok- ing clause. See Co%er V. Co%er, 4 Dem. 53, at page 59. In Matter of Meyers, 28 Misc. 359, a lost will was proved to contain* a clause revoking an earlier will. The latter was accordingly dehied probate. CHAPTER IV , CONTESTED PROBATES § 377. The issues in probate cases. — The subject-matter of a con- test, in a probate proceeding may be confined exclusively to the factum of the .will, or it may include also the exposition of the will, that is, its con- struction and effect, if it be-,fo,und to be a valid will for any purpose. The distinction between these two subjects of jurisdiction is important. The one question is as to the genuineness and valid execution of the paper, in- volving the testamentary capacity of the testator, his freedom from re- straint, and all questions of fraud and mistake in the testaimentary act, including in some measure the legality of the testamentary dispositions. The other question is as to the meaning of the language of the will and its effect as a disposition of property. The distinction is important because, as to the factum of the will, parol or extrinsic evidence is admissible to im- peach or to. sustain the will, while, on the question of construction, such evidence is only, admissible within certain strict rules and limitations. Matter of KeLemmn, 126 N. Y. 73. Previous to the adoption of chapter 18 of the Code of Civil Procedure, Surrogates' Courts (with the single excep- tion of that of New York county, under Laws 1870, chap. 359, § U, which conferred on the Surrogate the same power and jurisdiction as the Supreme Court had, in determining the construction, validity, or legal effect of wills of real or personal property — much broader than those conferred by the present statute) had no jurisdiction to pass upon any question other than the fact of the due execution and attestation, and the "validity" of the will; and this "validity" was interpreted to mean the validity of its execution as the act of a capable testator, free from restraint, etc. The court had no authority, in a proceeding for probate, to pass upon the quesr tion, whether any provision of the will was in contravention of a statutory limitation of testamentary power, or whether a devisee or legatee was legally competent to take under the will, or like questions involving the legality and construction of dispositive clauses in a will. See McLaughlin's Estate, 1 Tuck. 79; Matter of Oilman, 38 Barb. 364; Nelson v. McGiffert, 3 Barb. Ch. 158; Matter of Forman, 54 Barb. 274; Bevan v. Cooper, 72 N. Y. 317; Wat^s y.Cullen, 2 Bradf. 354; Hillis v. Hillis, 16 Hun, 76. Thl'e inquiry of the court; was limited to the single question of the valid execution of the paper as the last will of a free and competent testator. And probate could not be resisted on the ground that the testator had no power to dis- pose of the property referred to, or that his proposed disposition' was illegal. The law is now otherwise; and in the same proceeding by which the genuine- ness of the will and the validity of its execution are determined, the court § 377 417 418 surrogates' courts §§ 378, 379 may, if so required by any party in interest, pass upon the validity, construction, or effect of any disposition of property, contained in the will unless the will is rejected for failure of proof of the statutory requisites. Code Civ. Proc, § 2615. The exercise of this jurisdiction is the subject of the next following chapter. The present chapter is devoted to a con- sideration of the rules and practice governing the determination of ques- tions arising upon the factum of the will.' § 378. Factum of the will. — By this phrase is not meant merely the formal execution and attestation of the instrument. It is trufe tLait the formal execution and pubhcation of the testamentary paper is the best, and, in most cases, the only evidence of the testator's intention to make a i will, but the questions, whether the testator intended to make the par- ticular will offered for probate; whether his instructions to the draftsman were comprehended; whether those instructions were correctly put in writ- ing; whether, when the will was read, he understood its contents; whether they conformed to his real wish; whether, in fact, *Ais particular instrument is his will — are all elements of the factum of the will' and are 'to be deter- mined by a considerate examination of all the facts and circumstances attending the transaction. For the factum of a will; as was said by Sir John Nicoll, Zaeharias v. Collis, S Phillim. 179; and see Burger v. Hill, 1 Bradf. 363; Fisher v. Clark, 1 Paige, 176; Coltonv. Bbssi 2 id. 398; "means not barely the signing of it, and the forinal publication or delivery, but proof, in the language of the condidit, that he well knew> and linderstood the contents thereof, and did give, will; dispose, and do, inal things as in the s&id will contained." It may be said generally, then, that questions of error or mistakes or variances, as well as of fraud and incapacity, when they relate to the factum of the will, are to be determined iby the Siu-rogate whenever they are raised in a proceeding for the probate of the instrument. § 379. Notice of probate.^ — The Act of 1914 provides ■ that in every case, regardless of contest, notice shall be sent to legatees and devisees as distinct from heirs and next of kin, who have to be cited. This notice Wmy be sent, as soon as the will is filed. In such case it reads that the will "'has been offered for probate." Or it may be sent after the depositiohs of sub- scribing witnesses have been taken and found satisfactory; iln such case it will read "has been probated," The persons notified are not necessary parties in their "class" capacity, though some of them may have been cited as heirs or next of kin, in which case notice need not be sent to them. This notice is required by § 2616 : §. 2616. Notice of probate to legatees and devisees. Before letters are issued, there shall be filed in the surrogate's cbiirt a written notice, entitled in the proceeding, stating the name of the testator^ that his last will and testament has been offered for. probate, op pi-bbated,' as ithe case may be, and the name and post-ofiice address of the proponent, land of ^each and every legatgei, devisee or other beneficiary, as set forth in the petitipn, whp has not been cited or has not appeared or waived citation, with proof by afiida,vit of the mailing of a copy of such notice to each of said beneficiaries. ^ New.' §380 CONTESTED PROBATES 419 The notice is procedural, not jurisdictional. Until proof of its mailing is filed, letters will not issue. It serves, moreover, to give pubKcity to the fact that the will is or is to be probated, among persons by whom it would mpst probably be known whether a later will or a codicil had been made, or was in ejdstence. The precedent suggested is in use in New York County. The notice is a step in the borderland between uncontested and contesteid probate. If there be a will or codicil unknown, such notice is apt to expedite its produc- tion, and compel the settlement of the question of "last will" at once. PRECEDENT FOR NOTICE OF PROBATE, §§ 2616, 2618 Court. Title. Take Notice that the last will and testament of deceased, has been offered for probate (or, has been probated), and that the names and post office addresses of the proponent and of the legatees, devisees or other beneficiaries, as set forth in the petition hergin, who have not been cited or have not appeared or waived citation, are as follows: the proponent whose post office address is whose post office address is Dated, New York, 19 . Attorney for Petitioner, Office and Post Office Address Ne* York City. 1 AFFIDAVIT OF SERVICE OF NOTICE OF PROBATE, § 2616 Court. Title. County of New York, ss. : of being duly sworn says that on the day of he deposited in the post office, at the County of New York, a copy of the within notice of probate, contained in a securely closed post-paid wrapper, directed to each of the following, named persons rpspectively at the place hereinafter set forth, as , follows: . . Note. Specify clearly thp time and place of service of each party served. § 380. Burden of proof generally. — (See § 387 below). The proof of a will must be in accordance with the rules of evidence which prevail in all judicial investigations. Peebles v. Case, 2 Bradf. 226. The party pro- pounding the will has the affirmative, and the burden of proof rests on him to show to the satisfaction of the court that the instrument was duly exe- cuted by a testator of sound mind and lawful age, etc. Delpfield v. Parish, 25 N. Y. 9, 97; Matter of Kellum, 52 id. 517; Rollwagen v. Rollwagen, 63 id. 504; Kingsleyv. Blanchard, 66 Barb. 317; Dickie v. Van Vleck, 5 Redf. 284; 420 surrogates' courts § 380 Legg v. Meyer, id. 628; Miller v. White, id. 320; Co&per v. Benedict', 3 Dem. 136; Matter ofMcMulkin, 6 id. 347; Matter oj Elmer, 88 Hun, 290, 34 N. Y. Supp. 406; Matter of Hitchler, 25 Misc. 365, 55 N. Y. Supp. 640; Matter of Schreiber, 112 App. Div. 495, 98 N. Y. Supp. 483. The subject of pre- sumptions and burden of proof as to the mental capacity of a testator, is more in order for a subsequent page. As to proving the due execution and attestation of the will, it is sufficient to say, in this place, generally, that if the attestation clause is full,' the signature genuine, the circuriistances corroborative of due execution, and no evidence is given disproving a com- pliance in any particular, the presumption may be lawfully indulged under § 2546 that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution, or what took place at the time. Matter of Kellum, 52 N. Y. 517; Orser v. Orser, 24 id. 51; Brmjon v. Clark, 77 id. 369; Matter of Moore, 46 Misc. 537. As to effect of the attestation clause as evidence of execution and publication, see ante, § 303 et seq. Where the testimony leaves the matter in such a state of doubt and uncertainty that the mind of the court is not brought to the belief of the actual execution of the will, although it is not convinced to the con- trary, a decree admitting it to probatfe will be reversed. Rowland v. Taylor, 53 N. Y. 627; Knapp v. Reilly, 3 Dem. 427; Matter ofBurtis, 107 App. Div. 51; Matter of Schreiber, 112 App.. Div. 495, 98 N. Y. Supp. 483. A mere doubt as to the validity of the will, will not justify the Appellate Court in reversing a decree of the Surrogate admitting it to probate. ^Delafield v. Parish, 25 N. Y. 35. A grave (joubt, such as will justify reversal, is not fornled by the fact that the sustaining witnesses contradict each other, as to the facts attending the execution, where the evidence of each witness taken separately shows the due execution of the will. Matter of Lyddy, 24 St. Rep. 607. In general, the burden of proof remains with the pro- ponent to the end of the trial, and if, upon consideration of all the evidence on both sides, the court is not satisfied that the paper propounded con- tains, the last will of the deceased, it must refuse probate. Indeed, if there is a reasonable doubt whether one or more of the directions of the statute have not been omitted, the probate must be refused, although it may appear probable that the paper expresses the. testator's intention. Theo- logical Seminary of Auburn v. Calhoun, 25 N. Y. 422, note; Rowland v. Taylor, 53 N. Y. 627. And see Irwin v. Irwin, 1 Redf. 495; Crispell v. Dubois, A Barb. 393; and Burritt v. Silliman, 16 id. 198. Where it is al- leged as a ground of contest, that a subsequent will was executed by the testator, the burden is on the contestant to show the due execution of the subsequent will, in order to establish a revocation of the one propounded. Mairs v. Freeman, 3 Redf. 181. See Matter of Sands, 62 Misc. 146. Even where the will has once been admitted to probate, and allegations against its validity or the competency of its proofs are filed, the burden of proving ,anew is upon tlje parties resisting the allegations. Collier v. Idley, 1 Bradf . ,94. Compare Shaw v. Shaw, 1 Dem; 21, and the same burden rests upon •the proponent where the decree of probate has been reversed and a new §§381, 382 CONTESTED PROBATES 421 trial ordered. Matter of Hopkins, 41 Misc. 83, 83 N. Y. Supp. 890, a£f'd 93 App. Div. 618; appeal dismissed, 180 N. Y. 528. §, 381. Weight of evidence. — No unvarying rule as to the amount of evidence necessary to establish the execution of a will can be laid down, which is to control in every case, as the circumstances of each case must differ from any other. It is the duty of the court to ascertain, from the facts and circumstances, whether the instrument offered is established with reasonable certainty. Ri^er v. Legg, 51 Barb. 260; Nexsen v. Nexsen, 3 Abb. Ct. App. Dec. 360; 2 Keyes, 229. The instrument propounded for probate must stand or fall on the testimony adduced before the Surrogate in the proceeding for its proof. The fact that the instrument propounded has been already proved in the Supreme Court, as a will of realty, is not a material fact in a proceeding for its proof as a will of personalty in the Sur- rogate's Court. Isham v. Gibbons, 1 Bradf. 69. And see Collier v. Idley, id. 94. And conversely, a will once proved as a will of personalty, may afterward, on the discovery of real property, be proved anew as a will of real estate. Smith's Estate, 1 Tuck. 108. The proponent is not required to produce all the witnesses, except in certain cases already pointed out, and even in those cases it is not essential that each witness should be able to testify that all the formalities required by law were complied with. § 382. Contests — Objections.^ — With these preliminary observations we turn to the manner of beginning contest under the act of 1914: § 2617. Who may file objections to the probate of an alleged will; jury trial. Any person interes^ied in the event as devisee, legatee or otherwise, in a will or codicil offered for probate; Or interested as heir-at-law, next of kin, or otherwise, in any property, 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 offered for probate; Or is interested as devisee, legatee, executor, testamentary trustee or guardian in any other will or codicil alleged to have been made by the same testator and not duly revoked by him; May file objections to any will or codicil so offered for probate. Such objections must be filed at or before the close of the testimony taken before the surrogate on behalf of the proponent, or at such subsequent time as the surro- gate may direct. And if a jury trial of any issue is desired the same shall be demanded in the ob- jections. New. We paragraph the section to make its differentiations more obvious. Following § 2616, already quoted, it hints at contests that may arise from the notice served thereunder; but, independently, it makes very definite the persons who may involve an estate in the delay and expense of a pro- bate trial, and very definite as well the real interest that must exist, and be threatened by the proposed probate of the will before the court. The section will be illuminated if we bear in mind the repeal, as to mat- ters begun after the act of 1914 went into operation, of § 2653a and the inclusion in § 2617 of the requii-ement of timely demand of jury trial, as well as the fact that, under § 2537, if not so seasonably demanded; the 422 SURflOGATES' COURTS § 382 right is deemed waived. Matter of Holme, 167 App. Div. 237. The effect of these facts, conjointly, is to make the decree when 'entered conclusive. The riiles of court local to the county must be consulted. In New Ydrk County, it is prescribed : Rule VI. — Contested Probates A copy of any objections, filed to the probate, of a last will and testament shall be served upon the, proponent or -his attorney in case the proponent shall have ap- peared by attorney. In a contested probate proceeding notice of trial shall be served and a note of issue filed as prescribed by section 977 of the Code of 'Civil Procedure. In cases of contests in probate proceedings, where a notice of objection filed is required by section 2618, C. C; P., and within five days after objections to the pro- bate are filed, the proponent shall present a verified petition fpr and procure and enter an order directing such notice, If the proponent fails to present such petition and fails to procure and enter such order within five days after objections are filed', any other party to the proceeding may present such petition and order. Rule VII. — Jury Trials op Probate Cases Within five days after a jury trial is denlanded in the objections filed to the probate of a will the party making the demand shall present on two, days' notice of settlement to the attorneys of all parties who have appeared by attorney a pro- posed order directing such trial by jury- Such order shall state plainly and con- cisely the controverted questions of fact to be tried by jury. If a; party demanding a trial by jury fails to serve and present a proposed order as aforesaid, such order may thereafter be presented by any party to the proceeding. The notice, referred to in Rule VI, under § 2618, is thus regulated: § 2618. Notice to legatees and devisees of olgections filed. Whenever objections are filed, to the probate of a will, theiproponent shall file the notice specified in section 2616 and serve the same on each of the parties therein named, and upon any other persons directed by the surrogate to be notified,.:m such manner and within such time as the surrogate shall direct, which notice shall have the additional statement included in or endorsed thereon that objections have been filed to the probate of such will and that the same will be heard on a day or at a term of con*t therein stated. Proof of due service of such notice shall be made and filed in the surrogate's office, and any decree in the proceeding shall not affect the right or interest of any such person unless he shall have been so notified. New; see former § 2617 of this Code. The practice, in New York county, is to proceed by petition and order. The following precedents are suggested: Surrogate's Court, County of New York. In the Matter of Proving the Last WiM and Testament of Deceased. Petition. To the Surrogate's Court pf the County of New York: The petition of respectfully shows: First. That your petitioner is the execut named in the 382 CONTESTED PROBATES 423 last Will and Testament of , late of the County of New York, deceased. Second, That said last Will and Testament was duly filed ' 1 f or probate, and that proceeding for the probate of said last Will and Testament have been begun by your petitioner. Thirdi That objections have been filed to the probate of said last Will and Testament. Fourth. That a notice of probate to the legatees and devisees named in said will as specified in Sec- tion 2616 of the Code of Civil Procedtire, has been filed in the Surrogate's Court. That said notice has the additional state- ment endorsed thereon that objections have been filed to the probate of said will as required by Section 2618 of the Code of Civil Procedure. Fifth. That all of the persons named in said notice are of full age and of sound mind except Wherefore, your petitioner prays for an order directing in what manner and within what time such notice shall be served on the persons therein named, and that the petitioner may have such other and further reUef as the Court may deem proper. County and State of New York, ss. : , the petitioner named in the foregoing peti- tion, being duly sworn, deposes and says that h ' ha^ read the foregoing petition subscribed by h and knows the contents thereof; and' that the same is true of h own knowledge, except as to the matters therein stated to be alleged on information and beUef, and that as to those matters h believes it to be true. Petitioner. Sworn to tlus day ] of 191 4 N.Y. County. n .. At a' Surrogate's Court held in and for the County of New York, at the HaU of Records in the Borough of Manhattan, New York City, on the ■ day of ,191 . Present: Hon. Surrogate. In the Matter of Proving the ' Last Will and Testament of Deceased. Order for Notice of Objections Filed. Sec^. 2616, 2618. On reading and filing the petition of the petitioner and proponent herein , by which it appears that objeclaons to the probate of said Will have been filed herein. 424 SUBROGATES COURTS 1383 Now, on Motion of , Attorney for the peti- tioner, the proponent herein, it is ' Ordered, that the notice of probate filed in this proceeding and the additional statement of. objections filed, which state- ment is endorsed upon said notice, shall be served upon each of the persons named in said notice stating that said objections will be heard at a Trial Term of the Surrogate's Court, of the County of New York, held at the Hall of Records, in said County, on the day of , 191 . It is Further Ordered that said notice and said additional statement shall be served personally on each of the persons therein named who are residents of the State of New York, at least eight (8) days before said day of hearing and that said notice and said additional statement shall be served upon each of the persons therein named who are not residents of the State of. New York by depositing, at least sixteen (16) days before the said day of hearing^ in the post-ofiBbe at the County of New York, a copy of said notice and additional statement, contained in a securely closed post-paid wrapper, directed to each of them respectively, at the places therein designated as their post-oflSce addresses. , § 383. Objections — Precedent.^ — Section 2519 covers the form and content of all "pleadings" in Surrogate's Court. It expressly includes "an- swers and objections." Section 2617, by the words "may file objections" means written objections conforming to § 2519. As these objections pre- sent the issues on which the decree to be ma;de will be conclusive, except on appeal, the practitioner must be as careful, as in a Siipreme Court action. See Matter of Garner, 54 Misc. 116, as to "careless" answer. The following may servQ as a precedent for the answer in a contested will case: Answer in con- tested will case. Erase inappropriate Uions. Note. If possible characterize qohtest- ant under one of the categories set oiit iii § 2617. Surrogate's Court, County of New York. In the Matter of proving the alleged Last Will and Tes- tament of S. P., Deceased. The answer of interested, as legatee in a will other than thp one propounded made by the same testator above named, and not duly revoked by him (note), respectfully shows to the Court, on information and belief: I. That the paper writing bearing date the 8th day of May, 1909, and purporting to have been executed on that day, is not the last Will and Testament of said decedent, ["but was in his Ufe time, duly revoked by him,"'or "that on a day subse- quent to said 8th day of May, 1909 he duly made and published his last will (in which contestant is named as a legatee), a copy of which," etc.]. or, II. That the said alleged will was not duly executed by the said S. P., deceased; that he did not publish the same as his Will in the presence of the witnesses whose names are sub- § 384 CONTESTED PROBATES 425 scribed thereto; that he did not request the said two witnesses to be witnesses thereto, and that the said alleged witnesses did not sign as witnesses in his presence or in the presence of each other. or, III. That on said day of 19 the said decedent, S. P., was not of sound mind or memory, nor mentally capable of making a will. or, IV. That the said paper writing was not freely or volun- tarily made or executed by the said 8. P., as his last Will and Testament, but that the said paper writing purporting to be his Will was obtained, and the subscription and publication thereof, if it was -in fact subscribed or published by him, were procured by fraud and undue influence practiced upon the ' decedent by one (the principal legatee and devisee named in said paper), or by some other person or persons act- ing in concert or privity with him, whose name or names are at present unknown to this contestant. or, V. That the paper propounded for probate herein is in- valid as a last Will and Testament, and is illegal and void in re- spect to (the residuum thereby bequeathed), in that it (state statute contravened, or other fact on which validity hinges). Wherefore the above named contestant, prays that this pro- ceeding may be dismissed with costs (or pray for probate of will under which contestant claims. In such case the two matters are consoUdated, and the issue is "Which is the Last Will? "). Signature, N. B. Any of these Special Guardian for infant. Objectibiis may be address. united. (Verification.) § 384. The hearing. — The local rule governs this matter. We have just quoted Rule VI, in New York County. If the trial is to be by the Surrogate alone, § 977, as to note of issue and notice of trial is made to govern. If it is to be a jury trial, the same rules govern as to bringing the cause on. But there are still two rhodes of jury trial. If the proceeding, and the issues, be transferred to the Supreme Court, by a New York county Surrogate, the verdict of the jury being rendered and certified to the Surro- gate he must decree accordingly, as the verdict is conclusive under § 2538. But, if it be a Surrogate's jury had under § 2539, the verdict,^nder the Surrogate's power to set it aside, is, [if the convincing arguments made by !^owler, Sun*., in recent opinions, are to prevail] rather informatory than concjiusive. We agree with the learned Surrogate that it is the Surrogate who is,tQ be "satisfied with the genuineness of the will and the validity of its execution." The jury trial can only be had, if the statute be followed. Parties, by mere consent, cannot divest the Surrogate of his right as "or- dinary trier of fact." Matter of Silverman,. 87 Misc. 571. Rights, existing when the act of 1914 went into effect, to proceed under § 2653a, cannot be denied, nor the new practice enforced by substitution therefor. Matter of Spooner, 87 Misc. 170, Schulz, Surr.; Matter of lovineUa, 166 App. Div. 426 surrogates' courts § 384 460, aff'g 88 Misc. 224. (But see Trial by Jury, ante.) We merely call attention here, additionally to tiie following: § 2619. Proceedings upon jury trial of contested probate. Upon the trial before the court and a jury of the objections filed to the probate of a win, or codicil, or either, the verdic:t of the jury or any order or decision of the judge holding the court shall be entered in the minutes of the cpurt; and if the trial was not held in the surrogate's court, such veiidict, order or decision shall be certified by the clerk of the court to the surrogate's court, whereupon the surrogate shall enter a final decree accordingly. New. The following order, duly adapted, should be entered: PRECEDENT FOR ORDER DIRECTING TRIAL BY JURY Present: Hon. Surrogate's C(jurt Caption. Surrogate. In the Matter of Proving the Last Will and Testament of Deceased, . As a Will of Real and Per- sonal Property. A petition for the probate of a paper writing puiporting to be the Last Will and Testament of deceased, .vieri,- fied the day of , 19 having been duly filed, by which it appears that said paper writing bears date of day of -; 19; ; ^d a citaition having been duly issued theijeupon-and objjections-to the ^pro- bate of said paper writing as the Tjast Will and Testament of the above-named decedent having been duly filed; kii'd- it appearing by said objections that controverted iquestSone of fact have arisen in this proceeding and a trial by juiy of ^,^^ch issues therein having been seasonably demanded,; i|; isj , , , Ordered and Directed tljat there be had before the Sur- rogate and a jury, at a Trial term of the Surrogate's OoUrt of the County of New York, to be held cotamien6ing Mondaty the day of 19 , atrialof therfeUow- ing issues of fact: ' ■ . . ,'-^, I. — Did the testator subscribe ,'thp paper offered for probate at the end thereof in the-^presence flf the attesting witnesses or acknowledge to each of them that Buiih subscription appearing on said paper had been made by li ? II. — ^At the time of making sudi subscription or acknowledg- ment did the Said declare to the attesting witnesses that the paper offered for probate was jh Last Will aa^ Testament? , , III. — Were there at least, two attestiiig witnesses, each of whom signed his or her name at the end of said pap^r at the request of said §§ 385, 386 CONTESTED PROBATES 427 IV.— At the time of the execution of the paper offered for probate was the said of sound and disposing mind and memory? V. — At the time of the execution of the said paper was the said free from restraint? VI. — Was the execution of the said paper by the said caused or procured by fraud, deceit or undue influence of the proponent, or any other person or persons? - We omit, in this edition, all discussion of the jury trial formerly ordered by Appellate Division on reversal of a decree on probate proceedings. § 385. Surrogate's control of the proceeding— Writ of prohibition.— In the Rice will case, reported as People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339, it was sought, by writ of prohibition, to prevent the pro- bate of one will, and the rejection of probate of a later will, the witnesses to which were under indictment. The Appellate Division laid down the following legal propositions: (See headnote.) "A writ of prohibition lies only where there is a want of jurisdiction or where the court, judge or other tribunal is proceeding in excess of the juris- diction conferr'ed. See coses cited. "Authorities regarding it as applicable to prohibit proceedings 'con- trary to the general law of the land' refer to proceedings without permitting a party to be heard, and this means no more than excess of jurisdiction. " Errors of law or procedure must be corrected by appeal, and a writ of prohibition is not designed to regulate admission or rejection of evidence or the proceedings of an inferior court having jurisdiction. "The right to an adjournment rests in discretion, reviewable only by direct appeal, and the question of an adjournment of civil proceedings, arising out of the same facts as pending criminal proceedings, until the determination of the criminal proceedings, is not a matter of strict legal fight, reviewable by prohibition, but involves the exercise of discretion, re- viewable only by direct appeal. "A Surrogate has jurisdiction to decide whether to dismiss probate pro- ceedings for want of proof, or to continue the proceedings to perrnit the presentation of further evidence, and his dismissal for want i of prooi would not be a dismissal upon the merits. "A claim of privilege against self-incrimination, advanced by subscrib- ing witnesses to a will imder indictment, as an excuse for not testifying to the execution of the will, may properly be sustained. See cases cited. "A decision on appeal in prohibition proceedings is not to be construed as an approval of rulings in the inferior court on evidence, practice, proce- dure and discretion, such as are reviewable on direct appeal. "Where a court refuses to grant an absolute writ, upon return to an al- ternative writ of prohibition, a stay pending appeal from the final order refusing the absolute writ is unauthorized." § 386. Same— Prior action by other courts. — In Matter of Cormell, N.. Y. L. jr, Feb. 2, 1912, contestant set up in bar of probate a judgment of the Supreme Court finding that decedent "died intestate." Fowler, 428 surrogates' courts § 387 Surr., reviewed the history of the Surrogate's probate powers, asserted the exclusive jurisdiction to determine what is or is not a will, doubted the power of another court to adjudicate "non devisavit," but assuming it had such power, held the finding in that case not sub judice, and not res adjudi- cata. The opinion will repay careful study. In Matter of Horton, 217 N. Y. 363, the Court of Appeals permitted an Ohio probate decree to be offered in bar in probate proceedings in New York of ah earlier will revoked by the Ohio will. -See extract from opinion in § 349, supra. § 387. The hearing — Examination of witnesses — ^Burden. — We dis- cussed, in § 380, arde, bm-den of proof generally. Section 2611 has been already quoted in discussing how proof of a will which is not contested must be taken. All that has been 'said in that connection is, applicable here so far as the proponent's case is concerned. It is his duty to establish the will prima fade, proving its due execution and the mental capacity of the testator; the burden of establishing both is of course upon such pro- ponent. Delafield v. Parish, 25 N. Y. 9; RoUwagen v. Bollwagen, 63 N. Y. 504; Miller v. White, 5 Redf. 320; Legg v. Meyer, 5 Redf. 320. It is true that there is a legal presumption that every man is compos mentis (Dela- field V. Parish, 25 N. Y. 9, 97), and that the burden of proving a decedent's unsoundness of inind is upon him who asserts the existence of that un- natural condition. Delafield v. Parish) supra. But there is a distinction, which has been clearly drawn by the Supreme Court (Harper v. Harper, 1 T. & C. 355), in the following words: "It is the established rule of this State that the legal presumption to begin with isy that every man is compos mentis and the burden of proof that he is non compos mentis rests on the party who alleges that unnatural condition of mind existing in the testator. But it is also the rule that in the first instance the party propounding the will must prove the mental capacity of the testator." In Matter of Van den Heuvel, N. Y. L. J., March 16, 1912, Fowler, Surr., draws clearly the distinction presented by the careless use of the expression "shifting the burden of proof." He points out that what is meant is the burden of going forward with the proofs shifts to those setting up (say incompetency) as an affirmative plea. But, says he, "when the adminicular proofs come to be taken up by the proponents, the onus probandi" is reassumed as to the whole case and rests on proponents throughout. [See whole opinion.] The practice is for the proponent to prove the formal execution of the will and to show prima facie by the attesting witness the decedent's age, mental competency, and freedom from restraint; the contestant then offers his evidence in support of his objections and the proponent in reply may offer rebutting evidence or strengthen his prima fade case as to the allegations which he is bound to maintain. It is one thing to say, that the burden of proving unsoundness of mind, that is, lack of testamentary ca- pacity, is on the contestant; and quite another thing to say, that the pro- § 388 CONTEiSTED PROBATES 429 ponent need not make out a prima fade case of mental capacity in the first instance. Matter of Schreiber, 112 App. Div. 495. This is manifest from the provisions of § 2614 which requires the proponent to satisfy the Surro- gate that the testator was in all respects "competent to make a will and not under restraint." Consequently, if the proponent addresses his proof only to the question of execution and rests his case without showing affirma- tively that the testator was of sound mind and free from restraint, a suffi- cient case will not have been made out for admitting the will to probate. See RamsdeU v. Viele, 6 Dem. 244, citing Delajield v. Parish, 25 N. Y. 9, 34; Kingsley v. Blanchard, 66 Barb. 317, 322; Miller v. White, 5 Redf. 320; Cooper V. Benedict, 3 Dem. 136; Matter of Freeman, 46 Hun, 467. The Court of Appeals (Maiter of WiM of Cottrell, 95 N. Y. 329, 336), says by Ruger, Ch. J.: "The determination of the question of fact involved in the inquiry . . . is governed by the same rules which control the trial of other issues of fact. The proponent has the affirmative of the issue, and if he fails to convince the trial court by satisfactory evidence that each and every con- dition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will." In spite, therefore, of the elasticity of procedure occasionally obtaining in Surrogates' Courts the best practice is for the proponent to try a contested will case as strictly as he would any litigated action in the Supreme Court. "Surrogate's witnesses," under former § 2618, no longer can be compelled to be produced. See Matter of Hock, 74 Misc. 15. The following rules, laid down by Fowler, Surr., in that case (see opinion) show the cumber- someness of the operation of the section. The Surrogate held (see head note) as follows: 1. Where the contestants call witnesses, named in a notice or order under sec- tion 2618 of the Code of Civil Procedure, other than the subscribing witnesses, they are bound by their testimony, except in cases of surprise under the ordinary rules of evidence. 2. As to the subscribing witnesses whom the proponent is obliged to call the rule is different. 3. Although a probate proceeding is in rem, a contested probate is a trial of an issue of fact and ought to be subject to the rules of other trials; and the parties should have all the privileges and rights accorded to other parties on the trial of issues of fact. 4. // it is (he duty of the surrogate to examine witnesses named by' contestants in a notice or order procured under section 2618 of the Code of Civil Procedure, in default of an examination by the parties, he should not delegate such duty and will not order proponents, against their will, to examine such witnesses. § 388. Contestants. Status and rights.— In § 382 we quote § 2617 which provides who may contest probate.. Certain general observations may be added. A contests a will. Proponent puts his status in issue, e. g., that he is not within the categories of § 2617. Status is a threshold issue, and must first be determined. Estate of Young, N. Y. L. J., March 16, 1915, citing Matter of Hamilton, 76 Hun, 200. So, if A demands jury 430 surrogates' courts § 389 trial, that question will be postponed until his status shall have been passed upon. Ibid. 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 anjrwise in- terested 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 RolUns 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; Mat- ter of McGarren, 112 App. Diy. 503. The contestants of a will have an absolute right to withdraw their Ob- jections, even against the protests of the attorney of record, claiming a hen for services. Matter of Evans, 33 Misc. 567. § 389. Same subject— After-bohi 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 af- fect 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 the statute men- tioned. Matter of Gall, 5 Dem. 374; Matter of Bruce, 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 entitled 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. (See index for discussion elsewhere of such child's rights.) §1 390, 391 CONTESTED PROBATES 431 The after-born child has no status in court unless the Surrogate ascer- tains that within the meaning of § 49 of title 1, chap. 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 va- Udity. The Surrogate has power to pass on the regularity pf adoption 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. § 390. Same subject — Other persons in interest. — Section 2617, as we have seen, refers to various classes who may file objections to probate. "Devisees" and "legatees" fall imder 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 pro- pounded, it is imimaterial 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 Sur- rogate, prove that such testamentary paper existed when the decedent died, or was lost or fraudulently destroyed, within the meaning of § 2613, before. hisidea|;h. fl^amersfcj/. v. Locfcman, 2 Dem. 524, 533. See also Will of Imcivfi. Criftenden^ 1 Tucker, 135. Section 2617 covers this by the words "any pther will or codicil alleged to have been made by the same testator and ffpt (inly revoked by him." An executor or trustee, named in a prior or subsequent will is expressly covered by § 2617 and has the right to con- test the will propounded. Matter of Greeley's Will, 15 Abb. N. S. 393; People ex rel. Patrick v. Fitzgerald, N. Y. L. J., June 12, 1902. § 391. Same. — The public administrator has been held entitled to con- test a will of personal property {GonibauU v. Pvhlic Administratcyr, 4 Bradf. ?36),.,8.nd the attorney genei-al a will of real property. Merrill v. Rolston, SiBedf. 220, 258. See former § 2616, Code Civ. Proc, as amended in 1911, now § 2524. Sutro^te 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 testator's death, the mort- 432 surrogates' courts § 392 gagee or his administrator was a person sufficiently interested to intervene 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 former wife; nor has the wife of an heir-at-law a right by virtue of her inchoate right of dower (Matter of Rollwagen, 48 How. 103) ; nor can a receiver 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 nonincorpora- tion 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. Chapin, 6 Paige, 639; De Witt V. Chandler, 11 Abb. Pr. 459; Owens v. Missionary Society, 14 N.'Y. 380) ; nor is it material whetiher 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 suc- ceeds, the Surrogate becomes satisfied and finds that the testator had not mental capacity to make a will, and that the instrument offered for pro- bate 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 con- troversy is only interested as an heir-at-law and not one of the next of kin. Matter of Bartholick, 141 N. Y. 166, 172. § 392. The issues. — The character of the issues to be raised and tried on contested probate is readily- inferred from the language of § 2614 of the Code which is as follows: Before admitting a will to probate the surrogate must inquire particularly into the facts and circumstances and must be satisfied of the genuineness of the will, and the validity of its ejcecution. This section embodying part of former § 2622 replaces the old Statute which provided that the Siu-rogate should be satisfied with the genuineness and validity of the will. The words now are "validity of its execiition." See Matter of Davis, 182 N. Y. 468. See post, "Determining VaUdity of Will." Section 2614 proceeds:- ' If it appears to the surrogate that the will was duly executed and that the testa- tor 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. This was former § 2623. The objections filed present the issues. §§ 393-395 ' CONTESTED PROBATES 433 The witnesses may forget, or may differ or may swear falsely. But the Surrogate is merely to be satisfied of ,the facts requisite in order to pro- bate. Matter of Eldred, 109 App. Div. 777. If as to any requisite fact he is not satisfied he must deny probate. Matter of Eckler, 47 Misc. 320; Matter of Choate, 110 App. Div. 874. § 393. Practice on trial.— In Matter of Sperb, 71 Misc. 378, the prac- tice is suggested: To confine the proponents' evidence in a contested pro- ceeding ... in the first instance, to the facts deemed evidential of the factum. The contestants are then permitted to offer their proofs, based on their objections. Then the proponents proceed with such testimony as is deemed pertinent to support the paper propounded. The "burden of proof" and the "burden of evidence" are contrasted and discussed — see opinion, Fowler, Surr., p. 381. See also Matter of Joel, N. Y. L. J., Feb. 7, 1912. But see sections ante as to Burden of Proof. § 394. Order of discussion. — The questions arising upon the probate of a will as to which objections are usually interposed will be discussed in order: We have already in Chapter I, Part III, ante, discussed the first question, issuable, to wit: ' ^ Due execution'of the document propounded (under which were discussed all questions arising out of compliance or noncompliance with the statute relating to the execution of wills). We are here, therefore, to discuss the two remaining issues: Testamentaiy capacity (for regardless of the mode or regularity of the execution if the decedent making the will had not testamentary capacity, it must be denied probate). Fraud and undue influence (for conceding compliance with the statute as to its execution and testamentary capacity to make, the will hiay be invalidated by proof of such influence or fraud, under which falls also the knowledge of contents of the will by the testator). I. TESTAMENTARY CAPACITY § 395. Presumption that everyone is compos mentis. — See Jaf-man 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 vaUd 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 presxmiption 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 of eighteen years or upwards or any female of the age of sixteen years or 434 subrogates' courts • § 396 upwards "of sound mind and memory," and the making of a will of real property by 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 RamsdeU v. Viele, 6 Dem. 244, citiag Harper v. Harper, 1 T. C. 355; Kingsley v. Blanckard, 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, or that at a former time he was under asylimi restraint the burden upon the proponent is increased and he will have to offer clear and convinc- ing proof that the testator's mind accompanied the act of execution. See Matter of Hitchcock, 16 Weekly Dig. 533; McSorhy v. McSorl^f2 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 establish the validity of a will when from the infirmness of the testator or the circumstances attend- ing the transaction the usual inference cannot be drawn from the execution itself. § 396. The boundaries of the inquiiy. — Fowler, Surr., in Matter of Campbell, N. Y. L. J., March 2, 1912, condenses the matter in an interesting way. He observes: " The law of the land- is wisely indulgent to the proper exercise of the testamentary power. All persons, except idiots, persons of unsound mind and infants may, in this State, make a will (§§ 10, 15, Decedent Estate Law). Testamentary capacity in the abstract doubtless involves profound problems of psychology and psychiatry, or that science which involves the psychical phenomena of the brain. In the hands of some experts such subjects are apt to degenerate into refinements. In the concrete applica- tion of the truer tests of testamentary capacity courts of justice have been compelled to formulate for themselves certain rules which are at this day practical aids in the administration of justice and the result of accumulated experience in everyday matters. A close study of this subject must con- vince us all that any departure from the rules thus laid down would be as unwise as it is unauthorized. It would be abold and proud judge who would venture to substitute his own conception on this subject for such deliberate and weighty rules. In courts of justice there is little room for pride of individual opinion. But while in courts of probate there is a greater lib- eraiHty than in other courts on questions of mental responsibility, so, no doubt, a will may be defeated in a probate cause by reason of the existence of mental states which would not be regarded as insanity in some other tribunals. § 396 CONTESTED PROBATES 435 The doctrines of this court are very well established by authoritative prec- edents. " If a person have sufficient capacity to comprehend perfectly the condi- tion of his property, his relations to the persons who would or should or might have been the objects of his bounty, and the scope of bearing of the provisions of his will, he has testamentary capacity. Delafield v. Parrish, 25 N. Y. 9, 109; Binne v. Johnson, 60 Barb., at pp. 72, 73; Watson v. Donnelly, 28 Barb., at p. 655; Roche v. Nason, 105 App. Div., 256, aff'd 185 N. Y. 128; Matter of Johnson, 60 Misc., at p. 279. The^ fact that a testator supervises his own large estate wisely, benevolently and prudently until his death, is evidence that he understands the condition of his property within the definition just cited. Testator's perception of his relation to the persons who should be objects of his bounty does not, within such def- inition, mean that he should know and recognize every distant relative who is entitled to inherit from him under the existing canons of descent. If that were the test of a capacity to devise, the ablest lawyer in this State might be incapable, for there are some problems as yet undetermined. The definition refers to near relations of a testator, those who are the 'natural objects of his bounty.' Cousins to the second, third and fourth degree of propinquity are not included in the definition of natural objects of testator's bounty. Matter of McCarty, 141 App. Div. 816, 820. ' ' The effect of mental disorder upon the faculty of capacity of the afflicted to make a will having so long been the subject of the most careful judicial consideration the rules on the subject must be regarded as settled. Thus it is that in courts of probate though a man may have lapses of memory and show childishness at times, if he can manage his affairs prudently and correctly, show a due appreciation of the nature and amount of his property and of the claims of near and dear relations, his testamentary capacity is sufficient. Kinleside v. Harrison, 2 Phill. 449; Loder v. Whelpley, 111 N. Y., at p. 250; Haughian v. Cordan, 86 App. Div. 290. Feebleness of intellect will not invalidate a will. . Newhouse v. Godwin, 17 Barb. 236. A testator may be peculiar, even insane, upon some special topic, and yet have a sufficient capacity to make a will. Calligan v. Haskell, 143 App. Div. 574. A man may not have sufficient strength of memory and vigor of intellect to make and digest all parts of a contract and yet be competent to make a will. Stevens and Wife v. Vancleve, 4 Wash. C. C. R. 262; Harrison v. Rowan, 3 Wash. C. C. R. 580. Such are the wise rules prescribed for testa- mentary capacity in this court. It is thus apparent that the capacity required by law for an act of testamentation is much inferior to that re- quired by equity in the enforcement of executory obligations of a con- tractual kind. But it is unnecessary to refer in the abstract to such general principles of testamentary law. It is established that there is no presump- tion of testamentary incapacity by reason of advanced years (Van Alst v. Hunter, 5 Johns. Ch. 148, 158; Horn v. Pullman, 72 N. Y. 269), but there is no categorical definition of insanity of universal application. Each case 436 surrogates' courts § 397 must always depend on its own peculiar circumstances. Mudway v. Croft, 3 Curt. 671." In a more recent case, Matter of Martin, 82 Misc. 574, the same Surro- gate analyzed the difference between the view points from which the court and the alienist approach the determination of the inquiry into men- tal .capacity. After pointing out the influence of psychology on alienists and showing that as a formal science it has no precise application to in- dividuals, he asserts that positive law deals only with individual instances and individual capacities which it determines by very simple tests, e. g., a. acts and conduct under scrutiny compared to normal acts and con- duct, i. e., of the person himself when concededly sane, not of "average normal man" who does not exist, b. Did testator react to the common facts and events of life?. See Matter of Gedney, 142 N. Y. Supp. 157, 175. Thus the legal tests are simpler than the medical tests. Matter of Schmidt, 139 N. Y. Supp. 464, 474, 483. For the latter are conditioned by the in- ductive method and their laws are built up from almost innumerable and varying phenomena. Give such an expert two of these phenomena as a basis and he will predicate any one of the mental disorders of which either or more may be a symptom. Let three phenomena coexist, and the ex- pert's confidence is superb. Paranoia, dementia pracox, senile demen- tia, maniac depressive insanity, each has its season. Each will be medi- cally shown to be progressive and incurable, and the testatrix may be proven to have shown symptoms of them all. Yet the will may be probated! See Matter of Schober, 90 Misc. 230. § 397. What is testamentary capacity; Age.— It was said, in Matter of Carpenter, 145 N. Y. Supp. 365, that "less mental capacity is required to execute a will" than is requisite for any other legal instnunent. See also Matter of McCusker, 89 Misc. 652. With this bird's eye view of the sub- ject we pass to the concrete elements one by one. 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 had been held to indicate the judgment of the Legislature that a. person tmder that age is not of sufficient mental capacity presumably, though with ordinary in- telligence, 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 Rollins puts it, "no man can live so long as to be legally incapable by the mere lapse of years, from ordering the disposi- tion which shall after his death be made of his estate." Matter of Henry, 18 Misc. 149; Matter of Halbert, 15 Misc. 308; Matter of Pike, 83 Hun, 327; Matter of Otis's Will, 22 N. Y. Supp. 1060; In re Carver's Will, 23 N. Y. Supp. 753; ComweU v. Riker, 2 Dem. 354, 366, citing Van Alst v. Hunter, 5 Johns. Ch. 148; Clark 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; § 397 CONTESTED PROBATES 437 Crolius V. Stark, 64 Barb. 112; Matter of Carpenter, 145 N. Y. Supp. 365; Matter of Crockett, 86 Misc. 631; Matter of Van Ness, 78 Misc. 592. 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 {Clark V. Fisher, 1 Paige, 171, 173) that "the testator must be of somid and disposing mind and memory so as to be capable of making a testa- mentary disposition of his property with sense and judgment in reference to the situation and amoimt of such property, and to the relative claims of the different persons who are or might be the objects of his bounty." Stewart v. Us-penrnd, 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 sufficient 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 Matter of Townsend, 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 Guyslirug. v. Van Kuren, 35 N. Y. 70; Matter of Martin, 98 N. Y. 193. See Lavin v. Thomas, 123 App. Div. 113. Or, as Fowler, Surr. (in the preceding section), terms the objects of bounty, the "near and dear relations" — a most important adjectiviza- tion. The general line along which all the cases have been decided is very clearly discussed by Senator Verplanck, in Stewart v. Ldspenard, 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 imequal 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 438 surrogates' courts §§ 398, 399 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 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. § 398. 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. H(rm V. Pullman, 72 N. Y. 269; Van Guysling v. Van Kuren, 35 N. Y. 70, 74; Bheker 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 presimiption of sanity. A similar case is Matter of Carpenter, 145 N. Y. Supp. 365. See Matter of Barbineau, 27 Misc. 417. In Matter of Brower, 112 App. Div. 370, capacity was predicated of a testatrix ninety-six years old. SeniUty alone does not deny capacity. Matter of Crockett, 86 Misc. 631, Schulz, Surr. § 399. The quantum, suff. rule. — 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 intelligence and mental power to under- stand what he is doing and the legal effect of the instrument he is making. In re Otis'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 determined 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 intelli- gence remains. So Judge Andrews says {Horn v. Pullman, supra), inca^ paeity 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 mental and bodily powers, provided the will is the §§ 400-402 CONTESTED PROBATES 439 free act of the testator and he had sufficient intelligence to comprehend the condition of the property and the scope, meaning and effect of the provi- sions of the will." See Matter of Conaty, 26 Misc. 104. So proof that tes- tator 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 observed that the existence of physical infirmity whether due to age or i]lness, 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; Matter of King, 89 Misc. 638. § 400. Analysis of discussion. — ^The more important decisions in respect 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, delusions, etc. § 401. Rules 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 I^T. Y. 163, 177', Matter of Myer, 184 N. Y. 54,. 61. See arde, and Matter of Hock, 74 Misc. 15, opinion by Fowler, Surr. It suffices to repeat that on the issue of capacity the burden is on proponent throughout the case. Matter of Martin,, 82 Misc. 574; Matter of Giaugm, 83 Misc. 684; Matter of Gedney, 142 N. Y. Supp. 157; Matter of King, 89 Misc. 638. § 402. lUness 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, 431; DoUe v. ArmstrorCg, 160 N. Y. 584, 593. Thus an apoplexy may have an acute, but temporary, disabling effect. But proof of its occurrence raises no :pre- sumption of total destruction of capacity. See MaWer c^ Schmidt, 139 N. Y. . Supp. 464. See Matter of Cutter, 89 Misc. 663, where, with the bodily infirmities coexisted addiction to a drug, and the whole case called for denial of probate. The fact that a man is upon his death-^bed when he exe- cutes a will is no argument against its validity (Matter of Seagrist, I App. App. Div, 615, 620) ; nor will medical testimony to the effect that the tes- tator was very weak, and that his mental powers were impaired, or thaA he was a mental and~physical wreck or incoherent in speech suffice to outweigh positive testimony by other witnesses competent and disinterested to tes- tify to actual facts, from which the court may infer that the testator was 440 surrogates' courts § 402 possessed of sufficient comprehension to enable him to comprehend gen- erally 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 cha.racter of the will, plus proof that the testator, while dictating it, was under a powerful dose of morphia, may turn the scale in deciding the ques- tion, "Is it, or is it not, the real testamentary desire of the decedent?" Matter of Simon, 47 Misc. 552; See also In re Buck^y's Will, 2 N. Y. Supp. 24, Ransom, Surr. See "also In re Idddy's Will, 4 N. Y. Supp. 468, Ransom, Surr., the first headnote: "The testimony of the three subscribing witnesses to a will, showing testamentary capacity, will prevail over the opinion of an expert, where to give credence to the latter would be to impute perjury to the former." On the other hand, in the Campbell case quoted above, Fowler, Surr., says referring to lay witnesses: The courts of justice of this State have, aS it seeips to me, with great wisdom, precluded lay witnesses from giving their direct opinion concerning the sanity or insanity of persons whose incompetency is the subject of judicial investigation. They confine such witnesses to facts, such as the conversation and the conduct which they have observed in the testator, and then permit the witness to state whether in their opinion such conduct and conversation of a testator were or were not rational. Clapi)V. FuUertm, Si N.Y. 190; People v. Spencer, 179 N.Y. ilZ; People V. Pekarz, 185 N. Y. 481; Matter of Myer, 184 N. Y. 60; People v. Hill, 195 N. Y. 16. As lay witnesses rarely have any fixed or accurate standard of mental saneness (Evans v. Knight, 1 Add. 239; s. p, Dougherty y. Milliken, 163 N. Y. 527', 533), this wise rule of our highest court permits the triail judge to see for himself how well- founded are the opinions of lay witnesses on this recondite subject, and thus the court may reject the opinions. In Matter of Carpenter, 145 N. Y. Supp. 365, the witnesses gave as their opinion that decedent was irrational. See opinion, holding that such ex- pressions of opinion depend for validity upon the facts on which they are based. If specific acts testified to do not justify the witnesses' con- clusions their opinions are no stronger than the facts, from which the court is competent to form its own conclusion. 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 execu- tion, probate will be refused. See Matter of Coop, 6 N. Y. Supp. 664. Where a testator over nitlety years of age met with an accident by which 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 direction in regard to its construction, the will was ad- mitted to probate. Matter of Harris, 19 Misc. 388. See also In re Schr&iber's §§ 403, 404 CONTESTED PROBATES 441 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 ponflict with previously expressed testamentary iiltentions andi Was executed when she was a victim of tumor in the face, paralysis, progres- sive aphasia and symptoms of paresis, and afflicted with a delusion: 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 invalid. Matter of Lapham, 19 Mise. Rep. 71; Matter o/Soden, 38 Misc. 25, 27. (See below.) § 403. Same — ^Paresis; heredity. — In Matter of Myers, 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 ptoof, 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 isin 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 hereditary, 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 examinations. PringU v. Burroughs, 185 N. Y. 375, 381, aff'g 100 App. Div. 366: . : § 404. Same^ — General debility or paralysis. — In Matter of Rounds'i'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 Ddafield v. Parish, 25 N. Y. 9; Van Guy sling \. 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 busiaess affairs with prudence and judgment. In re Birdsall's Will, 13 N. Y. ,421. In- competency may, under acute recurring attacks, be intermittent. Matter of Winne, ,50 Misc. 113. It may be observed that the intimation in; the celebrated case of Stewart Y.IAspenkird, 26 Wend; 255 to 306, that a man's capacity may be perfect to dispose, of his property by wiU, although wholly inadequate to the management of other business, sis for instance to make contracts for the purchase or sale of property, has not been wholly ap- proved in isubsequent decisions. SeeDelafieUv. Parish, supra. Andiproof of a testator's ability to transact his Ordinary business affairs with judg- 442 surrogates' courts § '404 ment and discretion, and to manage his property with reasonable prtidence, will generally be considered very strong if not conclusive evidence of testa- mentary capacity. See Matter of BirdsaWs Will, supra; Matter of Kiedaisch, 2 Connoly, 435; Mam- of Gray, 5 N. Y. Supp. 464; Cait v. Patchen, 77 N. Y. 533; Horn v. Pullrrmn, 72 N. Y. 269; Pilling v. Pilli-ng, 45 Barb. 92; Croliua v. Stark, 64 Barb. 112; Heyzer v. Morris, 110 App. Div. 313. So evidence of some acute serious illness during which the testator may well be said to have been incapable of majiiiig 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 continued; for there is no prestimption that it does. Just as has been held in the case of intoxi- cation and drunkenness the disability ends when the exciting cause is re- moved. In re Johnson's Willf 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 severe a character as to com- pletely alter the testator's disposition and personal habits, destroying his "aptitude for business and results in moroseness 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 exercised his judgment, will, and memory in the testamentary act: See Sheldon v. Dow, 1 Dem. 503, and Delajield v. Parish, 25 N. Y. 1. See also Matter of Schmidt, 139 N. Y. Supp. 464. So where at the time or just prior to the execution of the -wiH the testator has fainted and lost consciousness, this does not prove suf- ficient mental weakness to render him incapable of executing a will, par- ticularly if, subsequently, the testator refers to the fact of having made a will or to some of the testamentary dispositions contained in the instru- ment. 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 tnne cuhsnimatiiig subsequently in acute m^ital disorder or in ir- ratioflial action or dememliia is immaterial. Matter of Davis, 91 Hun, 209; Matter of Pricke, 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, 7i 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 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 mil wa^ made." See Matter of Schober, 90 Misc. 230; Matter of McDermott, 90 Misc. 526. Declarations of the testator, while incompetent to prove external facts are admissible on the question of mental capacity or undue influence. MaUer of Woodward, 167 N. Y. 28; Matter of Potter, 161 N. Y. 84; Water- §§ 405-407 CONTESTED PROBATES 443 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. § 405. 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. Nonexperts 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. § 406. 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 capacity in and of itself. If the disposition is unnatural and inconsistent with the obligation of the testator, it then becomes the duty of the proponents to give some explanation. Matter of Budlong, 126 N. Y. 423; Matter of Soden, 38 Misc. 25, 27. Matter of Donohue, 97 App. Div. 205. An unnat- ural disinheritance of an infant child taken together with testimony as to mental weakness was held to require submission to a jury, in an action under § 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 A r ens- burg, 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.) So, when the persons disinherited are shown to have antagonized decedent by trying to have her committed to an asylum it may be held that the disinherison is itself probative of ca- pacity to discriminate between near relatives and pick out, to use Surro- gate Fowler's words, "the near and dear." Matter of Carpenter, 145 N. Y. Supp. 365. See Matter of McDermott, 90 Misc. 526 (41 relatives cut off) ; and Matter ofSchober, 90 Misc. 230 (family disinherited). 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. Per contra, in a close case, the reasonableness of the will may turn the probate scale. See Matter of Browning, 80 Misc. 619 ; where insanity supers vened after the execution of the will. It is thus 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. Boss, 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. § 407. Forgetfulness and mistake. — Failure of memory is not of itself evidence of lack of mental capacity, nor will the mistakes consequent thereon invaUdate 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 sufficient 444 StJRROGATES' COURTS § 408 when viewed in connection with other circumstances' to warrant a finding of laclf of testamentary capacity. The rule seems to be that where defect of meniory is proven it will not be sufficient to create incompetency unless it be total or appertain to things very essential. See Bleeker v. Lynch, 1 Bradf. 458, 466, 467. See also Reynolds v. Root, 62 Barb. 250. See also Children's Aid Society v. Loveridge, 70 N. Y. 387. § 408. Eccentricities. — Contestants of wills on the ground of lack of testamentary capacity, frequently rely imduly upon eccentricities dis- played by the testator in his habits or conduct, particularly when such ec- centricities begin and seem to develop from and after paralytic or apoplec- tic seizures or chronic diseases. Undoubtedly such eccentricities are sjmap- tomatic, and may be proven as facts from which the court may be asked to Lafer mental imsoundness; and while, as Lord Brougham observed, 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 dispo- sition or pecuharities of circumstance. See Calligdn y. Haskell, 143 App. Div. ^74, where grounds of attack were ridiculously inadequate. The leading case aheady 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 moderate degree of reason and understanding which is re- quired 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 gentleman, hospitable, of great command of temper and strict ob- servance 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 ot 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. In- the Campbell case, quoted in § 396, ante, after trying issues "in- troduced with much solemnity," and disposed of in an opinion of many pages, all the Surrogate could deduce from the oral and documentary tes- timony was that the testatrix was "old, very sad, and physically weary." So Surrogate Rollins {CornweU 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 things, 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 § 408 CONTESTED PROBATES 445 thoroughly understand what he was doing; was not able to appreciate the nature and extent pf his possessions; could not, after calling 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 earUer in life, were proven in great detail before the Sm-rogate; they tended to es- tablish penuriousness, conspicuous untidiness, want of delicacy in cer- tain featm-es 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. Id. at page 395. Seealsoikfa a vigilance in keeping track of het affairs, a vigorous handling of matters in dispute, a knowledge of her friends and relatives, and the ability to form judgments as to whether their conduct was friendly and hostile up to an advanced age: The will was probated. § 410. 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 Hquors; 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 suicidal there was testimony to the effect that he indiulged 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 freely, jvithout fraud and undue influence; and that the proponent should estabr lish 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 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 character, freedom of action and judgr- ment to guard his rights, and protect himself 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 vaUd will, it is not the law that the drawer of a will, even if he holds confidential relations to the testator, can- not be his executor or take a legacy thereunder; nor is it 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 presumed 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 evideace, warrant the pre- sumption 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-testapientary 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 idid 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 coatestant 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 inr ference of wrongdoing follows as a natural and unavoidable result, and it is only so established when such facts are proven i that mo, other legitimate conclusion can be drawn. Justice to testators; heirs, and legatees does nqt § 427 CONTESTED PROBATES 473 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 debarred the aid of an attorney, relative, or olher person in whom they had the most 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 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 testamentary transaction providing for the lawyer to the exclusion of husband and sons named in prior wills, led the Surrogate to deny probate. § 427. Same subject.— Where one who has acted as attorney or legal adviser for a testator drafts a will in which he is indicated as executor or made a legatee and is accused of exerting undue ilifluence, it will be suf- ficient to meet the case if it can be shown that the will drawn was in sub- stantial 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 hot be the promptings of affection, the desire to gratify the wishes of another, the ties of attachment arising from consanguinity, orthe 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, stand- ing in a relation of trust or confidence, is instrumental to any extent in procuring a testamentary provision in his own favor; and, while such cir- cumstance does not in and of itself invalidate the bequest, it does call for satisfactory explanation, and imposes upon him claiming under such provi- sion 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 con- tents by a' testator,' which will be discussed later, it has been held that where a will was drawn by the principal beneficiaries under it, and the testator was able to read writing, and of sufficient capacity to transact 474 surrogates' courts § 428 business, and yet did not read the will it may nevertheless be inferred frooi the circumstances that the testatoii was acquainted withits contents. Nex- sen 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 attorney of the deceased was the principal beneficiary under the will does not alone create a pre- sumption that the testamentary gift was procvured by fraud or undue in- fluence, but that in a case where the testator was of advanced years, infirm mentally and physically, and made his attorney his principal beneficiary, contrary to previously expressed testamentary intentions, 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, alf'd 77 App. Div. 142. § 428. 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 limitation 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 wUl 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 arid that the influence shown to have been exerted by the daughter was un- due influence. See Matter of Bishop, 10 N. Y. Supp. 217. This impor- tunity must be "decent." A wife's resort to tears does not transcend the bounds of this legal decency. See Matter of Hall, 68 Misc. 581, and cases reviewed by Davie, Surr. Also Matter of Spooner 89 Misc. 30. A new class of undue influence cases may arise from the, unwise amendments of the Domestic Relations Laws in 1915 and, 1916 permitting the adoption of adults. The adoption may be procured by undue influence. 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 Woodward, 167 N. Y. 28. The General Term in the First Department {In re lAddy's Will, 5 N. Y. Supp. 639) held: "The mere fact that si 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 exercising the influence for the will of the person who is to do the act. Arguments, 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 § 429 CONTESTED PROBATES , 475 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 testaanentary capacity was a man of very weak will and completely under the domination of his second wife. Surrogate Rolhns 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 compUed 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 wills were made she had a property very much larger than his. The Sur- rogate held that although the testamentary scheme of both wills was con- cocted by the wife, the testator acquiesced in it intelligently, understand- ingly, and voluntarily under the selfish behef 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 natural objects of his bounty, one of whom was a 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. § 429. Opportunity. — Where a testator has been for years dependent in respect of his comfort 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 exer- cised; or, as Van Brunt, P. J., observes {Matter of Bedlow, 67 Hun, 408, 413): "The mere fact that the opportunity of exercising undue influence has been afforded and that benefits have resulted to those who had the opportunity of exercising such influence by no means raises a presumption 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 decla- rations of affection and of intent to reward. In other words, the exer- cising of undue influence must be proved as a fact and will not be inferred, 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 Lovrnmn's Estate, 1 Misc. 43, 46, citing Gardiner v. Gardiner, 34 N. Y. 155; Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191; Kinne v. Johnson, 60 Barb. 69; Cudney v. Cudney, 68 N. Y. 148; Matter of Spooner, 89 Misc. 30. iSo 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 rela- 476 surrogates' courts §§ 430; 431 tions 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 exer- cise 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 overcome the will of testator. Mentor of' Hawley, 44 Misc. 186. § 430. Opportunity — Draftsman — Beneficiary.^^ 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 indicate improper motive on the part of the attorney, the. court will require some affirmative proof that the testator knew the con- tents 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 adviser 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, 5Denio, 640; Nexson v. Nexson, 2 Keyes, 229; Davoue V. Fanning, 2 Johns. Ch. 252; Robertson v. Caw, 3 Barb. 415, opinion of Willard, J., and cases there cited; Newhouse v. Godwin, 17 Barb. 236; Whitehead 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, dbes not create any presumption against the validity of the legacy. See also Matter of Dixon, 42 App. Div. 481, 487, said Matter of Weed, 143'App. Div. 822, 824. 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 circumstances are such as to show either that the testator was infirm or weak, or pecuUarly susceptible, or where there is direct proof of declarations by such testator as to the tes^ tamentary intention wholly different from those expressed in the will. See also Clarke v. Schell, 84 Hun, 28; Matter of Suydam, M 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 in- fluence. Matter of Westurn, 60 Hun, 298. § 431. Same, rebutting the charge; and § 835. — If A, thedraftsman of B's will, is accused of undue influence, whether he is a legatee or not, can he rebut the charge by testifying to declarations of testator; oral or written, against the objection "privileged communication''? We pass over the fact that the client or his representatives may waive under §§ 829 and 836. § 432 CONTESTED PROBATES 477 We pass over the query whether the persons named as executors in the will under contest are "representatives" in the sense of the two sections. We believe they are and can. But assume they do not. Is the draftsman, an officer of the court, charged with fraud, and so with a violation of his ; professional duty, relieved thereby from the seal of secrecy of the Statute? It appears so. In the Matter of, Chadwick, [unreported, NicoU, Surr.,] the draftsman of the will, in such a situation, produced a paper writing of the testatrix, a draft of the provision in his favor, set out in a letter stating, "I hope this is clear enough for any court of law." It was offered as an exhibit after the questions: "Q. In whose handwriting is that letter and signature? "A. The testatrix'. " Q. Did you receive it and when? "A. I did — on the day of — by the morning mail." It- was received in evidence on the following grounds: (1) This common-law privilege or rule for the exclusion of evidence was to prevent anyone interested from testifying to a fact which, if the other party to the transaction were living, he would be entitled to qualify or deny. Obviously the testatrix could not have denied or quaUfied the fact that witness received'the paper, and the handwriting was conceded to be hers. (2) The paper was offered to refute the i charge that the bequest was not the free act and will of testatrix and admissible under the rule in Rochester City Bank v. Suydam (15 How. Pr. 254, cited as authoritative in 40 Cyc. 2403).; : (3) Where the litigation is between persons all claiming under the de- ceased client the rule of privilege is not assertible where the draftsman is accused of fraud. (4) The paper offered was itself a waiver by the cHent herself: "I hope this is clear enough- for any court of law." As to offering paper writings of decedent, not as proof of their contents, but as declarations showing mental state of testatrix, bearing on testamen- tary capaoityy knowledge of contents of will, and so freedom from undue influence, see Austin Abbott, Trial Evidence. "The testator's correspond- ence, his manner of conducting business, etc., are competent," citing Harper v. Harper, IN. Y. Sup. Ct. (T. & C.) 351. The reason, he states, is that they are recieiv^d "as statements which, independent of their truth or falsity, disclose his state of mind, strength or weakness of will, independ- ence or infirmity of purpose, capacity or imbecility." Or, " What the tes- tator said the law does hot credit, for it is unsworn, but the fact that he said it the law receives:" citing Robinson v. Adams (11 Am. Rep. 473). § 432. Weakness of testator. — The rules above stated as to the creat- ing 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 sotne benefieifaFy under the will. Matter of HurVbut, 26 Misc. 461. 478 surrogates' courts §433 For example, the rule as to there bemg 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 condition 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 cod- icil gave a legacy of $30,000 to his legal adviser, the draughtsman of the will, the Surrogate held that the presumption of imdue influence by the draughtsman was completely rebutted and the biu-den upon the draughts- man to show the absence of undue influence removed by proof of the affec- tion entertained for him by the testator, the fact that the legaey 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. So, in the Campbell Case, N. Y. L., J., March 2, 1912, Fowler, Surr., relieved the draiightsman of the charge of writing himself into the will by pointing out that he only wrote his mother in, that he might not survive her anyway, but, chiefly, that she was a presumptive heir at law of the testatrix. Where a testator is on his death bed and induced to make a will in favor of a relative who threatens and reproaches him, the will will be invalidated for imdue infltience. 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 'd<^)end^it, which is at variance with some former will made, or intuitions 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. Matter of Miller, 36 Misc. 310. § 433. Same subject. — Where the person who is alleged to have pro- cured by undue influence the will, under which he is chirf or sole benefi- ciary, has been the medical attendant of the decedent, who i is shosrti to have been aged or infirm, the court will scrutinize the eircimistances 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 decedeni. But where it appears the will was drawn pursuant to testator's instruc- tions, and the medical attendant was not present at time of execution, held no presumption of undue influence. Matter of Cornell, 43 App. Div. 241, § 433 CONTESTED PROBATES 479 245, aff'd 163 N. Y. 608, citing Matter of Will of Smith, 95 N. Y. 516; Mat- ter of Spratt, 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 fol- lows: "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, imbiased testamentary 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 itself pe- culiar opportimities for the exercise by the former over the latter of in- fluence and authority, so that if he had been instrumental in procuring from his patient a will containing provisions greatly to his advantage, 'fraud and undue influence will readily be inferred imless all jealous sus- picion is put to rest,' by satisfactory testimony," citing Schouler on Wills, 256; Newhouse v. Godvnn, 17 Barb. 236; Wilson v. Moran, 3 Bradf. 172; Crispelly. Du Bois, 4 Barb. 393; Kinne v. Johnson, 60 Barb. 69; Post v. Mason, 91 N. Y. 539. See Matter of Keefe, 27 Misc. 618. And, in the Campbell Case, supra, Fowler, Surr., restates it: That the burden of proof in testamentary causes lies in every case upon the person propounding a will, and that he must satisfy the conscience of the court that the instrument propounded is the last will of a free and capable testator, is undoubted law. If contestants intend to assert that in every case in which the party preparing a will derives a benefit under it, the onus probandi is shifted, and that not only a certain measure but a particular speMes of proof is required in such cases, I have no hesitation in saying they misapprehend the law. The final rule on this point was established in Barry v. Builin, 2 Moo. P. C. 1 Curt. 637, where many of the utterances on this point by Sir John NichoU, cited by counsel for contestants at law, were examined and strictly hmited. Barry v. Builin has been since confirmed and followed many times by the Court of Appeals of this State. The only rule now relevant in testamentary causes where the draftsman takes a benefit under the will he writes, is that it excites the suspicion of the court, and unless that suspicion be removed the court will not pronounce for the will {Barry V. Butlin, 1 Curt. 637; Burling v. Loveland, 2 Curt. 226; Coffin v. Coffin, 23 N. Y. at p. 13; Matter of Will of Smith, 95 N. Y. 516; Clarke v. Schell, 84 Hun, 28; Matter of Suydam, 84 Hun, 514.) In the Lovrman, 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 fo^ 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 slightest 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 480 SURKOGATES' COURTS § 434 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 imdue 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 confirmed inebriate made will in favor of an attorney, citing Matter of Westurn, 60 Hun, 298; Peck v. Belden, 6 Dem. 299; Turhune v. Brookfkld, 1 Redf. 220. See Matter of Williams, 89 Misc. 1, Bodine, Surr., and cases discuslsed in opinion. In this case one beneficiary dictated a memorandum to an- other, and then it was given to the draftsman and when drawn up the testatrix was persuaded to sign it. § 434. 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 imder 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 jvill but did make a will 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 pur- pose of getting her to make a will and siiperintend its execi;ition, 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 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 de- nied on the ground of undue influence. Matter of lAney, 34 N. Y. Stj Rep. 700. See also Matter of Dvyyer, 29 Misc. 382. S6 in a case where a tes- tator was seventy-nine years old, who had been strong and vigorous all his hfe until he was attacked by a serious illness -during which in expecta- tion of death he made his will, and it appeared that one of his daughiess was disinherited by this will as the result of letters written by one. of the sons containing accusations against the daughter, which alienated her §§ 435, 436 CONTESTED PROBATES 481 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 dis- inherit the sister. Matter of Will of Budlong, 126 N. Y. 423, 431. § 435. Summary. — From the cases discussed it is clear that the pre- sumption of undue influence arises. First, in cases of confidential or fiduciary relationship as where a pa^ tient 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. 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 peculiarly susceptible to importunities or other influences, par- ticularly when the person benefiting by the will then made has motive 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 showing 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 mil, unless of course it appear that the making of the particular will was induced by false representations actually affecting the testamentary disposition. The presumption in the third class of cases may be met by affirmative proof of testamentary capacity and by showing that undue influence was not in fact exerted. It remains to be said that it may be determinative of the question of un- due influence on the will attacked if it can be shown that the person passed over was otherwise provided for. Matter of O'Gorman, 127 App. Div. 159. § 436. Change of testamentary intention. — The fact that testator has made other wills prior to the one objected to, making entirely different 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 ,482 surrogates' courts ■ § 437 that the will is completely at variance with the testator's repeated declarar tion as to his testamentary intentions. See Matter of Phelps, 19 Weekly Dig. 293. But the following temporary headnotes in the report of the Campbell Case in N. Y. L. J., March 2, 1912, satisfactorily embody hmits of the rules laid down by Fowler, Suri'., in that case. An unexplained change of testamentary intention may have weight on ^ issue of undue influence. But whether an intention to die intestate is' to be regarded as fallingwithin this principle, query. To allow contestants to set up a parol declaration of testatrix's intent tp die intestate as against her subsequent will is to permit extrinsic oral evidence of in- tention to avoid a written will. Such latitude is counter to the dgyelopment of the law relating to wills. A fixed testamentary intention must be one long or consistently adhered to, in order to have influence on an issue of undue influence. Mere passive conduct is not enough. ' , , § 437. Knowledge of contents. — The ordinary presumption as to the knowledge by a person who has executed a document, of the contents of such docimient, dbes not arise in case of v^ills 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 ilhterate, 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 ha^ persoilal knowledge of the contents of the paper he is about to sigri 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 ijifirm/ who might be powerless to protect themselves from being surrounded by those' who would not hesitate to benefit themselves by fraud, coercion or undue in- fiuence,' 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 enf^iebled 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 § 438 CONTESTED PROBATES 483 upon this question he has the burden of proof. Rollwagen v. RoUwagen, 63 N. Y. 504, 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 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 factimi of the wUl, but also that the mind of the testator accompanied the act, and that the instrument executed speaks his language and really expresses his will." § 438. Proof of knowledge of contents. — If it appear in evidence that the will was read to the testator before execution prior to his pubUcation of the same as his will, this will generally be considered sufficient , prQof 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 the 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 pages 212 et seq., and question of imdue influence between servant, 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; Haganv. Yatesj 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; Eweny. Perrine, 5 Redf. 640, Alton B. Parker, Surr. A subsequent codicil, duly executed, is ■ a most solemn indication of such knowledge. Matter of Tyson, Ketcham, Surr., N. Y. L. J., Feb. 29, 1912, citing Cook v. White, 43 App. Div. 388, aff'd 167 N. Y. 588, and Ma,tter of Emmons, 110 App. Djv. 701, to the point that such a codicil overrides the suggestion of undue influence as invalidating the will. This, is not to be taken as indicating that imdue influence may be proved merely .by declarations of the testator, for it has been held ip that respect that thjere must be independent proof of efforts so to influence him. See Cudneyv.Cudfvey, 68 N.Y. 148. w ' Knowledge of contents of the will, however, may be proved circum- stantially, the court may infer, it from aU the circimistances 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 th^t.pf the other or others, or it may be established by independent testimony, even against that of the subscribing witnesses. See TheohgicahSeni'i'nary v. Calhoun, 25, N. Y. 422. 484 surrogates' courts §§ 439, 440 § 439. 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. § 440. Mistake. — ^An objection that the will, or any part of it does not conform to the real wishes and intention of the decedent, goes to the foundation of the instrument itself. If such objection prevails it amounts to holding that the instrument, or the part objected to is not the decedent's will. Blackwood v. Darner, 2 Phillim. 458; Williams on Executors, 406, 408; 1, Redf. on Wills, 499. The court has power to deter- mine, in probate, is the instrument propounded the very will and testament of the decedent. This power is distinct from that of construction and interpretation, elsewhere expounded. But, it is not sufficient ground for refusing probate of a will that error as to any matter of fact has been made by the tes'tator, xmless it appear, that the mistake embodied in the will has been of such a character as to nulHfy or materially to affect his testamentary intentions. Boell v. Schwartz, 4 Br^df . 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 bas 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 iustrument. 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 coints in construing wills to receive evidence that statements or provisiobs therein contained are void for un- certainty or mistake. See, for exainple, Kalbfleish 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 written 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 §§ 441, 442 CONTESTED PROBATES 485 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. Clifford v. Dyer, 2 R. I. 99. Where a legacy was made by a will and in a codicil revoking it it was recited that the legatee was dead, such revocation was held inoperative on proof that the legatee survived the testator (CampbeU 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 pro- bate, 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 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 Bedhw, 67 Hun, 408; Clapp V. Fullerton, 34 N. Y. 190; Matter of Harris, 19 Misc. Rep. 388; Creeley v. Ostrander, 3 Bradf. 107. § 441. Partial avoidance. — A case may be assumed where the undue influence or fraud is f ocussed on and shown in a distinct and severable part of the wUl. In such a case, it appears, the Surrogate may reject such por- tion and probate the balance. See Matter of Meyer, 72 Misc. 566. There the Surrogate was asked to expimge matter as scurrilous or scandalous from the will. He denied his powers so to do unless treating it as "a motion to refuse probate and record to offensive matter." He followed reluctantly, in exercising the power. Matter of Bomar, 18 N. Y. Supp. 214. He refers passim to cases upholding the right to reject parts of a will for fraud or mistake. See cases cited at p. 571. In the Matter of Janes, 87 Hun, 57,. aff'd 152 N. Y. 647, one of these cases, Cullen, J., writing for the General Term says he had no doubt as to the power of the Suwogate to entertain the proceeding, which happened to be one to revoke probate of a part of the will as having been obtained by fraud. § 442. Mr. Redfield's classified citations on undue influence. — We append, as in the discussion of testamentary capacity Mr. Redfield's classification of cases under specific heads of undue influence. Undue influence, general principle. Matter of Bedlow, 67 Hun, 408; Matter of Green, 67 id. 527; Wightman v. Stoddard, 3 Bradf. 393; Delafield v. Parish, 25 N. Y. 9; Sherman's Appeal, 16 Abb. Pr. 397, note; Jidke v. Adams, 1 Redf. 454; Clarke v. Davis, id. 249; Turhune v, BrookfUM, id. 220; 486 surrogates' courts § 442 Van Hanswyck v. Wiese,4A Barb: 494; Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191; Gardiner v. Gardiner, 34 N. Y. 155; Tyler v. Gardiner, SB idi 559; RoUwdgen v. Rollwagen, 3 Hun, 121, 63 N.Y. 504:; Matter of Westurn, 60 Hun, 298, 14 N. Y. Supp. 753; Matter of Portingall, 39 St. Rep. 903; Matter of eSupp. 65; Master o/^feip/eion, 71 App. Div. 1, 75 N. Y. Supp. 657. — by child' and legatee. Leaycrafi v. Simmons, 3; Bradf. 35; Mowryy. Silber, 2 id„ 133; Bleecker v. Lynch, 1 id. 458; Mairs v. Freeman, 3 Redf. 181; Cudney v. Cudney, 68 N. Y. 148; Tucker v. Field, 5 Redf. 139; Matter of Buckley, 16 St. Rep. 983; Banta v. PFiZZeis, 6 Dem. 84; Figuem-arv. Taafe, id. 166; Pecfc v. Belden, id. 299; MaWer of Mondorf, 110 N. Y. 450; ikfaiier ofBernsee, 45 St. Rep. 11; Matter of Bedell, 32 id. 1022; Ledwith v. Claffey, 18 App- Div. 115, 45 N. Y. Supp. 612. — by brother or sister and legatee. \ Matter of Green, 20 N. Y. Supp. 538; Matter of M anion, 32 App. Div. 626, 52 N. Y. Supp. 611; Matter of Skaais, 74 Hun, 462, 26 N.Y. Supp. 494. : ^ , — * by' physician. Crispell v. Dubois, 4! Barb. 393; Colhoun y. Jones, 2 Redf. 34; Matter of Lowman, 1 Misc. 43, 22 N. Y. Supp. 1055; MaMer of Cornell, 43 App. Div. 241, 60 N. Y. Supp. 63, aff'd 163 N. Y. 608; Matter ofKeefe, 27-Miso. 618, 59 N. Y. Supp. 490, rev'd 47 App. Div. 214; but aff'd 164 N. Y. 352; Master of Small, 118 App. Div. 502. -^'by grandson, a legatee. Carroll v. Norton, 3 Bradf. '291'; Matter of Van ffoMfen, 17Misc;.44S, 41'N. Y. Supp. 250. - — by niece or nephew and legatee. MaMer of Hedges, 57- App. Div. 48, 67 N. Y. Supp. 1028; Chambers v. Chambers, 61 App. Div. 299,: 70! N. Y. Supp. 483. \ > — by son-4n-law ,and legtutee, Matter of J ourneay, 15 App. Div. !567, 44N.Y..Supp. 548, aff'd 162 N.Y. 611. ^ . ,• , . — by business manager. Matter of Clark, 5 Misc. 68; Hayes v. Kerr, 19 App.Div.-91, 45 N.Y. Supp. 1050. -- ' " 'sfi' ■ -M .-^>?n/ paramour. Matter of Rand,'2S Misc. 466, 59 N. Y. Supp. 1082; Matter of Westerman, 29 Misc. 409, 61 N. Y. Supp. 1065; Matter of Evans, r37 Misc: 337, 76 N. Y. Supp. 491; aff'd 81 App. Div. 636; ScoZi v. Barker, 129 App. Div. 241; Matter of Eddy, 41 Misc. 283, 84 N. Y; Supp. 218; — - by housekeeper. Matter of HarniUm, 29 Mi^c. 724, 62'Ni Y. Supp.^820. — by execiitor and legatee: VreeUmd v. McClelland, 1 Bradf. 393; Booth § 442 CONTESTED PEOBATES 487 V. Kitchen, 3 Jledf. 52; Matter of Carver, 3 Misc. 567, 23 N. Y. Supp. 753; Matter of Svih^land, 28 Misc. 424, 59 N. Y. Supp. 989; Matter of Fox, 9 IV^isc. 661, 30 N. Y. Supp. 835. Urujm ivfiwnce hy legal adviser and legatee. Wilson v, Moran, 3 Bradf. 172; Matter of Edsan, 70 Hun, 122, 24 N. Y. Supp. 71; Matter of Murphy, 48 App. Div. 211, 62 N. Y. Supp. 785; Clark v. Schell, 84 Hun, 28, 31 N. Y. Supp. 1053; Matter of Suydam, 84 Hun, 514, 32 N. Y. Supp. 449, aff'd 152 N. Y. 639; Matter of Read, 17 Misc. 195, 40 N. Y. Supp. 974; Matter of : Smithi 36 Misc. 128; Matter of Rintilen, 77 App. Div. 142; Matter of Finch, 115 App. Div. 871; Matter of Marlor, 121 App. Div. 398; Matter of Thomp- son, 121 App-. Div. 470. ^- by spiritual adviser. In re Welsh, 1 Redf. 238; McGuire v. Kerr, 2 Bradf. 244; Marx v. McGlynn, 4 Redf. 445, 88 N. Y. 357; Merrill y.Molst(m, 5 Redf, 220; AfaWer- ofHollohan, 24 St. Rep. 449, 5 N. Y. Supp. 342. < -— by draughtsman of will, whose wife or children are legatees. Lake v. Ranneyi BS BsLvb. 49. See Coffin v. Coffin, 23 N. Y. 9; Burke's Will, 2 Redf. 22i9; Reeve v. Crosby, B id. 74; Matter of Sheldm, 40 St. Rep. 369; Maiier of Miller, ,72 App. Div. 615. ; . • _ — by guardian over minor ward. lAmberger v. Rauch, 2 Abb. Pr. (N. S.) 279; Matter of Bosch, N. Y. Daily Reg., July 12, 1883; Matter of Carland, 15 Mi^c. 355, 37 N. Y. Supp. 922. — by guardian, a draughtsman and beneficiary. Matter of Paige, 62 Barb. 476; Bristed v. Weeks, 5 Redf. 529. — by parent aver minor. Nutting v. Pell, 11 App. Div. 55, 42 N. Y. Supp. 987. — by clergyman, whose church was a beneficiary. Langton's Estate, 1 Tuck. 301; Merrill v. Rolston, 5 Redf. 220; Matter of Monroe, 2 Connoly, 395. — by father of infant legatee. O'Neil v. Murray, 4 Bradf. 311; Burke's Will, 2 Redf. 239; Hazard v. Hazard, 5 Sup. Ct. (T. & C.) 79. — by a legatee not next of kin. Weir v. Fitzgerald, 2 Bradf. 42; Hutchings V. Cochrane, id. 295. See Lansing v. Russell, 13 Barb. 510; Matter of Buckley, 16 St. Rep. 983'; Matter of Pike, 83 Hun, 327, 31 N. Y. Supp. 689; Clark V. Schell, 84 Hun, 28, 31 N. Y. Supp. 1053. — by nurse. Neiheisel v. Toerge, 4 Redf. 328; Matter of King, 29 Misc. 268; Matter of Lacy, 35 id. 581, 71 N. Y. Supp. 1129. Undue influence to induce charitable bequests. Wightman v. Stoddard, 3 Bradf. 393; McLaughlin v. McDevitt, 63 N. Y. 213; Burritt v. Silliman, 16 Barb. 198; Marx v. McGlynn, 4 Redf. 455, 88 N. Y. 357; Matter of Monroe, 2 Connoly, 395; Matt^ of Shannon, 11 App. Div. 581, 42 N. Y. Supp. 670; Matter of Johnson, 28 Misc. 363, 59 N. Y. Supp. 906. Incapacity and undue influence. Allen v. Public Adm'r, 1 Bradf. 378; Hutchings v. Cochrane, 2 id. 295; Thompson v. Quiniby, id. 449; Bristed V. Weeks, 5 Redf. 529. Age and undue influence. Butler v. Benson, 1 Barb. 526; Matter of Ro- maine, 6 N. Y. Leg. Ohs.\0bQ;Weir v. Fitzgerald, 2 Bradf. 42; Maverick v. 488 surrogates' courts § 442 Reynolds, id. 360; Creely v. Ostrander, 3 id. 101 ; Matter of Soule, 1 Connoly, 18; Matter of Bartholick, id. 373; Matter of Kahn, id. 510; Matter of John- son, id. 518; Matter of McCarthy, 20 N. Y. Supp. 581, 48 St. Rep. 315; Matter of Bishop, 31 id. 314; Matter of Stewart, 10 N. Y. Supp. 744. Secrecy, artifice and contrivance as badges of fraud. Coffin v. Coffin, 23 N. Y. 9; Blanckard v. Nestle, 3 Den. 37; Tunison v. Tunison, 4 Bradf. 138. Duress and threats. Fagan v. Dugan, 2 Redf. 341; Matter of Spratt, 17 App. Div. 636, 45 N. Y. Supp. 273. Mistake in or unequal provisions of mil. Burger v. Hill, 1 Bradf. 360; Mowry v. Silher, 2 id. 133; Waters v. Cullen, id. 354; Creely v. Ostrander, 3 id. 107; O'Neil v. Murray, 4 id. 311; Morrison v. Smith,3id. 209; TfiffAi- Twan V. Stoddard, id. 393; Co^n v. Coffin, 23 N. Y. 9; Jackson v. Jackson, 39 irf. 153; American Seamen's Friend Soc. v. Hdpper, 33 id. 619, 43 Barb. 625; Gamble v. Gamble, 39 td. 373; Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191; CZapp v. Fullerton, 34 N. Y. 190; CZarfce v. Daws, 1 Redf. 249; Clarke v. Fisher, 1 Paige, 171; TTafeon v. Donnely, 28 Barb. 653; La 5aM v. Vanderhilt, 3 Redf. 384; Deas v. TTandeM, 1 Hun, 120; Matter of Lasak, 57 id. 417, 131 N. Y. 624:; Matter of Monroe, 2 Connoly, 395; Matter of Williams, 46 St. Rep. 791. CHAPTER V THE WILL ADMITTED TO PROBATE OR GIVEN PROBATED EFFECT § 443. Admitting the will.— Section 2614 has been quoted in § 372, ante. It applies to every probate decree, whether based on contest or on the ex parte proofs. The evidence adduced must result in making it appear to the Surrogate (1) that the will was duly executed, (2) by the testator at the time competent, (3) and not being under "restraint." Perhaps "constraint" would be a better word than "restraint"; but_ the section thus covers the three heads we have discussed of Due Execu- tion, Testamentary Capacity, and Fraud or Undue Influence. If these things appear then the will must be admitted to probate, as a will vaKd to pass real property, or personal property, or both, as the surrogate determines, and the petition ,and citation re- quire, and must be recorded accordingly. The decree admitting it to probate must state whether the probate was or was not contested. § 2614. In uncontested cases the Surrogate, nevertheless, acts judicially. That is, he passes on the sufficiency of the testimony. In contested cases, after trial, summing up, registering verdict of jury if any, briefs, "due deliberation," etc., he renders his decision and pro- ceeds to a decree. The final clause quoted above is mandatory. It goes, it seems, to the substance of the decree. Matter of Hasselbrook, 128 App. Div. 874. The wording of this section indicates that the admission of the wiU 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. Our previous discussion shows that where there has been a failure to comply with the statutory provisions relative to the execution of wills, a will must be denied probate. PubHc policy requires it. Matter of KivUn, 37 Misc. 187, and cases cited. The intent of the testator may be clear; it may, e. g., be a holographic wiU; but that cannot be para- moimt to the intent of the Legislature. Matter of Andrews, 162 N. Y. 1. See Matter of Martin, 82 Misc. 574, 585, citing CartwrigU v. Cartwright, 1 Phill. Ecc. 90, and disapproving it as holding allographic character a § 443 489 490 surrogates' courts § 444 proof of sanity, and on sanity thus proved the will was admitted. 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 (refer- ring to Matter of Beck, 6 App. Div. 211) he would decree probate where the factum was established satisfactorily unless, lack of capacity, or fraud, or undue influence be estabhshed beyond a reasonable doubt. But this means there must be some evidence that the person who made the will was competent, and not under restraint. This is usually done by the sub- scribing witnesses. Matter of Schreiber, 112 App. Div. 495, citing Miller v. White, 5 Redf. 321. If there be ho such proof, probate must- be denied. Ibid., citing Matter of Goodwin, 95 App. Div. 183; Matter of RdmsdelV, ^117'' N. Y. 636. The presumption of sanity is not alone sufficient to underlie ' a finding to sustain the judicial act called for by § 2614 in the words "if it appears to the Siurogate." The judicial actioii' of the Surrbgate in a probate proceeding must be confined to a deternunation of the question of the due execution of the will, and whether the testator had sufficient testatnentary capacity, and was not under any' restraint. He has' also- power, rnider the provisions of the Code (see discussion aliunde), to pass ' on the validity, construction, or efffect of any disposition of property don- taiued (a) in a resident's will, (b) if it w£is executed in this State, as inci- dental to the probate of the will unless probate is denied; but the words "a will valid to pass real property" niean solely a wiU.dyly executed which undertakes in terms to convey that species_ of property. , , -: , , § 444. Construing, if probate pending. — But probate logically pre- cedes any power to construe. Upon due proof of statutory execution he must admit to probate. On its validity in the other sense the Surrdgatfi; ' can then pass. Matter of Davis, 182 N. Y. 468, 475, aff'g 105 App. Div.' 221, and 45 Misc. 554. This Davis csise was peculiar in that sole legatee, devisee and executrix did not sm'vive testatrix. See also Matter ofPiUbury, 113 App. Div. 893, aff'g 50 Misc. 367. See also Matter of Merriam, 136 N. Y. 58; Matt^ of Mount, 185 N. Y. 162, aff'g 107 App. Div. 1; Matter ' of Walker, 54 Misc. 177. 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 factuiH of the wiU alone; Matter of Hasselbrook, 128 App.- Div. 874, and the description of the wills as wills of" real or personal property, relate to the manner in which they have been executed. For exatnple, imder former § 2611, now Dec. Est.' Law, §§ 23-25, there ai*e 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 prescribed by the laws of the State W coimty where executed, or the will of a nonresideht, executai' according to the laws of his residence, but not as prescribed by the laws of this State';' so, again, age of testator may condition right to devise as contrasted with right to bequeath (§§10 and 15, Dec. Est. Law). • The Surrogate's power, which logically ought to be in the grant of gen- eral powers, and not specially conferred, is in the Code: § 445 THE WILL ADMITTED TO PROBATE 491 § 2616. Construction of.imll, second half. If a party expressly puts in issue, in a proceeding for the probate of a will, the validity, construction, or effect of any disposition of property, contained in such will, the surrogate may determine the question, upon rendering a decree, after,, notice given in such manner as the surrogate directs to all persons interested who do not appear on such application in person or by attorney; or, unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in section 2614, may admit the will to probate and reserve the questions so raised for future consideration and decree. In part from former § 2624 of the Code. From L. 1870, c. 359, § 11; L. 1910, c. 584. We repeat, accordingly, probate is assumed if the power to construe is asserted. The court is not supposed to deUberate over the meaning of an instrument which it holds was never a duly executed will. Thus, where a Surrogate has refused to probate a mil 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 pro- bate, with a statement of the executor and chief beneficiary to the effect that the direct bequest to him of realty and personalty was ia fact made for the children of the testator, that- the testator considered them incom- petent 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 insufficiency 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'. See Corky v. McElmeel, 149 N. Y. 228, 235, as to conclusiveness of a .decree refusing probate. § 445. Probate decrees. — There are thus three courses a proceeding resulting in probate may take: A. Normal, uncontested probate: Depositions taken, will duly identi- fied, in proper C9,se a report by special guardian, and the Surrogate satis- fied under § 2614. (See Chapter III.) B. Same, except that the Surrogate is asked to construe or interpret some "disposition" contained in the uncontested will: "Answer," or "objection" "putting in issue the validity, construction or effect" of the disposition; briefs or oral argument; determination by Surrogate "upon renderiag a. decree," under § 2615. C. Contested probate: Issues tried by Surrogate, or by jury. (See Chapter IV) and will admitted. If probate is granted a decree granting proba,te is handed down by the Surrogate substantially in the following form: 492 SURROGATES COURTS §445 Surrogate's Court Caption. Present: Decree granting Hon. probate. Surrogate. In the Matter of the Probate, No contest. of the Last WiU and Testa- ment of late of Deceased, as a WiU of Real (or) (and) Personal Property. Note. , Many prac- titioners pref pr to re- cite the petition, the citation of the several parties and their sev- eral appearances in person or by attorney. // necessary say: Satisfactory, proof having been made of the due service of the citation herein ilpon, or of the due appearance herein by, all persons entitled to notice of this proceeding and, Esq., special Guardian for an infant 14 years of age having appeared in person. Nftte. 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 the Surrogate having intjuired particularly into all the facts and circumstances, and being satisfied with the genuine- ness of the will, and the validity of its execution; And the probate not having been contested; And A. B., a party respondent, having expressly put in issue the vaUdity, e. g., of paragraph IV of said; will. And theSurrogate having determined ^he question after due notice given pursuant to § 2615 of the Code. Or, the Surrogate having reserved the question so raised for future consideration and decree; And X. Y., Esq., the special guardian aforesaid, having duly made and filefj his report as required by law. Now it is OBiDEKED, lApjuDGBn and DECKEEn, that the in- strument offered for probate herein, bearing date the day of 19 , and subscribed by L. M., and D. F. as witnesess thereof (note), Be and the same hereby is, admitted to Probate as the last will and testament of the said i deceased, valid to pass Real and Personal' Property {or either). And, that the said, will, and the proofs thereof,, with this decree, be Recorded; And that Letters Testamentary be issued to the Executors named in said will who may qualify thereunder. Add any provision as to costs or cUlowances. (Surrogate.) The following section explains itself: § 2624. Revocation of letters upon proof of vrili. Where, after letters of administration, on the ground of intestacy, have been granted, a will is admitted to probate, and letters are issued thereupon; or where a subsequent will is admitted to probate and letters are issued thereupon; the decree, granting probate, must revoke the former letters. Former § 2684 of this Code. From 2 R. S. 78 (Part 2, c. 6, tit. 2), § 46. Note. Also recite codicils in like manner, if any offered. §§ 446, 447 THE WILL ADMITTED TO PROBATE 493 § 446. Contents of will. — Of course the decree may have to be adapted. When the will is nuncupative, as already noted, the decree declares or states its contents. If it was a lost will, § 1865 must be consulted so that its provisions, as " clearly and distinctly proved " may be recited. It is called " statement of the tenor of a will." If a paragraph is excluded, as for fraud, the decree must recite the fact and specify the part exscinded. Matter of Bomar, 18 N. Y. Supp. 214. If scurrilous matter be expunged the same rule obtains. Matter of Meyer, 72 Misc. 566; see also 74 Misc. 15. This power of "editing" the testator's expressions should be sparingly exercised. Schedcer v. Woolsey, 2 App. Div. 52, 54. The following recitals and provisions may be used in a "lost will" pro- ceeding: Whereby it appears to the satisfaction of the Siirrogate 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 ex- istence at the time of the said testator's death (or was fraudu- lently destroyed in his lifetime) and that it has been lost; and it further appearing to the satisfaction of the Surrogate that the provisions of said will so lost as aforesaid have been clearly and distinctly proved by at least two credible witnesses; (note) Now, on motion of the counsel for the petitioner herein, it is Ordered, Adjudged and Decreed, that late of deceased, did on the day of 19 make and ex- ecute in the manner prescribed by law, his last will and testa- ment containing substantially the following provisions: (here embody the provisions in the wards in which they hcwe been proven by the witnesses; or where there is a draft proven to hoAie been mrh- bodied in the will, incorporate the same verbatim); and it is fur- 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 wiU and testament of the said deceased, valid to pass real and personal prop- erty; and that the said will containing the said provisions with the proof s- thereof , together with his 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 executot named in the will provide for let- ters of administration with the wiU annexed) who may qualify thereunder. (Add the necessary provisions as to costs.) (Signature.) (Surrogate.) § 447. Precedent for decree after contest. — Every contested case has its differentiating features. The precedent above given is a proper skeleton to start with. The following suggestions are made to guide in building up a decree after contest: Note. That under section 1865 a correct copy or draft is made equivalent to one wit- ness; if such a draft haa been made use of, it may be specified in the decree although it is not absolutely essential that this be done. 494 surrogates' courts §§ 448, 449 I. Let the recitals as to the jurisdictional facts comrply with 1 2513, in order to secure the conclusiveness given thereby. II. Hence, it is wise to err on the side of prolixity in reciting ithei citation of parties, and their waivers, or manner of appearance. III. Bear in mind §§ 2616 and 2618 and insert proper recitals under either, as requisite. 'IV. If a jury trial was demanded and had recite the order by date, and the nature of the verdict. : -, V. Then , follow the precedent above as to the recitals required under §2614. The, decree may, then proceed as above suggested. It is, however, proper to have provisions disposing of the objections. , The directions as to, costs, and whether they are to be paid out of the es- tate, or personally charged are material, and easily drawn by the prac- titioner. § 448. Certificate of probate. — Under the insufficient caption "Will certified, or record thereof, may be read in evidence," §2621 provides as follows: § 2621. Will certified, or record thereof, may be read in evidence. The surrogate must cause to be indorsed upon, or annexed to, the original will admitted to probate, or the exenlplified copy, or statement of the tenor of the will, which was admitted without production of an original written will, a certificate, under liis '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 exemplified 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 this chapter. Former § 2629 of this Code. From 8 R. S. 58, § 15; Id., 80, § 58; L. 1882, c. 399; L. 1910, c. 578. § 449. The will, after entry of decree. — The court prescribes, by several sections for the record of wills; their custody; their evidential use, etc. These sections require no extended discussion. § 2620. Wills to be recorded and retained; exception. Every wiU admitted to probate, togetter with the decree, order or judgment admitting it to probate shall be recorded in the proper surrogate's court. Where a written will is proved, it must be filed aiid remain in the smrogate's office. But when it shall be Shown, by affidavit or otherwise, to the satisfaction of the surrogate, that the decedent left real or personal property in another state or territory of the United States or in a foreign covritry, arid that the laws of such state, territory 6r country require the production of the original will before the provisions thereof become effective, the surrogate may, at any time after probate, and upon such noticie to the parties interested, in the estate as he may think proper, Cause any original will remaining on file in his office to be pent by post; or other- wise to any court which, or to any officer of such state, territory or country who, under the laws thereof, is empowered to receive the same for probate, ' Or may deliver such will to any person interested in the probate thereof in such state, territory or country, or to his representative, upon such terms as he shall §449 THE WILL ADMITTED TO PROBATE 495 think proper for, the prestation of the will and the protection of other parties interested in the estate. From former' § 2620 of this Code. § 2622. Becordifig wills proved elsewhere within the state. .r: A certified copy of a will of rdal property, proved and recorded in any court of , the state:of competent jurisdiction, must be recorded upon the-request of any person interested therein, in the office of the county clerk or register as the case requires of any county in which real property of the testator is situated. Former § 2630 of this Code. From L. 1837, c. 460, § 68. § 2623. Records of certain mils heretofore -pfoved; how far evidence. The exemplification of the record of a will, proved before the judge of the former court of probate, and recorded in his office before the first day of January, in the yea? 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. A certified copy of the last will and teistament 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 ad- mitted in evidence in any of the courts of this state, without the proofs and examina/- tion 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 wUl 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 win was proved. ' Former §§ 2631, 2632 of this Code, combmed. From 2 R. S. 59, § 20; L. 1871, c; 361, § 1; L. 1881, c.i'705; L. 1894, c. 89; L. 1901, c. 540. ' If a will relate to real property, it is the executor's duty, upon receiving letters, to record the will in every county where such property is. This serves as notice, and operates to protect the devisees. The requirement is in the Decedent Estate Law — and is as follows: § 42. 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 recorded in the office of the clerk or the register, as the case requires, of any 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 wiU 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 ex- emplification of the record of such a wiU, 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 exemplification, or an exemplification of the record thereof, must be re- ceived, in evidence, as if the original will was produced and proved. Former § 2633, Code Civ. Proc. Index and fees. Upon recording a wiU or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substantially in the same man- ner, as if it was a deed recorded in his office. Dec. Est. Law, § 43. 496 shrhogatbs' cotjrts § 450 Former § 2634 specifically covered the allowance to the executor of fees thus paid. The section is repealed and allowance is now to be made under the general terms of § 2753, "reasonable and necessary expenses." § 450. Prompt entry of decree. — The danger of not promptly entering • a decree admitting a will to probate, is, that the time is not 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 wiU. The danger is a remote one, but the statute provides for a vaUdation 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. See Werner v. Wheeler, 142 App. Div. 358, 367, citing Thorn V. Shell, 15 Abb. Pr. N. S. 81; Norris v. Norris, 63 How. Pr. 319. The probj,te is not essential to vest title in the devisee. Corley v. McElmeel, 149 N: Y. 228. The section is as follows: When purchaser from heir protected notwithstanding a devise. The title of a piirchaser 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 jurisdiction, or estabUshed by the final judgment of a court of competent jurisdiction 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 life; or without the state, or, if the will was concealed by one or more of -the heirs of the testator, the limitation 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. Dec. Est. Law, , § 46, formerly § 2628. Code Civ. Proc. 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 -pro 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 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 groimd 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. Stapler v. Hoffman, 1 Dem. 63, 66. It is not likely that such nunc pro tunc § 451 THE WILL ADMITTED TO PROBATE 497 entry would be held to affect the running of the statute under the section just quoted. § 451. 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 territory, or foreign country, where the decedent so resided, and is filed or recorded in the proper oflSce as pre- scribed 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 ofiBce, 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, authenticated 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 exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special.proceeding relating to such real property. Dec. Est. Law, § 44. See also Laws 1894, ch. 731. See Ancillary Administration, post, as to how foreign wills and records are to be authenticated for use in this state imder Dec. Est. Law, § 45. A will, to be entitled to record 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 dis- 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 examined, 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. But, Millard, Surr., in Matter of Coope, 53 Misc. 509, limiteid the Hagar case and ordered record under former §§ 2703-04 (now §§ 44-^5, Dec. Est. Law) of a will shown to have been executed as required by New York law, but actually probated in Michigan on testimony of but one wit- ness of the two. The Appellate Courts sustain this view, that the section ■calls for proof not of jyrohate in conformity with our law, but merely of execution in such conformity. Hence, record is to be refused where proofs taken, on foreign probate themselves show lack of proper execution. Brad- ley V. Krudop, 128 App. Div. 202, and cases cited. The object of this section is Ijoiited. It does not purport to authorize 498 surrogates' courts § 451 the issuance of letters testamentary on a will so recorded,, , Pallpck v. Hooley, 67 Hun, 370; Matter of Langbein, supra. See provisions qf L,; J894, 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 Langbdn) 1 Dem. 448. That is, the record is made equivalent to that, say in Erie County Regis- ter's office, of a will recorded (under § 42, Dec. Est. Law, quoted in § 449 above) after it has been admitted to probate by decree of the Surrogate, say, of Kings County. Therefore, a deed executed by the executor conveys title by force of the will, though no letters have issued here. Pollock v. HooUy, 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 Siirrogate v\^hich is devised or made subject to a power of sale in a will duly executed in conformity to the laws of this State, by a person who was at the time of death a nonresident, stating place and date of death,. (alleging original pro- bate with date and place, together with other facts necessary and proper to be brought to the attention of the Surrogate. Matter ofNashj 37 Misc. 706, 709, citing Matter of Shearer, 1 Civ. Proc. 455. In Meig^s 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, an^ 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 tcista- tor, but they subsequently appeared before another depy^ty 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, wjiich was then in force, provided that whejre any real estate located in the State of New York should be hereafter devised by any pferson 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 office 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 exempUfied record, such record was only presumptive evidence of the will and its due execution and that this presunlption was overconie by the fapt that at the tipie the \yill was adinitted to probate it had not been shown that the subscribing §§ 452, 453 THE ■VfILL ADMITTED TO PROBATE 499 witnesses became such at the request of the testator. See also Matter of Nash, 37 Misc. 706, where proof of execution was defective. § 452. Miscellaneous provisions — Nonresidents' wills. — If the pro- bated will was that of a "person who was not a resident of the State at the time of his death," then under § 2489, quoted in chapter on The Subro- gate, ante, the Surrogate must transmit to the Secretary of State a certified copy of the will. If he issue letters, original or ancillary, testamentary or of administra- tion, he must transmit certified copies to the Secretary of State and to the State Comptroller. § 453. Revocation of probate. — This topic no longer requires separate treatment. The special proceeding for this purpose was formerly provided for by §§ 2647-2653 of the Code. They were repealed in 1910. This left the action, brought under § 2653a of the Code, as the only remedy specific- ally left in which to "determine vaUdity of probate." The Act of 1914 intended to repeal that section, saving, however, rights thereunder to parties in proceedings then pending. This has been already referred to. The section can, therefore, by the date of pubUcation of this work, be rarely if ever again utihzed, and, if it be, reference can be had to the fourth edi- tion of this work. The purpose of the Act was to give conclusiveness to the probate decree. To this end, it provided for a jury trial at the outset, which after all was the only substantial advantage under the cumbersome § 2653a. Now, by appeal; or, in proper case, by application to open or vacate the probate decree, every substantial right is preserved. CHAPTER VI PROBATE OF HEIRSHIP § 454. Probate of heirship. — The new Act condenses former §§ 2654- 2658 into three sections, §§ 2765-7, contained in Chapter XVIII, Title 5, Art. 4. The idea of these sections is to get an adjudication, in cases of intestacy, as to who are the heirs succeeding to decedent's realty, which adjudication in the forin of a decree can be recorded in the office of the clerk or register of the county of situs and become conclusive, not "against the whole world," but against all the heirs who were cited. Even in cases of testacy the proceeding may be prosecuted if the real property to be affected is not devised by the, will. The statutory provisions are as follows: § 2766. Heir, etc., may apply to establish heirship. Where a person, seized in fee of real property within the state, dies intestate, or without having devised his real property, his heirs, or any of them, or any person deriving title from or through such heirs, or any of them, may present to the surro- ■ gate's court which has acquired jurisdiction of the estate, or,(if no surrogate's court has acquired such jurisdiction, then to the surrogate's, court of the. county iwhere the real property, or any part thereof is situated, a petition, 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 establishing the right of inheritance thereto, and that all the heirs of the decedent may be cited to show cause why the prayer of the petition should not be granted. Upon the presentation of such a petition a citation must be issued accordingly, except in a case where the petitioner was a party to a judicial settlement, the decree upon which .determined the rights of the parties to such real estate. Former § 2654 of this Code. From L. 1873, c. 552, §§ 1, 2; L. 1892, c. 115. § 2766. What facts to be ascertained; decree thereupon. Upon the return of the citation, the surrogate's court must hear the allegations and proofs of the parties and determine all the issues raised. The petitioner must establish the fact of the decedent's death; the place of his residence at the time of his death; his intestady, either generally, or as to the real property in question; the 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 prop- erty. The surrogate, when these facts are established, must make a decree, de- scribing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree. Former § 2656 of this Code. From L. 1873, c. 522, §§ 1, 2. § 2767. Decree to be recorded; effect thereof. A certified copy of a decree, made as prescribed in the last section 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, 500 § 454 §455 PROBATE OF HEIRSHIP 501 from the time when such copy is so recorded, the depree, or the record thereof, is conclusive evidence of the facts so declared to be established thereby against all parties to such proceeding. Former § 2657 of this Code. From L. 1873, c. 552, §?1, 2; L. 1874, c. 127. § 455. The applicant — The petition. — "Heirs, ... or any person de- riving title from or through such heirs ..." may initiate the proceeding. The provisions as to petition and citation being general, it is clear the general sections governing both apply. Hence, when the petition sets forth, pursuant to § 2765, "the facts upon which the jurisdiction of the court depends" it may aver under § 2521, that there are persons of a class, or unknown persons, or persons of a class whose names are unknown, and, thereupon, if they be duly cited the decree should be conclusive upon them. The precedent for a petition, previously given, has been modified as follows: Petition under § 2766, C. C. P. Note. The jurisdic- of a Surrogate is a county jurisdiction. It is assumed the pro- ceeding is brought on before, a , Surrogate in whose county the realty, or a part there- of is situated. Surrogate's Court, County of In the Matter of the Probate of Heirship to real property within the State which be- longed to 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 descrip- tion as in a deed). JVpte., III. And your petitioner furj;her shows on information and belief that said deceased, left no will devising said real property to specific persons, and no Surrogate's Court haa ac- quired jurisdiction of his estate; and that the above described real property ' (or some part thereof) is situated within this county {if jurisdiction of the estate has already been acquir^efi by, any Surrogate's Court, to which court in that event the application must be made, say instead, e.g.:tha.t on the day of proceedin'gs were commenced in this court on petition of ' for letters of administration of the goods, chattels and credits of said deceased, and citation duly issued thereon whereby this court has acquired jurisdiptipn 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 e^tjitled, aa your . petitioner is informed and verily believes; to a ^^ share thereof under the statute of descent being the (state relationship of 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 502 SURROGATES COURTS § 456 in his said real property bo far as they are known or can be as- certained by your petitioner are as follows: , Name Age Residence Relationship N6te. Refer to § 2521, that the averments as to infants, or incompetents, or persons of a class, or unknown may correspond to its requirements. Wherefore, your petitioner prays for a decree of this court establishiiig your petitioner's right of inheritaiice in the property above described, as well as the respective rights of the other heirs aforesaid, and that a citation issue directed to all the heirs of the decedent to attend the probate of that right. (Date.) (Signature.) (Verification.) § 456. The proceeding no longer nugatory. — Formerly, under old § 2656, if any issue were raised, either as to "heirship of a party" or as to "the share to which a party is entitled" the proceeding had to be dismissed. But now,' under § 2766, the Surrogate's Court "must hear the allegations and proofs of the parties, and determine all the issues raised." It amounts to an adjudication in partition. It settles the title as between the parties. But by the words "the Surrogate's Court must hear . . . and determine," instead of "the Surrogate must" we have the right to assume that § 2537 applies which gives the right, if seasonably demanded, to a jury trial of any issue or fact "as to which any party has a right of trial by jiury in any court." With this provision available the proceeding becomes conclusive in a sense and to a degree never before possible.- For the decree after issue joined and determined, perhaps after a jury trial, must be given in other courts conclusiveness as against the "presumptive evidence," effect tuider former §2657. By repealing the section, § 2658, which made even the old decr^ie subject to vacation or modification at any time within ten years, and leaving the decree, like ainy other, merely appealable, or subject to attack for fraud, etc., the new decree may have value as a muniment of title. ' The following precedent for a decree may be used : Present: Decree under j 2766, C. C. P. Title. Hon. Surrogate's Court Caption. Surrogate. of On reading and filing the petition of one of the heirs-at-law Of late of deceased, duly verified and presented pursuant to §'2765, C. C. P., pray- 456 PROBATE OF HEIRSHIP 503 ing for a decree establishing the right of inheritance of the' heirs oif said decedent in the real property within the state of which he died seized in fee, and described in said petition, together with due proof of the service of the citation issued thereon upon all the heirs of the deciedent 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 de- cedent; (rr and X. Y. a of the said deced- ent intestate having filed a duly verified answer, and thf issues having been duly brought on to be heard and determined. (Recite jury trial if any.) And the Surrogate having heard the allegations and prbbfs of the parties; and the petitioner having established the fact of the decedent's death, the place of his residence at the time of his death, his intestacy (Here specify whether he left no will, or merely left none devising the realty in question). Also the name, age, residence and relationship to the decedent of the heirs entitled to inherit the property in question; and the interest or share therein'of the said several heirs. And due deUberation having been had. Now, on motion of A. B., attorney for the petitioner. It is Ordered, Adjudged and Decreed: That the right of inheritance in the below described property is established to the satisfaction of the Surrogate in accordance with the following facts: (Recitals- under § 2766) That (a) The decedent departed this life on the day of 19 (h) The place of his residence at the time of his death was (c) The said left no will (or will devising his said real property to specific persons). " , 'i (d) The number of heirs entitled to inherit the property in question as (four). (e) The name, age, residence and relationshijj to the decedent of each as follows: Name Age Residence Relationship (f) The interest or share of each in the property, as follows: (g) That the said late of deceased, died seized in fee of the following real property situated in the State of New York and bounded and described as follows; (here give description). And it is further Ordered, Adjudged and Decreed, that the right of inheritance 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 follow- ing interests or shares in such property, to wit: 504 surrogates' courts § 457 That C. D., E. F., G. H., and I. K., th^ children of said de- cedent, are entitled severally to one undivided fourth part or share of such real property.' // X. Y. contested, add. e. g., That X- Y., the contestant claiming to be an adopted child, was never duly adopted by the decedent and is not entitled to any share of such real property. (Signature.) Surrogate. § 457. Cognate remedy. — In the few cases, under the former sections, the inconclusiveness of the proceeding had been completely demonstrated. But the usefulness of the idea underlying it was manifest. Hence, the revisers not only accomplished the result we have just detailed; but trans- posed it in theory, as an incidental remedy, into proceedings for the dis- position of a decedent's realty by decree, to be executed by an executor or administrator, discussed elsewhere at length. We refer merely to § 2711, second half) which should be a separate sec- tion. It reads: Where it is not necessary or advantageous to mortgage, lease or sell the real property of the deceased or of the estate, the parties interested may prove upon any such judicial settlement ' who are the real and true owners of any property devised by said will, or who are the only heirs at law of said deceased, and entitled to siicceed to his real estate; and thereupon such decree of judicial settlement may establish the rights and interests of the said parties, and direct a conveyance to them by such executor or administrator according to their respective rights, in con&ma- tion of their title thereto. This remedy resulting in a record title, or confirmation at least, seems a far more effectual one than mere probate of heirship. Section 2550 gives to the decree the general conclusiveness of all Surro- gates' decrees. 1 Any judicial settlement of the. accounts of a representative. See § 2705. CHAPTER VII PBOVING, OB ESTABLISHING, WILL OUTSIDE THE SUBBOGATE'S COUBT § 458. How a wiU 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 Coiul;. Such wills, it is prescribed by §§ 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, now § 2608 of the Code, provides that if such will has been probated at the place of domicile and affects property in this State, it may be admitted to probate in a Surro- gate's Court here on notice merely to the beneficiaries named in the will, (Quoted ante.) Letters issue thereupon. In the second class are wills specified in § 2613 as lost or destroyed upon their having been estabUshed as provided by § 1865; and wills which would be provable here except for the circumstance that the original will is in another State or country and cannot be produced here for the purpose. 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 State or country where the testator re- sided at the time of his death but not coming within the permissive provi- sions of the Decedent Estate Law, supra, and consequently not provable before a Surrogate. \ The foregoing proposition must be clearly understood to be limited to a satement of the Surrogate's right to issue letters testamentary. The jijisdictioh in this regard is exclusively confined to the Surrogate's Court; bii. it will be noted that as to the three classes of wills above described a furW differentiation can be made. As to the first the Surrogate has exclijive jurisdiction to admit the same to probate. As to the second (lostV fraudulently destroyed wills) the Surrogate has power to admit § 458\ 505 506 surrogates' courts § 459 the same to probate under § 2613, 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, the one of the proceeding for probate, the other of the action to establish, but in this case the jurisdiction of the Supreme Coxu"t is limited to entering the judgment establishing the will, while the issuing of letters thereupon remains with the Surrogate. See § 1864. / As to the third class, and nonproducible wills, in the second, the juris- diction is exclusively committed to the Supreme Court with the same Umitation, to wit: that its power ceases with the entry of judginent, the letters testamentary issuing under § 1864 by the Surrogate 6nly. § 459. Effect given to certain foreign wills. — The following sections cover two cases where probated effectiveness is given to certain wills. They explain themselves. The first, formerly § 2703 of the Cpde, now § 44 of Dec. Est. Law, is as follows: Recording witl proved in other States. Procedure: Where real property situated within this State, or ah interest therein, is devised or made subject to a power of disposition by a will duly executed in con- , formjty ■niith the laws of this State, of a person >v;ho 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 territory, 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 45 of the Decedent. Estate Law, or if no proofs and no statement of the substance of the proofs be on file or recorded iii such office, a. copy of such will or of the record thereof, authenticated as prescribed in said section 45, accompanied by a certifi- cate 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 lilcewise authenticated as prescribed in ; 1 1 sai4 section 45., may be recorded in the office of the surrogate of any county in this State where such real property is situated. Effect: And such record in the oisice of such surrogate or an exemplified copy thereof shall be presumptive evidence of such will and of the execution thereof, in any action, or special proceeding relating to such real property. The other, a long heeded, and very reasonable provision is: . §J.836a. [Added, 1911.] .Actions by or against foreign executors or administraWs. AfO. executor or administrator duly appointed in any other state, territory or district of the United States, or in any foreign country may sue or be sued inany court in this state in his capacity of executor or administrator in like manne and under like restrictions as a nonresident may sue or be sued, if, within twent'days afteri any such executor or administra;tor shall commence, or appear in, anyaction or proceeding in any court in this state or within twenty days after he sha- Jje re- quire4 or directed by summons or. otherwise to appear thprein,, ther^ shall I filed in the office of the clerk of the court, in which suchj action or proceeding shall b brought or be pending, a cOpy of the letters testamentary or letters of adniinistra'pri issued to such executor or administrator duly authenticated as prescribed by pctibfi 2704 of the code of civil procedure;' in default whereof all proceedings in sv^ action or §§ 460-462 PROVING WILL OUTSIDE THE SURROGATE'S COURT 507 proceeding may be stayed until such duly authenticated copy of such letters shall be so filed. Added by L. 1911, o. 631 (in effect July 8, 1911). The provisions of former § 2704 of the Code are now § 45, Dec. Est. Law. § 460. 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 following 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 an- other 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 without 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. § 461. Subdivision 1. — Subdivision 1, it will be noted, requires for its full understanding, reference to §§ 23-25, Dec. Est. Law, the provisions of which have been recited above. If it appears that the will is one coming within their purview, and it appears in addition that the original will is in another state or coimtry, and that it cannot be obtained for the purpose ^of probate here, or that the original will has 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 estabUshed under this subdivision 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 casecovered by Laws, 1894, chap. 731, 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 Covirt. .. In Matter of Law, 80 App.Div. 73, Hatch, Surr., points out the difference , between i 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 is powerless to probate it. Ibid., citing Matter of Cameron, 47 App. Div. 120,, aff'd 166 N. Y. 610. § 462. Wills retained in another jurisdiction. — The case of Younger v. 508 surrogates' courts § 462 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 Rich- mond 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 imder the will, which it was alleged had been executed in the city of Cadiz, signed, published, de- clared and executed before a notary and three witnesses, and containing similar allegations respectirig the subsequent execution of a codicil to the will, a copy of which will and codicil were annexed to the complaint. The complaint further alleged that the original will and codicil were in the Spanish language, were duly executed in conformity- with the Spanish Law, and were actilally on file among the archives of the notarial ofl5ce of the city of Cadiz, from which they could not be removed for the purpose of being admitted 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 ad- mitted to probate in the Surrogate's Court if the circumstance 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; Caulfield v. Sullivan, 85 N. Y. 153. In the Court of Appeals, Judge Earl (94 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 jurisdiction of a Surrogate to grant probate of a will not actually produced before him except in the form of an exemplified copy thereof, provided that it is executed as prescribed in §§ 23-25, Dec. Est. Law, is not inter- fered with by this section. Matter of De Laplaine, 45 Hun, 225; Russell v. Hartt, 87 Nj Y. 19 (see opinion of Judge Finch); Caulfield v. SuUivan, 85 N. Y. 153. But this section does not authorize the bringing of an action to prove and estabUsh the will of a resident of another State which has been duly probated 'therein. This section is a reenactment of §§ 63, 64, 67 and 68 of title 1,'chap. 6, part 2; of the Revised Statutes by which it appears that the term "estabUshing 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 referred to, which has no relation to wills which have been duly § 463 PROVING WILL OUTSIDE THE SURROGATE'S COURT 509 proved. Article -7, of title 3, of chap. 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. § 463. 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 destroyed will, as prescribed in this article, unless The will was ia 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 Gowen, 483; Jackson v. Betts, 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 2613, 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 estabUsh 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,^ N. Y. 433, 439, approved m Matter of Kennedy i 167 N. Y. 163, 172. (See § 465, 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 establishing their title, in another action involving their rights, by sufficient conmion-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 e^te^ed therein dismissing the complaint. An action was subsequently brought for the partition of the real property which the plaintiff in, the former 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 510 surrogates' cottrts §§ 464, 465 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 pages 437 et seq. § 464. Procedure in the action. — The complaint in an action under § 1865 should contain distinct averments of all the necessary facts warrant- ing the plaintiff in invoking the jurisdiction of the court. (See below.) It has been distinctly held that if the plaintiff is without knowledge suffi- cient 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 enabling him to frame his complaint. Blatchford v. Paine; 24 App. Div. 140, 143. § 465. 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 Groot, 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 conscious of the nature of his act. This extreme caution obviously arises from the essential privacy of the act it- self, whicK" 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 witnesses, 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 re- quirements rests upon the production of the document itself when rights are asserted imder it, and that its absence opens the door to the uncer- tainties and- fraudulent designs against which the statute was intended to provide. Experience, however, has demonstrated the necessity of provid- ing 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 rigqr 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 estabUshment of wills where, through loss or destruction by accident or design, the paper cannot be produced. But in so doing the Legislature has also sought in some measure §466 PROVING WILL OUTSIDE THE SURROGATE'S COURT 611 to provide against the dangerous consequences imminent 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." "Scanty, unconvincing and conflicting evidence" will not secure judg- ment establishing a will as lost or destroyed. Schvitheis v. SchuUh&is, 14 N. Y. Supp. 324. A will not in esse is presumed to have been destroyed animo revocandi. The burden of overcoming the presumption is on plaintiff. Matter of Ascheim, 75 Misc. 434. This action contemplates only cases where whole will is missing. It does not apply to a case where will turns up with a page or a clause cut out and lost. Matter of Harden, 88 Misc. 420. § 466. 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 wit- nesses 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. CoUyer, 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 opiaion at page 34. The Ruser case was pecuHar in that counselon 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 CQurt. 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 Waldron, 19 Misc. 333, 337. The Surrogate 512 surrogates' courts § 466 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 reUable 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 they be such witnesses if their knowledge of the contents of the instnmient was limited to what they supposed or beUeved 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; Collyer v. Collyer, 4 Dem. 53; Sheridan v. Houghton, 6 Abb. N. C. 234. And the usual rule as to credibihty, 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 examination. Kahn v. Hoes, 14 Misc. 63, 67. This same tule, of course, applies where the existence of the will at the testator's death depends upon the same kind of testimony. Ibid. 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 limitation 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. 207, 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. See Matter of Wear, 131 App. Div. 875, as to presumption of revocation and differentiation between evidence sufficient to prove a will (destroyed) that revoked a prior will, i. e., fact of revocation, and that requisite to justify probate of the lost will as valid. The Court of Appeals in the Collyer 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. Betts v. Jackson, 6 Wend. 173; §§ 467^69 PROVING WILL OUTSIDE THE SURROGATE'S COURT 513 Knapp V. Knapp, 10 N. Y. 276; Schultz v. SchuUz, 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. 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 \\fill 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 bf 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 vaUd 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. § 467. Who may bring the proceeding.-rIt is very clear from § 1861 that only a person interested in the establishment of a will may bring this action. See. Matter of Hamershy, 7 l>i.Y. St. Rep. 2Q2. The Court of Appeals in Anderson v. Anderson, 112 N. Y, l04, 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. § 468. Fraudulent destruction. — Where the plaintiff relies uponfraudu- lent destruction of a will in the testator's lifetime, the>evidenee 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 Groat, 2 Connoly, 210; Perry v. Perry, 21 N. Y. Supp. 133. § 469. The complaint. — 'In view of the wide diversity of opinion among practitioners as to matter of form and allegations in ple3,ding, it hardly seems necessary to suggest the form of a complaint in an action brought under § 1861. , It is merely necessary to lay stress upon the fact that the 514 SUEROGATES' COURTS § 469 practitioner, having determined whether the facts of the case bring him within subd. 1 or subd. 2 of the section, and that the plaintiff is a person interested in the establishment 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 date, 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 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 Covirt, 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 neces- sary 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 l3e substantiially 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 nebessar^ 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, giAdng 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 coiisent 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 allegar tion, that the will was not in fact revoked, canceled or annulled, by any intentional act of the testator or by operation of law. It is conceivable §§ 470, 471 PROVING WILL OUTSIDE THE SURROGATE'S COURT 515 that testator might have been fraudulently led into tearing up the will, supposing it to be some other document. 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- lishing the will must, in a proper case, direct that an exemplified copy thereof be transmitted to the Surrogatp 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 in the same manner and with like effect as upon a will duly proved in that court, but it is usual to insert in the prayer Such a request, naming the executors 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." § 470. 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 estabUsh 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 prescribed in the last section, the judgment establishing it does not affect the construction or validity of any provision, contained therein; and such a question arising with respect to any provision, must be determined in the same action, or in another action or a special proceeding, as the case requires, as if the wiU was executed within ' the state. § 1862, Code Civ. Proc. Where the parties to the action, who have appeared or have been duly summoned, inclilde all the persons, who would be necessary parties to a special proceeding, in ^ Surrogate's Court for the probate of the same will and the grant of letters there- ; , upon, if the circumstances were such that it could have been 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 juris- diction, and be recorded in his ofiice; and that letters testamentary, or letters of administration with the will annexed, be issued thereupon from his court, in the same manner, and with like effect, as upon a will duly proved in that court. § 1863, Code Civ. Proc. A copy of the will so established, or, if it is lost or destroyed, the substance thereof, must be incorporated into a final judgnient, rendered as prescribed in the last sec- tion; and the Surrogate must record the same, and issue letters thereupon, as di- rected in the judgment. § 1864, Code Civ. Proc. § 471. 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 516 surrogates' courts § 471 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 valid 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 successfully impeached. The section is as follows: The validity, construction or effect, under the laws of the state, of a testamentary disposition of real property situated within the state, or of an interest in such prop- erty, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in hke manner as the validity of a deed, purporting to convey land, may be determined. The judgment in such an action may per- petually enjoin any party, from setting up or from impeaching the devise, or other- wise 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 contro- versy is determined by the decree of the 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. § 1866, . Code Civ. 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 nejd; of kin claim in hostility to the will, but the executors, 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." This section, further, enables our courts to construe a will made in an- other State so far a^ it covers real property within this State. Monypeny v. Monypeny, 202 N. Y. 90. » Should now be "second," i. e., § 2615. § 472 PROVING WILL OUTSIDE THE SURROGATE'S COURT 517 But equity will not take up a will to construe it which only creates legal estates. It must involve a trust. Davis v. Tremain, 205 N. Y. 236. § 472. 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. Momrque, 80 N. Y. 320; Wager v. Wager, 89 N. Y. 161; Kalish v. Kalish, 166 N. Y. 368, 371, citing Brady v. McCosker, 1 N. Y. 214; Read v. Wil- liams, 125 N. Y. 560; Voskall v. 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 oiChipman 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 will, whether the clauses challenged were valid or invalid. The rule laid down in these cases is followed in Monypeny v. Monypeny, 202 N. Y. 90. Heirs at law or devisees are persons having adequate interest to invoke this power. Matter of Bouchoux, 89 Misc. 47- Section 1866 of the Code has been repeatedly declared to enlarge the previous powers of the courts. Sections 1866 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 testator, i. e., for an inquiry into the factum of the will, the court- describes the instrument as a "will," but, when the va- lidity of the will, etc., separate from the instrument which creates it, is alone to be inquired into, "the testamentary disposition of real property" is the expression used. CHAPTER VIII CONSTRUCTION OF WILLS § 473. Power to construe — Its nature, and source. — We observed, in § 472, that the power to construe is not inherent in courts of equity, but only incident to their jurisdiction over trusts. In Davis v. Tremain, 205 N. Y. 236, Cullen, Ch. J., held an action under § 1866 would not lie where the will creates no trusts, and the estates given are all legal. Nor would the action lie, unless the realty affected be within the State. See also Mellen v. Mellen, 139 N. Y. 210, 54 St. Rep. 670; McKinley v. Van Duseri, 76 App. Div. 200, 78 N. Y. Supp. 377; Higgins v. Downs, 101 App.Div. 199. See Wager v. Wager, 21 Hun, 93; Bailey v. Briggs, 56 N. Y. 407; Cfiipman v. Montgomery, 63 id. 221; Kalish v. Kalish, 166 id. 368; Smith V. Rockefeller, 5 Sup. Ct. (T. & C.) 562; Meserole v. Meserole, 1 Hun, 66. The power to construe is thus a special power in equity, and we find it conferred upon and exercised by Surrogates. In former editions we analyzed this power as express (undBr former § 2624), and as incidental; (under former §§ 2472, 2472a, 2481 and 2743) or implied. The power is now distributed between § 2510, subd; 8, a threefold and comprehensive section; §2615, defining the procedure;'! 2711, an implied power on accounting, newly defined. The sections are as follows : : § 2610, subd. 8. Court has jurisdiction. To determine the validity, construction or effect of any disposition of property contained in any will proved in his court, whenever a special proceeding is brought for that purpose, or whenever it is necessary to make such determination as to any will in a proceeding pending before him, or whenever any party to a proceeding for the probate of any will, who is interested thereunder, demands such determination in such proceeding. § 2616. Construction of will, how obtained. An executor, administrator with the will annexed, or any person interested in obtaining a determination as to the validity, construction or effect of any dis- position of property contained in a will, may present to the surrogate's court in which such will ,was probated, a petition setting forth the facts which show his interest, the names and post-office addresses of the other parties interested, and the particular portion of such will concerning which he requests the determination of the court. If the surrogate entertains the application, a citation shall issue to all persons interested in the question to be presented, to show cause why such determination should not be made. On the return of the citation the surrogate shall rdake such decree as justice requires. If a party expressly puts in issue in a proceeding for the probate of a mil the valid- ity, construction, or effect of any disposition of property, contained in such will, 618 § 473 § 474 CONSTRUCTION OF WILLS 519 the surrogate may determine the question, upon rendering a decree, after notice given in such manner as the surrogate directs to all persons interested who do not appear on such application in person or by attorney; or, unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in section 2614, may admit th6 will to probate and reserve the questions so raised for future consideration and decree. § 2711 (second half). Where it is not necessary or advantageous to mortgage, lease or sell the real property of the deceased or of the estate, the parties interested may prove upon any . such judicial settlement who are the real and true owners of any property devised by said will, or who are the only heirs-at-law of said deceased and entitled to succeed to his real estate, and thereupon such decree of judicial setflement may establish the rights and interests of the said parlies and direct a conveyance to them by such executor or administrator according to their respective rights, in confirmation of their title thereto. § 474. Same. — It is the fact that Surrogates' Courts have always exercised an implied power to construe wills, as incidental, particularly, to the general power to control representatives, or direct payment to a beneficiary, and the like. This power, it has been said, "is as extensive as the power to which it is incident." Matter o/ Davis^ 182 N. Y. 468, aff'g 105 App. Div. 221; Matter of Raymond, 73 App. Div. 11. On accountings, so as to decree distribution to those "entitled," tlje power was freely used. Thus a legacy might be void as against the rule against perpetuities. Matter of Verplanck, 91 N. Y. 439; Riggs v. Cragg, 26 Hun, 89; 89 N. Y. 479; Purdy v. Hayt, 92 N. Y. 446; Matter of French, 52 Hun, 303. Or the testator may have given to charity over half his estate. Stephen- son V. Short, 92 N. Y. 433; Matter of Talmage, 59 Misc. 130. Or in some other particular he may have made a will obnoxious to statute law. Tappen V. Methodist Church, 3 Dem. 187; Du Bois v. Brown, 1 Dem. 317; Matter of Collyer, 4 Dem. 24. Or a woman testatrix, having made her will, may have married, as happened in Matter of Davis, 1 Tuck. 107; where, on accounting it first was discovered. In all like cases the court must have and exercise the incidental power, or, for the purpose of doing the work assigned to it, its express powers could not be satisfactorily exercised. Mr. Redfield's sketch of the growth of this power, from Laws 1837, chap. 460, § 17, through the act of 1870, Laws 1870, chap. 359, § 11 (limited to N. Y. Co.) then extended, by former § 2624 to all Surrogates, in pro- bate cases (see his 7th ed., pp. 227 et seq.), need not be requoted, since it leads up merely to the statement that the Surrogate's Court has no power to entertain a new independent proceeding for the construction of a will. A-s the sections, quoted above, show, the power is now ample, and puts the court on a practical parity with the Supreme Court. Sections 2510 and 2615. But it is obvious that the scope of construction proper in a given case is still conditioned by the nature of the proceeding, since if the power be 520 SURKOGATES' COURTS § 475 invoked on probate, it is not "a fit place, nor is the time appropriate," as it would be later on, e. g., upon accounting, "for making an inventory of the estate, and adjudging its liabilities with a view of ascertaining whether or not certain charitable gifts in the will exceed in amourit one- half the estate, after the payment of all just debts." See Matter of Walker, 136 N. Y. 20. § 475. Scope of inquiry. — Where the court's power was still limited, as above stated, it was said that "the validity, construction or effect of the will which a Surrogate can determine must be such as can be determined by an examination of the will itself, withffui resort to extrinsic evidence. The investigation must be confined to questions arising between the parties to the proceeding, as between different legatees . . . growing out of the terms of the ivill" Redfield, 7th ed. §256. This was undoubtedly true on probate. The reasons stated for the lack of power to resort to extrinsic evidence were: (1) Limited extent of general jurisdiction, (2) Inadequacy to deal with questions more properly cognizable in common-law courts. But now, §2510, entitled "General Jurisdiction," etc., by subd. 8, quoted above, removes the first objection, and subd. 11 of § 2490, plus subd. 8 of § 2510, together obviate the second. We agree that the inquiry on probate cannot call to its aid extrinsic evi- dence. The factum of ^he will being postulated as valid the terminology of the will is construable as to its meaning and legal effectiveness. But, in the other two cases in subd. 8, § 2510, i. e., in a special proceed- ing brought for the purpose; or, "whenever it is necessary to make such determination as to any will in a proceeding pending before" the Surrogate it is obvious extrinsic evidence may be resorted to. It is resorted to in transfer tax cases. Matter of Ullmmn, 137 N. Y. 403, 407; and on accountings. The inquiry into kinship and heirship, into quantum of the estate, the amount of debts, into circumstances of life duration affecting extent of pecuniary interest taxable or distributable, into whether pecuniary legacies are charged on lands, these are not all "on the face of the will," but none the less are they taken into account. Rollins, Surr., observed, in Jones v. Hamersley, 4 Dem. 427 (where a life tenant had a power of appointment, and the court declined to construe its vaUdity under old § 2624 during the life of the life tenant) "an occasion does not arise for the exercise by the Surrogate of the power conferred by § 2624, unless, in accordance with the course and practice of theSupreme Court, that tribunal would, under similar circimistaiices, exercise its juris- diction." Since the power to construe on probate is exclusive in the Sur- rogate, we must assume the learned court was announcing a general rule, not limited to the one form and case of construction. If so, then since the power to construe is now enlarged as above shown we may restate, the converse of the rule as being now controlling: "The Surrogate will exercise the power to construe a will, duly sub- § 476 CONSTRUCTION OF WILLS 521 mitted for that purpose, in a pending proceeding, or in one brought for that purpose, in like case, and under the same rules of construction, as the Supreme Court may do." He will, thus, not entertain academic questions. He will not act at the instance of one not "interested thereunder." But the rule may still be enlarged by adding "and in the cases additionally prescribed by law." For, it ought not to be understood that the jurisdic- tion of a Surrogate's Court to interpret a will can only be invoked by the parties at whose instance a court of equity will act. For while neither an heir at law or next of kin claiming in hostility to a mil, [Chipman v. Montgomery, 63. N. Y. 221; compare Meserole v. Meserole, 1 Hun, 66; Stinde v. Ridgeway, 55 How. Pr. 301; Marlett v. Marlett, 14 Hun, 313. But see Shuler v. Shuler, 63 Misc. 604, where it was suggested that since the enactment of § 1866 of the Code, the old rule in this respect has been abrogated,] nor a devisee, Duncan v. Duncan, 4 Abb. N. C. 275, or legatee, Suiherland v. Ronald, 11 Hun, 238; Brundage v. Brundage, 65 Barb. 397, can maintain an action to obtain a construction thereof, they may do so, in a proper case, in these courts. Although an action may be maintained by an executor in respect to personal property, or by a legatee {Wager v. Wager, 89 N. Y. 161), it cannot be sustained on the ground of a doubt on which it does not appear that the executor and the legatee dififer, nor on the ground of a doubt in respect to which the executor is not yet called upon to act and may never be; — as in the case of a contingent gift. Wead V. Cantwell, 36 Hun, 528, aff'd 108 N. Y. 255. Such an action may be maintained by an executor, trustee or cestui que trust where a doubtful or disputed question is involved, and the jurisdiction of the court is not dependent upon the trust being upheld. Tonnelle v. Wetmore, 195 N. Y. 436. As we have said, the jurisdiction of courts of equity, to pass upon the interpretation of wills, is incidental to that over trusts, and where the will contains no trusts, a suit will not be entertained for the sole purpose of construction, nor where legal rights only* are in controversy. § 476. Summary. — It was formerly important to keep the distinction ever in mind as to whether the power invoked were express or implied, whether real property or personal were affected or involved, whether the wDl was a domestic will of personal property. But now the statutes are general in the terms used, "any disposition of property," ^ 2510, subd. 8; § 2615 "contained in any will proved in his court," Ihid., "as to any will in a proceeding pending before him," § 2510. Nor is the former doubtful, and merely implied, exclusion of an executor from those who could invoke the power, in force. See Matter of Robertson, 23 Misc. 460, 452. In a former edition (p. 442) we said: "It seems to the writer that this view is not warranted. The executor may be vitally con- cerned in the question. It may determine his wilHngness to qualify. He may be the trustee to be burdened by the trust claimed to be invalid. And in a New York County case. Matter of Dodge, April, 1911, unre- 522 surrogates' courts § 477 ported, the Surrogate construed a will at the direct and sole instance of the executor, under precisely such circumstances." But probate still must precede the power to construe. Since, therefore, the power which was formerly incidental is now expressly given, no cita- tion of cases is necessary, as formerly, to illuminate the rule as to all in- cidental powers, to-wit: that it is to be exercised "only in so far as it is necessary in order to carry out the express power to which it is incidental (see pp. 445^50, Jessup Surr. Pr., 4th ed.). We turn therefore to the principles and canons governing construction, - merely premising that testator's intention is 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; Delan&y v. Van Avlen, 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 Brawrit 154 N. Y. 313; Goebel v. Wolf, 113 N. Y. 405. § 477. Principles governing construction. — Having defined the juris- diction of these courts to determine, by construction, the validity and effect of a testamentary disposition of personal property (whether incidentally to the probate of the will, or to the administration of the estate, after pro- bate), it only remains to indicate, in a general way, the grounds on which invalidity is usually predicated, and the rules which govern courts in deter- mining the question. While it is a fundamental principle that a testator's intention must govern, such an intention must be a legal intention, that is, must not be inconsistent with rules of law, statutory or otherwise. Montig- nani v. Blade, 74 Hun, 297, 26 N. Y. Supp. 670, 145 N. Y. 111. A will may disclose, on the face of it, an intention to dispose of property in an illegal manner, or for an illegal object, or to a person legally incapable of taldng, or an intention to override public policy or settled rules of law. On the other hand, where there is an uncertainty, apparent upon the face of the will, as to the application of any of its provisions, or if the words of a will fail to disclose an intention, collateral or extrinsic evidence is admissible to discover it; and an intention being once discovered, extrinsic evidence is admissible to explain it. The question in expounding a will is not what the testator meant, as distinguished from what his words express, but simply — what is the meaning of his words? In other words, the inquiry, in each case, must be what provisions has the testator intended to make for the disposition of his estate, and not whether he intended to dispose of his estate according to the statutory rules governing testamentary dis- positions. When the provisions are ascertained and understood, then is their legality to be determined. Central Trust Co. v. Egleston, 185 N. Y. 23; Herzog v. Title G. & Tr. Co., 177 N. Y. 86. But the rule is inflexible that guesses at the testator's intention will not be indulged in. Such intention is to be collected from the words of the will. 1 R. S. 748, § 2. See Myers v. Eddy, 47 Barb. 263; Terpening v. Skinner, 30 id. 373; Fosdick § 477 CONSTRUCTION OF WILLS 523 i V. DelafiM, 2 Redf. 392; Wager v. Wager, 96 N. Y. 164; Freeman v. CoU, id. 63; WiUiams v. Freeman, 83 id. 561; Underhill v. Vandervoort, 56 id. 242; Bridger v. Pierson, 45 id. 601; Morris v. TFard, 36 id. 587, 595; Wii!- liams v. WiUiams, 8 id. 525; Qwira v. Skinner, 49 Barb. 128; Dupre v. Thompson, 4 id. 279; TucAier v. Tucker, 5 id. 103; Martin v. Ballou, 13 id. 119; Richards v. Northwest P. D. Church, 32 id. 42; Ryckman v. (riZZis, 6 Lans. 79; Darling v. Rogers, 22 Wend. 489; Murray v. Branson, 1 Dem. 217; (Siweei v. Burnett, 136 N. Y. 204, 49 St. Rep. 113; Meehan v. Brennan, 16App. Div. 395, 45 N. Y. Supp. 57; ilfoafc v. Moafc, 8 App. Div. 197, 40 N. Y. Suppv 438; Matter of Van Horne, 25 Misc. 391, 55 N, Y. Supp. 651; Gwyer v.Gwyer, 5 App. Div. 156, 38 N. Y. Supp. 1097, aff'd 160 N. Y. 659; Marks \.Halligan,&l App. Div. 179, 70 N. Y. Supp. 444. The rule of construction that the intention of the testator is to govern, although it may not be in entire harmony with the language of the will, is not to be resorted to where the language is explicit and free from doubt, even in case where the court may be of opinion that had the testator an- ticipated that which happened after his death, he would have made a differ- ent disposition of the remainder. Baylies v. Hamilton, 36 App. Div. 133, 5.5 N. Y. Supp. 390, aff'd 165 N. Y. 641. Compare Liebmann v. Lieb- mann, 53 Misc. 491. It must be free of conjecture, imder the guidance of precedents and rules of law, taking into view the circtunstances under which it was made. Oahes v. Massey, 94 App. Div. 165. A will is ambulatory, and the validity of its provisions should be determined by the law as it exists at the testator's death. Obecry v. Goetz, 116 App. Div. 807, 102 N. Y. Supp. 232; Murray V. Miller, 85 App. Div. 414, 83 N. Y. Supp. 591, aff'd 178 N. Y. 316. But, as to its meaning, whether it should be construed as of the time of its execution or as of the time of testator's death is to be determined by his intention and depends upon the peculiar circumstances of each case (Mof- fet V. Elmendorf, 82 Hun, 470, 31 N. Y. Supp. 726, aff'd 152 N. Y. 475), and for the purpose of ascertaining that intention the court may reject words and limitations, supply or transpose them, to get at the correct mean- ing; Benjamin v. Welch, 73 Hun, 371, 26 N. Y. Supp. 156; Karstens v. Karstens, 29 App. Div. 229, 51 N. Y. Supp. 795; Ldebmann v. Liebmann, 53 Misc. 491; Matter of Levy, 41 Misc. 68, 83 N. Y. Supp. 647, aff'd 97 App. Div. 630; Matter of Smith, 46 Misc. 210; Starr v. Starr, 132 N. Y. 154; PhiUips v. Davies, 92 N. Y. 199; Hayes v. Gunning, 51 Misc. 517. Com- pare Tilden v. Gfreene, 130 N. Y. 29. But the court has no power, in its construction of wills, to insert clauses made necessary by a change in the circumstances of the property subsequent to the will and for which the testator did not provide. Parker v. Butler, 76 Hun, 240, 27 N. Y. Supp. 805. The construction given to a will by the members of testator's family is a circumstance entitled to weight. Smith v. Barlett, 79 App. Div. 174, 81 N. Y. Supp. 231; Starr v. Starr, 132 N. Y. 154. If the intention of the testator is evidenced from language free from ambiguity, evidence concern- ing it is not admissible. Wadsworth v. Murray, 161 N, Y. 274, 55 N. E. 524 subrogates' courts § 477 910; Schmeig v. Kochersberger, 18 Misc. 617, 43 N. Y. Supp. 748; Bradhurst V. Fiekf, 135 N. Y. 564; Matter of Smith, 46' Misc. 210. Where it cannot have effect to its full extent, it must have effect as far as possible. Brown V. Lyon, 6 N. Y. 420; Chrystie v. Phyfe, 19 id. 348; Cxky v.- Lane, 35 id. 340; Savage v. Burnham, 17 id. 577; Kane v. Gott, 24 Wend. 665. Thus, where several trusts are created and those which render the entire dispo- sition illegal can be separated and the legal upheld without doing injustice or defeating the presumed wishes of the testator, that which is illegal, or whichj added to others renders the whole illegal, may be cut off and the intention of the testator given effect so far as the statute will permit. Mat- ter of Buchner, 60 Misc. 287; Mendel v. Lewis, 40 Misc. 271, 81 N. Y. Supp. 965; Matter of Fails, 44 Misc. 619, 90 N. Y. Supp. 157; Lord v. Lord, 44 Misc. 530, 90 N. Y. Supp. 143; Matter of Murray, 75 App. Div. 246, 78 N. Y. Supp. 165; Schlereth v. Schlereth, 173 N. Y. 444, 66 N. E. Rep. 130. No clause is to be rejected, or interest intended to be given sacrificed, on the ground of repugnance, when it "is possible to reconcile the provisions supposed to be in conflict. Taggart v. Murray, 53 N. Y. 233; Van Vechten V. Keator, 63 id. 52. If, however, it is impossible to reconcile two inconsist- ent provisions, the latter must prevail. Nohh v. Thayer, 19 App. Div. 446; 46 N. Y. Supp. 302. See Henderson v. Merritt, 10 App. Div. 397; 41 N. Y. Siipp. 885. See Matter of Faile, 51 Misc. 166. Where a general intention is expressed in a will, and also a particular intention incompati- ble therewith, the particular intention may be considered iri the nature of an exception. Matter of Title Guarantee & T. Co., 46 Misc. 544, 95 N. Y. Supp. 59, rev'd on other points, 114 App. Div. 778. But where a will is vahd in part and invalid in part, the vaUd portions should be preserved, if they are separable and capable of being carried out in fulfillment of the general plan of the instrument. Matter of Trotter, 104 App* Div. 188, 93 N. Y. Supp. 404; aff'd, 182 N. Y. 465; Kalish v. Kalish, 166 N. Y. 377; Smith V. Chesgbrough, 176 N. Y. 317; Robb v. Wash. & Jeff. College, 103 App. Div. 327, 93 N. Y. Supp. 192, modified on other points, 185 N. Y. 485; Denisoh v. Denison, 103 App. Div. 523, 86 N. Y. Supp. 604, aff'd 185 N. Y. 438; Underwood v. Curtis, 127 N. Y. 523. In construing a will, the intention of the testator is to govern in preference to a general rule of construction, where they come in conflict. Matter of James, 146 N. Y. 78, 66 St. "Rep. 246; Matter of Brown, 154 N. Y. 313; Liebmann v. Lieb- mUnn, 53 Misc. 491. As to the application of this principle to precatory words in a will, see Phillips v. PhiUips, 112 N. Y. 197; Matter of Copeland, 38 Misc. 402, 77 N. Y. Supp. 931. Compare Clay v. Wood, 153 N. Y. 134. Every expression is to be construed, if practicable. So as to give effect to all parts of the will, and not to nullify any. Hard V. Ashley, 117 N. Y. 606; Terry v. Wiggins, 47 id. 512, 517; Mee v. Gordon, 187 N. Y. 400; Clark v. Goodridge, 51 Misc. 140, 100 N. Y. Supp. 824; McU- terof Hayt, 116 App. Div. 217, aff'd 189 N. Y. 511; People's Trust Co. v. Flynn, 49 Misc. 62, aff'd 113 App. Div. 683. But it is not permissible to rrfisr to a clause which is doubtful for the sole purpose of obscuring another §§ 478, 479 CONSTRUCTION OF WILLS 525 which is clear. Fothergill v. Fothergill, 80 Hun, 316, 30 N. Y. Supp. 292. To'avoid intestacy. Vernon v. Vernon, 53 N. Y. 351, 361; Kalish v. Kalish, 166 id. 368, 59 N. E. 917; Haight v. Pine_, 3 App. Div. 434, 39 N. Y. Supp. 511; Newcomb v. Newcomb, 33 Misc. 191, 68 N. Y. Supp. 430; Zone V. •Zone, 4 Misc. 559; Meehan v. Brennan, 16 App. Div. 395, 45 N. Y. Supp. 57; Hughes v. Mackin, 16 App. Div. 291, 44 N. Y.Supp. 710; San- ford V. Goodell, 82 Hun, 369; Matter of Salisbury, 61 Misc.. 550; Simpson v. Trust Co., etc., 129 App. Div. 200; Oakes v. Massey, 94 App. Div. 165; Mills v. Tompkins, 110 App. Div. 212. The presumption is that the tes- tator did not intend to die intestate. Matter of Smith, 46 Misc. 210; Schult V. Moll, 132- N. Y. 122; Byrnes v. Boer, 86 N. Y. 218; KeUey v. Hogan, 71 App. Div. 343. And to avoid the disinheritance of the natural objects of the testator's bounty. Goodwin v. Coddington, 154 N. Y. 283 ; Matter of Miller, 18 App. Div. 211, 45 N. Y. Supp. 956, aff'd 155 N. Y. 646; Sage v. Wheeler, 3 App. Div. 38, 37 N. Y. Supp. 1107; Shangle v. Hallock, 6 App. Div. 55, 39 N. Y. Supp. 619; Matter of Salisbury, 61 Misc. 550; March v. March, 186 N. Y. 99; Matter of Edie, 117 App. Div. 310; Matter of Keogh, 126 App. Div. 285, aff'd 193 N. Y. 603; Trowbridge v. Coss, 126 App. Div. 679; Oakes v. Mousey, supra. § 478. Clerical errors. — Obvious clerical errors, patent upon the face of the instrument, may be corrected. Thus "and" may be read "or," and conversely. Jackson v. Bkmshan, 6 Johns. 54; Van Vechten v. Pearson, 5 Paige, 512; Roosevelt v. Thurman,. 1 Johns. Ch. 220; Grim v. Dyar, 3 Duer, 354; Scott v. Guernsey, 48 N. Y. 106; Maiter of Allison, 53 Misc. 222, 102 N. Y. Supp. 887, aff'd 122 App. Div. 898, 190 N. Y. 567. "As" may be read "because." Sharp v. Dimmick, 4 Lans. 496. "Reviving" may be read "surviving." Pond v. Bergh, 10 Paige, 140. "Leave" may be read "have." Du Bais v. Ray, 35 N. Y. 162. The word "sell" may be supplied before the word "and," or the word "and" be omitted in order to carry out the evident intention of the testator. Hall V. Thompson, 23 Hun, 334. For a case where the words "as joint tenants and tenants in common" were changed to read "as joint tenants and not as tenants in common," see Walter v. Ham, 68 App. Div. 381, 75 N. Y. Supp. 185. See also Matter of Levy, 41 Misc. 68, 83 N. Y. Supp. 647, aff'd 97 App. Div. 630. And "her" may be substituted for "my." Liebmann v. Ldebmarin, 53 Misc. 491. § 479. Statutory restrictions. — The statutes of this State restrict the power of testamentary disposition in respect to (1) the creation of trusts, (2) the creation of future estates in lands, or of future contingent interests in j)ersonal property, (3) accumulations of rents and profits of land, or of the income of personal property, and (4) in respect to benevoleftt, literary, and other bequests. Restrictions are also imposed in respect to the persons 526 surrogates' courts §'480 who may take a devise or bequest, and as to the proportion, of the, estate which may be devised or bequeathed for benevolent and other purposes in certain cases. The cases involving the application of these provisions to particular, and often, complicated, testamentary dispositions have been very numerous, and furnish many curious examples of the ingenuity of testators in their attempts to contravene the restraints upon alienation of estates, as well as the acuteness and persistence of judges in detecting and frustrating such intention. But generally, clerical errors, not thus ap- parent, cannot be corrected by extrinsic evidence that the testator intended otherwise than the words of the will express. Punctuation may be resorted to, or disregarded, when no other means can be found of solving an ambig- uity, but not in cases where no real ambiguity exists, except what punctua- tion creates itself. Arcularius v. Sweet, 25 Barb. 403. When the punctua- tion accords with the sense, the use of a capital in the middle of a sentence must be regarded as accidental and should not be permitted to confuse a construction otherwise reasonably clear. Kinkele v. Wilson, 151 N. Y. 269, 45 N. E. 869. The punctuation may be disregarded if it is in conflict with the testamentary scheme of the testator as gleaned from the provi- sions of the will, or prevents ascribing to the words employed their ordinary meaning {Lewisohn v. Henry, 92 App. Div. 532, 87 N. Y. Supp. 325, .aff'd 179 N. Y. 352), but as a rule, resort to punctuation is a hazardous guide, especially where the testator merely hears the will read. Id., 179 N. Y. 352. A statement of the statutory rules on the subject will beiall that the scope and purpose of this volume will permit. We merely refer to the statutory rules and limitations regarding the creation of express trusts of real property. 1 R. S. 728, § 55; Laws 1896, chap. 547, § 76; Cons. L. 1909, chap. 52, 96. And of future estates in lands. 1 R. S. 722, §§ 14-16; Laws; 1896, chap. 547, § 27; Cons. L. 1909, chap. 52, § 96. Trusts of personal property may be created for any purpose not pro- hibited by law. Holmes v. Mead, 52 N. Y. 332, 343; Buckliri v. Bucklin, 1 Keyes, 141; Brown v. Harris, 25 Barb. 134; Gott v. Cook, 7 Paige, 521; Foster v. Coe, 4 Lans. 53; Roosevelt v. Roosevelt, 6 Hun, 31; Tabernacle Baptist Church v. Fifth Ave. Baptist Church, 60 App. Div. 327, 70 N. Y. Supp. 181, aff'd 172 N. Y. 598; Robb v. Wash. & Jeff. CoEege, 103 App. Div. 327, 93 N. Y. Supp. 192, modif . on other points, 185 N. Y. 485. §480. Suspension of absolute ownership. — As to personal property, the absolute ownership cannot be suspended longer than during the con- tinuance, and until the termination, of not more than two lives in being at the date of the instrument containing the limitation, or, if by will,, for not more than two lives in being at the death of the testator; In all other respects, limitations of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in lands. 1 R. S. 773, §§ 1, 2; Laws 1897, bhap. 417, § 2; Cons. L. 1909, chap. 45, § 11; Mills V. Husson, 140 N. Y. 99. The phrase " suspense of absolute owner- ship," as used in this statute in relation to personal property, is said to §480 CONSTRUCTION OF WILLS 527 mean the same thing as "suspense of the power of ahenation," as applied to real property. The term "absolute ownership" as applied to personalty must be interpreted in its ordinary and natural sense, and the same is sus- pended where the title of one life tenant is defeasible in favor of another; neither one can be said to possess absolute ownership, even though both are in being at the time. Matter of Wilcox, 194 N. Y. 288; Emmons v. Cairns, 3 Barb. 243; Morton v. Morton, 8 id. 18. In Converse v. Kellogg, 7 Barb< 590, a different view is taken. And the construction of the two pro- visions has been to the same effect as to each. Words in a will which amount to a suspension of the power of alienation of lands will be held as sufficient to effect a suspension of the absolute ownership of personal property, and vice versa. That period must be measured by existing lives. See Matter of Faile, 44 Misc. 619, 90 N. Y. Supp. 157. It is not essential to the validity of the trust that its continuance should be dependent upon the life of the beneficiary. Stringer v. Young, 191 N. Y; 157. Or by some more proximate event which must happen during life. A wUl speaks as of the time of the testator's death, and whether or not it violates the statute against perpetuities must be determined as of that date and not as of some subsequent date. A violation of the statutes against perpetuities is not cured by the happening of fortuitous circumstances by reason of which no illegal suspension of absolute ownership is actually ef- fected. The validity of an attempted suspension of absolute ownership is to be determined not by the event but by the possibility. Morton Trust Co. V. Sands, 122 App. Div. 691, 107 N. Y. Supp. 698, aff'd 195 N. Y. 28; Matter of Wilcox, 194 N. Y. 288; Simpson v. Trust Co., etc., 129 App. Div. 200; Stewart v. Wooley, 121 App. Div. 531. The probability that; the trust will be measured by five lives in being; rather than by two lives in being, renders it unlawful. Matter of Bru^haeser, 49 Misc. IM. And the persons whose Uves are to furnish the measure of the suspension must be designated or referred to, so as to be capable of ascertainment in the instrument by which the disposition is made. Everitt v. Everitt, 29 N. Y. 39; Wither v. Wilher, 165 ^d. 451, 59 N. E. 264; Matter of Murray, 34 Misc. 39, 69 N. Y. Supp. 491; Montignani v. Blade, 145 N. Y. Ill, 64 St. Rep. 658; Matter of Ackermann, 36 Misc. 752, 74 N. Y. Supp. 477; Fairchild v. Edson, 154 N. Y. 199. Absolute ownership is not suspended merely because the executor may require a period of time not measured by lives in which to execute the power of sale. Deegan v. Wade, 144 N. Y. 573, 64 St. Rep. 240. A child en ventre sa mere at the testator's death is a "life in being." Cooper v. HMherton, 65 App. Div. 561, 73 N. Y. Supp. 14. The period during which the absolute right of alienation may be suspended by an instrument in execution of a power must be computed from the time of the creation of the power; accordingly, a testamentary appointment under a pOwer contained in the will of testator's father, which would have the effect of suspending the power of alienation during the life of a person not in being at the time of the father's death, is invalid. Matter of .Pilsbury, 50 Misc. 367, 99 N. Y. Supp. 62, aff'd 113 App. Div. 893. 528 surrogates' courts § 480 Thus-,: a trust is not valid to continue for an indefinite period. A trust to provide for the care of cemetery lots in perpetuity was once held an un- lawful suspension. Matter of Demtt, 113 App. Div. 790, 99 N. Y. Supp. 415, aff'd 188 N. Y. 567. But now such trusts are authorized. Or until a date specified. Staples v. Hawes, 39 App. Div. 548, 57 N. Y. Supp. 462; Matter of Snyder, 48 St. Rep. 643, 21 N. Y. Supp, 430; Kalish V. Kaiish, 166 N. Y. 368, 59 N. E. 917; Steinway v. Stdnway, 10 Misc. 563, 32 N. Y. Supp. 183; Maiter of Murray, 75 App. Div. 246, 78 N. Y. Supp. 165; McGuire v. McGuire, 80 App. Div. 63, 80 N. Y. Supp, 497; Hagemeyer V. Saulpaugh, 97 App. Div. 535, 90 N. Y. Supp. 228; Walter v. Walter, 60 Misc. 383; Keenan v. Keknan, 122 App. Div. 435. Compare Liebmann V. Ldebmann, 53 Misc. 491; Smith v. Chesehrough, 176 N. Y. 317. But a mere postponement of the time of payment of a legacy or delivery of property does not make a legacy contingent or unlawfully suspend the power of ahenation. Bushnell v. Carpenter, 92 N. Y. 270; Orange County Trust Co. V. Morrison, 56 Misc. 88; Matter of Becker, 59 Misc. 135; Jacoby V. Jacoby, 188 N. Y. 124; Quade v. Bertsch, 65 App. Div. 600, 72 N. Y.Supp. 916, aff'd 173 N. Y. 615; Matter of Roberts, 112 App. Div. 732. The period of suspension, to which it is the purpose of the statute to limit dispositions of property, is the same as to real and as to personal property, that is, "two lives in being;" in the case of a devise of real prop- erty, the lives must be "in being at the creation of the estate;" and in the case of a bequest of personal property the lives must be "in being at the death of the testator." But "the time of the creation of the estate" is the death of the testator, so that, in both cases, the testator's death is the time from which the period of suspension is reckoned. So the statutory term, "two lives in being," appUes equally, and in the same sense, to suspension occasioned by contin- gencies, trusts, and powers in trust; to postponement of vesting, and to suspension of the absolute ownership of personal property. As a general proposition, it may be stated that a suspension of the absolute ownership of personalty occurs only when there are no persons in being by whom an absolute estate in possession can be conveyed. Sawyer v. Cubby, 146 N. Y. 192, 66 St. Rep. 582. The illegality is not cured by a power of sale, if not coupled with a power to divide the proceeds before the termination of the trust. Whitefkld v. Crissman, 123 App, Div. 233. Nor can the trust be made valid by a refusal of one of the beneficiaries to accept the benefit of its provisions. People's Tr. Co. v. Flynn, 113 App. Div. 683, 99 N. Y. Supp. 979, rev'd on other points, 188 N. Y. 385. As to distinc- tion between trusts for the payment of income and those for the payment ■ of annuities, as affecting the question of suspension, see Smith v. Havens Belief, etc., Soc; 44 Misc. 594, 90 N. Y, Supp. 168, aff'd 118 App. Div. 678; Matter of Trotter, 104 App. Div. 188, aff'd 182 N. Y. 465. It, there- fore, follows that if there is a present right to dispose of the entire interest, even if its exercise depends on the consent of many persons, there is no unlawful suspension. WiUiams ,v. Montgomety, 148 N. Y. 519, 43 N; E. § 481 CONSTRUCTION OF WILLS 529 57; Mills v. Mills, 50 App. Div. 221, 63 N. Y. Supp. 771; Thieler v. Raynerr 115 App. Div. 626, 100 N. Y. Supp. 993, aff'd 190 N. Y. 44; Wells v. Squires, 117 App. Div. 502, 102 N. Y. Supp. 597, aff'd 191 N. Y. 31. It is not necessary that the testator actually sever a trust fund, where several trusts are to be carved out of it. It suffices that each trust be made distinct; and, in such case, each will be considered ^one on the question of illegal suspension. Post v. Braere, 127 App. Div. 250. Of course, if the provisions of the will do not create a strict trust, -but amount, rather, to a bequest, no question of illegal suspension arises. See Hasbrouck v. Knoblauch, 59 Misc. 99; Robb v.Wagh. & Jeff. College, 103 App. Div. 327, 93 N. Y. Supp. 192, modif. in other respects, 185 N. Y. 485; Smith v. Havens, etc., Soc'y, 44 Misc. 594, 90 N. Y. Supp. 168, aff'd 118 App. Div. 678. § 481. Accumulations of income of personal property. — Accumula- tions of income of personal property (except as specified in the statute) are placed on the same general footing, and are governed by the same rules, as accuniulations of rents and profits of real estate. Directions for the accumulation of rents and profits of real estate, except for the period during which the power of aUenation of the estate itself can be limited, are void. Laws, 1896, chap. 547, §51; Cons. L. 1909, chap. 52, §61. See Masm, V. Jofies, 2 Barb. 229; Savage v. Bumham, 17 N. Y. 561. The statute provides. Laws, 1897, chap. 417, § 4, 1 R. S. 774, §§ 3, 4; Cons. L. 1909, c. 45, § 16, that the accimiulation of the income of personal property may be directed as follows: (1) If the accumulation is directed =to commence from the date of the instrument or from the death of the person executing the same, it must be for the benefit of one or more minors, see Boynton v. Hoyt, 1 Den. 53, 58; Hawley v. James, 16 Wend. 61; Matter of Raymond, 73 App. Div. 11, 76 N. Y. Supp. 355. A direction to accumulate and apply income to the discharge of incumbrances is void. Matter of Fisher, 4 Misc. 46; Mc- Comb V. Title Guarantee & Trust Co., 36 id. 370, 73 N. Y. Supp. 554, aff'd 70 App. Div. 618; Matter of Snyder, 35 Misc. 588, 72 N. Y. Supp. 61; Dodmorth v. Dam, 38 Misc. 684, 76 N. Y. Supp. 264; Matter of Jenkins, 132 App. Div. 339; Kirk v. McCann, 117 App. Div. 56, 101 N. Y. Supp. 1093. So too, a direction to invest surplus moneys in bond and mortgage vaita the termination of the trust period of two lives. Kirk v. -McGann, swpra: See Hascall v. King, 28 App. Div. 280, 51 N. Y. Supp. 73, 162 N. Y. 134. And the minors must be then in being, Gilmnn v. Reddington, 24 N. Y. 19; Kilpatrick v. Johnson, 15 id. 322, or in being at such death, and the trust must terminate at or before the expiration of their majority. See Smith v. Paraons,146 N. Y. 116; Thorn v. De Breteuil, 179 N. Y. 64; Matter of Rankm, 101 App. Div._189, 91 N. Y. Supp. 933, aff'd 182 N. Y. 519. A gift of property to executors in trust to receive rents and profits and deposit the same in a savings bank for ten years and then sell and di^de the proceeds and accumulations among children, all of whom were of full age, is void. Brandt v. Brandt, 13 Misc. 431, 34 N. Y. Supp. 684. 530 surrogates' courts § 482 So, too, a provision requiring the creation of a fund from the income of each child's share and the annual reinvestment of the surplus income imtil the final distribution when the youngest reaches the age of 25. Hcyrndorf v. Horndorf, 13 Misc.' 343, 34 N. Y. Supp. 560. (2) If the accumulation is directed to commence at any time subse- quent to the above,, it must commence within the time allowed for the suspension of the absolute ownership of personal property and during the minority of the beneficiaries, and terminate at or before the expiration of such minority. If, in either of these cases, the direction for an accumulation is for a longer term thaii during the minority of the beneficiaries, the direction, whether separable or not from other provisions of the instrument, see Williams v. WilKams, 8 N. Y. 525; Kilpatriek V. Johnson, 15 id. 322; King v. Rundle, 15 Barb. 139, is void only as respects the time beyond such minority. Tobin v. Graf, 39 Misc. 412, 80 N. Y. Supp. 5. This statute does not apply to or affect property given in perpe- tuity to religious corporations incorporated under the general statute. Williams v. Williams, 8 N. Y. 525. And see Trustees of Theological Semi- nary V. Kellog, 16 id. 83; Wetmare v. Parker, 52 id. 450; Matter of Abbott, 3 Redf. 303; Stanton v. Miller, 58 N. Y. 192; Livingston v. Gordon, 7 Abb; N. C. 53; Matter of Wesley, 43 St. Rep. 952, 17 N. Y. Supp. 304; St. John V. Andrews Institute, 117 App. Div. 698, 191 N. Y. 254. But in Robb v. Wash. & Jeff. College, 185 N. Y. 485, it was said that charitable bequests are as much within the statute, relating to perpetuities and accumulations as any others. In other words, a direction for an illegal accumulation does not render a legacy wholly void, but the direction may be stricken out and the legacy and the genera,l purposes for which it was given may remain. Williams v. Williams^ 8 N. Y. 525. See also Dodge v. Pond, 23 id. 69; Manice v. Manice, 43 id. 303; Robinson v. Robinson, 1 Lans. 117; Haxtun v. Corse, 2 Barb. Ch. 506; Craig v. Craig, 3 id. 76; Kilpatriek v. Johnson, 15 N. Y. 322; Bonard's Will, 16 Abb. Pr. N. S. 128, 208; Matter ofRoos, 4 Misc. 232, 24 N. Y. Supp. 862; Endress v. WiU^, 122 App. Div. 110; Denison v. Denison, 103 App. Div. 523, 86 N. Y. Supp. 604, aff'd 185 N. Y. 438; Underwood v. Curtis, 127 N. Y. 523; Matter of Jenkins, 132 App. Div. 339. Implied directions to accumulate are as much within the prohibition of the statute as those expressly given. If, upon comparing the provisions of the will with the condition of the estate, it is apparent that the testator intended an unauthorized accumulation, this intention cannot ibe carried into effect, and any provision of the will which is dependent upon it is void. This, however, is never permitted to affect any portion of the will not necessarily connected with the illegal accumulation, and which can be readily executed independently of it. Dodge v. Pond, 23 N. Y. 67, 79; Chaplin, Suspension, etc., §§ 430 et seq. § 482. Effect of illegal suspension.— The statute, L. 1896, c. 547, § 53 (1 R. S. 726, § 40); Cons. L. 1909, chap. 52, § 63, gives to the persons pre- sumptively entitled to the next eventual estate, income accruing during §§ '483, 484 CONSTRUCTION OF WILLS 531 a suspension of the absolute ownership, and of which no disposition or valid accumulation is directed. It is no longer doubtful that this provi- sion applies to the case of income from personal estate. Cook v. Lowry, 29 Hun, 20. See MeUon v. Devlin, 31 App. Div. 146, 53 N. Y. Supp. 172, aff'd 167 N. Y. 573; MaUer of Harteau, 125 App. Div. 710; Matter of Har- wpod, 52 Misc. 82; Reeves v. Snook, 86 App. Div. 303, 83 N. Y. Supp. 746; Matter of Conger,. 81 App. Div. 493, 80 N. Y. Supp. 933; Thorn v. De Bre- tmil, 86 App. Div. 405, 83 N. Y. Supp. 849, modif. in other respects, 179 N. Y. 64. In U. S. Trust Co. v. Soher, 178 N. Y. 443, the court was unable to determine who was entitled to the "next eventual estate," and distrib- uted the surplus as in case of intestacy. But, it seems, the above pro- vision applies only where such income is derived from some specific fund, or is distinguishable from that of all other property. Dodge v. Pond, 23 N. Y. 69, 79; Grant v. Grant, 3 Redf. 283; Thomas v. Pardee, 12 Hun, 151. The operation and application of this statute are further illustrated in Pray V. Hegeman, 92 N. Y. 508; Barbour v. De Forest, 95 id. 13; Delafield v. Ship- man, 103 id. 463; Delafield v. Barlow, 107 id. 535; Schettler v. Smith, 41 id. 328; Cook v. Lomry, 95 id. 103, 107; Williams v. Williams, 8 id. 525; Kil- Patrick v. Johnson, 15 id. 322; Potter v. McAlpine, 3 Dem. 108; Matter of Sands, 20 St. Rep. 850; Smith v. Secor, 31 App. Div. 103, 52 N. Y. Supp. 562, aff'd 157 N. Y. 402; Clark v. Clark, 23 Misc. 272, 50 N. Y. Supp. 1041; Sanfard v. Goodell, 82 Hun, 369, 31 N. Y. Supp. 490; Matter of Snyder, 35 Misc. 588, 72 N. Y. Supp. 61; St. John v. Andrews Institute, 117 App. Div. 698, 191 N. Y. 254. Where, however, it is manifest from the analysis of a will that it was the purpose of the testator to perpetuate his estate in one indivisible trust, contrary to the provisions of the statute against per- petuities, the whole will must fail and the estate be divided among those entitled under the Statute of Distribution. Central Trust Co. v. Egleston, 185 N. Y. 23.' § 483. Trust gifts to literary institutions. — Real and personal estate may be granted and conveyed to any incorporated college or other literary incorporated institution in this State, to be held in trust (1) to establish and maintain an observatory; (2) to found and maintain professorships and scholarships i (3) to provide and keep in repair a burial place for the dead; (4) for any other specific purpose contemplated in the general ob- jects authorized by their respective charters. Cons. L. 1909, chap. 45, § 13, subd. 1; id., chap. 52, § 114. § 484. Bequests to city or village corporation for certain purposes. — Reial and personal estate may be granted to the corporation of any city or village of this State, in trust for any purpose of education or the diffu- sion of knowledge, or for the relief of distress. [While a bequest of personal property to a town for the support of its poor is vaKd, a devise of real estate for that purpose is void. Fosdick v. Hempstead, 29 St. Rep. 545, 8 N. Y. Supp. 772.] Or for parks, gardens, or other ornamental grounds, or grounds for the purpose of military parades and exercise, or health and recreation, within or near such city or village. Matter of Crane, 12 App. Div. 271, 42 532 surrogates' courts §485 N. Y. Supp. 904, aff'd 159 N. Y. 557, citing he Couteulxy. City of Buffalo, 33 N. Y. 342; Clements v. Babcock, 26 Misc. 90, 56 N. Y. Supp. 527. And property may also be granted to superintendents of common schools of any town, and to trustees of school districts, in trust for the benefifc of th:e common schools of the town, or of the schools of the district. Laws 1840, chap. 318; Laws 1841, chap. 261; Laws 184^6, chap. 74; Laws 1855, chap. 432; Laws 1890, ,chap. 160; Laws 1892, chap. 25; Cons. L. 1909, chap. 45, § 13, subd. 2; Id., chap. 52, § 114. See Adams v. Perry, 43 N. Y. 487; Yates V. Yates, 9 Barb. 324. By Laws 1905, chap. 388, it was provided that whenever any person or persons, copartnership, corporation or association shall give, bequeath or assign to the State of New York "any bonds, war- rants, choses inaction or other obligations of any other State, the governor is hereby authorized, in his discretion, to receive and accept the same for the benefit of the State and the right and title thereto and therein shall thereupon pass to and vest in this State and the same and all the proceeds thereof when collected shall be held by the comptroller in a special account or fund, subject to be appropriated by the Legislature only, for the sup- port of conamon schools, or for the promotion of some educational interest in th6 State. § 485. Bequests for cemetery purposes. — A person residing in this State may create a trust in perpetuity for the maintenance of a cemetery lot, the preservation of a building, structure, fence or walk therein, the renewal or preservation of a tomb, monument, stone, fence, railing or other erection or structure on or around such lot, or the planting or cultivation of trees, shrubs, flowers or plants in or about such lot, or for any of such purposes. And he may direct that the income from the trust shall be ap- phed to one or more of the purposes above mentioned. Cons. L. 1909, chap. 16, § 152 (Laws 1906, chap. 362)y amending theCounty Law (Laws ■1892, chap. 686). For the purpose of creating such trust, the testator or grantor may transfer, convey, devise or bequeath to the county treasurer of the county in which such person resides or in which sUch cemetery is located; or if such person resides or such cemetery is located in a county wholly within a city, to the chamberlain of such city, real or personal property; designating such county treasurer or chamberjain as trustee in the instrimient creating such trust. (Id.) See also the Village Law (Cons. L. 1909, chap. 64, § 295). By Cons. L. 1909, chap. 45, § 13a, and chap. 52, § 114o (added by Laws 1909, chap. 218), gifts, bequests and devises of real and personal property, "in trust for the perpetual care and mainte- nance, improvement or embellishment of private burial lots in cemeteries, Bind the walks, fences, monument, structures and tombs thereon, are per- mitted and shall be deemed to be for charitable and benevolent uses. By another statute, [Cons. L. 1909, chap. 53, § 7 (Laws 1895, chap. 723, § 7), which authorizes a bequest of lands in trust to apply the income to the care of a burial lot. Driscoll v. Hewlett, 132 App. Div. 125,] any reUgious corporation may take and hold, by purchase, grant, gift or devise, real property for the purposes of a cemetery; or such lot or lots in any § 486 CONSTRUCTION OF WILLS 533 • cemetery connected with it, as may be conveyed or devised to it, with or without provisions limiting interments therein to particular persons or classes of persons; and may take and hold any property granted, given, devised or bequeathed to it in trust to apply the same or the income or proceeds thereof, under the direction of the trustees of the corporation, for the improvement or embellishment of such cemetery or any lot therein, including the erection, repair, preservation or removal of tombs, monu- ments, gravestones, fences, railings or other erections, or the planting or cultivation of trees, shrubs, plants, or flowers in or around any such ceme- tery or cemetery lots. § 486. Necessary elements of a trust. — Except as above, the purposes for which trusts of personal property may be created are not defined or limited by the statute — ^it would be impracticable to do so, — but whatever the scheme of the trust (if it be not against public policy), [for example, a so-called spendthrift trust. See Ullman v. Cameron, 186 N. Y. 339, and cases cited,] the purpose must be definite. Matter of Scott, 31 Misc. 85, 64 N. Y. Supp. 577; McComb v. Title Guarantee & Trust Co., 36 Misc. 370, 73 N. Y. Supp. 554, aff'd 70 App. Div. 618. See Matter of Morgan, 56 Misc. 235. There must be a designated trustee, and the beneficiary must be certain and entitled to enforce the trust; otherwise, there would be an indefinite continuance of the trustee's powers which would constitute a perpetuity. Adams v. Perry, 43 N. Y. 487; Tilden v.'Green, 54 Hun, 231, 130 N. Y. 29. The case of Murray v, Miller, 178 N. Y. 316, seems to hold that the beneficiary must be capable of identification at the time of testa- tor's death, even though the bequest is not to take effect until the termina- tion of a life estate. Thus a direction that the residue of the estate be placed in the hands of the pastor of a church, to be bestowed in a manner which he may wisely direct, is void for want of a defined beneficiary. Matter of Foley, 10 N. Y. Supp. 12. Compare Power v. Cassidy, 79 N. Y. 602. A bequest to "my executors, to be expended by them for benevolent and charitable purposes, as they or the survivor of them shall in their or his good judgment deem wise or best for the promotion of Christianity and the welfare of mankind in the world," is void for uncertainty as to the beneficiaries. Matter of Jackson, 20 N. Y. Supp. 380; People v. Powers, 147 N. Y. 104, 69 St. Rep. 403; Trunkey v. Van Sant, 83 App. Div. 272, 82 N. Y. Supp. 94, rev'd 176 N. Y. 535, but aff'd as to this point. So, too, a clause in the will authorizing the executors to distribute testator's jewelry and wearing apparel among such of his friends as they see fit, — Held vague and inoperative. Fairbrass v. Purdy, 44 App. Div. 636, 60 N. Y. Supp. 753. But in Jay v. Lee, 41 Misc. 13, 83 N. Y. Supp. 579, it was said that a bequest of wearing apparel, etc., to two persons in trust to distribute them "to the persons I have indicated to them in my lifetime" was not indefinite as to beneficiaries. Compare Matter of Keenan, 107 App. Div. 234. A be- quest, "to be uSed especially for the interest of " a person is void as a trust. Ramsay v. De Remer, 65 Hun, 212; s. p., Pell v. Folger, 23 N. Y. Supp. 42. A provision that all of testator's property remaining after paying his debts 534 surrogates' courts § 487 should be expended for a monument at his grave, is not void on the groimd that there is no ascertained beneficiary. Matter of Boardman, 20 N. Y. Supp. 60. For illustrations of the rule, see Hope v. Brewer, 136 N. Y. 126, 48 St. Rep. 834; Dammert v. Oshorn, 65 Hun, 585, 20- N. Y. Supp. 474; Spencer v. De Witt C. Hay Library Asm., 36 Misc. 393, 73 N. Y. Supp. 712; MaMer of Botsford, 23 Misc. 388, 52 N. Y. Supp. 238, aff'd 37 App. Div. 73; Edson V. Bartow, 10 App. Div. 104, 41 N. Y. Supp. 723.(modif. in other respects in 154 N. Y. 199); Pratt v. Roman CathoUe Orphan Asylum, 20 App. Div. 352; Beecher v. Yale, 45 N. Y. Supp. 622; Cktpp v. Byrnes, 3 App. Div. 284, 38 N. Y- Supp. 1063; Wyman v. Woodbury, 86 Hun, 277, 33 N. Y. Supp. 217, 66 St. Rep. 845; Butler v. Trustees, etc., 9.2 Hun, 96, 36 N. Y. Supp. 562. For the same reason, a bequest to one, in trust for the saying of masses for the repose of testator's soul; is invalid; there iSj in such a case, no defined or ascertainable living person who has, or ever could have, any temporal interest in the performance of the trust, and no incorporated church designated which would entitle it to claim any portion of the fund. Matter of Wright, N. Y. L. J., Jan. 10,: 1893; Holland v. Alr cock, 108 N. Y. 312; Power v. Cassidy, 79 id. 602; Prichard v. Thompson, 95 id. 76. But see Matter of Backes, 9 Misc. 504, 30 N. Y. Supp. 394. In Matter of Zimmerman, 22 Misc. 411, a gift to a priest, for which masses were to be said, was upheld as a conditional bequestj And,; in Matter , of Eppig, 63 Misc. 61^, a direction to executors to pay out and expend cer- tain sums from time to time, in their discretion, for the saying of masses was held to be a gift to the executors for a religious use upon a valid and effectual trust. A bequest, absolute on its face, to the "sister superior or reverend mother," who should at the time of testator's death be in charge of a home for the aged, provided a bequest to the home should fail, as it did by reason of the will being executed within two months of his death, — sustained, as sufficiently describing the legatee. Matter of Mullen, 25 Misc. 253, 55 N. Y. Supp. 432. See Johnston v. Hughes, 187 N. Y. 446. § 487. Gifts for charitable purposes. — Presumably to secure to the public the fruits of the benevolent intentions of testators against the dan^ gers incident to the rule requiring certainty in the designation of a. bene- ficiary, the statute provides that, "No gift, grant, or bequest to religiousy educational, charitable, or benevolent uses, which shall, in other respects, be valid under the laws of this state shall be deemed invalid by_ reason of the indefiniteness or uncertainty of the persons designated as, the bene- ficiaries thereunder in the instrument creating the same. If in the instru- ment creating such a gift, grant, or bequest there is a trustee named to execute the same, the legal title to the property given, grantedj or be- queathed for such purposes shall vest in such trustee. If no person be named as trustee, then the title to such property shall vest in the supreme court." Cons. L. 1909, chap. 45, § 12 (reenacting, with certain changes, Laws 1893, chap. 701, as amended by Laws 1901, chap. 291), A gift to an unincorporated college maintained by a foreign States is not "in other respects" valid under the laws of this State, and the statute § 487 CONSTRUCTION OF WILLS 535 ♦ does not apply. Catt v. Catt, 118 App. Div. 742. The statute does not change the rule of law that an unincorporated society is incapable of taking a bequest, either absolutely or as trustee.. Frolock v. Lyford, 107 App. Div. 543, 95 N. Y. Supp. 433, aff'd 187 N. Y. 524. See Mount v. TuUk, 183 N. Y. 358. Nor has it abrogated the provision of the statutes relating to the sus- pension of absolute ownership and the accumulation of income. St. John V. Andrews Institute, 191 N. Y. 254. The same act, as amended by Laws 1909, chap. 144, also provides that "Whenever it shall appear to the court that circumstances have so changed since th§ execution of an instrument containing a gift, grant, bequest or de- vise to religious, educational, charitable or benevolent uses as to render im- practicable or impossible a literal compliance with the terms of such instru- ment, the court may, upon the application of the trustee or of the person or corporation having the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift, grant, bequest or devise shall be administered or expended in such manner as in the judgment of the court will most effectually accomplish the general purpose of the instrument, without regard to and free from any specific restriction, limitation or direction contained therein; provided, however, that no such order shall be made without the consent of the donor or grantor of the property, if he be living." In Loch v. Mayer ^ 50 Misc. 442, 100 N. Y. Supp. 837, it was suggested that the use of the word "instru- ment" in the act, does not indicate an intention of the Legislature to con- fine its provisions to trusts created by a writing. But the statute has no application to the will of a person who died prior to its passage. Butler v. Trustees, etc., supra; Murray v. Miller, 85 App. Div. 414, 83 N. Y. Supp. 591, aff'd 178 N. Y. 316. But see Morgan v. Durand, 51 Misc. 523, 101 N. Y. Supp. 1002? The purpose of the act was to restore the law of charitable trusts as declared in Williams v. Williams, 8 N. Y. 525. Loch v. Mayer, 50 Misc. 442, 100 N. Y. Supp. 837; Alkn v. Stevens, 161 N.Y. 122, 55 N.. E. Rep. 568. Hence, a residuary bequest to trustees named, for the purpose of founding a home for the aged, to be located in the city of Syracuse for the benefit of those who by niisfortune have become incapable of providing for themselves, etc., the duration of the trust not being limited by Uves, — Held to be valid and not subject to the objections of indefiniteness or creating a perpetuity. Allen v. Stevens, supra. So, too, a bequest to one who is the treasurer of a hospital, "in trust to be used as she may deem best, toward the interest of the hospital." Matter of Beaver, 62 Misc. 155. See HvM v. Pearson, 36 App. Div. 224, 55 N. Y. Supp. 324; Matter of Fitzsimons, 29 Misc. 204. For a similar statute as to charitable devises, see Cons. L. 1909, chap. 52, § 113, as amended by Laws 1909, chap. 144 (Laws 1896, chap. 547, §93). By Cons. L. 1909, chap. 45, § 13a, and id., chap. 52, § 114a (added by Laws 1909, chap. 218), trusts of real and personal property for the care and main- tenance of cemetery plots are declared to be for charitable and benevolent 536 surrogates' courts § 488 4 purposes; and shall not be deemed to be invalid by reason of any indefinite- ness or uncertainty of the persons designated as beneficiaries in the instrur ment erecting the same, nor shall they be deemed invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. " But nothing herein contained shall affect any exist- ing authority of the courts to pass upon the reasonableness of the amount of such gift, grant or bequest." Before the enactment of those statutes it was held that a bequest, in trust, to invest the principal and expend the income in keeping the testa- tor's cemetery lot clean and in good order and repair, was not a gift to a religious, educational, charitable or benevolent use within the meianing of chapter 701 of the Laws of 1893. Matter of WaUron, 57 Misc. 275. To the same effect, as to a devise to a religious corporation for the same pur- pose, Driscoll V. Hewlett, 132 App. Div. 125. The statute does not empower the courts to modify or alter the directions of a testator, but merely validates testamentary dispositions that before its enactment would have been void. Mount v. Tuttle, 183 N. Y. 358. Thus, a bequest for a charitable object which is too indefinite to. be construed as a direct gift to any beneficiary may be sustained as a trust under; the statute. Bowman v. Domestic and Foreign M. Society, 182 N. Y. 494 ; Kings- bury V. Brandegee, 113 App. Div. 606. It is the uncertainty of the bene- ficiary alone that the court is authorized to remedyj and only then, if the purpose of the trust is sufficiently defined to be carried out. A trust may be so indefinite and uncertain in its purposes, as distinguished from its beneficiaries, as to be impossible of administration. In such case the court caiinot afford relief. Matter of Shattuck, 193 N. Y. 446. It is not the pur- pose of the act to preserve gifts to private institutions or individuals, and where the selection of the beneficiaries of a trust is left to the discretion of the trustee, subject only to the limitation that they shall be "religious, educational or eleemosynary institutions," the trust is void. The word "educational," as used, does not necessarily describe a public or charitable institution within the meaning of the act. There is no declared purpose in making the trust, and the possible devotion of: the income of the trust to private use necessarily affects the entire gift and renders it invalid. (Id.) § 488.- Limitations on charitable bequests. — When the validity of a bequest depends upon whether the legatee is competent to take, or upon the proportion which the bequest bears to the value of the whole estate, or upon any other fact which the will does not disclose upon its face, but must be proved, it is obvious that no question of the construction of the will arises, and, therefore, the validity of the bequest cannot be determined on the application for probate. It will come up for determination during the course of the administration, as an incident to some other proceeding. See Matter of Walker, 136 N. Y. 20; Matter of Cmmod, 27 Misc. 475, 59 N. Y. Supp. 164; Hasbrouck v. Knoblauch, 59 Misc. 99, and § 256, awte. The Surrogate has the power, and it is his duty, to determine these ques- tions. Matter of Talmage, 59 Misc. 130. § 488 CONSTRUCTION OP WILLS _ 537 It is declared by statute, Laws 1860, chap. 360; Cons. L. 1909, c. 18' §§ 17, 20, that no person having a husband, wife, child, or parent shall by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious, or missionary society, association, or (Corporation, in trust or otherwise, more than one-half part of his or her estate after the payment of his or her debts. Gifts to charitable in- stitutions in wills executed by virtue of a power of appointment are not affected by the statute; for in such case the testator does not dispose of "his or her estate." Farmers L. & T. Co. v. Shaw, 56 Misc. 201, .aff'd 127 App. Div. 656. Such a devise or bequest is declared to be valid to the extent of one-half and no more. As to the excess over one-half, there is an intestacy, if there be no other valid disposition. Kearney v. Mis- sionary Society, 10 Abb. N. C. 274. See Matter of Moderno, 5 Dem. 288. A bequest to the pastor of a designated church for masses to be said for the repose of the soul of testatrix, is not within the operation of this statute. Vanderveer v. McKane, 25 Abb. N. C. 105. Nor does it apply to a gift to a public corporation. Matter of Crane, 12 App. Div. 271, 42 N. Y. Supp; 904; nor to bequests to individuals in trust to found char- ities. Alkn V. Stevens, 161 N. Y. 122, 55 N. Y. Supp. 568; nor to gifts to educational institutions. Matter of Morgan, 56 Misc. 235. The claim that the proposed beneficiaries are foreign corporations with no inhibition as to taking by devise or bequest in their charters or under the law of the State of their domicile, and that the statute as to them is not operative, is not relevant, the status of the testator and not that of the beneficiary being the question for consideration. Scott v. Ives, 22 Misc. 749, 51 N. Y. Supp. 49. See also St. John v. Andrews Institute, 191 N. Y. 254. Where the gift is to the officers, trustees, or other representatives of the corporation, and the intent to make the gift to the corporation appears, it will vest in the latter instead of the former. Manice v. Manice, 43 N. Y. 303, 314, 387; Chamberlain v. Chamberlain, id. 424, 437; Holmes v. Mead, 52 id. 332; New York Inst, for the Blind v. How, 10 id. 84; Van Deuzenv. Trustees, etc., 4 Abb. Ct. App. Dec. 465; Currin V. Fanning, 13 Hun, 458; Matter of I shell, 1 App. Div. 158, 37 N. Y. Supp. 919; Hull v. Pearson, 36 App. Div. 224, 55 N. Y. Supp. 324; Matter of Woods, 33 Misc. 12, 67 N. Y. Supp. 1123, aff'd 61 App. Div. 587; First Presbyterian Church, etc., v. McKallor, 35 App. Div. 98, 54 N. Y. Supp. 740; Prestm v. Howk, 3 App. Div. 43, 37 N. Y. Supp. 1079, aff'd 154 N. Y. 734; MattJer of Morgan, 56 Misc. 235; Matter of Beaver, 62 Misc. 155; Matter of Comey, 112 App. Div. 659, 98 N. Y. Supp. 676. As to the applicability of the law against perpetuities to gifts under this statute, see Weimore v. Parker, 52 N. Y. 450; Holmes v. Mead, id. 332; Adams v. Perry, 43 id. 487, 500. The intent of the statute, § 17, Dec. Est. Law, cannot be defeated by the testator's bequeathing to two or more corporations in the aggregate more than he can igive to a single object, viz., one-half of his estate. Chamber- lain V. Chamberlkin, 43 N. Y. 424; 3 Lans. 355. See also Bascom v. Al- 538 surrogates' courts § 488 bertson, 34 id. 584, 616; Harris v. American Bible Soc.,2 Abb. Ct. App. Dec. 316; Matter of Leary, 1 Tuck. 235; Currin v. Fanning, IS Hun, 458; 2 Redf. 526; Matter of Stone, 15 Misc. 317, 37 N. Y. Supp. 583. The pro- portionate value of the amount given to the corporation, as compared to that of the entire estate, is determined by ascertaining the cash value of the gift, and also of the entire estate, at the testator's death. Harris v. American Bible Soc, 2 Abb. Ct. App. Dec. 316, 4 Abb. Pr. N. S. 421, 46 Barb. 470; Hollis v. Drew Theo: Sem., 95 N. Y. 166; Lefevre v. Lefevre, 59 id. 434; McKeown v. Officer, 25 St. Rep. 319; Matter of Durand, 194 N. Y. 477. The surrogate will not undertake, by reference or otherwise, to ascertain the amount of the devise, until the party intetested in the disputed devise is brought in, and in the meantime probate will be suspended. Cuv- ren v. Sears, 2 Redf. 526, 13 Hun, 458. As to nile for figuring where. § 17 applies, see cases discussed by Ketcham, Surr., in Matter of Brooklyn Trust Co. {Webb Est.), 92 Misc. 695. In Matter of Johnston, 76 Misc. 391, the rule is formulated: "Ascertain the money value of the estate as it remained at death, subtract therefrom the amount of decedent's debts, pay one-half of the remainder to the cor- porate legatees, whose legacies were subject to reduction." In the headnote to the Webb Estate decision it is said: "Where by reason of delay in the disposition of the estate there have been decreases as well as appreciations in the value of its property, and there have been accruals of interest or income, the decreases must be taken into consideration in ascertaining the value of the estate as of the time of the death of the testatrix. "Where in the application of § 17 of l^e Decedent Estate La^ it becomes necessary to include in the valuation of the estate the value of vested re- mainders, they must be appraised by the use of the life tables." N. B. If the gift, however,^ be to trustees named in perpetuity, the in- come to be applied to churches, etc., the gift not being, to charitable corporations themselves, it seems the gift does not offend § 17. Decker V. Vreeland, 170 App. Div. 234. For the purpose of ascertaining the estate there must first be deducted: The widow's dower. Chamberlain v. Chamberlain, 43 N. Y. 424, 440; Lord V. Lord, 44 Misc. 530, 90 N. Y. Supp. 143. Life estates. Matter of Strang, 121 App. Div. 112; Matter of Runk, 55 Misc. 478. In computing the value of the life estates it is proper to em- ploy annuity tables, rather than consider their actual duration^. Matter of Durand, 194 N. Y. 477; Matter of Strang, supra. Contra, Matter ef Runk, supra. Bequests not charitable. Matter of Strang, 121 App. Div. 112. Seje Matter o/Dwrand, 194 N. Y. 477. And the debts. Wetmor^ v. Parker, 52 N. Y. 450. , For the rule to determine proportionate values, see Matter of Teed, 59 Hun, 63; s. c. on later appeal, 76 id. 567, 28 N. Y. Supp. 203; Garvey.v. Union Trust Co., 29 App. Div. 513, 52 N, Y. Supp. 260. § 488 CONSTRUCTION OF WILLS 539 The restriction may be insisted on by anyone who would derive a benefit from the estate. Robb v. Wash. & Jeff. College, 185 N. Y. 485. See Jones V. KeUey, 63 App. Div. 614, 72 N. Y. Supp. 24, aff 'd 170 N. Y. 401 ; Hemmje V. Meifien, 20 N. Y. Supp. 619. Where by the will of a married woman sur- vived only by her husband and nephews and nieces, more than one-half of her estate, consisting wholly of personal property, is bequeathed to a religious ' Corporation affected by the statute, the husband alone can be heard to object to the bequest. Matter of EMredge, 55 Misc. 636. Or it may be waived. Trustees, etc., v. Ritch, 91 Hun, 509, 36 N, Y. Supp. 576, aff'd 151 N. Y. 282, 45 N. E. 876; Matter of Stilson, 85 App. Div. 132, 83 N. Y. Supp. 67. Although the obvious design of the statute is to inhibit the disherison of persons standing in near relation to testators, with natural claims upon their bounty, it has been held that it is not con- fined to the designated class, and that if a testator leave none of the speci- fied relatives, the provisions of the statute may be insisted upon by the next of kin. Robb v. Wa;sh. & Jeff. College, 185 N. Y. 485; Moser v. Tal- man, 114 App. Div. 850. Contra, Matter of Talmage, 59 Misc. 150. Where a man and his wife perish by the same disaster, and there is no evidence as to whether either survived the other, the death of the wife, for the purpose of applying the statute to the husband's will, must be deemed to have occurred previous to his. St. John v. Andrews Institute, 191 N. Y. 254. By another statute, Law 1848, chap. 319, §6; Law 1903, chap. 623; Cons. L. 1909, c. 18, §§ 18, 19, no such devise or bequest is valid, unless the will was made and executed at least two months before the death of the testator. See Vanderveer v. McKane, 25 Abb. N. C. 105; Lawrence v.- Elliott, 3 Redf. 236; Currin v. Fanning, 13- Hun, 459; Hemmje v. Meinen, 20 N. Y. Supp. 619; Clements v. Babcock, 26 Misc. 90, 56 N. Y. Supp. 527; Pearson v. Collins, 113 App. Div. 657, 99 N. Y. Supp. 932. This act was not repealed by the act of 1860. Lefevre v. Lefevre, 59 N. Y. 434. See Kerr v. Dougherty, 79 id. 327; nor by Law 1881, chap. 641, which extends the rights of corporations formed under the Act of 1848 to take a larger amount by devise or bequest; "subject, however, to the re- strictions" contained in that act. Matter of Conner, 4A Hun, 424. -See Hollis V. Drew Theo. Sem., 95 N. Y. 166; Riker v. New York Hospital, 66 How. Pr. 246; Wardlaw v. Home, etc., 4 Dem. 473. The statute, however, only applies to direct bequests, and not to trusts. Matter of Beaver, 62 Misc. 155. The statute applies to a bequest, executed within the prohibited pferiod, although it is a mere reenaetment of a provision in a fprmer will. . Matter of Benedict, 32 St. Rep. 139. This statutory provision is applicable, however,^ only to corporations formed under the general law made by that statute, or those vi^hose charters refer to it and make its provisions applica- ble. Stepkensm v. Short, 92 N. Y. 433; Matter of Kavanagh, 125 id. 420; Hollis V. Drew Theo. Sem^, 95 id. 171; Lefevre v. American Female Guardian Soc, 59 id. 434; Fairchild v. Edson, 154 id. 199; People's Trust Co. v. Smith, 82 Hun, 494, 31 N. Y. Supp. 519; Matter of Brush, 35 Misc. 689, 72 N. Y. 540 surrogates' courts §489 Supp. 421; Pritchard v. Kirsch, 58 App. Div. 332, 68 N. Y. Supp. 1049; Matter of Fitzdmmons, 29 Misc. 731, 62 N. Y. Supp. 1009; Matter of Corne- lius, 23 Misc. 434, 51 N. Y. Supp. 877; Matter of Shattuck, 118 App. Div. 888, rev'd on other points, 193 N. Y. 446. See Matter of Norton, 39 App. Div. 369, 57 N. Y. Supp. 407. Thus, it does not affect membership cor- porations, Spencer v. DeWitt C. Hay Library Ass'n, 36 Misc. 393, 73 N, Y. Supp. 712; MMter of Lampson, 22 Misc. 198, 33 App.: Div. 49, 161 N. Y. 511 ; nor corporations organized under special acts, in the absence of express words making them subject to them. Matter of Hardy, 28 Misc. 307, 59 N. Y. Supp. 912; Matter of Foley , 27 Misc. 77, 58 N. Y. Supp. 201; Smith v. Havens, etc., Soc, 118 App. Div. 678, 103 N. Y. Supp. 770, aff'd, 190 N. Y. 557; nor a public corporation, Clements v. Bahcock, 26 Misc. 90, 56 N» Y, Supp. 527. But the statute is not applicable to a corporation incorporated in another State by whose laws it is authorized to take the gift. Matter of Lampson, 161 N. Y. 511, 56 N. E. 9. See Farmers L. & T. Co, v. Shaw, 56 Misc. 201, aff'd 127 App. Div. 656. Hence a bequest to trustees in a foreign country, for the purposes of a charity to be established in that country, is valid, although obnoxious to our law, providing it is vahd by the law of the place where the gift is to take effect; and which governs the trustees and the property when transmitted there. Rdbh v. Wash. & Jeff^ College, 185 N. Y. 485; Hope v. Brewer] 136 N. Y. 126, 48 St. Rep. 834; Matter of Huss, 126 N. Y. 537, 37 St. Rep. 789; Doty v. Hendrix, 16 N. Y. Supp. 284; Cross v. United States Trust Co., 131 N. Y. 330, 43 St. Rep. 254; Matter of Sturgis, 164 N. Y. 485; Matter of Leo-Wolf, 25 Misc. 469, 55 N. Y. Supp. 650; St. John v. Andrews Institute) 191 N. Y. 254. On the other hand, if the laws of the foreign State, like our own, prohibit the bequest, it will be declared void here. Kerr v. Dougherty., 79 Ni Y. 327; Matter of Robertson, 23 Misc. 450, 51 N. Y. Supp. 502; See Carter v. Board of Education, 68 Hun, 435, as to where the void bequest goes. Where the residue is given to three religious and charitable corporations to be equally divided between them, and two of such corporations are unable to take because the will was made within two months of testator's death, the third is not entitled to the entire fund, but the lapsed shares pass to the next of kin. Simmons v. Burrell, 8 Misc. 388, 28 N. Y. Supp. 625. , § 489. Bequests to corporations.) — A corporation cannot take by devise or bequest unless expressly authorized by its charter, or b;^ general statute, or necessarily implied therefrom. Johnston v. Hughes, 187 N. Y. 446; Matter of Griffin, 167 N. Y. 71; Bird v. Merklee,.144: N. Y. 544. See Le Couteulx y. City of Buffalo, 33 N. Y. 333, 1 R. S. 57, § 3; Cons. L. 1909, chap. 18, § 12. See Hollis v. Drew Theo. Sem., 95 N. Y. 1Q6; Spencer rfr. , De Witt C. Hay Library Ass'n, 36 Misc. 393, 73 N. Y. SupJ). 712; First Presbyterian Church, etc., v. McKallor, 35 App. Div. 98, 54 N. Y. Supp. 740; Johnson v. Hughes, 112 App. Div. 524, rev'd 187 N. Y. 446, on other points. Hence^a devise of lands to a corporation for charitable, uses, which that corporation has not power to take, is void; e. g., a devise to the United States for the purposes of a general charity. Levy v. Levy, 33 N. I 489 CONSTRUCTION OF WILLS , 541 Y. 97; Matter of Fox, 52 id. 530. See Boyce v. City of St. Louis, 29 Barb. 650; Matter of McGraw, 45 Hun, 354. Thp former English law of chari- table uses is not, and never was, in force in this State. Cottman v. Grace, 112 N. Y. 299, 306; Holmes v. Mead, 52 id. 332; Holland v. Alcock, 108 id. 312, 336. Prior to Laws 1893, chap. 701, as amended by Laws 1901, chap. 291, the doctrine of cy pres had but httle place in our law. Beekman v. Bonsor, 23 N. Y. 298, 310; Levy y. Levy, Z3id. 97, 138; Bascom v. Albertson, 34 id. 584. An entirely new system was adopted, authorizing and limiting gifts to charity; and all uses and trusts, except those authorized by the statute, were abolished. 1 R. S. 727; § 45. The EngUsh law, and the changes effected by our statutes, are reviewed in Holland v. Alcock, 108 N. Y. 312; Matter of McGraw, 111 id. 66; Bascom v. Albertson, 34 id. 584; Levy v. Levy, 33 id. 97; Yates v. Yates, 9 Barb. 324, 3Z8-M1 ; Ayres v. Trus- tees, etc., 3 Sandf. 351. And see Fontain v. Ravenel, 17 How. (U. S.) 369. But Laws 1901, chap. 291, seems to have enacted the doctrine of cy pres to the fullest extent that it has ever been held to have existed in this State. Loch v. Mayer, 50 Misc. 442, 100 N. Y. Supp. 837. As to the power of a Surrogate's Court to pass on this question, see Matter of Merriam, 136 N. Y. 58. The city of New York has capacity at common law and by stat- ute to take personal property by bequest. Matter of Crane, 12 App. Div. 271, 42 N. Y. Supp. 904. So a gift to a State to be used in founding scholarships is also void. Catt v. Catt, 118 App. Div. 742. The govern- ment exists under grants of power, express or implied, in a written con- stitution, and the functions of all the departments are definitely limited and arranged, and it is not within its express or implied powers to admin- ister a charity. So an: unincorporated society or association is incapable of taking an im- mediate gift under a will as devisee or legatee. Fralick v. Lyford, 107 App. Div. 543, 95 N. Y. Supp. 433, aff'd 187 N. Y. 524; Mount v. Tuttle, 183 N. Y. 358. Subsequent incorporation will not enable it to take the bequest. White V. Howard, 46 N. Y. 144; Williams v. Williams, 8 id. 524; Owens v. Missionary Soc, 14 id. 380; Marx v. McGlynn, 88 id. 357; Sherwood v. American Bible Soc, 4 Abb. Ct. App. Dec. 227, 1 Keyes, 561; Bonard's Will, 16 Abb. Pr. (N. S.) 128; Lutheran Ref. Church v. Mook, 4 Redf. 513; First Presbyterians Soc. v. Bowen, 21 Hun, 389; Riley v, Diggs, 2 Dem. 184; Car- penter V. Historical Soc, .td.-574; Matter of Y. M. C. A., 22 App. Div. 325, 47 N. Y. Supp. 854; Matter of Rounds, 25 Misc. 101; Fairchild v. Edson, 154 N. Y. 199. Compare Dammert v. Osborn, 140 id. 30. Trustees of an unincor- porated educational institution under the direction and control of a quart terlyi meeting of the Society of Friends, — Held capable of taking a bpquest. Und&rhiU V. Wood, 65 N. Y. Supp. 1105, aff'd in 53 App. Div. 640. A devise to an incorporated society in trust for an unincorporated associa- tion is good, if the latter is incorporated before the money is payable. Philson V. Moore, 23 Hun, 152. Under a devise, "At the death of my wife, I give and devise" to a society, not incorporated at the time of testa- tor's death, but incorporated at the time of the death of his wife, the 542 surrogates' courts § 490 society can take, because the title does not vest until the death of the wife. Lougheed v. Dykeman's Baptist Church, 58 Hun, 364, 12 N. Y. Supp. 207, aff'd 129 N. Y. 211. Compare People v. Si-monson^ 126 idi 299, 37 St. Rep. 371. But where a bequest is made to a corporation upon the happen- ing of a future contingency, the capacity of the donee to take is to.be deter- mined as of the date of the happening of the contingency and not as- of the date of the testator's death. Richards v. Hartshorne, 110 App. Div. 650, 97 N. Y. Supp. 754; Matter of Morgan, 56 Misc. 235. An association, though unincorporated, is, however, entitled to take a legacy for a pious use, Potter v. Chapin, 6 Paige, 639"; De Witt v. Chandler, 11 Abb. Pr. 459; Owens V. Missionary Soc, 14 N. Y. 380, and cases cited; [See Pratt v. Roman Catholic Orphan Asylum, 20 App. Div. 352, 46 N. Y. Supp. 1035, aff'd 166 N. Y. 593,] and hence has a right to intervene and become a party to the probate proceeding. Carpenter v. Historidal Soc, 1 Dem. 605. An executory bequest, limited to the use of a corporation," to be created within the period allowed for the vesting of future estates and interests, is valid. Rose v. Rose, 4 Abb. Ct. App. Dec. 108; Phelps v. Pond, 23 N. Y. 69, 77; Cruikshank v. Home for the Friendless, 113 id. 337; Matter of Mayor, etc., of New York, 55 Hun, 204, 119 N. Y. 660; Burrill v. Boardman, 4:3 id. 254; Lougheed v. Dykeman's Baptist Church, 58 Hun, 364, aff'd 129 N. Y. 211; St. John v. Andrews Institute, 191 N. Y. 254. And a bequest to a foreign corporation is valid if it is capable of taking under the laws of the State of its creation. Chamberlain v. Chamberlain, 43 N. Y. 424; Robb v. Wash. & Jeff. College, 185 N. Y. 485; Mount v. Tuttle, 183 N. Y. 358; Has- hrmjLck v. Knoblauch, 130 App. Div. 378; Rihy v. Driggs, 2 Dem. 184; Hope V. Brewer, 136 N. Y. 126; Matter of Huss, 126 id. 537, 37 St. Rep. 789; Congregational, etc., Soc. v. Hale, 29 App. Div. 396, 51 N. Y. Supp. 704. See Laws 1894, chap. 136 (Cons. L. 1909, chap. 28, § 21), as to power of foreign corporations to take lands by devise in this State; also, Farmers L. &T. Co. V. Shau), 56 Misc. 201. § 490. Canons of interpretation. — The following are the rules govern- ing the construction of wills, taken mostly from the Draft of Civil Code, reported in 1865, most likely to be applied in proceedings in the Surro- gate's Court: 1. All the parts of a will, are to be construed in relation to each other. Arcularius v. Geisenheiner, 3 Bradf. 64, aff'd 25 Barb. 403; Egerton v. Conklin, 25 Wend. 224, 338; Covmhoven v. Shuler, 2 Paige, 130; Matter of Donahue, 109 App. Div. 158, 95 N. Y. Supp. 821; Matter. of Frdelieh, 122 App. Div. 440, aff'd 192 N. Y. 566. And so as, if possible, to form one consistent whole. Matter of Title G. & T. Co., 195 N. Y. 339; Carter v. Hunt; 40 Barb. 89; but where several parts (whether in the same or dif- ferent sentences. Morrall v. Svitan, 1 Phillips, 537, 547), are absolutely {Van Nostrand v. Moore, 52 N. Y. 12; Van Vechten v. Keator, 63 id.' 52; Sweet V. Chase, 2 id. 79; Covenhoven v. Shuler, 2 Paige, 123; Trustees of Theological Seminary v. Kellogg, 16 N. Y. 88;^ iVorris v. Beyea, 13 td. 284; Campbell v. Rawdon, 18 id. iHyOriffen v. Ford, 1 Bosw. 123; Bradstreetv. § 490 CONSTRtrCTION OP WILLS 543 Clarke, 12 Wend. 602. Compare Lovett v. Gillender, 35 N. Y. 617; Everitt V. Everitt, 29 id. 39), irreconcilable, the latter must prevail; unless the general scope of the will leads to a contrary conclusion. Where two clauses of a will are so inconsistent and irreconcilable that they cannot possibly stand together, the one that is posterior in position will be considered as indicating a subsequent intention, and will prevail, unless the general scope of the will leads to a contrary conclusion; and although the latter clause be invalid, it must, nevertheless, be retained, and considered for the purpose of ascertaining the intentions of the testator, and for this purpose it is as effectual, and its operation upon the preceding clause is the same, as though no legal obstacle to its being carried into execution existed. Van Nostrand v. Moore, 52 N. Y. 12, s. p., Harrison v. Jewell, 2 Dem. 37; Matter of Manice, 31 Hun, 119. See Haug v. Schumacher, 166 N. Y. 506, 60 N. E. 245. But the later clause will not prevail, unless its language is as clear as the first. Adams v. Massey, 184 N. Y. 62. Compare McKinlay v. Van Dusen, 76 App. Div. 200, 78 N. Y. Supp. 377. 2. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. Rowland v. Union Theo. Sem., 5 N. Y. 193; 214; Haven v. Haven, 1 Redf. 374; Lynch -v.Pendergasl, 67 Barb. 501; Pierpont v. Patrick, 53 N: Y. 591; Matter of Pilsbury, 50 Misc. 367, 99 N. Y. Supp. 62, afE'd 113 App. Div. 893. 3. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, Cole v. Wade, 16 Ves. 27. See Thompson v. WhiUock, 5 Jur. (N. S.) 991; or by any other words not equally clear and distinct. Thornhill v. Hall, 2 CI. & F. 22; Barclay v. Maskelyne, H. R. V. Johns. 126. This rule applies equally to prior {Greenwood v. Stucliffe, 14 B. & C. 226) smd to subsequent words. Arcularius v. Geisenhainer, 3 Bradf. 75, aff'd, 25 Barb. 403; Kiver v. Oldfield, 4 De Gex & J. 30; Borrell v. Haigh, 2 Jur. 229; Haighi v. Pine, 3 App. Div. 434, 39 N. Y. Supp. 511; ■Clarke v. Leupp, 88 N. Y. 228; Banzer v. Bamer, 156 N. Y. 429, 51 N. E. 2Q1; Clay v. Wood, 153 N. Y. 134, 47 N. E. 274; Matter of Peters, 69 App. Div. 465, 74 N. Y. Supp. 1028; Wood v. Ward, 76 App. Div. 567, 78 N. Y- Supp; 544; Davis v. Davis, 39 Misc. 90, 78 N. Y. Supp. 899, 86 App. Div. 401; Bennett v. McLaughlin, 125 App. Div. 172; Mull v. MuU, 50 Misc. 362, 98 N. Y. Supp. 746, aff'd 113 App. Div. 893; Farney v. Weirich, 52 Misc. 245; Bollentin v. Bolhntin, 57 Misc. 250; Williams v. Bovl, 101 App. Div. 593, 92 N. Y. Supp. 177, aff'd 184 jST. Y. 605. Conversely, a hfe estate cannot be enlarged by sjibsequent language less distinct. Adams v. Massey, 184 N. Y. 62. For cases where preceding gifts were held to be affected by subsequent language, see Mee v. Gordon, 187 N. Y. '400; Illensworth v. IllenswoHhf 110 App. Div. 399; Matter of Fred, 49 Misc. 380, 99 N. Y. Supp. 505. Nor can such a clear gift be affected by inference or argument from other parts of the -mW., Campbell v. Harding, 2 Russ. & M. 409; Jennings V; Newman, 10 Sim. 22Z; Matter of Butter, 59 Misc. 326; or by any inac- curate recital of, or reference to its .contents in another part of the will. 544 surrogates' courts § 490 Hildersdon v. Lowe, 2 Hare, 355, 372; Mortimer v. HarU&y, 3 De Gex & Sm. 332. Where the meaning of the testator is apparent from the lan- guage of a will, the plain import of the language, cannot be departed from, though it result in rendering the will invalid. Van Nostrand v. Moore, 52 N. Y. 12. 4. Where the meaning of any part of a will is doubtful or ambiguous, it may be explained by any reference thereto, or recital thereof > in another part of the will. Hoppock v. Tucker, 59 N. Y. 202; Taggart v. Murray, 53 id. 233; Kiah v: Grenier, 56 id. 220. See Hyatt v. Pugsley, 23 Barb. 285; Marsh v. Hague, 1 Edw. 174. 5. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense, can be col- lected, and that other can be ascertained. Hone v. Van Sckdick, 3 N. Y. 538; Lytk v. Beveridge, 58 id. 592; Cromer v. Pinckney, 3 Barb. Ch. 466 Abbey v. Aymxir, 3 Dem. 400; BuUock v. Downs, 9 H. of L. Gas. 24 De Nottebeck v. Astor, 13 N. Y. 98; Bradhurst v. Bradhurst, 1 Paige, 331 Covenhoven v. Shuler, 2 id. 122; Rathbone v. Dyckman, 3 id. 9; Crosby v. Wendell, 6 id. 548; Staats v. Stoats, 11 Johns. 337. As to the use of the word "money" in a will, see Sweet v. Burnett, 136 N. Y. 204, 49 St. Rep. 113; Smith v. Burch, 92 N. Y. 228; Matter of Blackstone, 47 Misc. 538; Beck v. McGiUis, 9 Barb. 35; Mann v. Afanw, 1 Johns, Gh. 231. 6. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. Griffen v. Ford, 1 Bosw; 123, 140; Mason v. Jones, 2 Barb. 229; Butler v. Butler, 3 Barb. Gh. 304; Pond v. Bergh, 10 Paige, 140; Chrystie v. Phyfe, 19 N. Y. 348; Dubms v. Raiy, 35 id. 162; Post V. Hover, 33 id. 593; Bates v. Hillman, 43 Barb. 645; Corse v. Chap- man, 153 N. Y. 466, 47 N. E. 812; Tyndall v. Fleming, 123 App. Div. 837. 7. Of two modes of interpreting a will, that is to bfe preferred which will prevent either a total or a partial intestacy. Vernon v. Vernon, 53 N. Y. 351; Kalish v. Kalish, 166 id. 368, 59 N. E. 917; Matter oflngersoll, 41 Misc. 600, 95 App. Div. 211; Coon v. Coon, 38 Mi^c. 693, 78 N. Y. Supp. 245; Matter of Smith, 46 Misc. 210; Mills v. Tompkins, 110 App. Div. 212. 8. Where there are two equally probable interpretations of the language of a will, that one is to be adopted which prefers the kin of the testator to strangers. Quinn v. Hardenbrook, 54 N. Y. 83; Wood v. Mitcham,, 92 id. 375; Scott v. Guemsey,,i8 N. Y. 106; Byrnes v. Stilwell, 103 N. Y. 453; Matter of Boyce, 37 Misc. 146, 74^. Y. Supp. 946; MaMer of Lee, 65 Hun, 624, 20 N. Y. Supp. 579, aff'd 141 N. Y. ^8; Matter of Edie, 117 App. Div. 310; Matter of Maloney, 41 Misc. 539. ■ 9. Technical words are not necessary to give effect to any species of dis- position by a will; Jackson v. Luquere, 5 Gow. 228; Parks v. Parks, 9 Paige, 117; Bliven v. Seymour, 88 N. Y. 469, 476, but, where used in a will, they are to be taken in their technical sense, Moore v. Lyons, 25 Wend, 164, 156; Campbell v. Rawdon, 18 N. Y. 417; Brown v. Lyon^ 6 id. 419-; Jackson v. iMquere, 5 Cow. 228; KeteUas v. Keteltas, 72 N. Y. 312, unless the con- § 490 CONSTRtlCTION OP WILLS 545 text clearly indicates a contrary intention. Corrigan v. Kiernan, 1 Bradf. 208; Sherwood v. Sherwood, 3 id. 230; De Kay v. Erving, 5 Den. 646; Parks V. Parks, 9 Paige, 107. 10. A devise or bequest of "all the testator's real or personal property" in express terms, or in anyothef terms denoting his intent to dispose of all his real or personal property (except of the residue), passes all the real or personal property which he was entitled to dispose of by will at the time of his death. 2 R. S. 57, § 5; Cons. L. 1909, chap. 18, § 14. See McNaugh- ton V. McNaughton, 41 Barb. 50; Meeks v. Meeks, 161 N. Y. 66, 55 N. E. 278; Seibert v. Miller, 34 App. Div. 602, 55 N. Y. Supp. 593; Toerge v. Toerge, 9 App. Div. 194, 41 N. Y. Supp. 244, Oakes v. Massey, 94 App. Div. 165. The term "heirs, " or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. 1 R. S. 748, § 1; Laws 1896, chap. 547, § 210; Cons. L. 1909, chap. 52, § 245. Real or personal property, embraced in a power to devise, passes by a will purporting to devise "all the real or personal prop- erty" of the testator. Laws 1897, chap. 417, § 6; Cons. L. 1909, chap. 45, § 18. See Van Wert v. Benedict, 1 Bradf. 114. As to the effect of a devise of the residue of the testator's estate, see Van Cortlandt v. Kip, 1 Hill, 596, 7 id. 352, and Tucker v. Tucker, 5 N. Y. 348. A will giving "all my real estate and personal property of which I am now possessed," with no residuary clause, passes property acquired by the testator subsequent to the publication of the will, notwithstanding the use_of the word "now." The common-law rule that a will passes only such real property as a tes- tator owned at the time of the publication was abolished by the Revised Statutes, 2 R. S. 57, § 5. Hodgkins v. Hodgkins, 123 App. Div. 110. 11. A testamentary disposition to "heirs," relations," "nearest rela- tions," "representatives," "legal representatives," or "personal repre- sentatives," or "family," "issue," "descendants," "nearest," or "next of kin," of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the prop- erty in those who would be entitled to succeed to the property of such person. These tferms are to be considered used as words of donation, and not of limitation, when the property is given to the person so designated directly, and not as a qualification of the estate given to the ancestor of such person. Matter of Tims, 63 Misc. 148. As to "next of kin, " "heirs, " "issue," etc., see Keteltas v. Keteltas, 72 N. Y. 312; Lmcb v. Dunham, 69 id. 36; Smith v. SchoUz, 68 id: 43,; Ludlum v. Otis, 15 Hun, 410; Pinchhey v. Pinckney, 1 Bradf. 269. Compare Bundy v. Bundy, 38 N. Y. 410; Heard v. Norton, 1 Den. 165; Kiah v. Orenier, 56 N. Y- 220; Cushman v. Horton, 59 id. 149; Soper v. Brown, 136 id. 244; Drake V.Drake, 134 id. 220; Wadsworth v. Murray, 23,nd;i/; should not be made an occasion of burdening such estates with additional costs and expenses. The word "satisfactorily" in the above section appears to relate to the public administrator, but he mUst satisfy the Surrogate by affidavit that the property claimed to be withheld has npt! been accounted for satisfac- torily, ,and that there are reasonalple grc^qiji^s for sy^pecting that they are concealed or withheld. This construction of > the section makes the Surro- * The office of recorder has been since abolished, § 1615 of the act of 1897, ch. 378, abolished it as a city office, making it a county offipe. § S56a EXECUTORS, ADMINISTRATORS, GUARDIANS, ETC. 629 gate the judge of whether an occasion for the exercise of the power hereby given exists. inqttisitibn. ' § 8. Such subpoena shall be reserved in the same manner as in civil causes, and if any person shall refuse or neglect to obey the same, or shall refuse to answer touching the matters hereinafter specified, he shall be attached and committed to prison by the said surrogate or other officer so issuing such subpoena, in the same manner as for disobedience of any citation or subpoena issued by a surrogate in any case within his jurisdiction. Upon the appearance of any person so subpoenaed before such surrogate or other officer, he shall be sworn truly to answer all questions concerning the estate and effects of the deceased, and shall be examined fully and at large, by the public administrator in relation to the said effects. The inquiry conducted under these two sections is in the nature of a special proceeding and the party interrogated would undoubtedly be en- titled, to be represented by counsel thereon, and the examination will un- doubtedly be limited I by the ordinary rules of evideiice, and the provisions as to a refusal to answer touching the matters hereinafter specified will un- doubtedly be restricted to mean a refusal to answer any proper and com- petent question touching such matters. The inquiry is intended to be ad- dressed to the discovery of property, and undoubtedly the person Cited would be directed to answer any question not tending to incriminate him and relating to his knowledge of, or dealings with, such property, and it would be competent for his counsel, if present, to interrogate him after the examination fully and at large by the public administrator. Surrogate's Court, County of New York. Application for in- In the Matter of the Estate quiry under § 8. of Deceased. To the Surrogate of the County of New York: The Petition of WILLIAM M. HOES respectfully shows: That your petitioner, the Public Administrator of the County of New York, was on the day of 19 duly ap- pointed the Administrator of the effects of the above- named deceased, and upon that same day letters of adminis- tration were issued to him-. ■ And your petitioner further shows, upon information and belief. That one in the County of New York, who was about the person of the deceased prior to his death, has in his possession and under his control certain property belonging to the decedent, viz.: and other property of the deceased. That he withholds, conceals and refuses to exhibit the prop- erty above described, which ought to be delivered to the peti- tioner, so that they cannot be inventoried or appraised by hira. Your petitioner further says, ftat the sources of the above information are Wherefore, he prays that an inquiry may be made respecting such money and effects, and that a citation be issued, directed 630 surrogates' courts § 556a to said directing him to attend such inquiry, and to be examined accordingly. Dated, New York, 19 Public Administrator, etc., Administrator, etc., of Deceased. (Verification.) Present: Surrogate's Court Caption. Hon. 1 Surrogate. Order for inquiry. In the Matter of the Estate of , : , Deceased. On reading and filing the annexed petition, and on motion of Attorney for the Petitioner, It is Ordered, That a citation issue, directed to said requiring him to appear before me for the purpose of being ex- amined touching the property described in said petition, alleged to be in his possession and control and withheld and concealed from the Petitioner. Citation to u;on inquiry. ' appear THE PEOPLE OF THE STATE OF NEW YORK BY THE GRACE OF GOD, FREE AND INDEPENDENT. To , ! Send Greeting: You are hereby cited and required personally to be and ap- pear before our Surrogate of the County of New York, at the Surrogate's Office of said County, in the County Court House in the City of New York, on the day of 19 at half-past ten o'clock in the forenoon of that day, then and there to attend the inquiry concerning certain personal property belonging to the estate of deceased, alleged to be in your possession or control, and to be examined pei*- sonally in respect to the same; In Testimony Whereof, etc.. Clerk of the Surrogate's Court. Present: Surrogate's Court Caption. Hon Order. Surrogate. Note. Note. This is to be entered upon the citation. In the Matter of the Estate of Deceased To It is Ordered, That the party to whom the foregoing citation is addressed, be, and he hereby is, directed to attend personally at the time aiid place and for the purpose therein specified. Power of Surrogate; warrant. ' §9, If, upon any inquiry, it; shall appear to the officer conducting the same, that any effects of the deceased are concealed or withheld, and the person having § 656a EXEcuTOES, administrators, guardians, etc. 631 possession of such property shall not give the security herein specified, for the de- Uvery of the same, such officer shall issue his warrant, directed to the sheriff, mar- shals, and const&,bles of the city or county, where such effects may be, command- ing them to search for atid. seize the said effects and for that purpose, if necessary, to break open any house in the daytime, and to deliver the said property so seized to the public administrator, which warrant shall be obeyed by the officers to whom the same shall be directed and delivered, in the same manner as the process of a court of record. But such warrant shall not be issued to seize any property, if the person in whose ; . ppgse^ion such property may be,, or any one iij his behalf, shall execute a bond, with such sureties, and in such penalty as shall be approved by the surrogate, or other officer acting in- his place, to the public administrator, conditioned that such obligors will account for and pay to the said public administrator the full value of the prop- erty so claimed, and withheld (and which shall be enumerated in the said condition), whenever it shall be determined in any suit to be brought by the public adminis- trator, that the saji^ property belongs to the estate of any deceased person, which the administrator has, by law, authority to collect and preserve. It is unnecessary to indicate precedents for the search warrant or for the bond to be used under this section as they may readily be adapted. It is contemplated that the warrant shall be issued by the officer conducting the, inquiry; this refers either to the Surrogate of the county who shall have issued the subppena, which naturally would be returnable before him; or in the case of his absence from the city, the justice of the Supreme Court, or the recorder of the city if the office be recreated, either of whom is indi- cated in § 7 as authorized to issue the subpoena "in the same manner as the Surrogate," and presumably therefore a subpoena issued by such jus- tice (or recorder) must be made returnable before him. Goods at quarantine. \ § 10. Whenever any effects of a deceased person, of which the public adminis- trator is authorized to take charge, shall be at the quarantine at the time of the death of such person, or shall arrive there afterwards, it shall be the duty of the health officer, his assistants or deputies, whichever shall be present, to secure the said effects from waste and embezzlement, and to make a true inventory thereof, and when the rightful claimants of such affects do not appear,within three months, to deUver the same, with such inventory, to the public administrator, and immedi- ately to give informajtion of such effects to the public administrator, to cause an inventory, or account thereof to be taken, and to deliver the same to the said public administrator, unless the said property be of such a description as ought not to be removed, or may be ordered to be destroyed under the laws concerning the public health, This section slightly modifies § 14 of the previous act and is confused by an interpolation of the amendment without a reconstruction of the section. The qbyious intent of the section as amended is that the, health officer or his assistant or deputy shall have a preliiniriary custody of such effects as against the public administrator for three months. Second, that the right- ful claimants may oust the public administrator by appearing and claim- ing the property within such three months. Third, the power of the health officer to destroy tlie property under the laws concerning the public health is retained and the diity, of taking an inventory at the outset is also con- tinued. The section as it reads is repetitious. 632 StTRROGATES COURTS §556a Sale of perishable or depreciating property. § 11. If any property taken into the charge of the pubho administrator, by right of his office, shall be in a perishable condition, he may immediately sell the same at public auction, or private sale, on dbtainillg an oi-der for that purpose from the surrogate, which shall bfe granted on due proof of the fact; he may alsOj before letters of administration have been granted to him, upon the order of the surrogate, sell at public auction or private sale, such property as he deems it necessary to sell for the preservation and benefit of the estate. This section amplifies § 15 of the previous law and grants the public ad- ministrator the much needed power of selHng not only property which is in a perishable condition {the former act reading perishing condition) but also any property which he deems it necessary to sell for the preservation and benefit of the estate. The provision as to obtaining an order from the Sur- rogate remits to the distretion and judgment of that officer the question of whether the necessity exists. The application for the order may be made ex parte and on affidavits in the form of a petition or application for the order, which affidavit should state the description and character of the property and such circumstances as show it to be in a perishable condition or as indicating the necessity of its sale for the preservation and benefit of the estate. The object of the section is indicated by the use of the word and between preservation and benefit instead of or; it emphasizes the duty of the administrator prior to his application for letters merely to preserve the estate; nothing in the nature of administration thereon is indicated by these preliminary sections. Affidavit to obtain order to sell perish- able property. Surrogate's Court, County of Title. (Venue.) being duly sworn, say^: that he is public ad- ministrator of the county of New 'i'ork; that on the day of 19 of died intestate at said city, leaving certain personal property therein; that no notice has been received by the said public administrator that anyone en- titled to a distributive share in the estate of said is a resident of the said county; and that the said by right of his office as public administrator^ did, on the day of < 19 take possession of, and now holds, the said property whiph was in said county of at the time of his decease, or whicfi has since come therein; and that the same consists of the goods arid chattels shown in the annexed Schedules A and B. And deponent says that the property shown on Schedule B hereto annexed, is in a perishable condition, and should be im- mediately sold at public auction. (Add if necessary: And depo- nent further says that he deems it necessary for the preservation and benefit of the estate that the following additional property be sold, and desii'es an order of the Surrogate perniittiiig slteh sale, at public auction or private sale. Where this is desiiied add § 556a EXECUTORS, administrators, guardians, etc. 633 allegation that letters of administration have not yet been granted to deponent.) (Jurat.) (Signature.) At a Surrogate's Court (etc.). Present: Hon. Surrogate. Title. Order. On reading and filing the affidavit of hereto annexed; by which it appears, to the satisfaction of the Surrogate, that Esq., the public administrator of the county of New York, has in his charge, by right of his office, certain property (which is described in schedules attached to and made part of said affidavit), and that pai't of such property described in Schedule B thereto annexed is in a perishable condition; Now, on motion of attorney for the said public administrator, it is Ordered, that the said Esq., public administrator of the county of New York, sell at public auction the property described in the said affidavit and Schedule B, and that such sale take place on the day of 19 or on such adjourned days as the said public administrator shall designate. (And add if necessary: and it is Further Ordered, that the said Esq., public ad- ministrator as aforesaid, have leave to sell, at public auction or at private sale, such other property, described in his said affidavit as he deems it necessary to sell for the preservation . and benefit of the estate.) (Signature.) . When letters necessary — ^Estate over $100. § 12. If the property of an intestate of which the public administrator is author- ized to take charge, shall exceed in value the sum of one hundred dollars, he shall immediateily give notice of his intention to apply to the surrogate for letters of administration upon the estate of such intestate, specifying the time and place when such application will be made. Such notice shall be served personally on the widow and the relatives of the intestate entitled to any share in his estate, if there be any to be found in the county, and, in case of an application for letters of ad- ministration with the will annexed, upon the legatees named in said will and upon the husband or widow and relatives who would have been entitled to the estate had the deceased died intestate, if there be any to be found in the county, at least thirty days before the time therein specified. If there be none to be found in the said county, and in all cases where the notice shall not have been personally served, it shall be published at least twice in each week, for four weeks, in some newspaper printed in the county. The provisions of this section indicating the statutory procedure upon the application must be strictly followed, particularly as to the service or publication of the notice. This section follows the prior law except in re- gard to the provision included for service, where the decedent is shown to 634 surrogates' courts § 556a have left a will and the application is for letters of administration with the will annexed. It will be noted that the persons entitled to notice of the application by the pubKc administrator are, as they were under § 17, of the former act, the persons entitled to a distributive share of the personal estate. So the decision in Matter of Brewster, 5 Dem. 259, is still appHcable, in which Sur- rogate Rollins held : " that the public administrator was not bound to give notice of his intention to apply for letters, to a relative of the decedent who though having a prior right to letters is not actually entitled to a share in the estate," citing Lathrop v. Smith, 24 N. Y. 417; Butler v. Perrott, 1 Dem. 9. It was further held in that case, " that a failure on the part of the public administrator to give proper notice to persons entitled thereto, was an irregularity which did not vitiate the proceeding and which could only be taken advantage of by the party entitled to and faiUng to receive no- tice." Ibid., at p. 264, citing James v. Adam^, 22 How. Pr. 409; People v. Waldrori, 52 How. Pr. 221; Johnston \. Smith, 25 Hun, 171; Kelly v. West, 80 N. Y. 139, 145. It is, however, undoubtedly true that if this irregu- larity be set up by one of the persons entitled to notice, the letters granted to the public administrator may be revoked. Proctor v. Wanamaker, 1 Barb. Ch. 302. Bureau op the Public Administrator, Street, Borough of Manhattan, New York City. Notice under § 12. Notice is hereby given to and to the relatives and next of kin of deceased, who is alleged to have died in- testate, that I shall apply to a Surrogate of the Goiinty of New York, at his office in the County Court House in the City of New York, for letters of administration upon the estate of the said intestate, on the day of next, at 10.30 o'clock in the forenoon. Dated, New Yort, 19 WILLIAM M. HOES, Public Administrator. Bureau of the Public Administrator, Street, Borough of Manhattan, New York City. To the Surrogate's Court of the County of New York : Please to take notice that on the day of 19 at 10.30 o'clock in the forenoon, I will apply to you for Letters of Administration upon the estates of the following named intestates: Very respectfully, WILLIAM M. HOES, Public Administrator. § 556a EXECUTORS, administrators, guardians, etc. 635 Petition by pub- lic administrator for letters. Surrogate's Court, County of New York. In the Matter of the Appli- cation for Administration on the Goods, Chattels and Credits of Deceased. To the Surrogate of the County of New York: The Petition of WILLIAM M. HOES, the PubUc Adminis- trator of the County of New York, respectfully showeth, that he is informed by of the City of New York, and ver- ily believes that departed this life at on or about the day of without leaving any last will and testament; and that the said deceased died seized of no real property, but possessed of certain personal property in the State of New York, the value of which does not exceed the sum of about dollars. That the said deceased left surviving as next of kin but no relative or next of kin entitled to share in the estate, residing or to be found in the County of New York. That the said deceased was at or immediately previous to death a resident of the County of New York, and left personal property therein by means whereof the ordering and granting administration of all and singular the goods, chattels and credits whereof said deceased died possessed in said State, and also the auditing, allowing and final discharging the accounts thereof, belong unto the Surrogate of the said County. That your peti- tioner has caused due notice to be served and published as is required by law, and as appears by affidavits accompanying this petition. That no previous application has been made for letters of administration upon the goods, chattels and credits of the above- named deceased. Your petitioner therefore prays that you will appoint him administrator of all and singular the goods, chattels and credits which were of said deceased. Public Administrator of the County of New York. (Verification.) Conflicting rights to letters. § 13. At the time specified in such notice, any person interested in the estate of the deceased may appear and contest the granting of letters of administration to the pubUc administrator, and shall be entitled to subpoenas to compel the attend- ance of witnesses on such hearing. If it shall appear that the deceased has left any will of his personal property, by which any executor is appointed who is competent and qualified according to law to take upon him the execution of such will; or if it shall appear that there is a widow or any relative of the deceased entitled to a share in his estate, willing, competent and qualified according to law to take letters of administration, with the will annexed, if there be one, or to take letters of adminis- tration, if there be no will, then letters testamentary shall be granted to such execu- tor or letters of administratiori ^hall be granted to such widow or relative, as in other cases. Upon such letters testamentary or letters of administration being granted, all control and authority of the public administrator over the estate of the deceased shall cease, and every order that may have been previously granted to him in relation to the estate shall be revoked- Section 13 consolidates §§ 18, 19 and 20 of the former law and marks the 636 surrogates' courts § 656a point at which the temporary administration or rather custody of the de- cedent's effects by the 'public administrator determines. The whole ob- ject of the law of public administration is to conserve estates for unknown and indigent heirs or next of kin with the least possible expense and under the greatest possible safeguards as to security. Consequently as soon as it develops that there are persons entitled to administer or entitled to exe- cute the will, if there be one, the object of the law is satisfied and the prop- erty must be turned over to such person or persons subject to the reason- able expenses incurred by the public officer in his preservation and custody of the estate. Reimbursement of necessary expense. § 14. The expenses incurred by the public administrator, in all necessary meas- ures for securing and guarding the effects of the deceased from waste and embezzle- ment, of serving and publishing the notice aforesaid, and of obtaining any necessary order from the surr6gate, and of executing such order, shall be taxed and allowed by the surrogate, and may be retained by the public administrator out of any moneys or effects of the deceased in his hands, and the residue thereof shall be de- livered by him to the executor or administrator so allowed or appointed without any abatement or deduction for commissions or for any other charges than such as shall have been so allowed and taxed. If there shall be no moneys or effects of the de- ceased in the hands of the public administrator to pay such expenses, the same, after being allowed and taxed, shall be paid by the executor or administrator so ap- pointed, in preference to all other debts or claims, except funeral charges, and the public administrator may maintain an action therefor in his own name. It will be noted that for this temporary administration the public ad- ministrator is only entitled to be recouped hi? expenses without any abate- ment or reduction for commissions or for any other charges, excepting such as shall have passed the scrutiny of the taxing officer, who is declared to' be the Surrogate himself. Letters to public administrator. § 15. If no executor be allowed, and no letters testamentary or of administration be granted by the surrogate to any other person, at the time specified for hearing the application, or at such other times as shall have been appointed, then, unless it appear that letters testamentary or of administration have already been granted on such estate, the surrogate shall grant letters of administration thereon, with the will annexed or otherwise, as the case may require, to the public adniihistrator, without requiring him to file a further or pther official oath or boncl, briefly stating that the administration of the goods, chattels, credits, and effects of the deceased has been granted to him according to law; which letters, the record thereof, and a transcript of such record duly certified, shall be conclusive evidence of the authority of said public administrator in all cases in which he is authorized by law to act. From these sections it appears that the public administrator is entitled to letters only in case nobody entitled thereto under § 2588, has satisfied the Surrogate of his right to administer or to take letters testamentary in- case a will has turned up. His right may be defeated, however, by proof of administration elsewhere under letters testamentary or of administration already granted. In- case letters are granted to the public administrator the form of such letters is essentially similar to that of ordinary letters of § 556a EXECUTOES, administrators, guardians, etc. 637 administration or with the will annexed, and no precedent for the same need be here given. It is to be noted again, that the procedure to be pursued, where the pub- lic administrator of New York County seeks letters, is not regulated by the Code but by the statute, the sections of which are here given. Matter of Brewster, 5 Dem. 259. Where estate not over $100. § 16. If the property of any intestate, of which the public administrator is author- ized to take charge, be worth a sum not exceeding one hundred dollars, he shall immediately give notice, briefly stating that the effects of the deceased, naming him, with his addition, in the hands of the public administrator, will be administered and disposed of by him according to law, unless the same be claimed by some lawful executor or administrator of the deceased, by a certain day to be specified in such notice, not less than thirty days from the service or first publication thereof, as herein directed. Such notice shall be personally served on the widow and every relative of the deceased who shall be residing in the county of New York, and in case of an application for letters of administration with the will annexed, upon the legatees named in said will and upon the husband or widow or relatives who would have been entitled to the estate had the deceased died intestate, who shall be resid- ing in the county of New York, if any can be found, and if none be found, and in ' all cases where such personal service shall not have been made, the notice shall be published once in each week, for four weeks, in a newspaper printed in the county. It will be noted, first, that the thirty days' notice required to be given under this section must be served on the widow and every relative of the deceased resident in the county of New York. The section differs from the former statute, §§ 24-25, in that it provides, that where the application is for letters of administration with the will annexed the thirty days' no- tice must be served upon the legatees named in the will, and upon the husband, or widow, or relatives who would be entitled to a distributive share of the estate, with the additional quaUfication, "who shall be resid- ing in the coimty of New York." Effect of notice and no claim. § 17. If, at the time appointed in such notice, no claim to the effects of the de- ceased shall have been made by any lawful executor or. administrator, the public administrator shall make and file in the office of the surrogate an affidavit, stating the value of the property and the effects of the deceased, and service and publication of the notice by him, as above directed, and that no claim has been made- according to law, and that he has taken upon himself the administration of the estate of the deceased. Upon fiUng such affidavit, the public administrator shall be vested with all the rights and powers, and be subject to all the duties of an administrator of the estate of the deceased, in the same manner as if the letters of administration had been granted,, without filing a further or other oflBcial oath or bond. Such affidavit and a duly certified copy thereof, shall be presumptive evidence of the facts therein contained, and that administration of the estate of the deceased has been committed to the public administrator according to law. This section embodies §§ 26 and 27" of the former act. Restraints meanwhile on public administrator. § 18. Until letters of administration shall be granted to the public administrator, or until an affidavit shall be filed by him as above directed, he shall not proceed 638 surrogates' courts § 556a in the administration of any estate, further than to pay funeral charges of the de- ceased, to take possession of and secure his effects as hereinbefore authorized, to sell such of them as shall be perishable, or such as he deems it necessary to sell for the preservation and benefit of the estate, and to defray the expenses of such pro- ceedings, and of serving and publishing notices, and of taking out letters of adminis- tration; but he shall have authority, by virtue of his office, to receive and dispose at pubhc auction of all property except cash, which may be delivered to him of persons dying and reported to him by the commissioner of public charities, the com- missioner of correction, and by coroners, or by any other person, not exceeding in value in any one cslse twenty dollars, when the same is unclaimed for a period of three months after the delivery in each particular ease, and he shall pay the proceeds of such sales, and of such estates so unclaimed, into the treasury of the city of New York, to the credit of account of intestate estates, without deduction other than for lawful debts or claims for funeral expenses, payable out of the same, and commissions; and at any time within six years thereafter, the moneys so paid into the treasury of the city of New York, may upon application by the public administrator be returned to him by the comptroller of said city for distribution to those entitled thereto, without a decree of the surrogate. § 2. This act shall take effect immediately. The latter half of this section, following the embodiment of § 28 of the former act, is new; and the last clause, of § 1 and all of § 2 embodies all amendment by chap. 533, Laws 1915. Where decedent a foreigner, recognition of consuls. § 19. Whenever the deceased, of whose estate the public administrator is author- ized to take charge, shall be a foreigner, and shall not have become naturalized, or taken any steps for that purpose, it shall be the duty of the public administrator to serve upon the consul of the nation to which the deceased belonged, if any there be in the city of New York, or upon his deputy, the notice of his intention to apply for letters of administration, apd of his intention to administer, hereinbefore speci- fied, said notice to be served eight days before the return thereof. During the administration of any estate by the public administrator, upon his application for letters of administration, upon his accounting, and in any proceeding taken or suit brought by or against him, the consul or consul-general or consular representative, resident in the city of New York or his deputy may appear in person or by attorney for any person interested in the estate as creditor, husband, widow, next of kin, legatee, guardian of a minor, or otherwise, including a minor, who is then a resident of the country which the said consul, consul-general or consular representative, represents, without filing a power of attorney or other authority with the surrogate; and in the case of accountings riiay waive the issue and service of a citation and consent to the entry of a decree therein; and all citations now required by law to be served upon such persons may in the discretion of the public administrator be served upon s^id consuls^ consuls-general or consular representatives or their deputies in lieu of service upon them eight days before the return day thereof; but minors' interests shall be represented as heretofore in all proceedings or actions in court, by special guardians appointed by the surrogate, or by their general guardians. The first sentence in this section embodies § 29 of the former act, with the exception that the notice is prescribed to be an eight (8) day notice. The latter part of this section is new. Reference back to § 5, ante, may be made. The two together indicate that there is no statutory intent to give the consul any right, prior or § 556a EXECUTORS, administrators, guardians, etc. 639 otherwise, to admiriister, but only to represent, parties interested in the administration, except as to wages and effects of seamen of his nation. Surrender to regular representative with letters. § 20. If any lawful executor or administrator shall appear to claim the effects of the deceased, at any time before the public adrninistrator becomes vested with the power of administering such effects, he shall, on producing the letters testa- mentary or of administration, be entitled to receive the goods and effects of the deceased, in the hands of the pubUc administrator, after deducting the charges specified in section fourteen hereof, to be allowed and taxed by the surrogate ae therein directed. This section corresponds to § 30 of the forfner act. Supersession of his powers. § 21. The powers and authority of the public administrator, in relation to the estate of any deceased person, shall be superseded in the three following cases: 1. Where letters testamentary shall be granted to any executor of a will of any deceased person, either before or after the public administrator shall have taken letters, or become vested with the powers of an administrator upon such estate. 2. Where letters of administration of such estate shall have been granted to any other person, before the public administrator became vested with the powers of an administrator upon the same estate. 3. Where letters of administration shall be granted upon such estate, by any surrogate having jurisdiction, at any time within six months after the public ad- ministrator became vested with the powers of an administrator upon such estate. See Matter of Blake, 60 Misc. 627. This section corresponds to § 31 of the former act. Reserved right of certain persons to supersede public administrator. § 22. If any husbaind, widow, or next of kin of the deceased, entitled to a distribu- tive share in the estate of deceased, being competent and qualified according to law, shall, within three months after the public administrator has become vested with the powers of an admiiristrator on such estate, apply to either of the surrogates of the county of New York for letters of administration, the same shall be granted to him, upon proof to the surrogate that the applicant did not reside in the county at the time of the death of the intestate; or that, residing in the said county, no notice was served on him as herein required. Upon notice being given to the public administrator of the granting such letters testamentary, or letters of administration, in either of the cases aforesaid, by producing to him duly attested copies thereof, his powers and authority in relation to such estate shall cease; and he shall deliver over to the executor or administrator so appointed the property, moneys and ef- fects in his hands belonging to the said estate, after deducting his commissions on the moneys received by him, at the rate hereinbefore allowed, and the expenses incurred by him in section fourteen hereof, to be allowed and taxed as therein di- rected. This section substantially embodies §§ 32 and 33 of the former act. Effect on pending suits. § 2S. No suit or proceeding that shall have been commenced by the public ad- ministrator shall abate on 'account of his authority having ceased for any cause; but Jthe same may be continued by his successor, who shall succeed him in the ad- ministration of the estate, in relation to which such suit or proceeding shaU have been brought. 640 surrogates' courts § 556a This section amends §34 of the former act by adding the words "or proceeding" and by omitting the words "by his successor," "or the execu- tor or administrator of the deceased" which were purely surplusage. Permanent rights and duties. § 24. Whenever the pubUo administrator shall become vested with the right of administering upon any estate whether by right of his office or by grant of original letters of administration, or letters of a our said County of New York at said county, ' J ■ the day of , in the year of ^ — ■ — • our Lord one thousand nine hundred and . Clerk of the Surrogate's Coiirt. Note: On the inside pages is set forth the following voAie mecum information. The Attention op Executors and Administrators is Directed to the Following Provisions of the Statutes revised statutes, part 2, CHAP. 6, title 3, ART. 1, 3 R. s. (7th ed.), p. 2294 § 2. The executors and administrators of any testator or intestate, within a reasonable time after qualifying, and after giving the notice in the next section re- quired, with the aid of appraisers so appointed by the Surrogate, shall make a true and perfect inventory of aU the goods, chattels and credits of such testator or in- testate, a,nd where the same shall be in different and distant places, two or more such inventories, as may be necessaiy. . §■ 3. A notice of such appraisement shall be served, five days previous thereto, on i the legatees and, next Qf.lrin, residing in the county where such property shall be; and it shall also be posted in three of the most public places of the town. In every such notice, the time and place at which such appraisement will be made shall be specified. ' ■ § 4. Before proceeding to the execution of their duty, the appraisers shall -take and subscribe an oath, to be inserted in the inventory made by them, before any officer authorized to administer oaths, that they will truly, honestly and impartially appraise the personal property, which shall be exhibited to them, according to the ,best of their knowledge and ability. § 5. The appraisers shall, in the presence of such of the next of kin, legatees, or creditors of the testator or intestate as shall attend, proceed to estimate and ap- praise the property which shall be exhibited to them ; and shall set down each article separately, with the value thereof in dollars ^nd cents, distinctly in figures, opposite to the articles respectively. § 6. The ifoUowing property shall be deemed assets, and shall go to the executors or administrators, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof: 1. Leases for years; lands held by the deceased from year to year; and estates held by hitn for the life of another person. 2. The interest which may remain in the deceased at the time of his-death in a term for years, after the expiration of any estate for years therein, granted by him or any other person. 593 LETTERS, GENERALLY 681 3. The interest in lands devised to an executor for a term of years, for the pay- ment of debts. 4. Things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed to the wall of a house, so as to be essential 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 grass growing and fruit not gathered. 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 any company, whether incorporated or not. 9. Goods, wares, merchandise, utensils, furniture, cattle, provisions, and every other species of personal property and effects, not hereinafter excepted. § 7. Things annexed to the freehold, or to any 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 the last section. § 8. The right of an heir to any property not enumerated in the preceding sixth section, which by the common law would descend to him, shall not be impaired by the general terms of that section. § 9. Where a man having a family shall die, leaving a widow or a 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: 1. All spinning-wheels, weaving-looms, one kDitting-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 the family of such deceased person, and books not exceeding in value fifty dollars, which were kept and used as part of the family library before the decease of such person. 3. All sheep to the number of ten, with their fleeces and the yarn and cloth manu- factured from the same, one cow, two swine and the pork of such swine, and neces- sary food for such swine, sheep or cow for sixty days, and all necessary provisions and fuel for such widow or 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 plates, twelve tea-cups and saucers, one sugar dish, one milk pot, one teapot and twelve spoons, and also other household furniture which shall not exceed one hundred and fifty dollars in value. § 10. The said articles shall remain in the possession of the widow, if there be one, during the time she shall live with, and provide for, such minor child or children. When she shall cease 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 bther articles so exempted shall then belong to such minor child or children. If there be a widow, and no such minor child, then the said articles shall belong to such widow. § 11. The inventory shall contain a particular statement of all bonds, 'mortgages, notes andi other securities for the payment of money, belonging to the deceiased, which are known to such executor or administrator; specifying 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 apprais- ers, may be collectible on each security. § 12. The inventory shall also contain an account of all moneys, whether in specie or bank bills, or other circulating medium, belonging to the deceased, which shall have come to the hands of the executor or administrator; and if none shall come to hishands, the fact shall be so stated in such inventory. 682 surrogates' courts § 593 § 13. The naming of any person executor in a will, shall not operate as a discharge, or bequest, of any just claim, which the testator had against such executor, but sudh claim shall be included among the credits and effects of the deceased in the inventory, and such executor shall be liable for the same, as for so much money in his hands, at the time such debt or demand becomes due; and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin, as part of the personal estate of the deceased. § 14. The discharge or bequest in a will of any debt or demand of the testator, against any executor named in his will, or against any other person, shall not be valid as against the creditors of the deceased; but shall be construed only as a specific bequest of such debt or demand; and the amount thereof shall be included in the inventory of the credits and effects of the deceased, and shall, if necessary, be applied in the payment of his debts; and, if not necessary for that purpose, shall be paid in the same manner and proportion as other specific legacies. § 15. Upon the completion of the inventory, duplicates thereof diall be made and signed by the appraisers; one of which shall be retained by the executor or adminis- trator, and the other shall be returned to the surrogate within three months from the date of such letters. § 16. Upon returning such inventory, the executor or administrator shall take and subscribe an oath before the surrogate; or if such surrogate be absent from the county, or incapable, from sickness or otherwise, of transacting business, or his office be vacant, then before a judge of the county courts of such county, stating that such 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 the knowledge of such executor or administraAor, and particularly gf all money, bank bills, and other circula/ting medium, belonging to the deceased, and of all just claims of the deceased against such executor or administrator, according to the best of his knowledge. Such oaths shall be endorsed upon, or annexed to the inventory. § 23. Any one or more of the executors or administrators named in any letters, on the neglect of the othersj may return an inventory; and those so neglecting shall not thereafter interfere with the administration, or have any power over the per- sonal estate of the deceased; but the executor or administrgitor so returning an inventory shall have the whole administration until the delinquent return and verify an inventory, agreeable to the provisions of this article. i § 24. Whenever personal property, or assets of any kind, not mentioned in any inventory that shaU'have been made, shall come to the possession or knowledge of an executor or administrator, he shall cause the same to be appraised in manner aforesaid, 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 the first inventory. LAWS OF 1842, CHAP. 157, § 2 (3 R. s., 7th ED.), p. 2297 Exemption for a Widow and Minor Children, $150. — § 2. When a man having a family shall die, leaving a, widow or minor child or children, there shall be inventoried by the appraisers, and set apart for the use of such widow, or for the use of such widow and child or children, or for the use of such child or children, in the manner now presbribed by the ninth section of title third, chapter sixth of part second of the Revised Statutes, necessary household furniture, provisions or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars, in addition to the articles of personal property now exempt from appraisal by said section. LAWS OP 1867, CHAP. 782 (3 b. s., 7th bd.), p. 2297 ChUdreti of Deceased Widow. — § 13. When a widow shall die, leaving her sur- viving a minor child or children, the same articles and personal property shall be § 593 LETTEBS, GENERALLY 683 set apart by the appraisers for the benefit of such mmor or minors, as is now pro- vided by law in the case of a man dying and leaving a widow or minor children; and all articles and property set apart, in accordance with law, for the benefit of a widow and a minor or minors, shall be and remain the sole personal property of such widow after such minor or minors shall have arrived at age. CODE OF CIVIL PKOCEDURE § 2565. Fees of Appraiser. — An appraiser is entitled, in addition to his actual expenses, to a s;im to be fixed by the surrogate, not exceeding five dollars for each ' , day actually and necessarily occupied by him in making the appraisal or inventory. The number Of days' services and the expenses, if any, must be proved by the aflli- davit of the appraiser, and the sums payable therefor taxed by the surrogate and paid by the executor or administrator. B. Where the administration is cum testamento annexo, the enabling clause may read : do grant unto you the said full power and authority, by these presents, to administer and faithfully to dispose of all and singular the said goods, chattels and credits, and to ask, demand, recover and receive the debts which unto the said Testat whilst living, and at the time of death did belong; and to pay the debts which the said Testat did owe, as flar as such goods, chattels and credits will thereto extend -4nd the law require, hereby requiring you to observe and 'perform the said Last Will and Testament, and to observe and perform all the duties to which you would have been subject if you had been named Execut thereof. And we do by these presents, depute, constitute and appoint you the said Administrat with the Will annexed, of all and singular the goods, chattels and credits which were of said deceased. C. If the administration c. t. a. is ancillary, the recitals must conform to the statute, the enabling clause being the same. Whereas, lately departed this life, having pre- viously executed Last Will and Testament; ^ And Whereas, the said Will has been duly admitted to pro- bate by a competent Court within where the said Will was executed, and the Testat resided at the time of death; And Whereas, has made an application to our Surrogate's Court of the County of New York, a Court having jurisdiction to entertain the same, for the issuance to of Ancillary Letters of Administration with the Will annexed. And Whereas, the said application is accompanied by an exemplified, copy of the said Will and of the judgment decree and order admitting the same to probate, and also of the foreign letters; and we being desirous that said Will should be observed and performed, and that the goods, chattels and credits of said Testat should be well and faithfully administered, applied and disposed of, do grant unto you the said etc. D. If the administration be temporary, both recital and enabling clause are to be studied, in connection with the statute. 684 surrogates' courts § 593 Whereas, a paper has been propounded for Pro- bate before' the Surrogate of the County of New York, as the Last Will and Testament of deceased, and a contest exists relative to such Probate, and a delay is thereby necessarily produced in granting letters testamentary or of ^ministration upon the estate of said deceased: Know ye, that we being desirous that the goods, chattels and credits of said deceased may be collected and preserved, do grant unto you the said • full power by these presents to take into your possession the personal property of the said deceased, and to secure and preserve it with all the authority and power conferred upon you by law, hereby requiring you to make immediately a true and perfect inventory of all and singu- lar the goods, chattels or credits of said deceased, and return the same to our said Surrogate within three months from the date of these presents, and also to render a just and true account of your administration as such Temporary Administrator when- ever required by our said Surrogate, and faithfully deliver up the goods, chattels and credits of said deceased to any person or persons who shall be appointed Executors or Administrators of the said deceased, or to such other person as shall be authorized to receive the same by said Surrogate. E. Letters of guardianship now are in two forms, for infants under fourteen, and for infants over fourteen, and in each; form there are two variations, the one where bond is given, the other where the fund is not over $2000 in value, when the Surrogate, under § 2650 may make an order dis- pensing with the bond "wholly or pa,rtly" and in such case the letters will read do by these presents allow, constitute and appoint you, the said the General Guardian of the person and estate of said Infant, during h minority,* and i, Esq., is hereby designated to collect and receive the moneys and property of said Infant jointly with , the said Gen- eral Guardian who is hereby directed to deposit in the name of such General Guardian all money or property received as such General Guardian in subject to the further order of the Surrogate. The usual enabling clause reads hereby requiring you, the said General Guardian, to safely keep the real and personal estate of said Infant, which shall hereafter come to your custody, and not suffer any waste, sale or destruc- tion of the same, but to keep up and sustain lands, tenements and hereditaments, by and with the rents, issues and profits thereof, or with such other moneys belonging to as shall come to your possession, and to deliver the same to when becomes of full age, or to such other Guardian as may be hereafter appointed, in as good order and condition as you received the same, aind also to render a just and true account of all moneys and property received by you, and the application thereof, and of your Guardianship in all respects, to any Court having cogiiizance thfereof, when there- unto required. ■ § 594 LETTERS, GENERALLY 685 If the fund is over $2000 or a bond is required, insert it at *, omitting the designation of the joint collector. We add the recitals of letters issued to a testamentary guardian. Whereas, the last will and testament of said de- ceased, was duly admitted to probate by the Surrogate of the County of New York, on the day of one thousand nine hundred and in and by which said is appointed as the testamentary Guardian of the said Infant. And Whereas, said has taken and filed the oath of office, pursuant to law, for the faithful discharge ofh duty as such testamentary Guardian; and we being satisfied that said is a good and reputable person, and is in every respect competent to have the custody of the person and estate of said Infant, do by these presents allow, constitute and ap- point you, -etc. Note. All letters of guardianship have printed, on the inner page, §§ 2660-2661 of the Code, except ancillary letters. § 594. Evidentiary effect of letters. — ^This is prescribed by the act. . §2660. Letters evidence of authority; effect of appeal. Subject to the provisions of the next section, regulating the priority among dif- ferent letters, letters testamentary, letters of administration, and letters of guardian- ship, granted by a court or officer having jurisdiction to grant them, are conclusive evidence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked. When letters testamentary or letters of administration have been issued in ac- cordance with an order of the surrogate as authorized in section 2557 of this act, such letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or ad- ministrator 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 unbequejathed property of the decedent, until after the fina,l deter- mination of the appeal; and in case letters shall have been issued before such appeal, the executor or administrator, on a like order of the surrogate, may exercise the powers and authority, subject to the duties, liabilities and exceptions above pro- vided. Former §§ 2591, 2582 of this Code, consolidated. From 2 R. S. 80 (Part 2, c. 6, tit, 2), § 56; L. 1871, c. 603, § 1; L. 1881, c. 535; L. 1900, c. 191. The "next section" referred to is § 2561. Priority among different letters. A person to whom letters are first issued from a surrogate's court having juris- diction to issue them, has sole and exclusive authority, pursuant to the letters, until the letters are revoked; and he is entitled to demand and recover from any person, to whom letters are afterwards issued, by any other surrogate's court, the property in his hands belonging to the estate or fund. But the acts of a person, to whom letters were afterv/ards issued, done in good faith, before notice of the letters first . issued, are valid; and an action or spedial proceeding commenced by him, may be continued by a;nd in the name of the person or persons to whom the letters were first issued. Former § 2592 of this Code, modified. From 2 R. S. 74, § 25. The first paragraph of § 2560 was former § 2591, which section was a re- 686 surrogates' courts § 595 enactment of the former provisions of the Revised Statutes (2 R. S. 80, § 56), that letters testamentary or of administration or guardianship when granted by a court or officer having jurisdiction, cannot be collaterally at- tacked in another court. Power v. Burmester, 34 N. Y. St. Rep. 716; Low- man y.Elmira, C. & N. R. R. Co., 85 Hun, 188, aff'd 154 N. Y. 765; More v. Finch, 65 Hun, 404; Roderigas v. Bast Riv. Sav. Inst., 63 N. Y. 460; iSea- many. Jamison, 146 App. Div. 428. Nor can they be attacked collaterally before another Surrogate. Matter of Harvey, 3 Redf. 214, 216, citing Bol- ton V. Brewster, 32 Barb. 390. The presentation by the person, to whom letters are issued, of such letters establishes prima fade their validity and his authority. Belden v. Meeker, 47 N. Y. 307. But the wording of § 2560 makes it evident that if the court or officer had no jurisdiction to grant the letters they are not to have the conclusive effect prescribed by the Code. Therefore the jurisdiction of the Surrogate to issue them may be attacked collaterally. Crosier v. Cornell Steamboat Co., 27 Hun, 215, aff'd 92 N. Y. 626. E. g., if they were granted on a false statement of a jurisdictional fact they can be attacked collaterally. That is, if the holder of the letters sues, a denial that letters were "duly" issued will support such attack. Ziemer v. Crudbk Steel Co., 99 App. Div. 169, citing Foes v. N. Y,, N. H. & H. R. R. Co., 173 N. Y. 435. See also McCarthy v. Supreme Court of Forest- ers, 107 App. Div. 185. But this does not mean that an improper exercise of jurisdiction can be attacked where the action of the Surrogate, although irregular or deficient, is upon a subject-matter clearly within his jurisdic- tion. His determination and decree cannot be disregarded collaterally because of these defects. So, where a Surrogate had clear jurisdiction to grant ancillary letters testamentary, or of administration, upon the estate of a deceased person, and he had evidence before him tending to establish the facts upon which his authority was by law required to be exercised, while his determination upon that proof might be reversed in an Appellate Court, yet the issuing of the letters cannot be disregarded nor collaterally attacked. Brown v. Landon, 30 Hun, 57, opinion of Daniels, J., at page 59, citing Parhan v. Moran, 4 Hun, 717. This conclusive character, as is stated in § 2560, continues until the decree granting letters is reversed on appeal or the letters are revoked. Abbott v. Curran, 98 N. Y. 665, affirming 20 Week. Dig. 334. See also Leonard' v. Columbia Steam Navigation Co.^ 84 N. Y. 48; Bolton v. Schriever, 135 N. Y.'65, 70, 74, 75, Peckham, J.; Kelly v. Jay, 79 Hun, 535, 540. See also Taylor v. Syme, 17 App. Div. 517, 520, Van Brunt, P. J.; Matter of Patterson, 146 N. Y. 327, 330, 331, citing Porter V. Purdy, 29 N. Y. 106; Steele v. Leopold, 135 App. Div. 247, 201 N. Y. 518. § 595. Priority among several letters. — But, by § 2560, this conclusive- ness attaches only to the letters first issued by a court having jiuisdiction to issue them. Section 2561, above quoted, gives to the holder of letters given priority the right to receive from holders oflater letters the assets they may have received. But, since ate against every one else the letters are conclusive evideii«?e of §§ 596-598 LETTERS, GENERALLY 687 authority, the statute vaUdates their acts, in good faith, done before notice of the prior-right holder of letters, and he in turn may avail himself of any administrative act or action already set in motion by the other. These provisions were necessitated by the fact that it sometimes occurs that Sur- rogates in different counties, acting independently, grant letters of admin- istration upon the same estate, or that a Surrogate may grant letters testa- mentary upon an estate where another Surrogate has previously, ignorant of the fact of testacy, issued letters of administration. Where this conflict of jurisdiction occurs the provisions quoted safeguard those who may have acted in good faith with the person to whom the conflicting letters were issued. § 596. Effect of appeal. — Section 2557, referred to in § 2560, prescribes that an appeal from a decree under which letters are to issue stays the issue only where the Surrogate does not make an order that the "preserva- tion of the estate requires that the letters should issue." The section is quoted and discussed sub Appeals. § 597. Disability to receive letters in some cases may be removed — Supplementary letters. — There are two disabilities which, while they operate to prevent a Surrogate from issuing letters to the one under the disabiUty, may nevertheless be removed, before the estate is fully admin- istered, in which case on proof of such facts the person then may become entitled to supplementary letters testamentary. The provisions of the Code are as follows: § 2626. Supplementary letters. If the disability of a person under age, or an alien named as executor in a will be removed before the execution of the provisions of such will is completed, he shall be entitled, on petition^ being filed setting fbrth the fact, to supplementary letters testamentaiy, to be issued in the same manner as the original letters, and authorized to join in the execution of the will with the persons previously appointed. A person named in a will as executor shall be deemed to be superseded by the issue to another person of letters testamentary, and shall have no power or authority whatever as such executor until he appears and qualifies. § 2613, Code Civ. Proc, first part. The issuance of such letters relates back to the issuance of the first let- ters except in the cases specified in § 2562, which is as follows: § 2662. Time, how reckoned upon successive letters. Where it is prescribed by law, that an act must or may be done within a specified time after letters are issued, and successive or supplementary letters are issued upon the same estate, the time so specified must be reckoned /rora the issuing of the first letters, except in a case where it is otherwise specially prescribed by law; or where the first or any subsequent letters are revoked, as prescribed in section 2624 of this chapter, by reason of the want of power in the surrogate's court to issue the same, for any cause. Former § 2593 of this Code. § 598. Capacity or competency to receive letters. — In order to ad- ministration letters must issue. We have noted, under § 2560, the author- ity they confer, and their conclusiveness. The statute establishes an order of priority, among classes of persons 688 surrogates' courts § 598 interested, to letters; but before discussing such priority or the practice in applying for the various kinds of l letters we are to note that there are statutory and discretionary disqualifications, on proof of the existence of which the Surrogate may pretermit the applicant and pass to the next person in order of priority of right. The Act of 1914 makes general the tests of competency extending them to guardians and trustees. § 2664. Persons incompetent to receive letters, or act as testamentary trustee. A. No person is competent to serve as an executor, administrator, testamentary trustee or guardian, who is: 1. Under the age of twenty-one years; 2. An adjudged incompetent; 3. An alien not an inhabitant of this state; 4. A felon; 5. Incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding. B. Except as prescribed in section 2567, an executor, testamentary guardian or testamentary trustee, who is, not by law required to give a bond, shall not, qualify or serve as such where, after objection filed and proof taken, the surrogate finds that: 1. His circumstances are such that they do not afford adequate security to the creditors, or persons interested in the estate or fund for the due administration thereof. 2. He is not a resident of the state of New York. , ; Former §§ 2612, 2661 of this Code, in part. Prom'2 R. S. 69 (Part 2, c. 6, tit. 2), §§ 3, 4; Id., 75, § 32; L. 1867, c. 782, § 5; L. 1873, c. 79; L. 1893, c. 686. Under A the incompetency is absolute. Under B it may be obviated, under § 2567, by giving the bond there pre- scribed. The discretionary reasons for refusing letters to one otherwise entitled and competent are thus defined : § 2666. Surrogate may refuse letters under certain conditions. The surrogate may, in his discretion, refuse to grant letters to any person unable to read and write the English language; or to any person who does not file in the surrogate's office an instrument acknowledged or proved, and duly certified desig- nating the clerk of the surrogate's court and his successor in office, on whom service of any process issuing from the surrogate's court may be made in like manner and with like effect as if it were served personally upon himself, whenever the person so receiving letters cannot be found and served within the state of New York, after due dihgence usedi; From former § 2612 of this Code, in part. In one sense the Surrogate has no discretion to exclude a person entitled to a preference for any but a statutory cause {Coope v. Lowerre, 1 Barb. Ch. 45; Harrison v. McMahon, 1 Bradf. 283; Matter of Cutting, 5 Dem. 456, Rollins, Surr., citing Coggshall v. Green, 9 Him, 471; McMahan v. Harrison, 6 N. Y. 448), but under §2565, it is obvious that a Surrogate possesses a statutory or limited discretion to refuse to grant letters to any person unable to read or write the English language. So in Matter of Haley, 21 Misc. 777, Marcus, Surr., excluded from administration a widow unable to read or § 699 LETTERS, GENEEALLY 689 -.ji, write our language or to count money, and granted letters to a son of the testator by a former marriage. The Surrogate observes, at page 779: "While it is true no new disqualification can be added to those specified in the statute, yet any person applying for letters, deficient in capacity to manage or ability to perform duties necessarily incumbent upon them, lacking the requisite understanding to be directed intelligently . . . when a person is so evidently unsuitable, unable to read or write, it seems a rea- sonable exercise of discretion to refuse the granting of letters." The new provision in § 2565,, for a convenient substituted service per the clerk of the court, will result in making representatives always amenable to the process, and subsequent orders of the court, without possibility of evasion by absenting themselves from the state. The Surrogate may exact the instrument of designation if it be made to appear that the appli- cant for letters is a non-resident or Kkely to be much absent. § 599. The grounds for rejecting applicant for letters. — Illiteracy. — 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 performing the duties of executor or administrator, and consequently the discretion 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. " To refuse to grant letters to an executor named in a will is no light matter, and can be justified only upon the grounds stated in the Code. Unless the case be brought within the letter and spirit of the statute the Surrogate has no discretion to refuse letters." Matter of Latham, 145 App. Div. 849, 854; McGregor v. McGregor, 1 Keyes, 133, 136. The general rule seems to be that every person is com- petent unless declared to, be incompetent by statute^ and that no new cause of disqualification may be added to those prescribed by statute. In the Haley case, supra, the Surrogate found the applicant unable to read or write EngUsh; but further that "her illiteracy was further burdened by a dtensity hard to comprehend," and that she was unable even to count money, and held that such a person was deficient in capacity to manage, or ability to perform the duties that would be incumbent upon her, and that it was a proper case for her exclusion by the Surrogate. Identity: Petitioner for letters must show identity with the one nomi- nated by testator. In Matter of Stikeman, 48 Misc. 156, a corporate execu- tor was named. On probate, it appeared to have been merged in a " title guarantee and trust" company. Letters were refused. But in Matter of B&'gdarf, 149 App. Div. 529 (aff'd by the Court of Appeals, N. Y. L. J., Oct. 22, 1912), it was held that merger carried continuous identity, as distinct from consolidation which results in a new corporate entity. Minority: "^o the appointment of a minor, or a person incapable in law of making a contract is void. Knox v. Nckel, 77 Hun, 230. 690 surrogates' courts §-599 But, under § 2626, above quoted, if and when the disability of minority is removed, supplementary letters may issue to the infant so coming of, age. Again, when administration in intestacy i&, granted there ape two cases where the disability of minority is obviated by letters to the general guar- dian, under § 2588. A. "If a person entitled to take all the personal estate, is an' infant . . . his guardian . . . shall have a prior right to letters in his place and stead." B. "If aW the persons entitled to take the personal estate are infants . . . or, if no adult or competent person, entitled to take or share in the estate will accept the same, letters may be granted to the general guardian of an infant ... in the place of such infant. . . . Similarly when administration c. t. a. is granted a similar substitutionary priority is given the guardian " unless there is an adult or competent person equally entitled who will accept the same." Incom-petency: Section 2564 defines this as a disqualification. We need only observe that the committee of such incompetent has the same sub- stitutionary right as the general guardian as above noted. Death: The Code provides, § 2588, that if the one " entitled to take all the personal estate" has died, then his legal representatives possess his priority of right, and to take letters. It seems that the Engligji rule has been and still is that where the residuary legatee survives the testator and has a beneficial interest, his representative has the same right of administra- tion cum testamento annexo as the residuari?^ legatee himself and is therefore entitled to /administration in preference to the next of kin or to legatees. Williams on Executors, 465. At first, under the Code, the courts denied the right of the representative of such legatee to, letters in preference to those named in the statute as entitled in case there be no residuary legatee: or none who will accept. Kircheis v. Scheig, 3 Redf. 277; Matter of Alien, 2 Dem. 20S; Lathrop v. Smith, 24 N. Y. 417; Matter of Brown, 2 Connoly, 386. But former § 2660 of the Code, now § 2588, has been held applicable in sev- eral respects to. administration under a will. See Matter, of Moehring, 24 Misc. 418; Matter of Lasak, 121 N. Y. 706; Matter of Goggin, 43 Misp. 233. And so, in Matter of Haug, 29 Misc. 36, 38, Fitzgerald, Surr., held tha,t it was similarly applicable in respect to the provision incorporated in it that "letters of administration shall also be granted to an executor or a/dminis- trator of a deceased person named as sole legatee in a wilL" He pointed out that former § 2660 gave "the public administrator in the city of New York preference, after the next of kin, and after an executor or administratojj of a sole legatee named in a will, whereby the whole estate is devised to such de^ ceased sole legatee, over creditors and all other persons." Accordingly he preferred the executor of such deceased sole legatee to the son of decedent's brother who died after testator, and revoked letters originally granted to such nephew. But he also held that as there was living a sister of testator, next of kin, she had a right under subd. 3 of former § 2643 prior to. that of the executor of the deceased sole legatee, and he granted her the right to re- § 599 LETTERS, GENERALLY 691 tract a renunciation made by her when the nephew originally applied for letters. Aliens: Reference has been made to § 2567 where the nonresidence of the applicant for letters alleged^ and proved, under § 2564, as an objection may be obviated by giving a bond. But that is only true of citizens of the United States. Matter of Campbell, 192 N. Y. 312, aff'g 123 App. Div. 212. See opinion of Chase, J., citing In re Page, 107 N. Y. 266; In re Williams, 111 N. Y. 680. JV^ere nonresidence therefore is no excuse for dispensing with notice to the one having merely a potential disability. Ibid., citing Matter of TyerS) 41 Misc. 378. Alienage plus nonresidence disables in toto, § 2564, subd. 3 ; Matter of Paolo, 36 Misc. 514; nor can an alien substitute for himself a designated resident. Matter of Ferrigan, 92 App. Div. 376. But the aUen, if an inhabitant of the State, may qualify. Texas v. Municiqial Gas Co., 88 App. Div. 251. Felons: The former section read "person convicted of an infamous Crime." The courts wrote voluminous opinions on what crimes were " infamous." The act'of 1914 doubtless imports into the content of the new section the meaning or intent of the Penal Code in § 2 thereof. If the crime calls for the death, penalty, or for imprisonment in a state prison, it disqualifies the criminal from acting in the proposed fiduciary capacity. The effect of a pardon presents an interesting question: 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. The words "infamous crime" were defined by statute (4 R. S., ch. 1, title 7, § 13) as follows: "Whenever the term infamous crime is used in any statute, it shall be construed as including every offense punishable with death or by imprisonment in a state prison and no other." In the face of this statutory definition it is difficult to see why the courts had any difficulty, and why the term " felon" had to be substituted. Conviction of an offense of which the Court, of Special Sessions has exclusive jurisdiction followed by a $50 fine, is not an infamous crime." Matter of O'Hare, 60 Misc. 269. Surrogate Rollins (O'Brien v. Neubert, 3 Dem. 156) held, where the grand- son of intestate objected tq the issuance of letters to the son of the decedent on the ground that he had been convicted in New Jersey of the crime of larceny, that the statute did not cover such a case and limited "incapable because of conviction of crime," to conviction under and by virtue of the laws of the State, of New York an4 relied upon the decision of the Court of Appeals in Sims v. Sims, 75 N. Y. 466. National Trust Co. v. Gleason, 77 N. Y. 400. As noted above, a pardon removes this incompetency. It blots out the record of conviction, and reca,pacitates the offender in his civil rightpi Matter of Rdynor, 48 Misc. 325. It seems a misdemeanor is not within the contemplation of the section. Matter of Greene, 48 Misc. 31. 692 surrogates' courts § 599 Incompetence under subd. 5: What constitutes drunkenness, improvidence or want of understanding is a matter for the court to determine upon the facts presented. The denial of letters to one convicted of an "infamous crime" requires proof of actuaf conviction after trial. So Chancellor Wal- worth held that no degree of legal or moral guilt or delinquency is sufficient to exclude a person from administration as the next of kin in the cases of preference given by the statute, unless such person has been actually con- victed of an "infamous crime." And he added (Coope v. Lowerre, 1 Barb. Ch. 45, 47), the improvidence which the framers of the Revised Statutes had in contemplation as a ground of exclusion, is that want of care or fore- sight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value by improvidence in case administration thereof should be com- mitted to such improvident person. Surrogate Ransom (MaMer of Selling, 2 N. Y. Supp. 634) refused letters of administration to a son of an intestate who was a resident of the State and gave them to a nonresident married daughter of the intestate on the ground that the son was a professional gambler known as "Poker Joe," and had no employment or vocation except gambling, and lived on the money he won; it appeared, however, in addition that he had been arrested in another State for embezzlement, that he had been guilty of forgery, and had kept an assignation house, so that exclusive of his character as a professional gambler there were grounds for excluding him from administration. It has also been held in strict interpretation of the statute that vicious conduct, improper and dishonest acquisition of property, and even loose habits of business did not constitute "improvi- dence" within the meaning of the statute. Coggshall v. Green, 9 Hun, 471, citing Emerson v. Bowers, 14 N. Y. 449; McMahan v. Harrison, 10 Barb. 659. And the General Term adopted the language in Coope v. Lowerre, supra, that the fact that a man seeks to obtain the property of others by theft or fraud is not evidence of "improvidence!"- Such hair splitting was due to tiie statutes as much as to the courts. Thus the former § 2612 prescribed "dishonesty" as a disqiualification for an executor, the personal appointee of the testator who knew him; whereas former §2661, omitted "dishonesty" in its list of disqualifications for administrator, a person fixed upon the estate and the court by an arbitrary statutory rule of priority! It is to be expected that the spirit and not the letter of the present law will dominate the determinations of the Surrogates. That our criticism is well founded will, we think, appear from the follow- ing paragraph from a former edition: In Emerson v. Bowers, 14 N. Y. 449, the Court of Appeals saya: "All departures in conduct from the principles of rectitude, including all abuses of trust, are unxvise and inexpedierU, 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 and moneymaking person may be guilty of negligence or abuse in a fiduciary capacity, but such a person is not improvident in the sense of the statute; the words with which the term is associated, 'drUnken- § 599 LETTERS, GENERALLY 693 ness,' ' want of understanding,' are of some importance in-arriving at its .true con- struction; 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." See as to "dishonesty" facts in the Latham Case, 145 App. Div. 849, supra. In case of Cooye 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. Again we quote: It has been held that vicious conduct, 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. Coggeshall v. Green, 9 Hun, 471. Improvidence and lack of understand- ing, in order to disqualify, must amount to a lack of intelligence. Shillon's Estate, I 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 Manky, 12 Misc. 472, 474, Davie, Surr. Accordingly, in our treatment of the grounds for Revocation of Letters (4th Ed. at p. 683), we sought to justify the decisions which seemed to hold and apply a different test, at least in degree, upon the application for letters and upon the application to revoke letters, by observing: This distinction, though not fully indicated in the case, is believed to be proper, for this reason: When the application is made for letters the applicant stands either upon his right, as the person designated by the testator, in which case he. has the presumption (in his favor) of the testator's knowledge of his character and of the trust accordingly reposed in him; or he stands upon the statutory rights of priority, which, as has been seen, is sufficiently strong to have led the courts to sustain the Surrogate in granting letters to persons whose moral character, to say the least, was not all that could be desired in one about to administer the trust. But as "dishonesty" is now included in the general list under § 2564, relating alike to executors, administrators, guardians and trustees we need only consider a few of the cases to show how easy of application the statute will now be to any given case. It is better to reject the applicant under § 2564, at the threshold of administration than to revoke his letters, under § 2569 (discussed below), after the steed is stolen! In a very recent case, Matter of Briggs, 171 App. Div. 52, it is held: (a) That the Surrogate abused his discretion in refusing to take proof of the objection interposed to the widow's receiving letters testamentary. It was averred that ^he had murdered testator, (b) That assuming such.Pharge could be substantiated she would be a "dishonest" person within the intent of the Code (even prior to the Act of 1914) and so in- competent, (c) That independently of any statute it was abhorrent to 694 StTREOGATBS' COURTS § 599 justice ±0 invest a murderer with the authority of a fiduciary under letters of the court. The difficulty confronting the Surrogate was obvious. The charge made should have been presented to the grand jury, and a trial had in the £|.ppro- priate forum. , If he entertained it, he might conceivably have reached a decision con- trary to that of a jury duly impanelled and the applicant been laid under a cruel stigma. It seems as if he might have stayed the issue of letters, and perhaps granted temporary administration pending the criminal trial. As it was he could not impanel a jury to try the issue, since the Act of 1914 was not operative, nor could a finding that she was guilty subject her to the Penal Law punishment. ' , ,/ We quote from the opinion a part relating to murder gwa dishonesty under the statute. A dishonest person is one "Wanting in honesty or integrity; so objected to, and due inquiry thejieiiiito and d«r liberation thereupon having been had by the Surrogate; and it appearing to the satisfaction of the Suwogate that there are (no) legal objections to granting letters testamentary to said Now, on motion of of counsel for said (naniejpre- vailing party), it is ,-,,,., , Ordered, that the objections to said on the ground of (state objections established, if any) are established (or say that the objections to said have not been established and are hereby overruled) i ' {Where objection established is one of those specified in § 2567 of the Code, add and letters testamentary ought not to be granted §^602 LETTERS, GENERALLY 699 less, under § 2567 to said unless within five days he shall execute and "entitle himself to file a bond, as pnrescribed by law) (here add details of bond to be letters" by giving the required). Nole. requisite bond. (Signature.) § 602. Same subject— Surrogate's action.— In a " note " to the precedent for Oii(^er for Inquiry and Stay we referred to former § 2637. It read as follows: The surrogate must iijquire into an objection, filed as prescribed in the liast seiction; and, for that purpose, he may receive proof, by affidavit or otherwise, in his discretion. If it appears that there is.a legal and sufficient oibjection to any ; ■ person, named as executor in the wUl, letters shall not be issued to him, except as prescribed in the next section. By the repeal of the section and the mere words in § 2566 "until the matter is disposed of" there is no bhange to be inferred in regard to the Surrogate's poiver. The following decision, N. Y. L. J., June 8, 1916, covers the mode of trial. The opinion was by Fowler, Surr. Estate of Francis L. Leland — ^Some of the legatees under the will of the testator have filed objections to the issuanjce of letters testamentary to Timothy M. Chees- man, who is named as executor in the will. The objecting legatees allege that Mr. Cheesman is physically and mentally incapable of performing the duties of executor. Issue having been joined on this point, the objectants make this application for an order in accordance with the provisions of section 873 of the Code directing Mr. pheesnian to submit to a physical and mental examination and designating certain physicians to make such examination. Assuming that section 873 of the Code is made applicable to the Surrogate's Court by section 2770 (which I do not decide), the right to a physical examination of a party before trial is limited by that section to an action brought to recover damages for personal injuries. Therefore, that part of the application which asks- for an order directing the physical examination of Mr. Cheesman must be denied. Section 2564 of the Code specifies the various causes which render a person incompetent to receive letters testamentary, but physical in- firmity is not one of the disqualifications mentioned in that section. The only objec- tion, therefore, that remains to be tried is the one alleging " want of understanding." To' sustain this objection it wiE be necessary for the objectants to prove.upoji the trial of that issue that Mr. Cheesman lacks the understanding necessary to a proper perf orma,nce of the duties of executor. His examination before trial upon the issue of his lack of understaading would necessarily be limited to his own testimony as to his mental capacity. But if the objectants wish to prove by Mr. Cheesman hifti- self that he lacks rriental capacity, this may be done upon the trial of the issue before me just as effectively and as expeditiously as upon a separate examination: before the trial. The cases hold thart an examination before trial will only be allowed when it ; ; ds,?illeg$d, that the testimony is necessary to the moving party's case or defense and that he intends to offer it on the trial. Dudley v. A''. Y. Filler Mfg. Co., 80 App. Div. 164; Rogers v. Adter, 137 App. Div. 197. "Unless Mr. Cheesman testified' in the examination before trial that he lacked the mental capacity necessary for the ■'' JOToper performance of the diities of an executor, the moving parties could not be ex- 1 peoted to use his testimony on the trial, and ag Mr, Cheesman has denied the allega- tions contained in the objections, and is desirous of qualifying as an executor, it is , extremely improbable that he would testify to his own "want of understanding." It is therefore manifest that if the objectants expect to succeed on the trial of the issue as' to' Mr. Cheesman's inental capacity, they would not use on such trial the 700 surrogates' courts § 603 testimony given by him in his examination before trial. I think, therefore, that as it does not appear from the moving papers that the testimony of Mr. Cheesman, it taken before the trial, would be used upon the trial of the issue raised by the objeo- tions, and that as an examination of Mr. Cheesman as to his mental capacity can be conducted as effectively before me on the trial of the issues raised by the objec- tions as on an examination before trial undei- 8e(Jtion'873 of the Code, the applica- tion is denied. I will try the issue raised by the objections and answer on June 12y 1916. , ;, The proceedings are clearly addj^gsed to jbhe Surrogate's discretion. The proof must clearly point to some incompetency fixed by statute (Matter of Latham, 145 App: Div. 849), or to some personal qualities of the executor named such as to satisfy the Surrogate that it would be unsafe to put the estate in his hands. See Matter of Bennett, 60 Misc. 28, where Surrogate Ketchum overruled the objection that; if letters,. issued to A apd B they m%ht have parental bia§ that would , affect thpir ^xejcutorifil conduct. Executors are not "to be set aside merely in order that they may npt; be.led into temptation." The theory upon whicji the Surrogate proceeds, was outlined by Chancellor Walworth long before, the Code (seiB Mandeville v. Mandeville, 8 Paige, 476), where in construing a similar provision of the Revised Statutes (2 R. S. 72, § 18), he said :" It certainly could not have been the intention of the legislature, to prohibit the granting of letters testa- mentary to any executor except such as are possessed of property of their own, to the full value of the estate which the testator has authorized and appointed them to administer; or that an executor should be superseded in his trust, or required to find security, whenever his property was reduced below that of the decedent. Such a construction of the statute would render it almost impossible for a man of a large property to select; an executop who would be both able and willing to assume the' execution of the trust. The obvious meaning of the statute is, that an executor may be required to give security, whenever the Surrogate is satisfied that his circumstances are such as to render it doubtful whether the property will be safe in his hands, to be disposed of, or administered, as directed by the will." The statute in question construed by the chancellor was one authoriz- ing the Surrogate to require an executor to give security, "where his cir- cumstances have become so precarious as not to afford adequate security for the due administration of the estate."' For this statute the present provision of the Code has been substituted and it has been held (Martin v. Duke, 5 Redf. 597, 600, approved in 36 Hun, 122; 127, Rollins, Surr.), to have been designed to give the Surrogate power to refuse letters whenever under, all the circumstances of the case he should be of the opinion that such a course was proper for the protection qf the rights and interest of the beneficiaries under the will. Thrift, integrity, good repute, business capacity and stability of character, for example, are circumstances which may be very properly considered in determining the question of adequate security. §603. Same. — Where the objections alleged are those specified in § 2564, subd. 1-5, the Surrogate has no discretion but must refuse to issue § 604 LETTERS, GENERALLY 701 lettefs. And where, having all the facts before him, he finds a person to be incompetent under subd. 5 of § 2564, as, for example, by reason of drunken- ness, his finding will usually not be disturbed. Matter of Cody, 36 Hun, 122, 125, where Hardin, P. J., observes that it was the intention of the legislature to provide in former § 2637 a somewhat speedy and summary determination of the questions raised by objections made to the competency of a person to serve as executor, and the learned justice cited with approval certain lan- guage of Judge Denio {McGregor v. Bv£l, 24 N. Y. 169), "The propriety of issuing or withholding such letters," i. e., in this case special letters of administration, "is plainly dependent upon the exigencies of the estate, the amount and situation of the estate, and other circumstances which require to be judged of summarily and are not suitable to be litigated thi-ough the courts upon appeal. The determination of the Surrogate upon silch questions is as it should be summary and exclusive." This rule may well continue to be applied, in spite of the repeal of § 2637. The improvidence contemplated by subd. 5 of § 2564, is that want of care or foresight in the management of property which would be likely to render the estate and effects of the decedent unsafe and liable to be lost or di- minished in value by improvidence in case administration thereof should be committed to such improvident person. Matter of Cady, supra. A man who is careless and improvident or who is wanting in ordinary care and forecast in the acquisition and preservation of property for himself cannot with safety be entrusted with the management and preservation of the property of others. Coope v. Lowerre, 1 Barb. Ch. 45. So as above indicated it has been held that the fact that the man was a professional gambler is presumptive evidence of such improvidence as to render him incompetent to discharge the duties of executor or administrator (McMahon V. Harrison, 6 N. Y. 443), and the Court of Appeals (Emerson v. Bowers, 14 N. Y. 449), in defining improvidence says: "The term evidently refers to habits of mind and conduct which become a part of the man and render him generally and under all circumstances unfit for the trust or employ- ment in question." See also Freeman v. Kellogg, 4 Redf. 224; Matter of Cady, 36 Hun, 122. See also Matter of the Administration of the Goods of Daniel C. Shilton, 1 Tucker, 73. § 604. Effect of testator's dispensing with security. — Of course, where a testator has chosen his executor and has expressly provided that he shall serve without bond, the court will not be likely to disregard his wishes but will rather indulge in the presumption that the testator had just grounds for his confidence in the integrity of the executor; but if there is palpable proof showing that the testator has made an injudicious and unsafe selection, the court has fuU power to interfere. Ballard v. Charles- worth, 1 Dem. 501. Still, if nonresidence is the only objection, then § 2567 controls. It replaces § 2638 which used the words : " If he has an office within the state, for the regular transaction of business in person." Now it reads after the words "is not a resident of the state" . . . "and he is a citizen of the United States." So, if he be shown to be a citizen, and "the 702 surrogates' courts i|;605 will contains an express provision" dispensing ^ith security the executor named "is eniiifed to letters." ,, §605. What is adequate security?^ — The words "adequate security" used in §§ 2564 and 2567 are in a context more favorable to^ the executor than the language of the former statute, which reads, "that hig circuin- stances are so precarious" instead of as at present, "his circumstances are such." Hovey v. McLean, 1 Deqi. 396, 398, citing Shields y. Shields,,, 60 Barb. 56. And t^e words "adequate security" do not refer primarily to pecuniary responsibility but to the executor's "habits of husbandry wrhethejr provident or improvident, whether reckless, or careful." Mandevillgv. Mandeville, 8 Paige, 475; Shields v. Shields, supra; Ballard v. Pharle^orthj 1 Dem. 501. So security will not be required merely because the e^ecutpr does not own property to the full value of the estate, Mandeville v.Mfande- ville, supra. Nor on the other hand " because he has an ill-regulated, temper or lacks self-control" or has eccentricities of character. McGregor v. Mc- Gregor, 1 Keyes, 133. But if a person is not oflly insolvent but pressed by his creditors, is knowii to be dishonest, or to have resorted to the trust funds to relieve his personal obligations although under th^ guise of loans, or even where he is shown to be too intemperate and too infirm tq attend to the duties of the estate, or is a nonresident, a Surrogate may properly reject him. Matter of Cody, 36 Hun, 122; Goodenozigh v. PeGrqpi, 3 ha,yv Bulletin, 35; Estate of Petrie,5 Dem. 352; Matter of Smith, 16 Weekly Dig. 472. Mere poverty, it is manifest, is no reason for requiring a hofid,. ,BO'l- Idrd V. Charlesworth, supra. CHAPTER III PROCEDURE ON APPLYING FOR LETTERS § 606. Differentiations. — In former editions we covered the practice on applying for each particular form of letters. The new generalization in the Act of 1914 is nevertheless attended with some differentiations which must be noted. The generalization can hardly be called logical. Letters testa- mentary, as noted, are covered in §§ 2558 et seq., whereas probate, which must precede them is covered in §§ 2607 et seq. Hence, we have to examine various articles of several titles before we can be sure of covering the ground. Perhaps if we first note the differentiations calling for a special method of procedure or for particular safeguards to be employed, we will gain a clearer knowledge of the procedure in the end. Letters Testamentary or c. t. a. In Matter of Mayer, 144 N. Y. Supp. 438, it is held that the application for letters testamentary is a proceeding separate from the probate proceeding — with this we do not agree. It is an application subordinate to or implicit in the probate proceeding; but is not independently begun nor prosecuted. Under Probate we quoted § 2616, which requires that "before letters are issued" in a probate proceeding, t)ut fixing no definite time, "a written notice," Entitled in the proceeding. Stating the name of the testator, That his last will and testament has been offered for probate Or probated, as the case may be, And the name and P. O. address of the proponent, And of each and every legatee, devisee, or other beneficiary, etc., must be mailed to each of said beneficiaries. The introductory words "before letters are issued" clearly relate this section to §-2566 and afford every person interested an opportunity not only to contest the will in toto, but to object as well to the issuance of letters. The act provides when letters may issue. § 2626. When letters testamentary may be issued. After a wil has been admitted to probate any person entitled to letters there- under who is competent by law to serve, and who appears and qualifies, is entitled to Jetters testamentary thereupon. A pCTSon entitled to letters upon a contingency may appear and show that the contingency Las happened by which he is entitled to such letters. A person named as an executor by a person other than the testator under a valid power contained in a WiH, must appear and file an acknowledged or proved, and S 606 703 704 STJRKOGATES' COURTS § 606 duly certified selection of himself as an executor within fifteen days after the date of the decree admitting the will to probate, in default whereof the power of selection is deemed to have been renounced, unless for good cause shown the surrogate ex- tends such time or relieves the default. New. From §§ 2636, 2640 of this Code. First: The right or title to letters is "thereunder," i. e., under the will, as already noted, (a) by. direct nomination, (6) by indirect nomination, e. g., under a power. Second : It is dependent on competency, which we have , discussed. . Third: It calls for the act described as qualifying. By the word "qualify" used in §2625 ("executor who appears and qualifies") is meant the taking of the official oath required by law. This oath must be filed with the Surrogate before letters are issued. The .char- acter of the oath is prescribed by the Code. § 2568. OSicwl oaths. The official oath or affirmation of an executor, administrator, guardian, or testa- mentary trustee, to the effect that he will well, faithfully and honestly discharge the duties of his office, describing it, toust be filed in the surrogate's officp, before letters are issued to him, or he is permitted to act. The oath may be taken before any officer who is authorized to administer oaths. Former § 2594. Surrogate's Court, ' County of Oath of executor. In the Matter of the Probate of a paper writing purporting to be the Last Will a,nd Testament of Deceased. County, BS.: 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 faith- fully discharge the duties of Execut Of said last will and t'est«r ment according to' law. I Note. When neces- Sworn to before me this | . , sary secure county day of , 19 J . , . ' clerk's certificate. Seall (Post-oflfece address.) Note. ' '' ■ 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 vuider 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 by forfeiture may occur and the time to prove' death or loss may be expiring. For the courts have most strictly upheld the rights . of the insurer to hold the assured to the. terms of the contract pi insurance in respect of the time within which proofs of loss must be submitted* And § 607 PROCEDXJKE ON APPLYING FOR LETTERS 705 the court will not write into the contract of insurance where the time is Umited from the occurrence of the fire such words as, "within sixty days," or whatever the time may be, "after letters testamentary are issued." There is no question, however, that an executor would have the power (and his exercise thereof would be upheld by the courts) if he presumed to act al- though 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: 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 responsibiUty of furnishing proofs under his qualified power under § 2693 to preserve 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. § 607. Renunciation. — A person named in a will as executor may be perfectly competent to. serve but cannot be compelled to serve. Provision is made by the Code in this connection as follows: § 2628. Renunciation, etc. 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 duly certified, 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 l?een 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 upon such notice as the surrogate may require. An instrimaent specified in this section must be filed and recorded in the surrogate's office. Former § 2639, Code Civ. Proc. This section is clear. But it has been held that an oral renunciation 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 ftetracted 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- '4oR. to administer the estate regardless of the disquaUfications imposed by 'the act. 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 physician's attendance, the Surrogate held that it iwoujd 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, 706 SUKROGATES COURTS 608 471, Betts, Surr. Or the retractation may be permitted in the.interests of justice. See Matter of Dunham, 165 App. Div. 165. § 608. Renunciation not a resignation. — The renunciation contem- plated' by § 2628 is a renunciation pf the appointment and not of the, pfEce. That is to say, one named in a will as executor may file a fornaal document of renunciation waiving the right to administer the estate and decline to receive letters testamentary. The following precedents ampUfy the text: Renunciation executor. by Note. This is re- quired in Erie County and seems to be a pre- cautionary require- ment only. Note. This Renun- ciation must be ac- knowledged 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 satis- faction , of the Sva- rogate by affidavit. If taken before an officer residing' in an- other county, attach certificate of comity clerk. Retraction of a Re- nunciation. Note. Where the right to administer has been renounced, the retraction should specify the relation- Ship and priority of ap- Court. Title. I, of the of New York, Execut pointed in and by the Last Will and Testament of late of the of County of Erie, New York, de- ceased, 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. ■ AFFIDAVIT OF IDENTIFICATION State of New York, ] . {Note.) County of Erie. J " of the county of New York, being duly sworn deposes and says that he is well acquainted with the person mentioned in the foregoing Reiiunciktion, and with h manner and style of handwriting, having ! often seen h write, and that deponent verily believes that the signal ture purporting to be the signature of the aforesaid person signed to the said Renunciation, is the true and genuine handwriting and signature of the aforesaid person. {Note.) Sworn to before me, this 1 day of 19 J Person making affidavit to sign here. Officer taking affidavit to sign he;;e. Court, J Title. I of the city of New York, one of the executors named and appointed in and by the last will arid testament of late of the city of New York, deceased, {note) do hereby retract the Renunciation of my said appointment, and of the right and claim to letters testamentary on said will or of administration, {as the case may be), and the right to act as one of the executors thereof, which was by me made and ac- knowledged on the day of 19, and filed in § 609 PROCEDTTEE ON APPLYING FOR LETTERS 707 right of the one re- the office of the Surrogate of county; and pray tracting. that letters testamentary (or letters of administration) may be granted to me, according to law, as'one of such executors thereof. (Date.) (Signature.) The same rule holds as to acknowledgment, etc., as noted above. § 609. Resignation contrasted with renunciation.— But once letters have been issued and an executor or other trustee has qualified, the only way in which he can be relieved of the duties of the office is by a resigna- tion which must be acted upon by the Surrogate. The word resignation is here used both in the sense of an application by an executor for a revoca- tion of his lettejrs under § 2569 hereinbelow discussed, and the new practice under § 2572, for it had been held that an executqr or administrator had no power to resign. Matter of Curtiss, 9 App. Div. 285, 295, aff'g 15 Misc. 545, upon opinion of Silkman, Surr. So in the case of Tilden v. Fiske, 4 Dem. 357, Judge Rollins held that, where a will provided for the filling of vacancies that might be caused by death, neglect to quaUfy, disqualifica- tion, resignation or removal, that the resignation Bontemplated was prac- tically the qualified right which any executor has to the revocation of his letters upon compliance with the statute under former §§ 2689 and 2690, Code Civ. Proc. There is no other way in which an executor can be re- lieved of the duties of his office but pursuant to statute, and by dying. § 2572 permits an application for resignation (see below), Surrogate Rollins declared, in the Matter of Suarez, 3 Dem. 164, 167, that in no re- ported case had the right to retract a renunciation 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 Judson V. Gibbons, 5 Wend. 224; Robertson v. McGeoch, 11^ Paige, 640. Therefore one who has become invested with the office of executor cannot then renounce the appointment. Matter of Suarez, supra. Moreover, one who has resigned and been discharged cannot retract his resignation. Matter of Beakes, 5 Dem. 128. It appears, therefore, that the renunciation must be made before the issuance of letters; resignation may only be made after, qualifying. Resignation may not be retracted, renunciation may be retracted in one of the cases provided for in § 2628, Code Civ. Proc. So whfire there were two executors named in a will and before letters were 'issued.one renounced and the other qualified, and the latter was subse- quently removed for cause, it was properly held that the former executor could retract his renunciation and ask for letters. Codding v. Newman, 63 N. Y. 639. But leave of the court must |)e obtained to retract a renun- ciation. Matter of Dunham, 165 App. Div. 165; -ilfaifer 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, 708 surrogates' courts § 610 92 Hun, 318, 322. When one renounces and then asks leave to retract, the Surrogate in his discretion may take all the circumstances into considera- tion, and is not limited, in refusing his consent, to the existence of statutory reasons for refusing letters. Thus, where A renounced, 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 letters. Matter of Clute, 37 Misc. 710. On the other hand, revocation of letters completely ter- minates the functions of the executor. In such case he cannot be rehabili- tated. The decree of revocation must be regarded as conclusive and final, unless obtained fraudulently or on some other ground which would war- rant the court in setting aside or vacating it. Thus, where there were two executors named in a will and one alone quahfied and was subsequently 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 executgr had regained his sanity and had been judicially declared sane, there was no power in the Surrogate to reappoint this execu- tor, 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 administration 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 re- fused to act. A deed by the only one who qualified was rejected as insuffi- cient tagive title. On an agreed statement the court held the deed good under former § 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 valid, 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 inappUcable the provisions of § 2642." § 610. Importance of promptly qualifying. — The Code covers three cases when an executor fails to renounce or quaUfy, and fixes the time within which he must qualify. ; §2627. ExecuUrr, faUirig to maUfy-f-how exchided. ' If a person, named as executor in a will, does not qualify or renounce within fifteen days after probate thereof; or if a person, chosen by virtue of a power in the will, does not qualify or renounce within fifteen days after the filing of the instrument designating him; or, in either case, if objections are filed, and the exec- utor does not qualify or renounce, within five days after they are determined, in his favor, or, in a case specified in section 2567 of this act, within five days after an objection has been established, the surrogate must, upon the appUcation of any other executor, or any creditor, or person interested in the estate, make an order requiring him to qualify within a time therein specified; and directing that, in de- § 611 PROCEDURE ON APPLYING FOR LETTERS 709 fa^It of so doing, he be deemed to have renounced his appointment, Where it appears, by affidavit or other written proof to the satisfaction of the surrogate, that such an order cannot, with due diUgence, be served personally within the state upon the person therein named, the surrogate may prescribe the manner in which it must be served, which may be by publication. If the person, so appointed executor, does not qualify within the time fixed, or within such further time as the surrogate allows for that purpose, an order must be made reciting the facts, and declaring that he has renounced his appointment as executor. Such an order may be revoked by the surrogate ia his discretion, and letters testamentary may be issued to the person so failing to renounce or qualify, upon his application, in a case where he might have, retracted an express renunciation, as prescribed in the next section. Former § 2642, Code Civ. Proc. B § 611. Letters c. t. a. — As to letters cum testamento annexo, except for the peculiar order of priority prescribed in § 2603, the practice in apply- ing for them is assimilated to that for general letters in intestacy. PKIORITY OF RIGHT TO LETTEKS C. T. A. The act provides: § 2603. Letters of administration with mil annexed; when and to whom granted. If no person is named as executor in the will, or selected by virtue of a power contained therein; or if, at any time there is no executor, or administrator with the will annexed, qualified to act; the surrogate must, upon the application of a creditor of the decedent, or a person interested in the estate of the decedent, or having a lien upon any real property upon which the decedent's estate has a lien, and upon such notice to the other creditors and persons interested in the estate as the surro- gate deems proper, issue letters of administration with the will aimexed, as follows: 1. To an executor or administrator of a sple legatee and devisee named in a will. 2. To one or more of the residuary legatees, who are qualified to act as adminis- trators. A corporation which is a residuary legatee shall be qualified to act as such administrator, although not specially authorized by its charter or any provision of , law. 3. If there is no such residuary legatee or none who will accept, then to one or more of the principal or specified legatees so qualified. 4. If there is no such legatee or none who will accept, then to the husband, or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees, so qualified. If any of the above persons who would otherwise be entitled to letters is an infant or an adjudged incompetent, administration may be granted to his guardian or committee as the case may be, unless there is an adult or competent person equally entitled who will accept the same. 5. If there is no qualified person, entitled under the foregoing subdivisions, who will accept, then to the public administrator, and if there be none for the county, to the treasurer of the coimty or to the petitioner in the discretion of the surrogate, and if neither wiU accept, to any creditor or competent person designated by the surrogate. Except as to the right of priority as provided in this section, the provisions of section 2588 of this chapter apply to an application for letters of administration with the wiU annexed. Former § 2643 of this Code, modified. From 2 R. S. 71, §§ 14, 17; L. 1881, o. 535; L. 1895, c. 734; L. 1901, c. 141; L. 1910, c. 585. § 2604. Id.; renunciation or exclusion of persons having prior right. Where a person applies for letters of administration with the will annexed, as 710 surrogates' courts § 611 prescribed in the last section, and another person has a right to the administration, prior to that of the petitioner, a citation must issue accordingly unless a renunciation acknowledged or proved and duly certified of every person having such a prior right is filed. The surrogate may in his discretion issue a citation to a person equally entitled. The proceedings thereupon are the same as upon an application for ad- ministration upon the estate of an intestate. Former § 2644 of this Code, modified. From 2 R. S. 76, § 35. Former § 2643 was amended, Laws 1901, chap. 141, in respect of guard- ians of minors, otherwise entitled, taking the letters which the infants but for minority would have taken. This superseded the rule laid down in such cases as Matter of Milhau, decided in 1899, 28 Misc. 366, whiere a general legatee was preferred to the corporate guardian of an infant re- siduary legatee. The amendment of 1910 to subd. 2, now enables an incorporated re- siduary legatee to act. .See Matter of Sheehan, N. Y. L.' J., Dec. 5, 1911- and Matter of Robinson, 142 App. Div. 913. See, also, amendment to § 186 of the Banking Law, by chap. 687, Laws 1911; giving foreign trust companies power to act as executor or trustee here, provided the state of their incorporation extends a similar privilege to our Trust Companies. In Matter of Haiig, 29 Misc. 36, the executor of a sole legatee was pre- ferred to a nephew of the testator, whose father died after the testator, his brother. This was on the ground that the son was not, under these circumstances, entitled in his own right, under the definition of next of kin in former § 2514, now § 2768, subd. 12, "to share in the unbequeathed residtie," etc. This section should be read with § 2588. Subdivision 1 prefers the residuary legatee, as one obviously interested in an economical adrninistra- tion. Matter of Lasak, 121 N. Y. 706; Matter of Goggin, 43 Misc. 233. Hence, if such residuary legatee die, his executor should be preferred to next of kin who are not entitled to share in the distribution. Ibid. Under subds. 3, 4 and 5, reference should, be had to the provisions of § 2588 giving certain priority in New York over public administrator to the executor or administrator of a deceased sole legatee. See chapter on Parties as to who is "person interested." And see 'opinion of Ketcham, Surr., ill Matter of Brown, 60 Misc. 628; Matter of Blauvelt, 72 Misc. 287; Matter of Davis, 48 Misc. 489. WHEN THE APPOINTMENT OF SUCH AN ADMINISTHATOH C. T. A. IS PROPEK This section discloses six cases in which an appointment of an adminis- trator with the will annexed is proper: (o) When no person is named executor in the will. (6) When the will contains provision for the selection of the executor by virtue of a power and the power is not exercised within the time speci- fied, or in the manner required by § 2625. (c) Where the executor named dies, either before or after receiving letters. § 611 PKOCEDURE ON APPLYING FOE LETTERS 711 (d) Where objections to an eixecutor, named in a will, or selected under a poWer, are ifaade and sustained under § 2566. (e) Where the executor named renounces under § 2628, or has failed to qua-Hfy under § 2627. (J) Or where the executor having qualified has been guilty of such con- duct as to require the Surrogate to revoke his letters under §§ 2569 or 2524. It might be added, as a seventh instance, where there has already been an administrator with the will annexed who has died or Whose letters have been revoked, as of course he must be succeeded by a similar officer if his duties in regard to the estate have not been completed. In Matter of Macmffil, 57 Misc. 264, aff'd 127 App. Div. 21, the applica- tion was for revocation of letters testamentary on the ground that the will failed to dispose of any personalty, and the realty was given directly. Held, if such letters were to be revoked, letters c. t. a. would nevertheless issue, and not general letters of administration as the intestacy necessitating the latter was of thfe person and not as to specific property. See also Matter of Haughian, 37 Misc. 457. As already noted, in the discussion of the nature and scope of the oflSce, we no longer have to reckon with the lOng line of cases holding that a successor trustee and not an administrator c. t. a. must be appointed when the powers under the will appear to be personal and discretionary. For now the appointee has every power of the original executor. WHO MAY APPLY FOR APPOINTMENT Section 2603 names three classes of persons who may make the applica- tion to have an administrator with the will annexed appointed. (a) Creditors of the decedent. (b) Persons interested. (c) A person having a lien upon any real property upon which the de- cedent's estate has a lien. This must not be confused with "priority of claim to letters." That is discussed below. Under the first head of creditors of the decedent, one who subsequently, becomes a creditor of the estate in the hands of the executors is not in- cluded. Fowler v. Watter, 1 Dem. 240, 243, Rollins, Surr. A half-sister, taking nothing under the will, nevertheless has the interest requisite to support a petition for such letters. See opinion of Ketcham, Surr. Matter of Brown, 60 Misc. 629, overruling Matter of Goggin, 43 Misc. 233. WHAT CONFERS JURISDICTION ON THE SURROGATE The application for administration with the will annexed is usually made to the court of the Surrogate who issued the original letters testa- mentaiy or who had jurisdiction of the probate of the will. But there are cases where a will has been proved in a foreign judicatory, assets of the es- tate being, in this State which have not been administered under the prin- cipal administration. In such a case a New York Surrogate would have 712 SUBEOGATES' COURTS, §611 power to entertain an application npt only for ancillary administration, but for principal letters of administration with the will annexed. But if there be no assets unadministered, letters will, not be gran|;ed. Matter of Bedford, 130 App. Div. 642. The practice existed before the enactment of the Code, and Surrogate Rollins held.that it is not abolished by,the Code. Hendrickson v. Ladd, 2 Dem. 402. In this case a will had been proved in California and letters granted thereon; exemplification of the will and of the proceedings for probate thereof in the Probate Court of the county of San Francisco were produced and filed, together with an . instrument whereby the executors in California renounced their right to admim?ter, in the State of New York; the will was then recorded as a will of real apd personal property; the petitioner, the widow of decedent and residuary, legatee under his will, filed a petition alleging the facts asto. the probate of the will and the qualifying of executors in the State of California and the_ existence of assets in the county of New York of the value of $400,, which had not been administered upon. Letters of admiaistration with the iwill ^ annexed in the ordinary form of local or domiciliary letters (exceipt that they purported to be issued upon an exemplified copy of the ; decedent's will and upon the renunciation of the executors) were issued to,ithe peti- tioner; and subsequently, in proceedings to dispose of the decedent's real estate, and refusal by certain purchasers to take title on the ground that the administratrix must be held an ancillary administratrix ands therefore, prohibited by former § 2702 of the Code from instituting proceedings to dispose of the real property of the decedent, Surrogate Rollins upheld the regularity of the practice in procuring the letters c. t. a., and held that the administratrix was a domiciliary administratrix with the will annexed, and was not within the prohibition contained in former § 2702. It was held by Chancellor Kent in Goodrich v. Pendleton', 4 Johns. Ch. 549, that where a person died without the State the Surrogate had no power to grant letters of administration with the will annexed. This rule, however, no longer holds under the changes in the law that have since taken place, for a Surrogate can now acquire jurisdiction by reason of other facts than the residence or place of death of the testator; and so, 'if there are assets within the State, such as a debt due the decedent or a' chose in action, the Surrogate may assume jurisdiction. Hayward v. Place, 4 Dem. 487, aff'd 105 N. Y. 628, Rollins, Surr. So where the de- cedent resided in Hayti and his will, having been duly i admitted to pro- bate in that Repubhc, and authenticated copies thereof were produced, the Surrogate of New York assumed jurisdiction to admit the will on the authenticated copy and issued letters of administration with /the will an- nexed on the ground that the decedent had left assets within that county. The assets in that case consisted of a claim against a third person with whom it was alleged the decedent had deposited moneys. The General Term upheld his action and said thati."the, claim, itself; if made in good faith, is assets without reference to the.final result of a suit upon it,'!,;,iSjtWt-r mn v. Fosdicfc, 10Hun,J.73, 180, Davis, P. J. , ;,,.,, ; § 611 PEOCEDUKE ON APPLYING FOE LETTEES 713 PRACTICE UPON APPLICATION Reference must, in this connection, be also had to § 2605, which provides that an administrator with the will annexed must qualify as prescribed in § 2591, but that, in case of an administrator with the will annexed, the Sur- rogate, in fixing the penalty of the bond, "must take into consideration the value of the real property or of the proceeds thereof," which may come into such administrator's hands by virtue of any provision contained in the will, and also how much of the estate if any has already been adminis- tered. But the reference to § 2591, it was formerly held, did not extend the power given to the Surrogate, to accept reduced security in certain cases from administrators in chief, to administration with the will annexed. See Estate of LeRoy, 16 Civ. Proc. Rep. 343. But under the new act the Surrogate may reduce the bond and under the former act, former §§ 2693 and 2645 were construed as fixing the minimum penalty of the bond as double the value of the property left unadministered. Sutton v. Weeks, 5 Redf. 353. See Matter of Nesmith, 6 Dem. 333. Any one of the persons stated in § 2603, as entitled to letters of adminis- tration, may make the application. The proceedings to secure such letters must be initiated by petition. Section 2603 reads: f he surrogate must, upon the appUcation of . . . and upon such notice, etc. . . . issue letters. But § 2604 referring to persons having a prior right mentions the "pe- titioner." But where a person applies for letters of administration with the will annexed, as prescribed in the last section, and another person has a right to the administration prior to that of the petitioner, former § 2644 required a pjBtition only in case there was a person having such' a prior right. That provision is now omitted from § 2604, quoted ante. The wording of former § 2644 warranted the inference that in any other case, i. e., where the petitioner is the one having the prior right, his ap- plication may be informal, and the manner and form thereof and of the notice the Surrogate may direct him to give to other parties interested may be such as the Surrogate may direct. Estate of Brooks, 4 Law Bull. 8. The practice is now in any event to file a petition containing allegations first establishing that occasion exists for the grant of such letters, defining the relationship of the petitioner, and stating whether there are, or are not, persons with a right to administer prior to that of the petitioner, and if there are, pra3ang that the Surrogate make such direction in the premises as he deems necessary as to the manner and time, of notice to be given the other parties interested if any be cited or alleging that they have renounced. Where there is an allegation of renunciation the written renunciation duly executed must be filed with the petition. The form of such petition is here indicated: 714 SURROGATES COURTS §611 Petition for letters of administration with the will annexed. Note. Or (State other cause termi- nating his. adminis- tration. Surrogate's Qpurt, County of Westchester. In the Matter of Administration, with the Will annexed,,, of the Goods, Chattels and, Credits left unadministered, which were of Deceased. To the Surrogate's Court of the County of Westchester: , of fespept- late of the departed this life day ' in the leaving a last The Petition of of the fully shows that he a of of said County, deceased, who in the of on the ' year one thousand nine hundred and Will and Testament, in and by which he appointed executor thereof. That the said last Will.an4 ,T,esta^ent was duly adniitted to probate by the Surrogate of the. County of Westchester, on the day of 19 and letters TESTAMENTARY thereon duly issued to the said And your petitioner further shows that the said the executor named in >.said Will, , h^ , departed [nofe) this life,, leaving property anjd, assets, pf^ the e^^d testator unadministered. That ypurj petitionej: ha to the best of ability, estimated and ascertained the value of the real- and personal estate of the said testator sitK' unad- ministered, .and that the same will not exceed in value the sum of personal property, and real property, . that the value of the real property coming into the hands of the Administrat with the Will annexed of the said Jast WUl^and Testament will not exceed the sum of dollars, according to the best of your petitioner's information and belief. Your petitioner further shows that the said testat at or immediately previous, to , death; was a residept of the County of Westchester, That your petitioner is of IvlA. age. On information and belief that said testator left him sur- viving the following and only persons having (or claiming to have) a prior right to your petitioner, to letters of adminis- tration with the Will annexed, to wit: , (7/ thesre are persons having such prior right and they have re- nounced, state the fact, and that and have re- nounced such right by renunciation duly executed and intended to be filed herewith.) ■ > That the following named persons have an equal rjght.wj^ih your petitioner to letters of administration with the Will an- nexed, to wit: (Where there are persons having a prior righi who have not re- nounced, the petition 'must pray that they be cited to show cause why administration should not ie granted to the pelitiorier. Where they have e^ual right it is discretvynary with the pofurt.) Your petitioner therefore , prays that letters of adminis- tration, with the Will annexed, of the goods, chattels and credits of the said deceased, so left unadministered' as §611 PROCEDXJRE ON APPl^YING FOR LETTERS 715 aforesaid, may be granted to your petitioner in pursuance of the statute in such case made and provided. Dated this day of 19 (Add verification.) The oath required is substantially identical with that of an adminis- trator. The real intent of § 2604 is to provide for the citation of certain parties who are thereby declared to be entitled to notice of the proceeding before the Surrogate. It has been held that where, for example, a residuary legatee quahfied to act as administrator, that is to say, a person belonging to the class first jn order of priority under § 2603, applied for letters of adminis- tration c. t. a., he was under no obligation to cite any other person as there could be no other person having a right prior to his own not even a person who was also a residuary legatee. Matter of Wood, 17 N. Y. Supp. 354, Ransom, Surr. ; Matter of Richardson, 8 Misc. 140. The Surrogate, however, has full power upon such an application to direct notice to be given to cred- itors or persons interested if he believes it jiecessary. Section 2603, Code Civ. Proc. The proper form of petition as was indicated by Surrogate Rolhns in Batchelor v. Batchelor, 1 Dem. 209, is one that prays for the is- suance of letters of administration to the petitioner. The learned Surrogate held that a petition asking that letters should issue to some third person such as the public administrator was improper; but it is clear, in the first place, that the petitioner must either bring himself within § 2603 {Matter of Allen, 2 Dem. 203); or, in the second place, if there are those having prior right, their written renunciation should be filed; or, in the third place, if they are not so filed, the petitioner must pray that they be cited to show cause why administration should not be granted to the petitioner. Such citation having then been duly issued and served, upon the return day, if such person having a prior right appear, and insist upon that right, the Sur- rogate will have jurisdiction to appoint such person in lieu of the petitioner. Were it not for the high authority of the Surrogate who decided the Batche- lor case it would be suggested as perfectly regular that a creditor, for ex-- ample, desiring to facilitate the collection of his claim from the estate which was so circumstanced as to require the appointment of an adminis- trator with the will annexed and not desiring such appointment himself should file a petition stating his interest and giving the names of persons having a prior right to administer if any, and praying for the appointment of such a person. But under the practice indicated by Surrogate Rolhns the creditor must take the risk of being appointed the administrator, and of subjecting himself to the responsibility of distributing the estate in case none of the persons having a prior right appear and assert such right upon the return day. PRIOHITY OF CLAIM TO LETTERS Sectiqn 2603 quoted above defines the order of precedence in right in which various classes of persons interested in the estate of the decedent and creditors stand in relation to the right of administration c. t. a. Thi& 716 surrogates' courts § 611 section is not to be confused with § 2588 which provides the order in which relatives of the decedent are entitled to letters of administration in cases of intestacy. But they are to be read together, e. g;, as to preference, be- tween two equally entitled, of men over women, etc., etc. The sta.tute must be strictly followed, and if application be made by a person showing himself to have priority, letters must be issued by the Surrogate. Matter of Manley, 12 Misc. 472; Matter of Place, 105 N. Y. 629; Matter of Davis, 48 Misc. 489. If letters be inadvertently issued to one not entitled the decree can be opened. Thus in the N. Y. L. J., November 29, 1911, the Surrogate held in Matter of McCahill: The applicant, a niece of decedent, who is one of the residuary legatee^ under his will, is entitled to letters of administration c. t. a. in preference to the respondent, who is not named in the will, but is a son and one of the next of kin of a deceased legatee, who was a nephew of the testator (Estate of Louise B. Stillwell, Surr. Dec, 1911, p. 401). The respondent having failed to cite the petitioner, the decree grant- ing letters to him is vacated and set aside and the letters issued thereunder revoked, and letters will issue to the petitioner upon her duly qualifying. The preferences among those belonging to the same class are not controlling in the same absolute sense, as one class has priority over those subordinated in the order of right. As to those in the same class, the preferences control where other things are equal. Ibid. See opinion by Thomas, Surr., in Matter of Treadwell, 37 Misc. 584. In a later case. Matter of Ferguson, 41 Misc. 465, Church, Surr., refused to follow Thomas; but his selection was after all colored by an objection to the one rejected on. the score of "improvidence," and the Treadwell case is authoritative by force of its reasoning. Letters of administration with the will annexed can only be denied to one otherwise entitled for some cause constituting a statutory disqualification. Matter of Place, 105 N. Y. 529, aff'g 4 Dem. 487. The nature of such disqualification has been held to be defined by § 2564, which defines the incompetency which will prevent letters of administration generally. It will be noted that the disqualifications no longer differ slightly from those contained in former § 2612, relating to executors; the difference was merely formal, however; the grounds of objection are now identicaland will be administered on the same principles. Thus, one pardoned after conviction of an infamous crime is recapacitated as noted above, in discussing ikfaiter of Raynor, 48 Misc. 325. TJie clause contained in former § 2612 and omitted in former § 2661 was by its terms applicable to cases of administration,, since it read as follows: "A Surrogate in his discretion may refuse to grant letters testamentary or of administration tp a person unable to read or write the English language." Care must be taken not to confuse the right of administration and priority fixed by the statute in case of administration 0. t. a., with the rule which the statute provides (see § 2631, Code Civ. Proc), regarding the preference of persons as ancillary administrators with or without the will annexed, where persons may be preferred who come into the courts Of our State showing a right under judicial proceedings in § 61 la PROCEDURE ON APPLYING FOR LETTERS 717 a foreign country to the possession of the personal property of the de- ' cedent, or where they represent such a person by legal power. § 611a. Representative of one entitled to letters is entitled where dece- dent so entitled was sole legatee.— It seems that the English rule has been and still is that where the residuary legatee survives the testator and has a beneficial interest, his representative has the same right of administra- tion cum testamento annexo as the residuary legatee himself and is therefore entitled to administration in preference to the next of kin or to legatees. Williams on Executors, 465. At first, under the Code, the courts denied the right of the representative of such legatee to letters in preference to those named in the statute as entitled in case there be no residuary legatee or none who will accept. Kircheis v. Scheig, 3 RedL 277; Matter of Allen, 2 Dem. 203; Lathrop v. Smith, 24 N. Y. 417; Matter of Brown, 2 Connoly, 386. But § 2588 of the Code, under its old number 2660, has been held applicable in several respects to administration under a will. See Matter ofMoehring, 24 Misc. 418; Matter ofLasak, 121 N. Y. 706; Matter ofGoggin, 43 Misc. 233. And so, in Matter of Haug, 29 Misc. 36, 38, Fitzgerald, Surr., held that it was similarly applicable in respect to the provision incorporated in it that "letters of administration shall also be granted to an executor or administrator of a deceased person named as sole legatee in a will." He pointed out that § 2660 gave "the public administrator in the city of New York preference, after the next of kin, and after an executor, or ad- ministrator of a sole legatee named in a will, whereby the whole estate is de- vised to such deceased sole legatee, over creditors and all other persons." Accordingly he preferred the executor of such deceased sole legatee to the son of decedent's brother who died after testator, and revoked letters orig- inally granted to such nephew. But he also held that as there was living a sister of testator, next of kin, she had a right under subd. 3 of § 2643, now 2603, prior to that of the executor of the deceased sole legatee, and he granted her the right to retract a renunciation made by her when the nephew originally applied for letters. With this in mind, it is clear that § 2603 prescribes the order of priority, so if there are none of the first class available then the right passes to the next class and not to the representa- tives of the first class, and so on, until the case contemplated by subd. 4 is reached, which is applicable as it reads, unless the exceptional case covered by § 2588, above discussed, exists. It was held that former § 2693, which declared that the proceedings in procuring letters of administration c. t.. a., for the successor of the original holder or holder of letters, shall be the same as in cases of intestacy did not change, the order of priority established by former § 2643, but simply indicated the practice which must be followed by the person entitled to letters in order to obtain their issuance. Hayward v. Place, 4 Dem. 487, 490, Rollins, Surr. PKIORITY AMONG PERSONS OF THE SAME CLASS The principle is unchanged where several persons apply for appoint- ment or are available, all belonging to the same class, there being none of 718 surrogates' courts § 611a a class priority entitled, no one of such persons has an absdltite legal right as against the others to receive such letters. Quintard v. Morgan, 4 Dem. 168. In such a case the Surrogate has a discretion in making his selection. Matter of Beakes, 5 Dem. 128; Quintard v. Morgan, supra; Matter of Powell, 5 Dem. 281; Matter of Treadwell, 37 Misc. 584, 586; Matter of Davis, 48 Misc. 489. But see Matter of Ferguson, 41 Misc.* 465. The discretion is influenced by the nearness of relationship and by the quantum of interest. Nor need those having only equal claims be cited. Ibid., citing Matter vf Wood, 17 N. Y. Supp. 354; Matteir of Richardson, 8 Misc. 140; Matter of Lasak, 8 N. Y. Supp. 740, aff'd 121 N. Y. 706.' Under subd. 2 and 3 of § 2603 it appears that a residuary legatee having the second rank of priority may not be qualified or may not accept. If so, the Surrogate may appoint "one or more of the principal or specified (sic) legatees so qualified." This does not prefer principal over specific legatees. It gives the Surrogate discretion. "Principal" is used in the sense of "general." Quintard v. Morgan, 4 Dem. 168. Usually, the greater the interest the greater the chance of being selected. Ibid, And see Matter of Beakes, 5 Dem. 128. But, Surrogate Rollins held, in another case, that this rule was not arbitrary or controlling, that is, undue weight must not be given to mere preference by the testator, such as, for example, the amount of the legacy indicated in the will, but that, other things being equal, such preference might properly be allowed to have some weight. Matter of Powell, 5 Dem. 281. And the Surrogate in that case selected of two lega- tees a resident of the- State related to the testator as against a nonresident of the State, not of decedent's blood. So in another case the same Surrogate held, that where a testator's residuary estate is held in trust and occasion arises for the appointment of an administrator c. t. a., the beneficiary of the trust is entitled to letters in preference to his trustee. Matter of Roux, 5 Dem. 523, citing Matter of Thompson, 33 Barb. 334, afif'd 28 How. Pr. 581. It has been held, moreover, as between parties having a similar in- terest, indebtedness io the estate, or personal interest in its administration, is not of itself ground for rejecting the applicant (Churchill v. Prescott, 2 Bradf. 304; Quintard v. Morgan, supra); nor that the applicant was en- gaged in a proceeding involving the construction or validity of the will. Ibid. What has beeii already intimated in regard to the guardian of an infant applies only to cases where there are others equally entitled with the infant. Where the infant is absolutely entitled as against all other parties but for his infancy, it is held that letters must issue to the guardian of such person. This appears from § 2588 where there is a totality of interest, in the in- fant, and in the discretion given by § 2603, where the infant is on a plane of equality of right. This was the rule under 2 R. S. chap. 6, title 2, § 33, vol. 4, Banks' 8th ed., p. 2553. This statute is now superseded by the provision of § 2588, which provides briefly that if a person entitled is a minor, administration must be gra,nted to his guardian if competent in preference to creditors or other persons. Blanch v. Morrison, 4 Dem. § 611a PROCEDURE ON APPLYING FOR LETTERS 719 297, Rollins, Surr.; so also Maiter of Lasak, 8 N. Y. Supp. 740, aff'd 121 N. Y. 706; so also Matter of Tyler, 6 Dem. 48, 51, Coffin, Surr. MISCELLANEOUS CASES It is of course true in this case, as in all others where a person claims as belonging to a class specified in the statute, that the Surrogate has power to inquire into and determine whether the claimant does or does not be- long to such class; as for example in Matter of House, 2 Connoly, 524, where the decedent had been twice married, and his first wife Mary was a resi- dent of the State of New York, but her husband, having left her, proceeded to Ohio whCTe he commenced an action for divorce and obtained a judgment of the Ohio court, no process in said action having been personally served upon his said wife nor did she appear or authorize anyone to appear for her in said action; he subsequently remarried in the State of Michigan after which he returned with his second wife to the State of New York, where he lived until his death. The decedent left certain household effects and a chose in action, a supposedly valid claim against a railroad company by reason of his ha,ving been accidentally killed upon its tracks. Both women forthwith applied to be appointed administratrix. The Surrogate asserted his power to inquire into the facts, declared the Ohio divorce illegal and void in the State of New York against the first wife, declared her to be the lawful widow of the decedent, and issued letters to her. So again where a party claimed to be a creditor, the Surrogate upon inquiry into the facts found him to be merely a claimant imder a contract made with the execu- tor and not with the decedent, and declared him consequently not to be a creditor of the decedent as required by the terms of former § 2643. Fowler V. Walter, 1 Dein. 240, Rollins, Surr. So, also, where the facts are uncon- troverted at the time, but subsequently application is made to have the letters revoked on the ground that the person did not sustain the relation alleged upon the apphcation for letters, the Surrogate must examine the facts. Thus, where letters of administration had been granted to a peti- tioner as surviving husband of the decedent and proceedings went so far as that he administered the estate and rendered his account therefor, and payment was decreed of the whole surplus to him as such husband by the Surrogate, after which the next of kin appeared and filed a petition alleg- ing that he had never been the husband of the decedent, and asked to have the decree on the accounting and for distribution vacated and set aside, and the assets paid over to the next of kin, the Surrogate inquired into the facts and determined that the administrator was not and never had been the husband of the intestate, but had lived with her only in a meretricious relation, and accordingly revoked the letters and vacated the dedtee on the ground of their having been obtained by fraud and falsehood. The General Term and Court of Appeals affirmed his determination. Mat- ter of Patterson, 29 N. Y. Supp. 451, 79 Hun, 371, aff'd 146 N. Y. 327. In this particular case the petition asked for a vacating of the decree of dis- tribution and the Surrogate not only vacated the decree but revoked the 720 ' surrogates' courts §§ 612, 613 letters. . The General Term denied the Surrogate's right to revoke the letters for the reason that the proceeding was not framed for- such relief, but affirmed the vacating of the decree for distribution. On the appeal to the Court of Appeals, it was claimed that as long as the letters stood un- revoked there remained conclusive proof of the administrator's title as husband until they were vacated in a proper and direct proceeding; the Court of Appeals held, however, that it could have no such effect, but that conceding that the letters should stand as of full force and effect, the vacat- ing of a decree of distribution and the making of a new decree of; distribu- tion to the next of kin was perfectly proper, it being immaterial by whom distribution should be made. See opinion of Finch, J., pages 330. and 331. § 612. Joining third party in administration. — In Matter of Moehring, 24 Misc. 418, followed in Steele v. Leopold, 135 App; Biv. 247, the petitioner, who w_as entitled to letters of administration, with the wiU annexed of the decedent, in making her apphcation therefor asked and consented to have the letters issued jointly to her and to another person who, in his own right would not be entitled to the same. See reasoning by Fitzgerald, Surr. Section 2588 now permits this to be done in intestacy cases, and by the reference to it in § 2603, it is available in administration c. t. a. We refer to the clause: "Administration may be granted to one or more competent persons, jointly with, and upon the application of one entitled." By the next clause, all the persons entitled to take or share who are within the ^State or competent may designate one or more persons not entitled to letters, who may in such case receive them. § 613. Priorities under § 2588.— C. GENERAL LETTERS IN INTESTACY: PRIORITIES The act provides: § 2688. Who entitled to letters Of administraiion. A. Administration in case of intestacy must be granted to the persons entitled to take or share in the personal property, who are competent and will accept the same, in the following order: 1. To the surviving husband or wife. 2. To the children. 3. To the grandchildren. 4. To the father. 6. To the mother. 6. To the brothers. 7. To the sisters. 8. To any other next of kin entitled to share in the distribution of the estate, preference being given to the person entitled to take the largest share in the estate^ except as hereinafter provided. B. If a person entitled to take all the personal estate is an infant, or ap incom- petent, or has died, his guardian, committee or legal representative, as the case may be, shall have a prior right to letters in his place and stead. If all the persons entitled to take the personal estate are infants, or adjudged in- competents, or, if no adult or competent person entitled to take or share in the estate will accept the same, letters may begrapted to, the general guardian ,of. an §613 PROCEDURE ON APPLYING FOR LETTERS 721 infant or to the committee of an incompetent, in the place of such infant or incom- petent. C. If no person entitled to take or share in the estate will accept the same or an appointment is not made by consent as hereinafter provided, then admioistration shall be granted as follows: , a, To the public administrator. b. To the county treasurer of the county, or to the petitioner, in the discretion of the surrogate. c. To any other person or persons. D. If several persons have an equal right to administration, they must be pre- ferred in the following order. First, men to women. Second, relatives of the whole blood to those of the half blood; Third, unmarried women to married. If there are several persons equally entitled to administration, the surrogate may grant letters to one or more of such persons. E. AdministraticSn may be granted to one or more competent persons, jointly with, and upon the application of, a person entitled; or to a competent person or persons not entitled, upon the consent of all of the persons entitled to take or share , in the estate who are within this state and competent, which consent must be in writing, and filed in the office of the surrogate. For the purposes of this section a trust company or other corporation authorized to act as administrator shall be included in the word "person." Former | 2660 of this Code. From 2 R. S. 74, 76 (Part 2, c. 6, tit. 2), §§ 27, 28, 33, 34; L. 1867, c. 782, § 6; L. 1893, c. 686; L. 1894, c. 503; L. 1897, c. 177; L. 1909, c. 65; L. 1913, c, 403. The following provisions have been taken out and reenacted as § 103 of Decedent Estate Law, and are quoted here to avoid confusion by their simple excision without comment: If a surviving husband ddes not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy ; her debts,. and is Uable therefor. A husband is liable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife, uniadministered, except as otherwise provided by law, they pass to his executors or administrators as part of his personal property, but are liable for her debts in preference to' the creditors of the husband. STATUTORY PRIORITY MUST CONTROL Since: the statute fixes the order of priority, the Surrogate must grant letters to the apphcant establishing his priority to the satisfaiction of the Surrogate, unless any of the disabilities pointed out are shown to exist. If several claimants clearly belong to different classes specified in the subdivisions of § 2588, the Surrogate's task is a simple one. He merely adjudicates that the petitioner being in such and such a class has priority over the others. But it is the duty of the Surrogate to actually find that the applicant does belong to the class alleged. For example: WIFE Where, the petitioner claims to be the widow of decedent, the Surrogate may,af the issue be raised, take proof of her actual marriage to the decedent. Matter of'Gerlach, 29 Misc. 90. But, it. has been held that the fact that 722 surrogates' courts § 613 the marriage of the widow of intestate is voidable is no answer to her ap- pUcation for letters unless the marriage has been actually declared void by a court of competent jurisdiction. White v. Lowe, 1 Redf. 376, and cases cited. The rule is stated to be, where the contract of marriage is void ' absolutely, the surviving husband or wife is not entitled to administer, but where it is merely voidable and sentence of nullity has not been de- clared, the right to administer remains. 1 WilUams on Executors, 358. Where, however, it appears that the wife has been divorced, she is not entitled to administration. Estate of Ensign, 103 N. Y. 284, except where the divorce is one which is not valid under the laws of this State, in which case the wife so actually divorced is entitled to letters in preference to one who subsequently to such divorce married the decedent. Matter of House, 20 Civ. Proc. Rep. 131. But if the wife secures a divorce she may not subsequently assert its invalidity in order to get letters. Matter of Swales, 60 App. Div. 599. See Matter of Ward, 50 Misc. 483, where petitioner married decedent, having a former husband Uving. Also Matter of McGarren, 112 App. Div. 503, where petitioner's marriage to decedent had been annulled by Supreme Court. Also Matter of Wells, 123 App. Div. 79, ^ff'd 194 N. Y. 548. In this case A, in good faith, marries. B, who had a wife, C, living; C died, un- known to A and B, who continue to cohabit and hold themselves out as husband and wife. Common-law marriages are valid in State of their domicile. At B's death A is given letters as his widow. And see for complete discussion of law as to presumption from cohabi- tation, opinion by Beckett, Surr., in Matter of Gamer, 59 Misc. 116. See also Matter of Terwilliger, 63 Misc. 479. Separation is not equivalent to divorce. Nor is a release, given under such separation, and referring to husband's property, a release of this statutory priority of right to administer. Matter of Wilson, 92 Hun, 318. See, as to husband's reciprocal rights, next heading. HUSBAND The right of a husband in administration stands on a peculiar basig. See § 103, Dec. Est. Law. At common law the husband was entitled to ad- minister upon the estate of his deceased wife and to retain and own all assets left after the payment of her debts. Barnes v. Underwood, 47 N. Y. 351; Robins v. McClure, 100 N. Y. 328, 333. See also Ransom v. Nichols, 22 N. Y. 110. The development of the legislation on this subject is sum- marized in Matter of Thomas, 33 Misc. 729, where Thomas, Surr., con- struing the effect of former § 2660, citing Matter of Bolton, 159 N. Y. 129, 133; Robins v. McClure, supra; Matter of Nones, 27 Misc. 165; Matter of McLeod, 32 Misc. 229, states after discussing the provision of the statute, 1 R. S. m. p. 75, §§ 29-30, 2 R. S. m. p. 98, § 79, and Laws of 1867, chap. 782, § 11, "it will be observed that no change in the common-law rule in case where a wife leaves no descendants surviving her is attempted and the § 613 PROCEDURE ON APPLYING FOR LETTERS 723 opinion of the court in Robins v. McClure, is largely devoted to showing that the common-law rule in such cases remaiaed, notwithstanding the amendment, in full vigor." And he points out that where married women leave descendants, their estates must be administered by administrators appointed as such. The statutes covering the subject were former §§ 2734 and 2660 of the Code. Section 2734 is now § 100, Decedent Estate Law, and is quoted, -post, under "Distribution." Section 2660, so much as re- lates to this, is now § 103 of Decedent Estate Law and is quoted above. This section provides that, if a surviving husband does not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in his hands suflBcient to satisfy her debts and is liable there- for. If he takes out letters he is Kable as such administrator for her debts only to the extent 'of the assets received by him. The section further provides that, if he dies leaving any assets of his wife's unadministered, excepting as otherwise provided by law, they pass to his executors or administrators as part of his personal property, but are liable for her debts in preference to those due to creditors of the husband. This provision dealing with the unadministered estate of the wife, con- templates both the cases where he does and does not take out letters, for it provides that her estate passes to his representatives as part of his per- sonal property to be administered by them, subject to the payment of her debts. Therefore, it has been held that where a wife leaving no issue, dies intestate, survived by a husband and a brother, and the husband subse- quently dies without administering the estate, letters issued to the brother without notice to the husband's personal repr^entatives were void and would be vacated upon their application. Matter of Thomas, supra. It will be noted that the personal representatives of the husband in such a case are not required to take out letters of administration on the wife's estate, but they have the right to reduce her estate to their possession as part of his personal property. As to divorce of A, the husband, from B, the wife, the effect on the right to administer turns on who was the guilty party. If A was he loses his interest in her property, but if B was his rights are not by the decree impaired. CHILDREN Where one petitions as the child of the decedent, it is a material inquiry whether* the petitioner properly falls within that class. , Ferrie v. Public Administrator, 3 Bradf. 151, 169. Thus an illegitimate child of a woman subsequently married to a man not its father is not legitimatized by such marriage, and is not one of that man's "children" nor entitled to ad- minister under § 2588. Matter of Pfarr, 38 Misc. 223. Legitimacy will be presumed in the absence of proof to the contrary, but if illegitimacy be proved it affects the right to administer. See Matter of Losee, 119 App. Div. 107. The statute entitling the illegitimate to share in the estate of the mother has been held not to affect the right of administration, which 724, surrogates' courts § 613 in default of lawful kin belongs to the successive classes indicated in § 2588. Ferrie v. Public Administrator, supra. Surrogate Bradford held (Public Administrator v. Hughes, 1 Bradf; 125), that where the intestate was an illegitimate child, domiciled in England where she died unmarried, leaving assets in New York City, she could have no legal kindred except lineal descendants, for having, no legal ancestors she could have no collateral relatives, and that consequently a son of her mother was not entitled to administration; and he accordingly granted letters to the public adminis- trator. On appeal in the Pfarr Case, 79 App. Div. 634, the Appellate Court ordered a reference to take further proof on the question of legitimacy. In the Terwilliger Case, 63 Misc. 479, child of a common-law marriage was held a legitimate son. FATHER It is hardly necessary to discuss all the headings of subdivisions of § 2588, but it must be borne in mind in connection with them all that the relation- ship to the intestate giving priority must be the relationship at the time of his death. : For example, in Matter of Seymour, 33 Misc. 271, the intestate at his death left a widow and infant child and also a father, mother, brother, and sister. The widow and child died subsequently, the child first. Now it is clear at the death of the intestate the widow had the priority of right to administration and on the death of the child was entitled to the personal property of the decedent. The father, upon her death, petitioned for letters on the estate of the intestate son, and his application was denied. MOTHER One distinctive feature must be noted here, although the provision appears in former § 2732, under "Order of Distribution" and now known as § 98 of Decedent Estate Law. It is in subd. 9, and ought to be part of §2588. , , ; "If the deceased was illegitimate and leaves a mother [and no child, or descendants, or widow], such mother . . . shall be entitled to letters of administration in exclusion of all other- persons. ... If the mother . . . be dead, the relatives of the deceased on the part of the mother shall . . . be entitled to letters of administration in the same order." OF NEXT OF KIN ENTITLED TO SHARE IN THE DISTRIBUTION OF THE ESTATE This subdivision eight has given rise to considerable controversy. Origi- nally the Revised Statutes provided that administration should be granted to any other next of kin who would be entitled to share in the distribution of the estate, and in Lathrop v. Smith, 24 N. Y. 417, the father of an in- testate renounced and letters were issued to a creditor without citing the brother and the issuance of letters was revoked for the reason that on the renunciation of the father, the brother was next entitled to letters because he would have been entitled to share in the estate upon the death of the § 613 PEOCEDURE ON APPLYING FOR LETTERS 725 father. The court says: "The true construction of the statute would there- fore seem to be that all persons who might be entitled to participate in the distribution of the estate being the relatives or those representing the relatives of the decedent have the first right to administration in the order named in the statute." Section 2588 now reads, however, adminis- tration in case of intestacy "must be granted to the persons entitled to take or share in the personal property." Under former § 2660 it read "relatives . . . entitled to succeed to his personal property," and, in subd. 8, "to any other next of kin entitled to share in the distribution of the estate." It was claimed that this language changed the rule adopted in the Lathrop case. The General Term in the Foiu'th Department in Matter of Wilson, 92 Hun, 318, 321, held that this was not so for the reason that after the decision in the Lathrop case, § 27 of the Revised Statutes was amended by ^ 3 of chap. 362, Laws 1863, by adding the following clause: "This clause shall not be construed to authorize the granting of letters to any relatives not entitled to succeed to the personal estate of the de- cedent as his next of kin at the time of Ms decease." In the Wilson case it was held that this amendment indicated the legislative intent to override the decision in the Lathrop case; but it was again amended by § 6 of chap. 782 of Laws of 1867, leaving out the words added by the amendment of 1863, so the Wilson case holds that the repeal of that amendment indicated the intent to leave the law as the Lathrop case put it. In Matter of Seymour, 33 Misc. 271, Silkman, Surr., declares this decision to have been obiter and holds that the result of the successive amend- ments being to change the original words "would be entitled to share" to the words, "entitled to share" is sufficient indication of the intention of the legislature to finally change the rule adopted in the Lathrop case and accordingly he denied letters to the father of the intestate, who when he died left a widow and child, both of them dying after the decedent, on the ground that the personal property would pass entirely to the widow and must go to her legal representatives. In Matter of Lowenstein, 29 Misc. 722, Varnum, Surr., held under a different set of facts, where the pubHc administrator petitioned for the appointment that, in spite of the amendment of the Code, the rule laid down in Lathrop v. Smith and in Matter of Wilson, is still effective as an authority upon this question and that, therefore, the uncles and aunts and other relatives of the intestate, although not entitled to share in the intestate's estate were persons who under subd. 8 had a right to letters superior to that of the public adminis- trator, citing former § 2663 of the Code, and Butler v. Perrott, 1 Dem.. 9. In this last case, Rollins, Surr., held that a personal right to participate in the distribution of the personal property of an intestate is not an essential qualification of one appljdng as a relative for letters of administration on his estate and held explicitly that' the right to such letters of any person of the blood of the intestate, not disqualified, is superior to that of the public administrator. This case, however, was decided in 1882, and went on the theory that where the legislature reenacts a provision which has been 726 surrogates' courts § 613 construed by the courts, the statute so reenacted is to be deemed an adop- tion by the legislature of such construction; therefore, it would seem that, if the legislature deemed it necessary after the decision of the Lathrop case, to reenact in 1867 the law interpreted by the Court of Appeals elimi- nating the amendment of 1863, then this subsequent amendment of the statute in the form now obtaining in § 2588 is equally significant, and that the decision of the Surrogate of Westchester County in the Seymour case states the correct rule. In Matter of Gilchrist, 37 Misc. 543, in Kings County, the Surrogate held that the public administrator in that county had imder the express provision of former § 2669 priority over next of kin who were not "entitled to a distributive share of the estate of such intes- tate." The fact that this exphoit provision as to the public administrator io Kings County, which was enacted in 1893, gives'that officer priority over next of kin "not entitled to a distributive share of the estate," is significant of the intention of the legislature, in framing a harmonious and consistent scheme, that the next of kin in. other counties should have aright based solely upon their being entitled to share in the estate, and that the sec- tions covering other counties should-be read in the light of such expressions. It must be observed in this connection that the Wilson case is authority for the proposition that where the next of kin would have been entitled to letters, the fact of a release of interest by renunciation or otherwise does not take away their right to letters as against the pubUc adminis- trator. See also Matter of Blake, 60 Misc. 627. In Matter of Haug, 29 Misc. 36, the case involved letters of administration c. t. a. Forrrier § 2643 of the Code provided in subd. 3, "That lacking those priorily entitled, letters should issue to one or more of the next of kin, if competent." Fitz- gerald, Surr., construing this subdivision, held that where the brother of a testator died then the son of the brother is not of the next of kin of the decedent because he is not entitled to share,, "in his own right in the un- bequeathed residue of the estate," and, therefore, the executor of a sole legatee had a prior right under former § 2660 to letters. He based his decision on subd. 12 of former § 2514, which read, "The term next of kin includes all those entitled, under the provisions of law relating to the dis- tribution 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." He held, accordingly, that former § 2660 was applicable to administration with the will annexed, citing Matter of M.oehr- ing, 24 Misc. 418, and that he was not one of the next. of kin within the meaning of former § 2643. \ Heaton, Surr., in Matter of Goggin, 43 Misc. 233, granted letters to ex- ecutor of a sole legatee over the claim of next of kin not entitled to share. He read together former §§ 2660 and 2643. Taking these various sections together and in connection with the defi- nition contained in former § 2514, we find the situation unchanged by the act of 1914. Former §2660 is now 2588; former §2643 is now 2603; former § 2514 is now 2768. § 613 PROCEDURE ON APPLYING FOR LETTERS 727 The words of qualification are "entitled to take or share." Hence the reasonable rule appears to be, that while the general intent _pf the statute is to give persons interested in the estate by relationship prior right of administration in the order of their interests as defined by the statute, yet that its special intent is that where a person,. although related to de- cedent, is not interested in the property, he is to be treated as against the persons specified in the Code as much a stranger as are strangers to the blood. But that such relatives will be preferred to the public adniinistra- tor. Matter of Blake, 60 Misc. 627, Beckett, Surr., citing Adeey. Campbell, 79 N. Y. 52; Matter of Lawensteln, 29 Misc. 722; Butler v. Perrott, 1 Dem. 9. But see Matter of Briasco, 69 Misc. 278, and per contra; Matter of Popp, N. Y. L. J., Nov. 8, 1911. If persons are of different degrees of kinship the nearest is preferred, e. g., niece to grandnephew. Matter ofHawley, 37 Misc. 667. OF MINOKS Former § 2660 provided that if the person entitled is a minor, adminis- tration must be granted to his guardian, if competent, in preference to creditors or other persons. This provision was general and related to all the classes in the section. In Matter of Hudson, 37 Misc. 539, the public administrator claimed the right to administer as against a minor on the ground that former § 2669 gave him prior right where there were no next of kin entitled to a distributive share . . . competent to take out letters. But the new act, § 2588, q. v., requires a totality of interest in the minor or minors in order to a grant of letters to the general guardian as a matter of right. EFFECT OF CONSENT Paragraphs C and E (our own paragraphing) of § 2588 as quoted above permits appointments ^y consent of all persons "entitled to take or share" which needs no discussion, but which must be kept in mind as a means of avoiding controversy or delay. PBIORITY AMONG PERSONS IN SAME CLASS As between various persons belonging to the same class or degree of priority under § 2588, the Surrogate may select, except as noted JDelow, in his discretion such a one of that class as may seem best qualified to ad- minister the estate. But under § 2588 if several persons of the same degree of kindred to -the intestate are entitled to administration they must be preferred in the follo>ving order: First, man to woman; Second, relatives of tjie whole blood to those of the half blood; Third, unmarried women to married. ;^p a ^urroga);ein pursuance of the statute will prefer a son through a non- ri^sidentto a, daughter who is a resident. Lussen v. Timmerman, 4 Pem. 728 surrogates' courts ' § 613 250, Rollins, Surr.; Matter of Droume, 1 Connoly, 163. This mea'ns citizens of United States, not alien nonresidents. Matter of Page, 107 N. Y; 266. But the nonresident must assert his right; for the Surrogate has discre- tion, under § 2590, quoted below, not to cite nonresidents. See Matter of Tyers, 41 Misc. 378. Prior to the Code it was held that male relatives of the intestate under the age of twenty-one years had no prior right to ad- minister through their guardians over female relatives of the same degree of kinship who were of age. Wickmre v. Chapman, 15 Barb. 302. B'ut, in that case, the minor male relatives were nonresidents and the adult female relatives were residents. In another case it was held that the adult mar- ried daughter should be entitled to administer in preferehce to her brother who was a minor, through his guardian. Cottle v. Van Hdi/den, 56 Barb. 622. It has been held' that the provisions in that part of § 2588 following subd. 9 are not intended to modify the priority established by the first nine subdivisions and are intended to apply to cases not covered by those subdivisions. Thus, where an intestate left him surviving a sister and a brother, and the sister was of the whole blood, while, 1;he brother was of the half blood, Surrogate Fitzgerald held that, the priority, of bpother over sister fixed by subds. 5 and 6, was superior to, the priority of relatives of the whole blood to those of the half blood defined in subsequent provi- sions of former § 2660, and granted letters to the half-brother of the intes- tate. Estate of Moran, 5 Misc. 176. This decision is based upon the theory that the provisions of the section preferring among persons of the same degree of kindred of the intestate, man to woman, relatives, of the whole blood to those of the half blood, and unmarried women to married women are so stated in the order of their importance. That is to say that while relatives of the half blood, by which is meant those having but one parent in common (Bouvier's Law Dictionary), are deemed to be of the same de- gree of kindred to the^ intestate as relatives of the whole blood, ?ind are ordinarily to be postponed to the relatives of the whole blood, yet if, of such relatives, some are males and some are females, the former will, be preferred. , .. . Consequently, in view of this decision, the only case in which relatives of the whole blood will be preferred to those of the half blood is a case wliere the intestate dies leaving him surviving none of the individuals mentioned in the first four subdivisions; or none competent to act; but leaves several sisters only, or several brothers only, ofie or more of whom may be of the half blood, but where he leaves both brothers and sisters the first rule of priority, i. e., of male to femalej^ takes precedence of the second rule of priority as to relatives of the whole to those of the half blood. Similarly it would also follow that, where all the persons belonging -to ^ given class are women, as is possible under subds. 2, 6, 7 and 8, immarried women must' be preferred to married women. Matter of Curser, 89 N. "Y. 401. And the fact that, of two women equally related to the intestate, the unmarried one is under twenty-one and the other is over twehty-ttiie, will not affect the priority of the unmarried woman, if she is entitled' to § 614 PROCEDURE ON APPLYING FOR LETTERS 729 all the estate, as there is a provision to the effect that if a person is a minor, administration must be granted to the guardian, if competent. CKEDITOKS The provision as to priority of men to women and unmarried to married women did not formerly relate to creditors, as in regard to them, former § 2660 contained an express provision that as between creditors, the creditor first applying, if otherwise competent, was entitled to preference. But this provision is now omitted. Creditors, therefore, now come in, at the e^d of (our) paragraph C of § 2588, above, subd. c, after the pubhc administrator and county treasurer imder the phrase "any other person or persons" although under § 2589 they may petition and so start the proceeding, and, as petitioner, come in vmder subd. b. § 614. The procedure. — Having treated the nature of the office and estate of the various representatives, and also of the priority of right to be appointed as representative we now come to the formal provisions govern- ing appUcations for letters. As to the petition, reference is always now to be had to § 2521, which, in general terms, relates to every petition in a Smrogate's Court. The contents, as to. jurisdictional facts, must confonn to its requirements. As noted above, if the administration is to be under a will there will be (a) the general apphcation for letters testamentary which is imphcated necessarily in the probate proceeding; (6) the apphcation for letters c. t. a. which is special and recites the probate, and the failure of the will to des^- nate, or of the holder of a power of appointment to act, or the death or renunciation, or failure to qualify of the person named; (c) the apphcation for special letters imder a will, e. g., of testamentary guardianship. It is obvious that where the wiU appoints, rules of priority of right do not apply. Where the apphcation is to involve special priorities the statutory rules govern as to who shall receive letters. They may also prescribe who is to begin the proceeding. Thus § 2589 appKes to administration in intestacy. §2689. Application for letters. A creditor, Or pefeon interested in the estate of an intestate. Or interested in an action brought or about to be brought in which the intestate, if living, would be a proper party. May present to the surrogate's court having jurisdiction, a petition, pra3dng for a decree awarding letters of administration, either to him, or to another person. A citation shall not be issued, and a decree shall not be made where a citation is not necessary, until the petitioner shows to the satisfaction of the surrogate, the existence of all the jurisdictional facts, and particularly that the decedent left no will. Former § 2662 of this Code. From 2 R. S. 74, § 26; L. 1909, c. 184. In view of the provision herein that a citation may not be necessary, which is reiterated in § 2590, it is advisable under § 2521 to so frame the 730 surrogates' courts § 614 averments as to persons interested under subd. 3, as to catalogue them in the order of priority under § 2588. It will be recalled that subd. 3 only calls for the names and post-office addresses "of all the persons interested' . . . who are required to be cited ... or concerning whom the court is required to have information." The careful practitioner, and the one de- sirous to avoid delay, will add the specification as to each such person of his relationship, a,s contemplated by § 2588. If the petition be presented by the surviving husband, he being "competent and willing to act," no one need be cited as having a right prior or equal to his. But if a creditor petition it is obvious he must run the gamut of the whole category in § 2688. This is clear, when we read the next section: § 2690. Citation; proceedings upon return thereof. Every person, being a resident of the state and competent, who has a right to administration prior or equal to that of the petitioner and who has not renounced, must be cited upon a petition for letters of administration; and where the peiiti&ner is not entitled to share in the distribution of the estate there must also be cited all resident infants and adjudged incompetents who are so entitled. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all other persons interested in the estate. Where it is not necessary to cite any person, a decree, granting letters may be made on presentation of the petition. Any person who has a right to administration, prior or equal to that of the peti- tioner, may renounce hia right by a written instrument, acknowledged, or proved, and duly pertified which must be filed in the surrogate's office; except that a public administrator or county treasurer may not renounce his right and may only be excused from acting as such upon his motion duly made and upon an order made and entered thereupon by the surrogate. Former § 2663 of this Code. From 2 R. S. 76, §§ 35, 37; L. 1878, c. 298, § 2, L, 1911, c. 431. If we take a precedent, e. g., the blank furnished in New York County, the scheme of the statute will be made clearer. PEBCBDENT FOR PETITION Surrogate's Court, County of New York. In the Matter of the Application for Letters of Administration on the Goods, Chattels and Credits of Deceased. To the Surrogate's Court of the County of New York: The petition of of , of the County of New York, respectfully shows: That , the above-named decedent, was at the time of h death a resident of , in tihe County of New York, and died at , on the day of ,19 . That your petitioner is of full age and is the of the deceased. That your petitioner has made diligent search and inquiry for [Notes and code references are ours.] 614 PEOCEDURE ON APPLYING FOR LETTERS 731 a will of said deceased and has not found any such will, nor has your petitioner obtained any information concerning any such will. [See §2589.] That a search of the records of this court shows that no ap- plication has ever been made therSto for letters of administra- tion upon the estate of said deceased, or for the probate of a will of said deceased or for letters testamentary thereupon, and your petitioner is informed and verUy believes that no such application has ever been made to the .Surrogate's Court of any other county of this State. [This is to establish' tlie juris- diction to which intestacy is prerequisite.] A. That the said deceased died possessed of certain personal property in the County and State of New York, and that the value of all the personal property, wherever situated, of which the deceased died possessed, does not exceed the sum of Dollars. That the estimated value of the real property in this State, of which said decedent died seized, is Dollars. Or B, if requisite, insert: That a right of action exists granted to the administrator of the decedent by special provision of law, the probable amount to be recovered in which cannot be ascertained and that it is impracticable to give a bond sufficient to cover the probable amount to be recovered ia said action. That said deceased left surviving a ., ' who resides widow at , and the following only next of kin and heirs at law, whose names, degrees of relationship, post-office addresses and ages are as follows: NAME. RELATIONSHIP. POST-OFFICE ADDRESS. AGE. [Note 1. Set them forth in the order followed in § 2588.] [Note 2. Requirements of § 2521 where persons are of a class, or unknown; this may be required, and might as well be set forth at the outset.] That there are no other persons than those mentioned in- terested in this proceeding. That all of the above-named persons are of full age and sound mind, except [Note 3. See again provisions of § 2521 which must be com- plied with.] That said deceased was in his lifetime a ... of the United citizen States. Your petitioner therefore prays ' a decree awarding letters of administration to your "peti- tioner. [Note 4. Section 2589 permits by the word "or to another person" the request, specific of course, in this respect.] Dated, New York, , 19 Petitioner. VERIFICATION County of New York, as.: , the above-named petitioner, being duly sworn, doth depose and say, that he has read the foregoing petition 732 surrogates' courts § 615 subscribed by and knows the contents thereof, and that the same is true to own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters he beUeves it to be true. Subscribed and sworn this day 1 of 19 J OATH OP ADMINISTEATOE County of New York, ss. : I, , do solemnly swear and declare that will well, honestly and faithfully discharge the duties of ad- ministra of the goods, chattels and credits of , deceased, according to law. Sworn before me this day 1 of 19 . j DESIGNATION OF THE CLERK OF THE SURROGATE'S COURT AS A PERSON ON WHOM SERVICE OP PROCESS MAT BE MADE PUR- SUANT TO SECTION 2565, C. C. P. [Note. This is discretionary in the Code, but seems to be generally exacted.]' I, , the petitioner herein for lette^ of adminis- tration on the goods, chattels and credits of , de- ceased, a resident of , do hereby designate the Clerk of the Surrogate's Court and his successor in office as a person on whom service of any process issuing from the Surrogate's Court of the County of New York may be made in like manner and with like effect as if it were served personally upon me, whenever I cannot be found and served within the State of New York after due diligence used. I reside at No. , New York City. State of New YbrkV 1 . County of New York, J On this day of i 19 , before me personally came , to me known to be the individ- ual described in and who executed the foregoing instrument, and he acknowledged to me that he executed the same. § 615. Special provisions — ^Ancillary letters. — Where the application is for ancillary letters, the practice is special. The petition must contain the additional averments. prescribed by § 2632, and the rights of the State to a transfer tax, and of creditors to share in the local fund are thus pro- tected : § 2632. Petition; citation. An application for ancillary letters testamentary, or ancillary letters of adminis- tration, as prescribed in this article, must be made by petition which must set forth the amount of security given on the original appointment, the name and residence of each creditor, or person claiming to be a creditor residing within the state, and the amount of his claim so far as the same may be ascertained. Citation shall thereiipon issue to the state comptroller, and to such creditors, and may issue generally to all creditors or persons claiming to be creditors. Former § 2698 of this Code, modified. From L. 1863, c. 403, §§ 2, 3; L. 1899, 717; L. 1910, c. 234. § 615 PROCEDURE ON APPLYING FOR LETTERS 733 § 2633. Hearing; security. Upon the return of the citation, the surrogate must ascertain, as nearly as he can do so, the amount of debts due or claimed to be due, from the decedent to residents of the state. Before ancillary letters are issued, the person to whoni they are awarded, must qualify, as prescribed for the quahfication of an administrator upon the estate of an intestate; except that the penalty of the bond may, in the discretion of the surro- .gate, be in such a surn, not exceeding twice the amount which appears to be due from the decedent to residents of the state, as will, in the surrogate's opinion, ef- fectually secure the payment of those debts; or the sums which the resident creditors will be entitled to receive, from the persons to whom the letters are issued, upon an accounting and distribution, either within the state, or within the jurisdiction where the principal letters were issued. If however there appear to be no such creditors, or transfer tax assessable, and a citation to show cause why such letters should not issue without a bond, has been directed generally to all creditors within the state and has been dtily served by publication, such letters may issue without a bond. Former § 2699 of this Code. From L. 1863, c. 403, § 1. These two sections underlie both § 2629 which is discussed ante in § 529 and § 2630 discussed in § 536, ante. The discussion already had of the nature of the office and the scope of the duties shows the primary importance of the averments as to local creditors. See Matter of Gennert, 96 App. Div. 8; Estate of Thompson, 1 Civ. Proc. Rep. 264. Section 2632 is boiled down from former § 2698, which required citation to issue unless creditors waived the issuance and service of citation. The omission of this provision does not prevent the expedition of the matter in this way. It may be done under the authority of § 2510, subd. 3, a, b, or c, which apply to "any proceeding." In Matter of McEvoy, 3 Law Bulletin, 31, where there were no creditors, it was held letters could issue without citation or notice. But, this was before the enactment of § 1836a. If the only object of representative status here is to secure assets, and not to pay local creditors that section affords the best remedy. PETITION FOB ANCILLARY LETTERS TESTAMENTARY (OR OF ADMINISTRATION) Where no printed blank is furnished the petition may be substantially as follows: Surrogate's Court, ' ■ County of New York. In the Matter of the Application fpr Ancillary letters testamentary (or of Administration) on the last will and testament of late of State of Deceased. To the Surrogate's Court of the County of New York: The petition of residing at State of respectfully showeth: that your Petitioner is [A.] of said de- ceased. That said deceased was at the time of h death a resident Capital letters in brack- ets refer to our notes below. 734 surrogates' courts § 615 of State of [B.] and departed this life in State of on the day of 19 leaving personal property within this county. That heretofore (i. e., on the day of 19 ) a will of personal property, made by said deceased, was duly admitted to probate by [or letters of administration of the goods, chattels and credits of said decedent were granted to your petitioner {or to ) pursuant to decree duly made and entered by] {here specify the Court definitely) the same being a competent court having jurisdiction in the premises within the State of where the decedent so resided as aforesaid, and where the said will was executed. That said will is filed and recorded (or said letters were duly recorded) in the the same being the proper office therefor, as prescribed by the laws of said State of and the said will, with the proofs and the records thereof, re- mains in said court. That on the day of 19 letters testa- mentary upon the estate of said deceased were duly issued by said court to as execut named in said will [C.]. That an exemplified copy of the will, and of the judgment, decree or order so admitting the same to probate as aforesaid, and also of the said letters {or of said letters of administration and of said decree granting the same), is hereto annexed, and that the same is duly authenticated as required by law [D.]. That petitioner has made diligent search as follows, to wit, by to discover whether any creditors or persons claiming to be creditors of the decedent reside within this State, and he is informed and believes that (feere state the facts so as- certained). {In aiproper case add) That of such creditors all (but ) have filed duly acknowledged waivers of the issuance and service of citation herein [B.]. That the amount of debts due or claimed to be due from the decedent to residents of this State is , dollars or thereabouts, and does not exceed dollars. And that the amount of personal property in this State left by the de- cedent does not exceed in value dollars. That no previous application for ancillary letters • has bpen made in this or any other Surrogate's Court of this State. Your Petitioner therefore prays that said Surrogate (a) issue a citation according to law, (or b) dispense with the issuance of any citation pursuant to the aforesaid waivers, record said ex- emplified copies, and issue thereupon ancillary letters to upon h qualifying as prescribed by law. Dated New Yoi;k City, 19 Petitioner. (Verification.) A. See § 2631 already discussed, as to who may take letters. See § 2630 as to application by "duly authorized attorney-in-fact." B. Nonresidence at time of death is a vital averment. Matter of Gavin, 2 N. Y. Supp. 670. § 615 PROCEDURE ON APPLYING FOR LETTERS 735 C. It seems that the application can be made though letters have not yet actually issued in the foreign state. Matter of Langbein, 1 Dem. 448. P. See Baldvnn v. Rice, 183 N. Y. 55. E. Since the new act protects the transfer tax interest of the State it is ,obvious that the State Comptroller must also be cited or waive. HEARING After the petition is filed and the citation issued and served, and the proofs of service thereof duly presented on or before the return day, the subsequent procedure must follow the course prescribed in § 2633, supra. This section states clearly the purpose of requiring that the creditors and the amount of their respective claims be definitely proved before the Sur- rogate; and it is moreover to the advantage of the ancillary administrator that this be done; for in the absence of satisfactory proof of this character he will be compelled to qualify in a bond for double the value of the prop- erty within this State which he is to administer. If, however, he can prove the amount of the debts due from the decedent to resident creditors the Surrogate may in his discretion require only a bond in a sum not exceed- ing twice the amount of such debts; but if the debts of resident creditors equal an,amount greater than the value of the assets of the decedent which the ancillary representative is to administer, then the bond should not in any case exceed double the amount of the assets within the jurisdiction. Evans v. Schoonmaker, 2 Dem. 249; Goran's Estate, 23 N. Y. Supp. 766. The words in § 2633, in such respect, are " not exceeding twice . . . the sums which the resident creditors will be entitled to receive." It must be borne in mind that the security required in this State is exclusive of and supplemental to the security required of the administrator in chief in the foreign State or country. The Court of Appeals has stated the rule in re- gard to the bonds of ancillary administrators with the reason for such rule in a ruling case. Matter of Prout, 128 N. Y. 70. In that case, where the widow of a decedent who had received the letters from a probate court in New Jersey applied to the Surrogate of Kings County for ancillary letters in this State, the Surrogate made an order that ancillary letters should be granted to her on condition that she should give a bond with sureties to be approved by the Surrogate in a penalty of double the value of that part of the personal estate of which the deceased died possessed within the county of Kings. The Court of Appeals, by Andrews, J., in aflBrming this action of the Surrogate uses the following language: " If the Surrogate had power to impose, as a condition to the granting of .letters ancillary, that the administratrix should give a bond to secure the whole fund which might come to her hands by virtue of such letters, the imposition of the condition was a discreet exercise of such power. The general rule in this and other States requires that the administrator should ..gyje security in double the value of the personal estate of an intestate be- fore assuming the administration. The actual location of the personal estate or of , the securities by which it is represented, is not under our stat- 736 surrogates' cotrRTS § 615 ute material in determining the amount of the bond in a case of pui'ely domestic administration, for the rule that personal property is deemed to follow the person of the owner, fixes the legal possession in the intestate at his place of residence, wherever in fact the property may be. Where the administrator has properly qualiBed and assumed the administration in the State of the domicile, he is invested with the power to receive the debts owing to the intestate and take possession of the securities and give proper acquittances wherever the debtors or securities may be, whether within or without the State. But where the debtor or the securities are in a foreign jurisdiction, and are not voluntarily paid or surrendered to the adminis- trator of the place of the domicile of the intestate, the courts of the foreign jurisdiction will not enforce the recovery of the debts or securities upon his apphcation until he has procured ancillary letters or a new administra- tor has been authorized under the laws of the place where assets may be. It is unnecessary to enter into the reason^ of this rule. They are famihar, and the rule has beelQ frequently recognized. See Parsons v. Lyikan, 20 N. Y. 103; Despard v. ChUrehill, 53 id. 192; In re Hughed, 95 id. 55. HISTORY OF RULE re SECURITY The opinion continues: "The unquestioned rule of the cdmmon law that the succession to and the distribution of the estate of an intestate is governed by the law of the domicile, makes security; there taken on the granting of letters of administration covering the whole personal estate of the intestate, an adequate protection to all parties interested; and where ancillary letters are a,pplied for in another State or jurisdiction, there would not seem to be any necessity that additional security should be required were it hot for another principle almost umversdlly recognized, that the claims of creditors living in a jurisdiction where ancillary letters are sought, are entitled to have their just right in the assets of the intestate secured by a proper bbnd as a condition df granting the application. To this end security is usually required to be given by the applicant for an- cillary administration, enforceable in the tribunals of the pla